THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


REPORTS  OF  CASES 

ARGUED  AND  DETERMINED  IN 

THE  SUPREME  COURT  OP 
SOUTH  CAROLINA 


COVERING 

ALL  THE  CASES  (LAW  AND  EQUITY)  FROM  THE  ORGANIZA- 
TION  OF  THE   COURT    (BAY'S  REPORTS)    UP  TO 
AND   INCLUDING  VOLUME   25   OF  THE 
SOUTH  CAROLINA  REPORTS 


ANNOTATED  EDITION 

UNABRIDGED,  WITH  KEY-NUMBERED  NOTES  AND  REFERENCES  BY  THE 
EDITORIAL  STAFF  OF  THE  NATIONAL  REPORTER  SYSTEM 


BOOK     27 

LINING    A    VERBATIM    REPRH 

VOLS.  3,  4  &  5,  RICHARDSON'S  EQUITY  REPORTS 


CONTAINING    A    VERBATIM    REPRINT    OF 


(O V^lV  KtV  NUMBf  R  SrSTEM^ 


ST.    PAUL 

WEST  PUBLISHING  CO. 

1917 


^7 


Copyright,  1917 

BY 

WEST  PUBLISHING  COMPANY 
(Book  27  S.Car.) 


REPORTS 


OF 


CASES   IN    EQUITY 


ARGUED  AND  DETERMINED  IN  THE 


COURT  OF  APPEALS  AND  COURT  OF  ERRORS 
OF  SOUTH  CAROLINA 


VOLUME  III 

FROM  NOVEMBER,  1850.  TO  MAY.  1851 

BOTH    INCLUSIVE 


By  J.  S.  G.  RICHARDSON 

STATE  REPORTER 


COI.r.MIUA,    S.    C. 
PRINTED  r.V  A.  S.  .lOHNSTON 

isr)2 


ANNOTATED    EDITION 

ST.    PAUL 
WEST  PUBLISHING   CO. 

1U17 


583311 


CHANCELLORS 

DURING  THE  PERIOD  COMPRISED  IN  THIS 
VOLUME 


Hon.  job  JOHNSTON, 
"       BENJ.    F.    DUNKIN, 
"      GEORGE  W.  DARGAN, 
"       F.  H.  WARDLAW. 


3Kich.J=:q.  (vi) 


TABLE  OF  CASES  REPORTED. 


Page 

Atohoson   V.    Robertson lo'J 

Arnold    V.    Mattison IHo 

Itailey  V.  Patterson 150 

r.arksflale  v.  (iainage 271 

r.oiil  V.   Fisher 1 

liowie  V.  Free 4().'{ 

Uriirgs  V.  llolcoinlie IH 

l*>rou<;liton    v.    T<'lfer 4.".1 

lirown  V.  Chesterville  Aeademy  Soc '.'>{\'2 

I'.rowii   V.   Smitli 4(i5 

I'uist    V.    1  )a\ves 2.S1 

Callioim  V.  Furiifsoii KiO 

Clarke  v.  Jenkins :ns 

Clifford  V.   Kea<l L'lS 

("oldin^    V.    l'.adm>r :')t5S 

Collier   V.    Collier ;"..") 

Cooi)er   V.    Tlioniasson 440 

Connts  V.  Clarke 41,S 

(^rossl)y   V.    Smith 244 

1  >iekinson    v.    Way 412 

I  )onnelly  v.   J-]\\art IS 

I'dotman  v.   rendersrass ',V.\ 

I'ootnian  v.   Staggers ;!."> 

1  laninmnd    \-.    Aiken lilt 

Ilastie    V.    r.aker 2()S 

Hay  V.   Hay ;i,s4 

1  li^uenhottoin   v.    I'eyton MtIS 

Holmes   V.    Holmes (51 

Hnll   V.   Hull <;-) 

I  Innt  V.  Cuttino M't7t 

Hunt    \-.    Smitii 4<!.''> 

Inabinit   v.    Inaldiiit .'ITO 

',',  Hk m.Vai.    .  (v 


Johnson  v.  Clarkson. 


Pago 
.  305 


Kinard  v.   Hiers 42.'' 

Kuhtman,  Ex  parte 2;17 

Lesly  V.  Collier 12."» 

Lewis  V.   Price 172 

AIcBurney  v.  Walter,  note 2t>() 

-MeLnre  v.  Yoiiug Z^~^*^ 

Massev,   In   re 1.'. 

Moore  V.  MeWilliams in 

Mnlligan   y.   Wallace Ill 

Murphy    v.    Caldwell 20 

Xix  V.  Ilarley ;'>7!> 

Peyton  v.  Enecks,  note .'i'.i'.t 

Pringle  v.  Kavenel .■!42 

Saekett's   Harbour  Bank  v.  Rlake 22."( 

Skrine  v.   Walker 2(i2 

Smitli   V.   Hunt 4()."'> 

Stacy  y.    I'earson 14S 

Swinton   v.    Eirlestou 201 

Taylor  v.  McUa !»»i 

Telfair  v.  Howe 2.'>.~> 

Temideton    y.    Walker ~A'-\ 

Tluimasson    v.    Kennedy 440 

Thomson    v.    Palmer II'.O 

Thomson  v.   Peyton SOS 

Verdier  v.  McBurney,  note 2(>1 


W- 


V.  H- 


note . 


tit; 

Walker  v.  Crosland 2.'. 

Wheeler    v.    Duiant 4r)2 

Witherspoou,   Ex  parte 13 

ii)t 


CASES   IN   EQUITY 

ABGLKD    AND    DETERMINED   IN    THE 

COURT  OF  APPEALS 

AT  COI.U1MBIA,  SOUTH  CAROLIXA— NOVEMBER  AND 
DECEMBER  TERM,  1850. 


CnAXClCLLOkS    PrIvSENT. 

Hon.  job  JOIIXSTOX, 
"       a  F.  DUXKIX. 

"     a.  w.  dar(;ax. 

"       F.  H.  WARDLAW.  (o) 


3  Rich.  Eq.  ♦! 
*rAT'L  BOFIL  :in(l  Wifr  CAROLIXE.  MAR- 
THA R.  BOFIL.  HARRIET  K.  BOFIL.  v. 
JOHX  FISHER.  SAMUEL  FAIR.  ROB- 
ERT LATTA.  JOHX  J.  KIXSLER.  JOHX 
LOMAS.  ELI  KILLIAX.  JOHX  WHEEL- 
ER, JOHX  A.  CRA'.VFORI).  EDWIX  J 
SCOTT.  JA.MES  L).  TRADEWELL.  JOS- 
EI'H  E.  FRY,  P.EXJAMIX  RAWLS. 
ALEXAXDER  HERBEMOXT,  Jr  MARY 
E.  BOFIL. 

(Columbia.     Nov.   mid   Dec.   Term,   18.10.) 
\  I II fonts  (©==>:!.•;.  I 

'» li;it  the  Court  of  Ecniity  lias  the  power  to 
SHI  tlie  estates,  whether  vested  or  contingent, 
ot  infant  rcinainder-inen.  who  are  jiarties  hefore 
the  (  ourt.  IS  iiiuiuestionahle:  the  Court  also 
lias  the  power  to  bar.  by  its  decree  for  sale  of 
the  property,  the  interests  of  unlioiu  contingent 
reniain<ler-in<'ii.  and  of  eontiiiwut  reniainder- 
luen.  rcsidmi;  abroad,  whose  names  and  places 
ot  residence  are  unknown,  and  who  of  course 
cannot   be   made  parties   before  the   Court. 

jEd.Xote.— Cited  in  Willimau  v.  Holmes,  4 
L_ich.  L(|.  47<;;  Bouknisht  v.  Brown  Id  S  C 
1<0:  I'earson  v.  (\ultoii.  IS  g.  C  nS  •  Lerov 
V  City  Council  of  Charleston.  L*6  S  '  C  7S'- 
Moseley  v.  llankinson.  L"_'  S.  C.  .'{L>'.» ;  De  Leoii 
i;-  J^'";';"- J.''"  J*---  -i-'-:  Faber  v.  Faber.  7ti 
cA  c,-  .V^'ooH'.'^"  S-  ^'^-  ^"":  II""t  V.  Cower. 
HO^S.  C.   &•?,  Gl   S.   E.   2LS.   1L>S   Am.    St.    Rep. 

,.,.^''<^''    otl^^»"    P'lse.s,    see    Infants.    Cent.    Dis     S 
<.b;    Dec.  Dig.  <©=»;«.]  '^    '^ 

I /./■/(•  Ksttitcs  <©=3L'7.J 

In  such  cases,  the  Court  acts  upiui  the  pr-.p- 
erty,  and.  by  the  sale  under  its  decree,  vests  a 
tee-simple  title  lu  the  purchaser;    the  rights  of 

*2 
all  the  parties  in  interest  are  *transferred  from 
the  proi,erty  to  the  fun.l  arising  fr.mi  the  sale, 

('/)   Elected    during   the    term. 


and,  so  far  as  it  is  practicable,  are  protected; 
and  should  the  fund  be  afterwards  lost,  the 
original  rights  of  the  parties  to  the  property  are 
not   ther(>by   revived. 

I  Ed.  Xote.— Cited  in  Powers  v.  Bulhvinkle, 
:.:{  S  C.  801'.  11  S.  E.  971:  Mauldin  v.  Maul- 
din.  101  S.  C.  7,  S5  S.  E.  (;i7. 

For  other  cases,  see  Life  Estates,  Cent.  Dis. 
§  49 ;    Dec.  Dig.  <g=>27.] 
\  Infants  €==30.] 

To  a  bill  for  such  a  sale,  it  is  sufficient,  it 
seems,  if  the  person  holding  the  life  estate,  and 
all  other  persons  in  esse,  who  have  au  interest 
and  are  known,  are  made  parties. 

[Ed.  Xote.— For  other  cases,  see  Infants,  Cent 
l>ig.  SS  S5-S9;    Dec.  Dig.  (®=»39.] 
l/nfiints  <S=o9.1 

The  order  for  .sale  is  a  matter  of  discretion 
with  the  Court,  and  may  be  confined  to  a  part 
only  of   the   property. 

_  I  Ed.  Xote.— Cited  in  Kolb  v.  Booth,  80  S  C, 
;)10.  (Jl  S.  E.  941.'. 

For  other  cases,  see  Infants.  Cent.  Dig.  §S 
S;>-89;    Dec.  Dig.  <®=d.39.] 

I  This  case  is  also  cited  in  K(db  v.  Booth.  80  S. 
C.  511.  01  S.  E.  941'.  that  where  life  tenant 
is  niiprovident  the  court  may  direct  invest- 
ment of  principal  fund.] 

Before 
1850. 

Everything  noces.sary  to  a  full  understand- 
ing of  this  ca.se,  i.s  stated  in  the  oi»inion  de- 
livered in  the  Court  of  Appeals. 

^V.  F.  DeSaussure,  for  tlie  appellaut. 
Tradeweli,  contra, 

DARfJAX,  Ch.,  delivered  the  opinion  of  the 
court. 

The  late  Xicholas  Ilerbeinont,  by  his  will, 
dated  the  3rd  of  September,  A.  D.  1830,  de- 


Dargan,    Ch.,    at    Columbia,   June, 


€=DFor  other  ca.es  see  same  topic  and  KEY-x\UMBER  in  all  Key-Numbered  Digests  and  Indexes 
i»  IvICII.iliQ. — X 


*2 


3  RICHARDSON'S  EQUITY  REPORTS 


vised  and  bequeathed  his  whole  estate,  real 
and  personal,  after  the  death  of  his  ^vife,  to 
his  grand-son,  Paul  Bofil,  during  his  life,  to 
be  put  in  his  possession  when  he  should  at- 
tain the  age  of  twenty-one  years.  The  will 
further  provides:  "should  he  (Paul  Bofil)  die, 
leaving  a  wife  and  children  alive  at  the  time 
of  his  death,  I  devise  and  bequeath  one- 
fourth  of  said  estate  to  his  wife,  and  the 
remaining  three-fourths  to  his  child  or  chil- 
dren, including  the  descendants  of  any  one 
that  may  have  died  before  him.  Should  the 
said  Paul  Bofil  die,  leaving  no  widow,  I  de- 
vise u*i  whole  of  my  estate  to  his  children 
living  at  his  death,  including  the  descendants 
of  any  that  may  have  died  during  his  life. 
Should  he  die,  leaAing  no  children  or  de- 
scendants living  at  his  death,  I  devise  and 
bequeath  to  his  widow  one-fourth,  and  the 
remaining  three-fourths  I  devise  and  be- 
(liieath  as  follows:  to  wit,  one-half  to  my 
grand-son,  Alexander  Herbemont,  and  such 
other  children  as  my  son  Alexander,  by  his 
present  or  any  future  marriage,  may  have 
living  at  that  period,  and  the  descendants  of 
any  that  may  ha^  e  died ;  and  the  other  half 
to  such  of  my  relations  in  France,  then  liv- 
ing, as  may  be  entitled  to  inherit  from  me  as 

*3 

next  of  kin,  ^according  to  the  laws  of  this 
State,  if  I  had  died  without  lineal  descend- 
ants. To  give  effect  to  this  bequest,  I  direct 
that  the  half  thus  allotted  to  them  be  taken 
from  the  personal  property,  as  they  cannot 
hold  real  estate." 

"If  the  said  Paul  Bofil  should  die,  leaving 
neither  wife  nor  child,  nor  other  lineal  de- 
scendants alive  at  the  time  of  his  death,  then 
the  provision  made  for  his  widow,  in  the  last 
clause  above,  I  devise  and  bequeath  as  the 
other  property  mentioned  in  that  clause." 

By  the  seventh  clause  of  the  second  codicil, 
the  testator  directs  that  the  following  words 
be  added  to  the  foregoing  clause,  at  the  end 
thereof,  to  wit:  "So  that  my  said  grand-son 
shall  take  absolutely  one-half  of  my  whole 
estate,  and  my  next  of  kin  in  France  shall 
take  the  other  half." 

When  Paul  Bofil  attained  the  age  of 
twenty-one  years,  he  was  put  in  possession 
of  the  property,  according  to  the  directions 
of  the  will.  Having  become  largely  indebted, 
judgments  were  recovered  against  him,  and 
executions  lodged,  by  virtue  of  which,  his 
life  estate  in  the  greater  portion  of  the  prop- 
erty left  to  him  by  his  grand-father,  has 
been  sold  by  the  sheriff.  The  sales  by  the 
sheriff,  and  the  voluntary  sales  by  Paul  Bofil 
himself,  embrace  all  the  real  estate ;  and  the 
personal  property  has  been  entirely  dissipat- 
ed. Paul  Bofil  has  contracted  matrimony, 
and  has  a  wife,  who  is  living,  and  .several 
children,  who  are  infants,  all  of  whom,  with 
the  wife,  are  parties  in  pi-oper  form  to  these 
proceedings.  Having  wasted  his  entire  estate, 
and  having  no  profession  or  trade,  he  is  uu- 
2 


der  the  necessity  of  earning  a  scanty  sub- 
sistence for  himself  and  family,  by  his  wages 
as  a  common  laborer.  They  are  reduced  to 
the  lowest  state  of  poverty  and  destitution. 
And  the  children,  with  a  comfortable  estate 
in  expectancy,  contingent  upon  the  death  of 
their  father,  are,  in  the  mean  time,  suffering 
from  hunger  and  nakedness,  and  are  being 
brought  up  without  education,  either  mental 
or  moral. 

The  sales  by  the  sheriff,  as  well  as  those 

made  voluntarily  by  Bofil  himself,   were  at 

very  inadequate  prices,  when  the  prices  are 

considered  in  reference  to  the  fee-simple  val- 

*4 

ue  of  the  pro*perty.  But  the  real  estate  con- 
sists principally  of  unimproved  lots  in  the 
town  of  Columbia,  with  several  tracts  of 
land  in  the  district  of  Richland.  The  pur- 
chasers cannot  with  any  safety  or  prudence 
improve  real  estate,  the  title  of  ^^■hich,  as  to 
duration,  is  so  uncertain.  Undei'  these  cir- 
cumstances, the  purchasers  of  these  lots  and 
lands,  who  are  parties  to  this  bill,  are  willing 
to  surrender  their  titles,  on  having  the  pur- 
chase money  repaid  to  them ;  provided  the 
Court  will  undertake  to  sell  the  fee-simple 
of  the  property,  and,  from  the  fund  thence 
arising,  to  repay  the  purchase  money  with 
the  cost  of  the  proceedings,  and  from  the 
residue,  create  a  fund  from  the  interest  or 
dividends,  on  which  a  present  suii])ort  may 
be  provided  for  the  support  and  maintenance 
of  Paul  Bofil  and  family.  The  Bofils  and  the 
purchasers  of  the  property  who  hold  a  life 
estate,  concur,  and  the  guardian  ad  litem  of 
the  infant  parties  deem  it  advisable  and 
greatly  to  the  interest  and  comfort  of  the 
family,  that  the  prayer  of  the  bill  should  be 
granted. 

The  cause  was  heard  at  June  Term,  1S50. 
The  presiding  Chancellor  ordered  it  to  be  re- 
ferred to  the  Commissioner  to  report  upon 
the  facts,  and  the  Conmiissioner  at  the  same 
Term  submitted  his  report,  in  Avliich  'he 
states  the  prices  at  which  the  different  lots 
and  tracts  of  land  were  sold,  and  their  esti- 
mated present  value,  which  he  arrives  at  by 
the  examination  of  testimony.  From  this 
report  it  appears  that  the  present  estimated 
\alue  of  the  f(^e  in  the  lots  and  tracts  very 
far  exceeds  the  prices  for  which  the  estate 
of  Bofil  in  the  same  has  heretofore  been 
sold  either  by  the  sheriff  or  himself.  It  thus 
appears,  that  by  the  sale  of  only  a  portion 
of  the  estate  in  fee,  a  fund  could  be  raised 
by  which  the  prices  paid  by  the  purchasers, 
(which  they  are  now  willing  to  take  without 
interest,)  could  be  refunded  to  them,  leaving 
a  balance  that  might  be  invested  for  the 
benefit  of  Bofil  and  his  family,  yield  them  a 
permanent  and  comfortable  support,  and  at 
the  same  time  be  preserved,  to  be  bereafter- 
wards  disposed  of  according  to  the  directions 
of  the  will  of  Nicholas  Herbemont. 

Under    these    circumstances,    the    Circuit 


BOFIL  V.  FISHER 


Court  docrood  a  salt'  *iii  foe  of  certain  lots 
and  jiortious  of  the  said  real  estate  desiKuat- 
ed  in  the  decree,  ainunj,'  to  raise  the  sum  of 
ten  thousand  dollars,  or  thereahouts,  to  he 
invested  for  the  i>uri>oses  and  in  the  manner 
prescribed  in  the  circuit  decree,  the  partic- 
ulars of  which  are  not  necessary  to  the  full 
iniderstandiiij;  and  decision  of  this  appeal. 

From  this  decree  an  appejil  has  heen  tak- 
en on  the  part  of  Mary  J.  Bolil.  one  of  the 
defendants,  and  an  infant  child  of  Paul  Bolil. 
who  moves  to  reverse  the  decree,  on  the 
ground  "that  this  Court  has  not  jurisdiction 
or  autliority  to  order  the  sale  of  her  contin- 
>,'ent  interest  in  the  estate  devised  to  her  hy 
her  grand-father,  nor  of  the  interest  of  such 
other  children  as  Paul  BoHl  may  hereafter 
have,  and  who  may  be  living  at  his  death; 
nor  of  the  interest  of  the  contingent  remain- 
der-men in  France,  who  are  not  parties;  and 
that  the  purchaser  can  actpiire  no  valid  title 
in  fee  to  the  premises  which  may  he  sold  un- 
der such  circumstances." 

The  appeal  brings  up  a  great  and  important 
(luestion.  which  was  much  di.scus.sed,  but 
which  was  left  undecided,  in  the  case  of  Van 
rxnv  V.  Parr,  (2  Rich.  Eq.  321.)  It  is  a  mat- 
ter of  great  surprise,  that  a  (piestion  like  this, 
constantly  arising  or  likely  to  arise  out  of  the 
daily  transactions  in  the  Court  of  Etpiity, 
should  have  been  so  long  deferred. 

If.  under  the  circumstances  of  this  case,  an 
•  •rder  for  sale  in  Chancery  should  be  insnffi- 
cient  to  conf(.r  a  valid  title  ui)on  the  pur- 
chaser, I  apprehend  the  title  to  an  inconceiv- 
able amount  of  property  in  South  Carolina 
would  be  put  in  peril.  And  were  there 
stronger  reasons  than  do  actually  exist,  to 
doubt  the  authority  of  this  jurisdicti(.n  in'the 
particular  m«'ntioned.  the  Court  would  hesi- 
tate long  before  it  would  announce  a  judg- 
ment which  would  shake,  perhaps,  one-fourth 
of  the  titles  in  the  State. 

The  dlfliculty,  if  any  exi.sts,  does  not  lie  in 
the  tirst  branch  of  the  appeal,  which  relates 
to  the  right  of  the  Court  to  sell  the  contin- 
gent interest  of  Mary  J.  lioHl,  who  is  an  In- 
fant child  of  Paul  Bofil.  and  a  party  defend- 
ant, by  guardian  ad  litem,  to  the  bill.  The 
light  of  the  Court  to  sell  either  the  vested 

*6 
or  contin*gent  estates  of  infanls,  who  can 
be  and  are  properly  mad(>  partit-s  before  it, 
cannot  at  this  day  be  qnestioned.  Put  the 
question  is.  whether  the  Court  has  the  pow- 
er, by  its  decrees,  to  alienate  the  contingent 
titles  of  unborn  remaiiider-nien.  who.  from 
the  nature  of  things,  cannot  be  made  par- 
lies, or  be  represented  in  tlu'  procetMlings  be- 
fore the  Court;  or  to  alienate  the  coiitument 
titles  of  persons,  who,  though  in  es.se,  are 
resident  in  other  States,  or  in  foreign  lands, 
whose  residences  and  even  whose  names  are 
unknown. 

To  say  that  the  Court  could  not  under  cir- 
cumstances like  these  convey  away  the  fee, 


I  would  be  to  as.sert  a  doctrine  that  would  ren- 
der conditional  lindtations  and  contingent  re- 
mainders  an    intolerable   evil    to   a    growing 
and  prosperous  connuunity.    Thus  to  shackle 
estates   without   the  power  of  relief,   unless 
every  i>er.son  having  a  <-ontingent  and  po.><sibie 
interest   could   be   brought   before  the  Court, 
as  a  party  comiilainant  or  defendant,  accord- 
ing to  the  usual  forms  and  ordinary  practice 
of  the  Court,  would  be  to  .-sacrifice  the  rights 
and    interests   of   the   present   generation   to 
tho.se  of  posterity,  and  of  citizens  to  aliens. 
If  the  whole   ijroperty  of  the  country  were 
thus  situated,  it  is  obvious  that  all  iiiiprove- 
ment  and  advance  would  be  completely  check- 
ed.    And  this  check  upon  progress  and   im- 
provement would  be  in  direct  proportion  to 
the  extent  to  which  this  .state  of  things  exists. 
The   case  before  the  Court   is  an   apt  illus- 
tration.    Here  are  valuable  unimproved  lots, 
in  a  thriving  and  prosperous  town,  which  the 
lil'e-tenant  cannot  with  a  due  regard  to  his  in- 
terest improve,  and  the  remainder-men  can- 
not, because  their  rights  are  contingent  and 
may    never    vest.      Here   also   is   a   suffering 
family,  who  may  obtain  relief  by  the  action 
of  the  Court.     And  they  are  the  first  objects 
of  the  testator's  bounty.     Is  there  no  power 
in  the  State,  by  which  the  titles  of  e.states 
may  be  unfettered  from  the  contingent  claims 
of  unborn    remainder-men.   and   their   rights 
not   extinguished,   but   transferred   from   the 
property  it.self  to   a   fund   arising  from   the 
sale  of  the  projterty?     I  think  there  should 
be;    I  think  there  is. 
The  rules  of  practice  in  this  Court  as  to 
♦7 
parties  are  rules   *adopted   for  convenience, 
and  are  oftentimes  matters  of  discretion.     If 
all  persons  interested,  who  can  be  made  par- 
ties, are  brought  before  the  Court,  it  is  sufh- 
cient.     The   Court    will   go   on   and    try   the 
cause,  though  it  should  appear  that  persons 
having  more  remote  interests  are  not  repre- 
sented. 

lUit  will  the  decrtv  of  the  Court  conclude 
the  rights  of  parties  who  are  not  before  it? 
In  some  cases  it  will.  In  cases  like  the  pres- 
ent it  will.  The  Court  hy  its  decree  acts  on 
the  property  and  disposes  of  that;  while  the 
fund  arising  from  the  sale  is  to  be  managed 
under  the  direction  of  the  Court,  in  its  admin- 
istrative department.  The  rights  of  all  the 
parties  in  interest  will  be  transferred  from 
the  property  to  the  fund,  and  will  be  protect- 
ed i)y  the  Court,  so  far  as  that  is  practicable. 
Nevertheless,  if  by  maladministration,  the 
faithlessness  of  the  oflicers  of  the  Court,  or  by 
any  of  the  untoward  accidents  of  life,  the 
fund  should  be  lost,  the  original  rights  of 
the  parties  to  the  proi)erty  are  not  thereby 
revived,  but  they  are  concluded.  The  com- 
pensation to  them  is  their  interest  in  the 
fund  arising  from  the  .sale,  which  the  Court 
always  means  to  preserve,  and  to  administer 
according  to  the  scheme  of  settlement. 

It  is  uecessary  to  the  best  interests  of  so- 


^1 


3  RICHARDSON'S  EQUITY  REPORTS 


ciety,  as  I  have  before  intimated,  tliat  tliere 
should  be  a  power  lodged  in  some  judicial 
tribunal,  authorized,  in  certain  exigencies,  to 
unfetter  the  titles  of  estates ;  otherwise  they 
might  be  shackled  to  an  inconvenient  extent. 
In  England,  the  tenant  for  life,  by  suffering 
fine  and  recovery,  in  which  he  alone  is  a  par- 
ty, may  cut  off  all  contingent  limitations  and 
remainders.  In  that  country,  Courts  of 
Equity  are  in  the  habit,  under  certain  exigen- 
cies, of  doing  the  same  thing  in  respect  to  the 
title,  but  with  a  more  just  regard  to  the 
rights  of  the  remainder-men;  for  when  that 
Court,  by  a  sale,  divests  the  title  of  the  con- 
tingent remainder-men  in  the  property,  it 
preserves  for  them  the  fund. 

Upon  the  principle  that  in  an  estate  tail 
the  tenant  for  life  is  the  representative  of 
all  those  who  are  to  succeed  him  in  the  en- 
joyment of  the  estate,  (who  take  through  him 
derivatively,  and  by  inheritance,)  it  is  held 

*8 
sufficient  in  England,  in  all  ques*tlons  affect- 
ing the  title  to  the  estate,  to  make  the  ten- 
ant for  life  a  party,  when  no  other  person 
in  esse  is  to  be  found  having  an  interest.  In 
Giftard  v.  Hort,  (1  Sch.  &  Lef.  408,)  Lord 
Redesdale  says:  "Courts  of  Equity  have  de- 
termined, on  grounds  of  high  expediency,  that 
it  is  sufficient  to  bring  before  the  Court  the 
fii-st  tenant  in  tail  in  being,  and  if  there  be 
no  tenant  in  tail  in  being,  the  first  person 
entitled  to  the  inheritance,  and  if  no  such 
person,  then  the  tenant  for  life."  He  fur- 
ther says:  "it  has  been  repeatedly  determin- 
ed, that  if  there  be  tenant  for  life,  remainder 
to  his  first  son  in  tail,  remainder  over,  and 
he  is  brought  before  the  Court  before  he  has 
issue,  the  contingent  remainder-men  are  bar- 
red. This  is  now  considered  the  settled  rule 
of  Courts  of  Equity,  and  of  necessity ;  and 
the  danger  of  holding  otherwise  in  the  pres- 
ent case,  would  induce  me  to  hesitate  very 
much,  even  if  I  thought  that  there  was  less 
authority  on  the  subject." 

In  the  case  now  before  the  Court,  there  ai'e 
no  persons  having  any  vested  interest  or  title 
in  the  property,  except  the  purchasers  of 
Paul  Bofil's  life  estate ;  and  they,  with  Bofil, 
and  every  other  person  in  esse  who  has  a  pos- 
sible future  interest  in  the  estate,  except 
the  relations  in  France,  (whose  names  and 
very  existence  are  unknown,)  are  made  par- 
ties to  these  proceedings  in  proper  form. 
This  is  deemed  by  the  Court  entirely  suffi- 
cient to  authorize  it  to  act,  and  make  the 
titles  of  the  purchasers  valid  under  the  sale 
that  has  been  ordered. 

The  other  ground  of  appeal  is,  "because  the 
order  did  not  embrace  all  the  lands  devised 
to  Paul  Bofil  by  fhe  testator,  Nicholas  Herbe- 
mont."  The  order  for  the  sale  was  a  matter 
4 


of  discretion  for  the  Court.  The  object  of  the 
Chancellor  was  to  raise  a  fund,  the  interest 
or  income  of  which  would  be  sufficient  to 
yield  a  present  and  comfortable  support  to 
Paul  Bofil  and  his  family.  And  as  the  lots, 
omitted  in  the  order  of  sale,  are  at  present 
not  valuable,  and  the  difference  in  the  price 
given  for  the  life  estate  and  the  fee  simple 
value  not  very  great,  and  as  the  said  lots 
may  be  much  appreciated  in  value  by  the 
time  the  estate  of  the  remainder-men  falls  in, 
this  Court  thinks  that  the  discretion  of  the 
Chancellor   was  properly  exercised  in  omit- 

*9 
ting  *said  lots  in  the  order  for  sale.  Never- 
theless, leave  is  hereby  given  to  the  parties 
to  apply,  at  the  foot  of  this  decree,  at  any 
time  hereafter,  for  an  order  for  the  sale  of 
said  omitted  lots;  it  being  incumbent  upon 
the  parties  so  applying,  to  make  out  a  case 
proper  for  the  interference  of  the  Court. 

The  order  of  sale  by  the  Circuit  Court  is 
unconditional.  A  peremptory  sale  of  the 
lots  and  land  might  be  attended  with  a  sacri- 
fice. They  might,  under  these  circumstances, 
be  sold  for  much  less  than  the  estimated 
value.  The  whole  object  of  the  sale  might 
thus  be  defeated,  and  the  interests  of  the 
remaindermen  sacrificed  and  lost,  without 
any  adequate  compensation  for  their  rights 
in  the  property.  It  is  most  expedient,  there- 
fore, that  the  property  should  not  be  offered 
at  a  peremptory  sale,  but  that  the  Commis- 
sioner should  otter  each  lot  and  tract  of 
land  at  the  estimated  price  or  value  named 
in  his  report  as  the  first  bid,  to  be  knocked 
off  at  that  sum  if  there  should  be  no  higher 
bid.  The  decree  must  be  modified  in  con- 
formity with  these  views.  And  it  is  so  or- 
dered and  decreed. 

From  the  great  improvidence  of  Paul  Bofil, 
it  appears  to  this  Court  that  it  would  be  im- 
proper to  entrust  him  with  the  administra- 
tion and  disbursement  of  the  dividends  aris- 
ing from  the  fund.  So  nuich  of  the  circuit 
decree  as  directs  the  mode  of  investment, 
and  that  the  dividends  be  paid  on  the  joint 
application  and  receipt  of  Paul  Bofil  and 
wife,  nuist  be  rescinded ;  and  it  is  so  ordered 
and  decreed.  It  is  further  ordered  that  the 
Commissioner  report  a  scheme  for  the  in- 
vestment and  preservation  of  the  capital 
fund,  and  for  the  prudent  disbursement  of 
the  annual  income  arising  therefrom. 

It  is  further  ordered  and  decreed  that  the 
appeal  be  dismissed,  and  that  the  circuit  de- 
cree, with  the  modifications  above  declared, 
be  affirmed. 

JOHNSTON,   DUNKIN,  and  WARDLAW, 

CC,   concurred. 
Decree  modified. 


MOORE  V.  M(  WILLIAMS 


*12 


3  Rich.  Eq.  *I0 

♦THOMAS   MOOliK   and   Wifr  and   Others   v. 

ALKX.  McWILLIAMS  and  Otlnrs. 

(Cdlutnbiii.      Nov.   au  1   Dec.   IVrni,   1850.) 

[iri7/.^  (©=.11(5,  71'_'.  Slif).! 

I  iidtT  tlic  Stat.  L'r>  (ieo.  2,  of  fcirt-e  in  tlii.s 
IStntf,  all  devises  and  btM|uests  to  an  atte.stinj; 
witness.  <ir  to  tlie  wife  of  an  attf.stin^  witness, 
to  a  will.  dispnsinL'  of  real  and  i>ersonal  prop- 
erty, arc  null  and  void;  the  witness  is  conipc- 
teut ;  the  other  parts  if  the  will  stand  Rood; 
the  property  endiraced  in  the  void  devises  is  dis- 
tributable as  intestate  jtroperty;  and  the  wit- 
ness, if  he  be  an  heir,  is  entitled  to  his  dis- 
tributive share  of  the  same. 

|Hd.  Note.— Cited  in  Noble  v.  Burnett.  10 
Rich.  GliO. 

For  other  cases,  see  Wills.  Cent.  Dig.  §§  2S7, 
lG!i;].  I'llKS;    Dec.  Dis-  <S=11«.  712,  Stio.] 

liefore  I)arj;aii,  Cb.,  at  Laurens,  June, 
184U. 

From  the  lircuit  decree  in  this  case,  some 
of  the  parties  ai>i)enled,  and  now  moved  this 
Court  that  the  decree  be  reversed. 

Sullivan,  for  the  motion. 
Irby,  contra. 

DARGAN.  Ch..  delivered  the  opinion  of  the 
Court. 

This  is  a  bill  for  the  partition  of  a  cer- 
tain portion  of  the  real  estate  (if  Samuel 
McWillianis,  among  the  devisees  named  in 
his  will.  The  will  disposes  of  both  real  and 
personal  property,  but  n»)  question  arises  in 
this  case  as  to  the  personalty. 

The  testator  i;ave  to  his  son,  Alex.  McWil- 
lianis, all  his  real  estate  lyinj;  west  of  Cane 
Creek,  to  have  and  to  hold  forever.  He 
then  declares  as  follows:  "all  the  rest  of  my 
estate,  both  real  and  personal,  of  what  na- 
ture and  quality  soever  it  may  be,  not  herein 
before  particularly  disposed  of,  I  desire  may 
be  s(jld  and  eciually  divided  amonj;  my  sev- 
eral children,"  \:c.  It  was  for  the  partition 
of  the  lands  embraced  under  the  last  ([uoted 
clause,  that  this  bill  was  tiled. 

The  principal  (piestion  in  the  case  relates 
to  the  validity  of  the  will.  Ry  some  of  the 
parties  it  is  contended  that  the  will  is  void 
for  the  want  of  the  lesjal  attestation,  and 
that  the  lands  described  in  the  bill  are  to  be 
distributed  as  intistate  property.  The  fact* 
as  to  the  attestation  are  these.  There  were 
four  subscribing  witnesses  to  the  will,  name- 
ly, .Joseph  r.all,  William  McCJowen,  Mary 
AlcWilliams  and  Pleasant  Newby.  The  first 
*11 

*i.s  the  only  witness  whose  competency  is 
not  contested.  I'leasant  Newby  atlixed  his 
signature  to  the  will,  as  a  subscribing  wit- 
ness, at  the  distance  of  two  miles  from  the 
presence  of  the  testator.  His  signature  is 
of  course  a  nullity.  Mary  McWillianis  is 
the  daughter  of  the  testator,  and  one  of  the 
devisees  and  legatees  under  the  will,  and 
William  Mc(Jowen  is  the  husband  of  one  of 


the  testator's  «»ther  daughters,  who  is  also 
one  of  the  devisees  and  legatees.  If  Mary 
McWilliams  and  AVilliani  McCJowen  are  not 
incompetent  witnesses,  the  will  is  valid,  and 
a  partition  of  the  land  must  be  ordered  under 
the  provisions  of  the  will.  The  presiding 
Chancellor  de<ided  that  the  devises  and  leg- 
acies to  Mary  McWilliams.  and  the  wife  of 
William  Mc(;o\van.  were  void  under  the  Stat- 
ute of  the  25  (ieo.  2.  ch.  0;  that  they  were 
thus  rendered  competent  as  subscribing  wit- 
nes.ses.  (having  no  interest  under  the  will,) 
and  that,  therefore,  the  will  was  valid.  He 
ordered  a  partition  of  the  lands  embraced  in 
the  general  devise  of  the  will,  among  all  the 
testator's  children,  except  Mary  McWilliams 
and  Mrs.  McGowen.  whom  he  excluded.  And 
this  is  an  appeal  from  that  decree,  on  the 
ground  "that  the  supposed  will  of  Sanmel 
McWilliams  is  void  for  want  of  execution, 
according  to  the  provisions  of  the  statute  in 
such  case  made  and  provided." 

The  Statute  25  (Jeo.  2.  ch.  (!,  has  been  at 
various  times  acknowledged  to  be  of  force  iu 
South  Carolina  by  Legislative  enactments, 
and  in  judicial  oiiinions  and  proceedings. 
For  the  history,  time  and  maimer  of  these  leg- 
islative and  judicial  recognitions,  see  Taylor 
V.  Taylor,  (1  Rich.  5.'{l.l  in  which  the  statute 
of  Geo.  was  authoritatively  re<-ognized.  See 
also   Workman   v.   Dominick,   (3    Strob.  589.) 

The  first  enacting  clause  in  the  Stat.  25 
Geo.  2,  is  as  follows:  "that  if  any  person  shall 
attest  the  execution  of  any  will  or  ctnlicil 
which  shall  be  made  after  the  twenty-fourth 
day  of  June,  in  the  year  of  our  Ix)rd  one 
thousand  seven  hundred  and  fifty-two,  to 
whom  any  beneficial  devise,  legacy,  estate, 
interest,  gift  or  appointment,  of  or  affecting 
any  real  or  personal  estate,  other  than  and 
except    charges    on     lands,    tenements    and 

*12 
hereditaments,  *for  payment  of  any  debt  or 
debts,  shall  be  thereby  given  or  made,  such 
devise,  legacy,  estate,  interest,  gift,  or  ap- 
pointment .shall,  so  far  only  as  concerns  such 
person  attesting  the  execution  of  such  will 
or  codicil,  or  any  person  claiming  under  him, 
be  utterly  null  and  void;  and  such  person 
shall  be  admitted  as  a  witness  to  the  execu- 
tion of  such  will  or  codicil,  within  the  intent 
of  said  Act.  (2it  Charles  the  second.)  notwith- 
standing su<h  devise,  legacy,  estate,  interest, 
gift  or  appointment  mentioned  in  such  will 
or  codicil,"  (2  Stat.  580.) 

I'nder  the  provisions  of  this  Act.  there  can 
be  no  doubt  as  to  the  validity  of  Samuel  Mc- 
William's  will.  The  devises  and  legacies  to 
Mary  M<-Williams  and  Mrs.  McCiowen  are 
void.  They  are  expunged  and  stricken  out 
of  the  will.  The  case  is  to  be  considered  as 
if  they  never  had  been  inserted.  The  objec- 
tion as  to  their  incompetency  from  interest, 
is  thus  entirely  removed,  and  there  is  no 
other  objection  against  them  as  subscribing 
witnesses.      All   the   other   jiarts   of   the   will 


^z^FoT  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


*12 


3  EICHARDSOXS  EQUITY  REPORTS 


stand.  That  alone  is  void  wliicli  attempts  to 
give  a  benefit  to  a  subscribing  witness. 

There  is  a  point  involved  in  the  case, 
which  has  been  overlooked  in  the  discussion 
both  in  this  Court  and  in  the  Circuit  Court. 
The  decree  of  the  Circuit  Court  gives  the 
property  embraced  in  the  void  devises,  to  be 
divided  among  those  of  the  testator's  chil- 
dren whose  devises  were  not  void.  This  is 
erroneous.  The  lands  embraced  in  the  void 
devises  are  intestate  property,  and  must  be 
divided  as  such.  In  regard  to  this,  all  the 
children  are  equally  entitled,  as  well  those 
Avhose  devises  were  void,  as  those  whose  de- 
Tises  are  valid.  And  the  circuit  decree  must 
l)e   modified   accordingly. 

It  is  ordered  and  decreed  that  the  lands 
■embraced  in  the  void  devises  to  Mary  McWil- 
liams  and  Mrs.  McGowen,  be  divided  among 
all  the  children  of  Samuel  McWilliams,  as 
in  cases  of  intestacy.  In  all  other  respects 
the  circuit  decree  is  affirmed,  and  the  appeal 
dismissed. 

JOHNSTON  and  DUNKIN,  CC,  concurred. 
Decree  modified. 


3  Rich.  Eq.  *I3 
*Ex  parte.— THE  COMMISSIONER  IN  EQUI- 
TY FOR  LANCASTER  DISTRICT,  lu  the 
Matter  of  DR.  G.  L.  MASSEY,  Deceased, 
Former  Guardian  of  Jane  E.,  Mary  R.,  Sarah 
A.,  and  Wm.  H.  Massey. 
(Columbia.     Nov.   and   Dec.   Term,   1S50.) 

lExecutors  and  Administrators  <S=:3495 ;  Guard- 
ian and  Ward  <g=^151.] 
Where  an  administrator,  having  the  fund 
■of  an  infant  in  his  hands,  is  appointed  his 
guardian,  he  has  the  ridit,  as  administrator,  to 
•charge  two  and  a  half  per  cent,  commissions 
for  transferring  the  fund  to  himself  as  guardian, 
and,  as  guardian,  the  riuht  to  charge  two  and  a 
half  per  cent,  for  receiving  it. 

[Ed.  Note. — Cited  in  Floyd  v.  Priester,  8  Rich. 
Eq.  252;    Griffin  v.  Bouham.  9  Rich.  Eq.  S3. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  2()S9 ;  Dec.  Dig.  <g=:349o ; 
Guardian  and  Ward,  Cent.  Dig.  S  499 ;  Dec. 
Dig.   <S=:^151.] 

Before  Dargan,  Ch.,  at  Lancaster,  June, 
1850. 

This  case  came  before  the  Court  on  the 
report  of  James  H.  Witherspoon,  Commis- 
sioner,   as    follows : 

"Dr.  G.  L.  Massey,  late  of  the  district,  de- 
ceased, was  the  administrator  de  bonis  non 
of  William  Massey,  the  father  of  the  said 
wards,  and  afterwards  was  appointed  by 
this  honorable  Court  the  guardian  of  their 
persons  and  estates.  Dr.  Massey  has  de- 
parted this  life,  and  the  guardianship  of 
Jane  E.  &  Mary  R.  has  been  committed  by 
this  Court  to  Thos.  K.  Cureton,  Esq.,  and 
the  guardianship  of  Sarah  A.  &  Wm.  H. 
Massey,  to  Wm.  J.  Cureton,  Esq.  The  only 
question  made  in  the  settlement  between  the 
administrator  of  the  deceased  guardian,  and 


the  present  guardians,  is,  what  commissions 
the  deceased  guardian  should  be  allowed; 
whether  he  should  receive  full  commissions 
as  administrator,  and  also  full  commissions 
as  guardian.  The  Commissioner  not  find- 
ing any  adjudicated  case  on  the  question,  and 
understanding  that  conflicting  opinions  are 
given  as  to  the  same,  respectfully  submits 
the  question,  and  asks  the  direction  and 
instruction  of  this  honorable  Court." 

Dargan,  Ch.  In  this  case,  I  am  of  the 
opinion  that  the  late  G.  L.  Massey  was  en- 
titled, as  administrator  de  bonis  non,  for 
paying  to  himself,  as  guardian,  the  money 
of  his  wards,  to  charge  two  aud  a  half  per 
cent,  on  the  amount  thereof.  Aud,  as  guard- 
ian, he  was  entitled  to  two  and  a  half  per 
cent,   on   the  same  sum   for   receiving  It  as 

*14 
guardian.  He  is  entitled  to  no  *commissions 
at  all  for  paying  it  out  as  guardian,  for  he 
has  not  lived  to  pay  it  out  in  that  character; 
his  legal  representative  pays  it  to  the  suc- 
cessor in  the  guardianship,  as  a  common 
debt,  for  which  he  is  not  entitled  to  commis- 
sions. 

It  is  so  ordered  and  decreed. 

The  guardian  of  Jane  E.  and  Mary  R.  Mas- 
sey appealed,  on  the  ground  that  the  admin- 
istrator and  guardian,  bein^  the  same  per- 
son, was  not  entitled  to  receive  two  sets  of 
commissious,  one  as  administrator  for  pay- 
ing to  himself  as  guardian,  and  one  as 
guardian  for  receiving  from  himself  as  ad- 
ministrator. 

J.   Williams,  for  appellant. 

DARGAN,  Ch.,  delivered  the  opinion  of 
the  Court. 

This  Court  is  of  the  opinion  that  the  cir- 
cuit decree  is  correct.  The  Act  of  1789,  (5 
Stat.  112.)  which,  in  this  particular,  is  a  re- 
enactment  of  the  same  provision  of  the  Act 
of  1745,  (a)  gives  to  an  executor  or  adminis- 
trator two  and  a  half  per  cent,  on  all  sums 
which  he  "shall  pay  away  in  credits,  debts, 
legacies,  or  otherwise,"  during  the  course 
of  his  management  or  administration.  This 
is  intended  as  a  compensation  for  his  care, 
labor  and  hazard,  in  the  performance  of  his 
duties  in  his  otfice  or  trust,  as  executor  or 
administrator.  When  the  same  person  is 
appointed  guardian  of  the  legatee,  or  dis- 
tributee, (as  the  case  may  be,)  the  fund  of 
his  ward  is  transferred,  by  operation  of  law, 
from  him,   in   his  character  as   executor  or 


(a)  The  11th  secticm  of  the  Act  of  1745,  is 
not  either  in  Grimke  or  in  the  Statutes  at 
Large,  and  it  is  not  correct,  as  is  said  in  both 
those  compilations,  that  it  is  re-enacted  by  the 
Act  of  1789,  (vide  3  Stat.  668 ;  P.  L.  202 ;  5 
Stat.  112.)  The  Act  of  1745  gives  commissions 
to  "every  guardian  or  trustee,"  as  well  as  to 
executors  aud  administrators ;  the  Act  of  1789 
is  coutined  to  executors  aud  administrators ;  see 
1  Brev.  Dig.  392:  Muckenfuss  v.  Heath.  (1 
Hill.  Eq.  183.)  R. 


€ 


<S==>For  other  cases  see  same  topic  and  KEY-NUMBER  iu  all  Key-Numbered  Digests  and  Indexes 


BRIGOS  V.  IIOLCOMBE 


m 


administrator,  to  him,  in  liis  lunv  cliaracter 
as  Riiardiaii.  He  is  lu'iufforward  liable  in 
the  character  of  pnardian,  and  is  released 
from  his  llahility  as  exec  ntor  or  adminis- 
trator, and  his  sureties,  which  he  has  yiven 
in  the  latter  character,  are  discharged.  The 
pa.vment  to  the  guardian  is  a  payment  to 
the  ward  :  and  it  is  a  iiayinir  to  the  legatee, 
or  distributee,  of  whom  he  has  iiecome  the 

*15 
^Miardian,  when  it  is  *i)iud  by  operation  of 
law,  as  well  as  when  it  is  i)y  actual  payment. 
The  ca.se  is  different  where  a  new  guardiau 
is  appointed  and  receives  from  his  predeces- 
sor the  wards'  funds.  There  the  money  is 
transferred  from  one  to  another  in  the  same 
ottice,  and  the  law  allows  but  one  commis- 
sion. 

When  one  who  was  an  executor  or  admin- 
istrator becomes  the  f-'uardian,  he  assumes 
an  entirely  new  trust  or  ottice.  with  new  and 
different  duties  and  responsiliilities,  which 
office  may  continue  with  all  its  burthens  and 
liabilities  for  a  long  period  of  time. 

For  the  performance  of  this  trust,  the  law 
also  allows  two  and  a  half  per  cent,  for 
receiving  and  paying  out.  If  another  person 
had  become  the  guardian,  the  right  of  the 
guardian  to  charge  two  and  a  half  per  cent, 
for  receiving  the  fund,  and  of  the  executor 
to  charge  that  conuuission  for  paying  that 
fund  to  the  guardian,  would  have  been  un- 
disputed. Here  there  is  but  one  person, 
but  two  distinct  offices,  or  trusts,  and  the  law 
allows  the  same  compensation  in  both.  The 
principle  is  the  same  where  one  person  per- 
forms both  trusts.  The  appeal  is  dismissed 
and  the  decree  affirmed. 


i'een  referred  to  the  Conniiissioner.  who  re- 
ported  a  balance  due  by  him.  in  1844.  charg- 
ed him  with  simple  interest  only,  and  allow- 
ed  him  ten  per  cent,  on  the  interest  as  com- 
missions. The  complainant  excepted  to  the 
allowance  of  ten  per  cent,  on  the  interest. 
His  IL.nor  overruled  the  exception,  and  the 
comi»Iainant  appealed, 

Townes.  for  the  appellant. 
I'erry,  contra. 


JOHNSTON    and    WAIiDI.AW,    CC,    con- 
curred. 

Appeal  dismissed. 


3   Rich.  Eq.  15 

H.    C.    BRIGGS    v.    A.    W.    HOLCOMBE, 

Adm'r,  et  al. 

(Columbia.     Nov.  and  Dec.   Tcrui,  1S50.) 

[Kxccuti/rs  and  Adtninistrators  <©=>4fKJ  1 

All  administrator  is  ontitl.-d  to  ton  per  cent 
comiinssions  on  interest,  only  where  the  interest 
IS  made  by  lettnii,'  out  money  and  receiving  it 
m  aiinnally.  by  which  it  is  made  an  accumulat- 
i  s;  tund.  or  whore  he  sufT.Ts  it  to  accumulate  in 
like  manner  ni  his  own  liands :  wiiore  he  re- 
tains th(.  money  hims..if.  and  is  changed  only 
\Mth  simple  interest,  he  is  entitled  onlv  to  the 
usual  (•(.mmissions  of  two  iind  a  half  per  cent 
tor  reeeivini;.  and  two  and  a  half  per  cent  for 
pa.vinj,'  It  away,  or.  in  other  words,  to  live  per 
cent,  un  the  uiterest. 
IKd.   Note.— Cited  in  Bobo  v.  I'oole.  12  Rich 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  8  l'll:i;    Dec.  Dig.  <g=»4llU.] 
♦16 
♦Before  Johnston,   Ch.,   at   Tickens,   June, 

J  oOU. 

The    accounts    of    the    administrator    had 


JOHNSTON,  Ch.,  delivered  the  opinion  of 
the  Court. 

The  decree  appealed  from,  was  made  by 
myself  on  a  report  by  the  Comnnssioner  up- 
on the  accounts  of  an  administrator,  and  ex- 
ceptions thereto.  liy  the  report,  the  adminis- 
trator was  chargeil  with  the  funds  in  his 
hands,  allowing  proper  credits,  and  calculat- 
ing simple  interest  in  the  ordinary  mode, 
without  annual   rests. 

The  decree  allowed  the  administrator  ten 
per  cent,  commissions  on  the  interest  part  of 
the  account,  and  the  appeal  alleges  that  this 
allowance  was  erroneous. 

The   statute   upon    the   subject   is   that   of 
1789,  (P.  L.  405 ;    5  Stat.  112.1  the  2!)th  sec- 
tion of  which  is  as  follows:    "every  executor 
or    administrator    .shall,    for    his"'    "trouble 
and  attendance  in  the  execution  of"  his  "du- 
ties, take,"  "or  ret<iin  in  his"  "hands,  a  sum 
not    exceeding   the   sum    of  .50   shillings   for 
every  100  pounds  which   he"  "shall   receive, 
and  the   sum  of  50  shillings   for  every    100 
IKiunds  which  he"  "shall  pay  away,  in  cred- 
its, debts,  legacies,  or  otherwise,  during  the 
course  of"  "administration;    and  so,  in  prcn 
portion,  for  any"  "sums  less  than  100  pounds, 
Provided,  that  no  executor  or  adnunistrator 
shall,    for   his"    "trouble   in    letting   out   any 
monies    upon    interest,    and    again    receiving 
the  same,  be  entitled  to  take  or  retain  any 
sum    exceeding    '20    shillings,    for    every    10 
pounds,  for  all  sums  arising  by  monies  let 
out  to  interest :    and  in  like  proportion  for  a 
larger    or   lesser   sum." 
*17 
*In  Taveau  v.   Ball,   (1   McC.   E.].  4(\2,)  it 
was  held  that  an  executor  was  entitled   to 
two  and  a  half  per  cent,  for  receiving  mon- 
ey ;    ten  per  cent,  upon  the  interest  made  by 
him  on  it ;   and  two  and  a  half  on  the  capital 
and  interest  finally  paid  over  by  him  to  the 
party  entitled. 

In  Wright  V.  Wright.  (2  McC.  Ecj.  10(!.)  it 
was  held  that  the  executor  is  entitled  to  ten 
per  cent.,  on  interest,  oidy  when  the  interest 
is  made  by  letting  out  money,  and  receiving 
it  in  annually,  by  which  it  is  made  an  ac- 
cumulating fund,  or  when  the  executor  suf- 
fers it  to  accumulate  in  like  manner  in  his 
own  hands.  This  decision  must  be  taken  as 
a  moditication  of  the  judgment  in  Taveau  y 
Ball. 

In    Massey    v.    .Massey,    (2    Hill    Eq.    495,) 
where  the  claim  was  for  two  and  a  half  per 


€=;,For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


*17 


3  RICHARDSON'S  EQUITY  REPORTS 


cent,  in  addition  to  ten  per  cent,  for  interest 
made,  the  claim  was  overruled,  which  was 
.sufficient  for  that  case;  but  the  Chancellor 
proceeded  to  give  his  interpretation  of  the 
statute,  which  was,  that  two  and  a  half  per 
cent,  was  allowed  for  letting  out  to  inter- 
est, and  two  and  a  half  for  taking  in  again, 
until  the  commissions  amounted  to  ten  per 
cent,  on  the  interest  made,  at  which,  as  a 
maximum,  the  commissions  on  interest  must 
stop. 

It  is  sufficient  for  this  case,  however,  that 
by  the  decision  in  Wright  v.  Wright,  limit- 
ing the  previous  case  of  Taveau  v.  Ball,  ten 
per  cent,  cannot  be  allowed  on  the  interest ; 
inasmuch  as  it  was  not  made  an  annually  ac- 
cumulating fund ;  and  that  the  administra- 
tor IS  only  entitled  to  two  and  a  half  per 
cent,  for  receiving,  and  two  and  a  half  per 
cent,  for  paying  it  away,  (in  other  words  to 
five  per  cent,  on  the  interest.) 

It  is  ordered,  that  the  decree  and  the  re- 
port be  reformed  accordingly. 

DUNKIN  and  DARGAN,  CC,  concurred. 
Decree  reformed. 


3   Rich.  Eq.  *I8 

'SAMUEL  DONNELLY,  Guardian,  and 
JAMES  B.  aud  JULIET  E.  EWART,  Wards, 
v.  DAVID  EWAKT,   Former  Guardian. 

(Columbia.     Nov.   and   Dec.   Term,   1S50.) 

[Equity  <g==>271.] 

Leave  given  to  complainants,  after  final  de- 
cree piouoimced,  to  amend  a  purely  clerical  er- 
ror in  their  bill. 

[Ed.  Note.— Cited  in  Verdier  v.  Verdier,  12 
Rich.  Eq.  142. 

For  other  cases,  see  Equity,  Cent.  Dig.  §  560; 
Dec.  Dig.  <®=>271.] 

Before  Dargan,  Ch.,  at  Chambers,  May, 
1850. 

Complainants  moved  the  following  order, 
to  wit:  "that  the  complainants  have  leave  to 
amend,  nunc  pro  tunc,  the  bill  in  the  case 
stated,  by  alleging  that  David  Ewart  gave 
bonds  to  the  Conmiissioner  of  this  Court ; 
one  bond  in  the  sum  of  twenty-four  thousand 
dollars,  conditioned  for  the  faithful  discharge 
of  his  duty,  as  guardian  of  James  B.  Ewart, 
dated  the  tenth  day  of  September,  eighteen 
hundred  and  thirry-six,  with  John  McMillan 
as  surety  to  said  bond ;  also  one  other  bond 
in  the  like  sum  of  twenty-fcmr  thimsand  dol- 
lars, conditioned  for  the  faithful  discharge 
of  his  duty  as  guardian  of  Juliet  E.  Ewart, 
dated  the  same  day  and  year  last  aforesaid, 
with  the  said  John  McMillan  as  surety 
thereto." 

In  support  of  the  motion,  it  appeared  that 
the  bill  was  tiled  in  January;  1846 ;  that  it 
recited  the  bonds  given  by  David  Ewart,  as 
guardian,  stating  the  penalty  of  each  to  be 
in  the  sum  of  twenty  thousand  dollars ;  that 
in  June,  1847,  a  final  decree  was  pronounced 


in  favor  of  complainants  against  David 
Ewart,  for  near  six  thtmsand  dollars;  and 
that  the  amount  of  the  penalty  of  each  bond 
was,  in  fact,  twenty-four  thousand  dollars. 
The  error,  it  was  alleged,  arose  from  the  cir- 
cumstance, that  a  memorandum  of  the  bonds, 
placed  in  the  hands  of  the  Solicitor  who 
drew  the  bill,  was  not  verj^  legible. 

His  Honor,  the  Chancellor,  refused  the 
motion;   aud  the  complainants  appealed. 

W.  F.  DeSaussure,  for  appellant. 
Gregg,  contra. 

DUNKIN,  Ch..  delivered  the  opinion  of  the 
Court. 

*19 

*It  is  not  doubted  that  Courts  of  Law,  as 
well  as  of  Equity,  have  authority  to  correct 
their  own  records. 

The  expediency  of  exercising  the  power 
must  necessarily  depend  upon  circumstances. 
In  Wallis  v.  Thomas,  (7  Yes.  292,)  although 
the  decree  had  been  passed  and  entered,  the 
Court  entertained  an  application  to  rectify  a 
clerical  error  which  had  crept  into  the  de- 
cree: and  in  several  other  cases  the  Court 
has  extended  the  indulgence  of  rectifying  de- 
crees in  which  there  have  been  clerical  mis- 
takes, to  decrees  which  have  been  actually  en- 
rolled. (Coop.  Rep.  134.)  And  in  Spearing  v. 
Lynn,  (2  Yern.  .376.)  leave  was  given  to  amend 
the  title  of  an  order  which  appears  to  liave 
been  enrolled,  although  the  effect  of  the  al- 
teration was  to  charge  a  surety  who  had 
been  sued  at  law  under  the  order,  and  relying 
upon  the  mistake  in  title  of  the  order,  had 
pleaded  that  there  was  no  such  order.  See 
Danl.  Prac.  1233. 

The  error  now  sought  to  be  amended  was 
not  only  purely  clerical,  but  it  was  entirely 
unimportant.  The  pi'oceeding  was  by  the 
wards,  against  their  former  guardian,  for 
an  account.  For  the  purposes  of  the  case, 
the  amount  of  the  bond  was  not  only  imma- 
terial, but  it  was  equally  immaterial  whether 
he  had  given  any  bond  at  all.  His  undertak- 
ing the  office  and  the  receipt  of  their  funds 
were  sufficient  to  charge  him.  The  recoveiy 
might  have  been  for  five  times  the  amount  of 
his  guardianship  bond.  Why  it  should  have 
been  deemed  necessary  to  recite  the  fact 
of  giving  the  bond,  is  not  very  clearly  per- 
ceived. The  surety  was  no  party  to  the  pro- 
ceeding. Still  the  recital  was  not  irregular, 
and  the  complainants  only  seek  to  rectify  the 
clerical  error,  so  that  the  recital  may  be  in 
conformity  with  the  fact.  The  records  of  the 
registry  afford  the  means  of  shewing  the 
error  and  of  correcting  it. 

The  recovery  against  the  defendant  Ewart, 
who  alone  is  entitled  to  be  heard  in  the  case, 
is  less  than  one-fourth  of  either  of  his  bonds. 

We  are  of  opinion  that  the  order  submitted 
*20 
by  the  complain*ants'  solicitor  should  have 


8 


^s»For  other  cases  see  same  topic  and  KEY-NUMBEii  in  all  Key-Numbered  Digests  and  Indexes 


MIKI'IIV   V.  CALDWKLL 


*22 


tn'en  yrnnted,  ami  it  is  now  so  ordered  and 
decreed. 

JOHNSTON,  C,  concurred. 
Motion  granted. 


3    Rich.  Eq.   20 

NANCY   MlRl'IIY.    by    H.r   Next   Friend,   v. 
DAVIS   CALDWELL,    au.1   Otlieis. 

(Cdlumbia.     Nov.   and   Dec.  Term,  ISnO.) 

[Iluxhuiid  and  M'tfc  <©=>n0.1 

A  i)arol  i;ift  of  a  slave  to  a  tnisttp,  to  the 
sei)arate  use  uf  a  manii'il  uoiiiaii.  lichl  valid, 
as  aj;aiiist  a  crt'ditor  (if  tiif  liiishaiid.  aUliiiu;;li 
the  slavo  went  into  the  possession  of  the  wife, 
the  luisliand  liaviuj;  the  cnstody  as  property  held 
by  tlie  trustee  for  his  wife. 

[Kd.  Note. — For  other  cases,  see  Husband  and 
Wife.  Cent.  Dijr.  §  410;    Dec.  Di;;.  <©=3ll(i.] 

Before  .Tt>linstoii,  Cli..  nt  Newberry,  July, 
1850. 

'lui.s  cas^e  will  be  sufHciently  understood 
from  the  decree  of  liis  Honor,  the  presiding 
Chancellor,  which  is  as  follows: 

Johnston.  Ch.  The  hill  was  tiled  by  Nancy 
Murpliy.  the  wife  of  Tarlton  Murphy,  by  her 
next  friend,  against  Davis  Caldwell.  Simeon 
Fair.  Robert  MooVnian.  and  the  said  Tarlton 
Murphy. 

In  18.%,  Davis  Caldwell  obtained  judirment 
in  the  common  pleas  for  a  large  sum  of  mon- 
ey, and  lodged  his  execution  against  Tarlton 
Murphy. 

In  1S4L;.  he  made  an  assignment  of  all  his 
effects,  including  this  judgment,  to  Simeon 
Fair,  in  trust  for  his  creditors ;  and  the 
effects  assigned  liave  turned  out  to  be  in- 
sufHcient  for  the  payment  of  his  debts.  Mr. 
or  Mrs.  Murphy  liad  possession  of  two  fam- 
ilies of  slaves,  one  called  the  Sims  negroes, 
and  the  other  the  Buzzard  negroes.  And,  in 
1843,  a  question  was  raiseil,  whether  these 
slaves  were  not  liable  to  be  taken  for  saths- 
faction  of  said  execution.  By  direction  of  a 
committee  of  the  creditors,  the  (iiiestion  was 
suhuntted  to  (Jen.  Caldwell,  then  practicing 

*21 
*law,  and  his  advice  was  such,  that  the  com- 
nnttee  instructed  the  assignee  not  to  have  the 
negroes  levied  on,  and  he  forebore  to  do  so. 
Davis  Caldwell  was  not  .satisfied;  and  in 
1849,  he  <»btained  from  the  assignee  pernns- 
sion  to  have  the  negroes  levied  on,  at  his 
own  expense ;  and  he  accordingly  procured 
them  to  l)e  levied  on  by  the  sherill"  of  Fair- 
field district.  He  (hu's  not  claim  that  the 
Sims  negroes  are  liable  to  be  taken  under  the 
execution ;  but  he  insists  that  tlu'  Buzzard 
negroes  are  so  liable. 

The  t-omidainant  is  the  illegimate  daughter 
of  Mrs.  Buzzard.  About  ISJS.  Mr.  Murphy 
became  insolvent.  In  LVtO.  :SIrs,  Buzzard 
died,  and  her  property  was  sold.  The  negro 
wonuui  Susan,  from  whom  the  rest  of  the 
Buzzard  negroes  have  sprung,  was  bid  off  by 
Tlinmas  H.  Henderson. 


Tlie  next  of  kin  of  Mrs.  Buzzard  consented 
that  tins  negro  should  be  .secured  to  the  sepa- 
rate use  of  Mrs.  Murphy,  and  Mr.  Henderson 
bid  her  off  for  that  purpose.  He  paid  nothing 
for  her,  and  was  to  hold  the  title  until  a 
trustee  should  be  apindnted.  The  negro  went 
info  possession  of  .Mrs.  Murphy — Mr.  Murphy 
having  the  custinly  of  her  as  property  held 
liy  Henderson  for  his  wife. 

In  is;{!»  an  order  of  tliis  Court  was  i)assed, 
appointing  Koiiert  Moorman  trustee  of  Mrs. 
Murphy,  to  take  charge  of  all  the  proi)erty  to 
which  she  was  entitled  as  her  separate  es- 
tate; and  re<pnring  him  to  give  bond  for  the 
faithful  performance  of  the  tru.st.  He  de- 
clined to  give  the  bond,  and  said  he  would  not 
accept  the  trust  on  that  condition.  He  did. 
liowever,  receive  the  property  from  Hender- 
son, who  turned  it  over  upon  his  appointment, 
and  acted  as  the  agent  of  Mrs.  Murphy  in 
hiring  out  some  of  the  negroes,  and  applying 
the  hire  to  her  use. 

Mr.  Fair  knew  in  1841!,  and  .some  years  be- 
fore that  time,  that  Mrs.  ^lurpliy  claimed  the 
Buzzard  negroes  as  her  separate  property. 

I  am  of  opinion,  that  the  Buzzard  negroes 
are  the  separate  property  of  Mrs.  Murphy, 
and  not  liable  to  be  seized  under  execution 
as  the  property  of  Tarlton  Murphy. 

It  is,  therefore,  onlered.  that  the  defend- 
*22 
ants,  Davis  Caldwell  *and  Simeon  Fair,  do 
release  the  .slaves  mentioned  in  the  bill  from 
the  levy  made  by  the  sheriff  of  Fairfield  dis- 
trict, and  cause  the  siiid  slaves  to  be  restored 
to  the  possession  of  the  comidainant;  and 
that  the  said  defendants  be  i)erpetually  eu- 
j(dned  from  seizing  or  attempting  to  seize 
said  slaves  luuli'r  said  execution  ;  and  that 
a  writ  of  injunction  dt>  issue  so  to  enjoin  and 
restrain  them. 

It  is  further  ordered,  that  the  defendant, 
Davis  Caldwell,  pay  the  costs  of  this  suit. 

The  defendant,  D.  Caldwell,  appealed,  and 
moved  the  Court  of  Appeals  to  set  aside  the 
decree,  on  the  fcdlowing  grounds,   viz: 

1.  liecause  his  Honor  erred  in  decreeing 
that  Thomas  II.  Henderson  was  the  trustee 
of  Mrs.  Nancy  Murphy,  and  held  the  negroes, 
Susan  and  children,  as  such  trustee ;  where- 
as, it  is  subuMtfed  that  no  trust  could  be 
created,  miless  it  had  been  in  writing,  or 
clearly  proved  as  to  its  terms,  and  recorded, 
or  din>ct  notice  given  to  I).  Caldwell. 

L'.  Because  it  was  a  fraud  upon  D.  Caldwell 
that  such  secret  trust  existed,  and  that  the 
property  was  i>ermitted  to  remain  in  the 
jiosst'ssion  of  the  husband,  as  his  own  prop- 
erty, without  any  notice  to  the  creditors. 

."5.  Because,  if  any  trust  did  exist,  it  was  a 
secret  trust,  and  could  not  jjrofect  the  proper- 
ty from  the  debts  of  the  husband,  contracted 
while  the  property  was  in  his  pos.session. 

4.  Because  a  gift  by  the  relations  of  Mrs. 
.Murphy  to  her,  even  though  Thomas  H.  Hen- 
derson  acted   as   her   trustee,   in   bidding  off 


<S=Fur  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


9 


3  KICHARD.SUX'S  EQUITY  REPORTS 


the  negro,  and  considered  himself  as  trustee, 
cannot  avail  against  creditors  without  notice. 
5.  Because,  it  is  submitted  that  no  gift 
can  be  made  by  parol  to  a  married  woman, 
so  as  to  prevent  the  marital  rights  of  her 
husband  from  attaching,  unless  the  same  be 
in  writing,  or  the  terms  directly  expressed  by 
deed,  Avill,  or  decree  of  a  Court  of  competent 
jurisdiction. 

Hammond,  Summer,  for  appellant. 
Pope,  contra. 

*23 

*PER  CURIAM.  This  Court  concurs  in  the 
decree  of  the  Chancellor;  and  it  is  ordered, 
that  the  same  be  affirmed,  and  the  appeal  dis- 
missed. 

JOHNSTON,  DUNKIN  and  DARGAN,  CC, 
concurring. 
Appeal  dismissed. 


3    Rich.  Eq.  23 
HASFORD    WALKER    and    Wife    et    al.    v. 
DAVID  CROSLAND,  HOLDEN  W.  LILES, 
PHILIP  E.  CROSLAND  et  al. 
(Columbia.     Nov.  and  Dec.  Term,  1850.) 

'[Bonds  ©=335.] 

The  condition  of  a  bond,  taken  by  an  Ordi- 
Dary  from  an  administrator,  with  the  will  an- 
nexed, was  in  the  form  prescribed  for  cases  of 
intestacy,  by  the  21st  section  of  the  Act  of 
1789,  except  that  there  was  no  clause  for  sur- 
rendering the  administration  in  case  a  will 
should  afterwards  appear,  and  be  proved  by  the 
executor — it  contained  no  reference  to  the  will, 
and  omitted  the  clause  requiring  the  adminis- 
trator "to  pay  and  deliver  all  the  legacies"  »S:c., 
as  prescribed  for  cases  of  administrations,  with 
the  will  annexed,  by  the  20tli  section  of  the 
same  Act:  held  that  the  bond  was  not  good  as 
a  statutory  bond,  and  that  it  could  not  be  en- 
forced against  the  administrator  and  his  sure- 
ties by  a  legatee. 

[Ed.  Note. — For  other  cases,  see  Bonds,  Cent. 
Dig.  §§  40,  40%;   Dec.  Dig.  <©=535.1 

[Bonds  <g==>.35;  Executors  and  Administrators 
<©=:5527.] 
The  validity  of  such  a  bond,  at  the  common 
law,  can  properly  be  determined  only  in  a  suit 
in  the  Court  of  Law,  in  the  name  of  the  Ordi- 
nary. 

[Ed.  Note. — For  other  cases,  see  Bonds,  Cent. 
1  )ig.  §  40 ;  Dec.  Dig.  <®==>35 ;  Executors  and 
Administrators,  Cent.  Dig.  §  2362 ;  Dec.  Dig. 
<S=:3527.] 

Before  Dunkin,  Ch.,  at  Marlborough,  Feb- 
ruary, 1850. 

The  Chancellor.  The  principal  facts  of  this 
ease  are  fully  and  correctly  stated  in  Allen  v. 
Crosland,  (2  Rich.  Eq.  68.)  This  bill  seeks 
to  establi.sh  and  enforce  the  liability  of  the 
defendants,  Holden  W.  Liles  and  Philip  E. 
Crosland,  as  sureties  on  the  administration 
bond  of  David  Crosland. 

The  defence  rests  on  two  grounds,  which 
will  be  separately  considered.  First,  the  de- 
fendants insist  they  are  not  liable,  because 
the  bond  is  not  in  the  form  prescribed  by  law. 


It  appears,  among  other  facts,  that  Matthew 
Allen  died  in  Georgetown  district  in  1834, 
leaving  a  widow  and  one  child,  (now  the 
complainant,  Alary  Ann  Elizabeth  Walker.) 
Some  years  afterwards,  David  Crosland  mar- 
ried the  widow,  and,  in  January,  1839,  he  was 
appointed,  by  the  Court  of  Eijuity  for  George- 

*24 
town  *district,  guardian  of  the  child,  giving 
bond  with  sureties  in  the  penal  sum  of  six- 
teen thousand  dollars.  Both  he  and  his  sure- 
ties were  residents  of  Marlborough  district. 
In  the  latter  part  of  March,  1839,  the  bond, 
which  is  the  foundation  of  these  proceedings, 
was  brought  or  sent  up  to  Marlborough,  where 
all  the  obligors  resided,  for  the  purpose  of  be- 
ing executed.  The  bond  bears  date  22d  March, 
1839,  and  is  made  payable,  in  the  penal 
sum  of  six  thousand  dollars^  to  E.  Water- 
man, Ordinary  of  Georgetown  district,  and 
his  successors,  t&c.  The  condition  is  that 
"David  Crosland,  administrator  of  the  goods, 
chattels  and  credits  of  ^Matthew  Allen,  de- 
ceased," shall  make  an  inventory,  &c.,  and 
exhibit  the  same  in  the  Court  of  Ordinary, 
"and  such  goods,  chattels  and  credits  shall 
well  and  truly  administer,  according  to  law," 
and  "make  a  just  and  true  account  of  his  act- 
ings and  doings  therein,  when  required  by  the 
said  Court ;  and  all  the  rest  of  the  said  goods, 
chattels  and  credits  which  shall  be  found  re- 
maining upon  the  account  of  the  said  admin- 
istration, the  same  being  ttr.st  allowed  by  the 
said  Court,  shall  deliver  and  pay  to  such  per- 
sons respectively  as  are  entitled  to  the  same 
by  law."  At  the  time  when  the  bond  was 
presented  to  the  defendants  for  execution, 
(as  was  proved  by  C.  W.  Dudley,  the  sub- 
scribing witness,)  the  following  indorsements 
appeared  upon  the  bond,  viz:  "I  have  under- 
stood that  Mr.  Crosland  has  already  given 
bond  to  the  Commissioner  in  Equity  for  all 
that  part  of  the  estate  of  Matthew  Allen 
which  he  did  not  inherit  by  intermarriage 
with  the  widow;  and  if  so,  the  above  bond 
is  one  of  mere  matter  of  form."— (Signed) 
"E.  Waterman,  Ordinary,  G.  D."  "I  hold  Mr. 
Crosland"s  bond  for  sixteen  thousand  dollars, 
as  guardian  of  Mary  Allen." — (Signed)  "J.  W. 
Coachman,  Commissioner  in  Equity."  After 
the  execution  of  the  bond,  the  Ordinary  of 
Marlborough  district,  on  2d  April,  1839,  gave 
an  otHcial  certificate,  under  his  hand  and 
seal,  as  to  the  sufficiency  of  the  sureties,  and 
it  was  thereupon  returned  to  the  Ordinary 
of  Georgetown  district. 

The  Act  of  1789  prescribes  two  forms  of 
bond.  The  20th  section  provides  that  an  ad- 
ministrator, witli  the  will  annexed,  shall  enter 
into  bond,  with  security  in  a  sum  equal  to  the 

*25 
value  of  the  *estate  at  least,  with  condi- 
tion "that  C.  D.,  administrator,  with  the  will 
annexed,"  shall  make  an  inventory,  &c.,  &c., 
"and  further  do  well  and  truly  pay  and  de- 
liver all  the  legacies  contained  and  specified 


10 


©=3For  other  cases  see  same  topic  ana  KEY-NUMBER  in  aU  Key-Numbered  Digests  and  Indexes 


WALKKIl  V.  CROSLAXD 


•27 


ill  file  said  will,  as  far  as  tlic  siiid  ;;(>otls, 
cliatfi-ls  and  cnMlits  will  »'xli'iid,  and  ilie  law 
re«|uiiv." 

The  21st  section  prescribes  the  form  <»f 
the  bond  to  be  fiiven  by  an  adndidstrator. 
It  is  not  necessary  to  transcribe  this  form, 
as  it  is  precisely  tliat  of  the  bond  execiit»'d 
by  tlie  defendants,  except  that  there  is  no 
clause  for  surrendering  the  administration 
in  case  a  will  should  afterwards  appear  and 
l)e  proved  by  the  executors.  The  l.jth  sec- 
tion provides  that,  in  the  event  of  the  <leath 
<»f  an  executor  or  administrator,  intestate, 
without  havinj;  fully  adnnnistered.  admin- 
istration shall  be  jrranted  of  the  goods,  &c. 
left  UMadministered  by  the  former  executor 
or  administrator. 

David  Crosland  was  appointed  aibninis- 
trator,  with  the  will  annexed,  of  Matthew 
Allen,  deceased,  so  far  as  his  goods  and 
chattels  had  been  left  unadministered  by 
Thomas  McConnell,  deceased,  the  executor 
of  Matthew  Allen,  deceased.  The  alleged 
default  is,  in  not  paying  over  to  the  com- 
plainant the  legacies  to  which  she  was  enti- 
tled under  her  father's  will.  The  defend- 
ants insist  that  this  is  a  liability  not  con- 
templated or  provided  for  in  the  instrument 
executed  by  tliem. 

Without  doubt,  the  leading  object  of  the 
Legislature,  in  prescribing  a  form  of  bond, 
is  to  protect  the  rights  of  per.sons  interested 
in  the  estate.  But  it  is  a  very  important, 
though  perhaps  suiiordinate  purpose,  that 
parties  may  distinctly  understand  the  obli- 
gations into  which  they  enter.  Every  one  is 
presumed  to  know  the  law.  and  he  is  bound, 
at  his  peril,  to  inquire  into  tlie  facts  to 
which  such  law  is  applicable.  The  bond  to 
be  given  by  an  administrator,  with  the  will 
annexed,  demands  that  he  should  pay  and 
deliver  over  the  legacies  contained  and  spec- 
ified in  the  will  of  the  testator,  so  far  as  his 
cliattels  will  extend.  To  this  his  sureties 
are  also  bound.  If  they  do  not  inquire  into 
the  provisions  of  the  will,  or  the  extent  of 
the  testator's  estate,  they  must  subnnt  to  the 
consequences  of  their  engagement.  The  re- 
cital as  well  as  the  (-ondition  of  their  bond 

*26 
luid   admonished  them   ♦that  a    will  existed, 
and  this  was  the  rule  <)f  conduct  for  their 
l»rincipal. 

Where  a  i)arty  dies  intestate,  the  law 
prescrilu's  the  form  of  bond  to  be  given  Ity 
the  administrator  in  such  case;  and  the 
law  also  provides  the  distribution  to  be 
made  of  his  estate.  The  sureties  to  his  bond 
undertake  that  their  ju-incipal  sb.ill  adminis- 
ter the  estate,  pass  his  account  with  the 
Ordinary,  "and  the  rest  of  the  gcMxls.  &c., 
which  shall  be  found  remaining  upon  the  ac- 
count of  said  administration,  shall  deliver 
and  pay  to  such  persons  nssjiectively  as  are 
entitled  to  the  same  by  law."  This  being 
the  form  of  bond  prescribed  by  the  statute 
to  be  taken  in  ca.ses  of  intestacy,  the  sure- 


ties have  only  to  inquire  to  whom  the  es- 
tate I'asscs  after  the  delits  are  paid.  Tliey 
tmdertake  tliat  tlieir  princiiial  sliali  make- 
distribution  according  to  the  provisions  of 
the  Act  of  17!U.  This  they  know  to  be  the 
measure  of  their  responsibility.  If  tlie  wid- 
ow be  the  only  person  entitled,  and  she  be 
also  the  administratrix,  then  it  may  well  be 
suiip<»sed  by  the  sureties  that,  the  delits  be- 
ing paid,  their  bond,  in  the  language  of  the 
Ordinary  of  (Jeorgetown,  was  "a  mere  mat- 
ter of  f«irm."  Kut  it  is  no  part  of  tlie  con- 
dition of  their  iiond  that  their  principal 
should  pay  and  deliver  the  legacies  contain- 
ed in  the  will  of  Matthew  Allen.  That 
would  l)e  to  vary  mati-rially  the  responsl- 
idlity  they  assumed,  and  would  have  occa- 
sioned a  very  different  inquiry  before  they 
entered  into  the  obligation. 

The  bond  to  be  given  by  an  adnunist  rater, 
with  the  will  annexed,  is  expressly  prescrib- 
ed by  law.  It  has  b»ng  since  been  held  tliat 
a  bond,  taken  differently  from  that  pre- 
scribed by  statute,  is  void.  (1  Sannd.  Uep. 
1(51,  note.)  The  subject  was  consideretl  by 
tlie  Court  of  Appeals  of  Virginia,  in  t'razier 
V.  Krazier,  (2  Leigh.  042.1  That  was  a  Itond 
taken  from  an  administrator,  wltli  the  will 
annexed,  but  not  in  the  form  prescribed  for 
sudi  olticial  bond,  but  nearly  in  tlie  foruB 
prescribed  for  an  administrator's  bond.  It 
was  lield  that  this  was  not  a  good  .statutory 
bond,  and  that  no  suit,  either  in  law  or  ii» 
K<pilty,  could  be  maintained  against  the 
surety  for  the  benefit  or  at  the  relation  of 
a   legatee.     Nor  does   this  decision  seem  at 

*27 
variance  with  Peoples  ♦v.  Peoples,  (4  liev.  &. 
Rat.  !).)  That,  too,  was  a  bond  taken  fromi 
an  administrator,  with  the  will  annexed,, 
and  it  was  held  good.  But  there  is  no  stat- 
ute of  North  C'arolimi  which  prescribes  the 
fttrm  of  bond  to  be  given  by  an  administra- 
tor with  the  will  annexed.  Besides,  us  io- 
tlmated  by  Judge  Ga.ston.  there  could  be  no 
misapprehension  as  to  the  purposes  of  the 
instrument,  for  ■"the  condition  of  the  Ixind 
stated,  as  facts,  that  the  last  will  and  testa- 
ment of  Ilarbert  Peoples  had  btHMi  duly  prov- 
ed in  the  county  court  of  CJullf(U-d;  that  the 
executors  therein  named  had  refused  the 
office ;  and  that,  upon  such  refusal,  admin- 
istration with  the  said  will  annexed  had 
been  ccmimitted  to  the  two  first  named 
obligors,  Sally  Peoples  and  Beuben  Folger." 
But  In  the  case  under  consideration  tbe 
bond  is  in  the  form  prescril)ed  for  an  ad- 
ministrator of  the  estate  of  an  intestate,  and 
not  in  the  form  prescribed  for  tlie  adminia^- 
trator  of  one  who  had  left  a  will.  The  par- 
ties were  aided  I)y  no  recital  or  descrfptiwa 
in  the  bond  which  would  awaken  a  siLspi- 
clon  that  Matthew  Allen  had  not  tlitnl  in- 
testate. The  defendants  live  a  hundred 
miles  olT.  But  in  order  to  give  full  inforuia- 
tion,  and  at  the  same  time  tpilet  all  appre- 
hension, the  officer  to  whom  the  bond  was 

U 


«-27 


3  RICHARDSON'S  EQUITY  REPORTS 


to  be  given  annexes  an  official  certificate 
tliat  tliis  instrument  was  a  mere  matter  of 
form,  as  tlie  principal  in  the  bond  had  in- 
herited, by  marriage,  one-third  of  the  es- 
tate, and  was  entitled  to  the  other  two- 
thirds,  as  guardian  of  the  minor;  precisely 
the  legal  consequences  which  would  have 
existed    had    Matthew    Allen    died   intestate. 

Being  of  opinion  that  the  bond  recited  in 
the  pleadings  was  not  taken  in  conformity 
with  the  provisions  of  the  statute  in  such 
case,  and  that  the  defendants  are  not  liable, 
under  their  obligation,  for  the  alleged  de- 
fault, the  Court  deems  it  unnecessary  to 
discuss  the  grounds  as  to  misrepresentation 
and  mistake ;  both  which  grounds  were  very 
fully  argued  at  the  hearing. 

It  is  ordered  and  decreed  that  the  bill  be 
dismissed,  but  without  costs. 

From  this  decree  the  complainants  appeal- 
ed, and  moved  to  reverse  the  same,  for  the 
causes  following,  to  wit: 

First.  Because  his  Honor,  in  his  said  de- 
*28 
cree,  has  adjudged  that  *the  bond  made  by 
the  defendants,  David  Crosland,  Holden  W. 
Liles  and  Philip  E.  Crosland,  to  secure  the 
due  administration  by  the  said  David  Cros- 
land of  the  unadministered  estate  of  Mat- 
thew Allen,  "was  not  taken  in  conformity 
with  the  provisions  of  the  statute  in  such 
case:"  Whereas,  it  is  respectfully  submitted, 
the  said  bond  does  not  materially  vary,  in 
its  form,  from  the  direction  of  the  Act  of 
Assembly  of  1789,  and  is  a  good  and  suffi- 
cient statutory  bond. 

Second.  Because  his  Honor,  in  his  said  de- 
cree, has  adjudged  that  the  said  bond,  "not 
being  taken  in  conformity  with  the  provi- 
sions of  the  statute  in  such  case,"  is  there- 
fore void,  and  "the  defendants  are  not  lia- 
ble under  their  obligation  for  the  default" 
of  the  administrator,  alleged  in  the  bill : 
Whereas,  it  is  respectfully  submitted,  that 
the  said  bond,  though  it  be  held  not  to  be  a 
good  statutory  bond,  is  not  therefore  void, 
Init  constitutes  a  valid  and  legal  obligation 
on  the  part  of  the  defendants,  in  their  fulfil- 
ment of  which  the  comi)lainants  have  such 
an  interest  as  the  Court  will  protect  and 
enforce. 

luglis,  Dargan,  for  complainants. 
Dudley  &  Johnson,  Thoruwell,  Hanua,  for 
defendants. 

WAPvDLAW,  Ch.,  delivered  the  opinion  of 
the  Court. 

Upon  the  death  of  Thomas  McConnell,  the 
acting  executor  of  the  will  of  Matthew  Al- 
len, David  Crosland,  who  had  married  the 
widow  of  testator,  become  administrator, 
with  the  will  annexed,  of  the  estate  of  said 
Allen,  unadministered  by  said  McConnell, 
and  entered  into  a  bond  to  the  Ordinary  of 
Oeorgetown  district,  with  Holden  W.  Liles 
and  Philip  E.  Crosland  as  his  sureties;  and 
12 


the  validity  of  this  bond,  as  a  foundation  of 
a  suit  by  legatees,  is  now  in  controversy. 

Anciently,  the  ordinary  was  entitled  to 
apply  the  residue  of  iutestates's  estates,  aft- 
er the  payment  of  debts,  to  whatever  pur- 
pose his  conscience  might  approve.  To  cor- 
rect the  fiagrasit  abuses  occasioned  by  this 
power,  the  statute  31  Edw.  Ill,  st.  1,  c.  11, 
provided  that,  "in  case  where  a  man  dieth 
intestate,  the  ordinaries  shall  depute  of  the 

*29 
next  and  most  lawful  friends  of  *the  dead 
person  intestate,  to  administer  his  goods," 
&c.  (1  Wms.  Ex'ors.  263.)  These  adminis- 
trators, until  bonds  were  required  by  stat- 
ute, were  entitled  to  enjoy  exclusively  the 
residue  of  the  intestate's  effects,  after  the 
liayment  of  the  debts  and  funeral  expenses ; 
and  where  the  ordinaries  attempted  to  en- 
force distribution,  by  taking  bonds  from  the 
administrators  for  that  pui-pose,  such  bonds 
were  prohibited  by  the  temporal  courts,  and 
declared  to  be  void  in  point  of  law,  on  the 
ground  that,  by  the  grant  of  administration, 
the  ecclesiastical  authority  was  executed, 
and  ought  to  interfere  no  further.  (2  Wms. 
Ex'ors.  1056.)  To  remedy  this  mischief,  was 
passed  the  English  statute  of  distributions, 
22  and  23  Car.  II.  c.  10,  which  establishes 
the  order  of  distribution,  and  empowered  the 
ordinary  to  take  bond  from  an  administra- 
tor, with  two  or  more  sureties,  the  form  of 
the  condition  of  which  was  prescribed,  mu- 
tatis mutandis.  (2  Wms.  Ex'ors.  1057.)  Our 
Act  of  1789,  (5  Stat.  106.)  pursuing  the  same 
policy,  in  section  21,  prescribes  the  form  of 
the  condition  of  the  bond  to  be  given  by  a 
common  administrator,  and,  in  section  20, 
the  form  of  the  condition  of  the  bond  to  be 
given  by  an  administrator  with  the  will  an- 
nexed ;  and,  further  provides,  that  if  the 
ordinary  fail  to  take  bond  as  aforesaid,  he 
.shall  be  liable  to  be  sued,  for  all  damages 
arising  from  such  neglect,  by  any  person  in- 
terested in  the  estate.  It  thus  appears  that 
this  whole  matter,  as  to  distribution  and 
bonds,  is  of  statutory  regulation. 

The  condition  of  the  bond  now  in  question 
does  not  conform  to  the  prescriptions  of  our 
Act  of  1789,  neither  as  to  a  common  adminis- 
trator, nor  as  to  an  administrator  with  the 
will  annexed.  It  omits  the  clause  required 
in  the  former  case,  "and  if  it  shall  hereafter 
appear  that  any  last  will  and  testament  was 
made  by  the  said  deceased,  and  the  same  be 
proved  in  court,  and  the  executors  obtain 
a  certificate  of  the  probate  thereof,  and  the 
said  administrator  do  in  such  ease,  if  requir- 
ed, render  and  deliver  up  the  said  letters  of 
administration;"  and  it  omits  all  reference 
to  the  will  of  the  deceased,  and  the  clause 
required  in  the  latter  case, — "and,  further, 
do  well  and  truly  pay  and  deliver  all  the 
legacies  contained  and  specified  in  the  said 

*30 
will,  as  far  as  the  *said  goods,  chattels  and 
credits  will  extend  and  the  law  require." 


WALKER  V    CROSLAXD 


*32 


The  Courts  in  this  State  have  decitled,  in 
many  casos,  that  bonds  taken  in  pnrsnance  of 
statutes  directing  their  snbstantial  provisions, 
and  not  expressly  deehirinj;  void  Ijonds  taken 
in  other  form,  are  >;ood.  if  the  provisions  of 
the  statutes  be  complied  with  in  suhstance, — 
if  the  JHinds  be  not  uidawful  in  themselves, 
and  if  the  ublijlors  be  not  subjected  to  disad- 
vantajjre  beyond  the  reciuirements  of  tlie  stat- 
utes; — as  in  sberiftVs  bonds  before  our  Act 
of  18li!t,  prescribinj,'  the  forms  of  bonds  to  be 
given  by  public  otlicers,  replevin  bonds,  at- 
tachment bonds,  injunction  bonds.  &e.  Treas- 
urers v.  Stevens,  2  :McC.  107 ;  Treasurers  v. 
Bates,  2  Bail.  862:  I^e  v.  Warinj:.  3  Des.  57; 
Kiljiore  v.  Rabb,  1  N.  &  McC.  .'5:31;  Leach  v. 
Thomas.  2  N.  &  McC.  110;  Cay  v.  Galliott,  4 
Strob.  2S2.  The  case  of  Commissioners  v. 
(Jains,  1  Tread.  451),  affords  an  instance 
where  the  bond  was  considered  void  for  sub- 
stantial departure  from  tlie  I'equirements  of 
the  statute.  In  some  of  the  cases,  tlie  un- 
lawful conditions  only  have  been  annulled, 
and  the  bonds  lield  good,  as  in  Anderson  v. 
J'oster.  2  Bail.  501 ;  Boniar  v.  Wilson,  1  Bail. 
461;  Dudley  (Geo.  R.)  22.  66.  But  none  of 
these  cases  has  full  application  to  sucli  a 
case  as  we  now  have  before  us,  where  the 
precise  form  of  the  bond  is  given  by  tlie 
statute.  Ordinary  v.  Blancliard,  (3  Brev. 
136.)  is  the  only  case  in  tliis  State,  cited  to 
us,  in  which  the  condition  of  an  administra- 
tion l)ond  has  been  submitted  to  judicial  con- 
struction, and  the  decision  there  cannot  1)6 
regarded  as  authoritative.  The  condition  of 
the  bond,  there,  pursued  nearly  the  form 
prescribed  by  tlie  Englisli  statute  of  distribu- 
tions, and  provided,  amongst  other  things. 
that  "all  the  rest  and  residue  of  said  goods, 
&c.  shall  deliver  and  pay  unto  such  person 
or  persons,  respectively,  as  the  said  ordinary, 
b.v  his  decree,  or  sentence,  pursuant  to  the 
true  intent  and  meaning  of  the  statutes  and 
Acts  of  Assembly  of  force  in  this  State,  for 
the  better  settling  intestates's  estates,  shall 
limit  and  appoint,"  instead  of — "all  the  rest, 
&c.  shall  deliver  and  pay  unto  such  i)ersons 
resi)ectively,  as  are  entitled  to  the  same  by 
law,"  prescribed  by  the  Act  of  17.s!>.    Justices 

*31 
Nott  and  Smith  thought  the  *variance  fatal; 
Colcock.  that  the  bond  sulficiently  answered 
the  intent  of  our  Act:  and  Brevard,  that  the 
bond  was  favorable  to  the  administrator,  not 
unlawful  in  itself,  nor  against  the  policy  of 
the  State,  and  intimated  doubt  whether  the 
St.  Car.  II.  was  repealed;  and  the  other 
Judges  do  not  appear  to  have  given  any 
opinion. 

The  present  case  seems  to  be  within  the 
principle  of  Brown  v.  Spand,  (2  Mill,  12,) 
where  a  married  woman,  entitled  in  fee  to 
land,  had  joined  her  husliand  in  tlie  execution 
of  a  release  of  the  land,  and  had  relinquish- 
ed her  dower  according  to  the  f<jrm  given  in 
the  Act  of  1795,  by  wliich  she  renounced  "all 
her  interest  and  estate,  and  all  her  right  and 


claim  of  dower."  In  a  relinquishment  of  in- 
heritance, the  married  woman  is  rcipiired  to 
renounce  all  her  interest,  estate  and  inherit- 
ance. It  was  held  that  the  woman  was  not 
barred,  mainly  on  the  ground  that  the  words, 
in  the  forms  for  relimpiishing  dower  and  in- 
heritance, are  not  equivalent.  Judge  Nott, 
(U'livering  the  opinion  of  the  Court,  says, 
"the  words  here  used,  are  those  required  in 
a  renunciation  of  dower,  whereas,  in  a  re- 
lease of  the  fee  simple,  the  word  inheritance 
is  expressly  required.  So  that  whatever 
meaning  the  words  might  have  had  otherwise, 
the  Act  has  given  a  meaning  to  them  which 
can  not  be  departed  from."  By  like  reason- 
ing, we  may  conclude,  that  although  legatees 
may  be  considered,  in  a  popular  sense,  as  en- 
titled by  law  to  their  legacies,  yet  the  Legis- 
lature, by  requiring  an  administrator  on  a 
will  to  covenant  expressly,  "well  and  truly 
to  pay  and  deliver  all  the  legacies  contained 
and  specified  in  the  will,"  &c.  has  limited  the 
application  of  the  terms,  "entitled  by  law,"  to 
such  persons  as  are  entitled  by  the  statute 
of  distributions.  If  the  bond  here  had  con- 
formed with  reasonable  sti'ictness  to  the  con- 
dition exacted  from  a  general  administrator, 
it  might,  perliaps.  have  been  upheld,  on  the 
presumption  that  the  ordinary  had  judicially 
determined  the  case  to  be  one  of  intestacy, 
but  the  omission  of  that  part  of  the  condi- 
tion which  provides  for  the  surrender  of  the 
administration  on  the  probate  of  a  will,  cer- 
tainly extends  and  anq)lilies  the  liability  of 

*32 
the  administrator  and  his  sureties.  *The 
disadvantages  incurred  by  the  obligors  by 
being  required  to  enter  into  a  bond  for  the 
administration  of  an  intestate's  estate,  in- 
stead of  a  bond  for  the  administration  with 
the  will  annexed,  are  well  iiointed  out  in  the 
circuit  decree.  In  Monk  v.  Jenkins.  (2  Hill 
E(l.  12,)  Chancellor  Harper  says,  "where  a 
statute  is  passed,  authorizing  a  proceeding, 
which  was  not  allowed  by  the  general  law  be- 
tV>re,  and  directs  a  mode  in  which  the  act 
shall  be  done,  the  mode  pointed  out  must  be 
strictly  pursued.  It  is  a  condition  on  which 
alone  the  party  can  entitle  himself  to  the 
benetit  of  the  statute,  otherwise  the  act  is 
void." 

In  Virginia  and  Kentucky,  the  conditions 
of  bonds  required  from  common  administra- 
tors, and  administrators  with  the  will  annex- 
ed, are  almo.st  literally  the  same  with  those 
prescribed  in  our  Act  of  178'.):  and  in  tho.se 
States  we  have  express  authorities  on  the 
point  under  discussion,  which  we  are  content 
to  follow.  The  case  of  Frazier  v.  Frazier. 
sutHciently  noticed  in  the  opinion  of  the 
Chancellor,  was  re-affirmed  in  the  case  of 
Morrow  v,  Peyton,  (8  Leigh,  54.) 

In  Fulcher  v.  Commonwealth,  (3  J.  J.  Mar- 
shall. 5!>2)  the  bond,  on  which  the  suit  was 
fitunded,  had  the  condition  of  an  ordinary 
administration  bond,  but  did  not  contain  the 
condition  for  the  payment  of  legacies,  requir- 

13 


*32 


3  RICHARDSON'S  EQUITY  REPORTS 


ed  from  an  administrator  cum  testamento 
annexe.  Held,  that  the  administrator  and 
his  sureties  were  not  liable  to  suit  for  a  lega- 
cy. See  Moore  v.  Waller,  1  Marsh.  488; 
Barbour  v.  Robertson,  1  Litt.  93. 

We  are  of  opinion  that  the  bond  is  not 
good  as  a  statutory  bond. 

On  the  second  ground  of  appeal,  it  may  be 
remarked  that,  if  the  bond,  void  for  noncon- 
formity to  the  statute,  be  good  as  a  bond  at 
common  law,  it  is  only  good  for  the  indemni- 
ty of  the  Ordinary,  and  in  that  phase,  the  Or- 
dinary would  be  the  obligee  in  interest,  and 
his  misrepresentation,  even  if  growing  out 
of  a  mistaken  construction  of  the  will,  occa- 
sioning liability  and  damage  to  the  obligors, 
nngnt  be  well  held  to  render  the  bond  void. 
We  prefer,  however,  to  put  our  decision  on 
the  ground  that,  according  to  the  cases  above 

*33 
cited,  a  legatee  has  no  right  *to  sue  on  this 
bond ;  and  that  the  question  of  its  validity, 
at  the  common  law,  can  be  properly  determin- 
ed only  in  a  suit  in  the  court  of  law,  in  the 
name  of  the  Ordinary. 

It  is  ordered  that  the  appeal  be  dismissed, 
and  the  decree  of  the  Chancellor  be  affirmed. 

DUNKIN,  Ch.  concurred. 

DARGAN,  Ch.  having  been  of  counsel,  did 
not  hear  the  case. 
Appeal  dismissed. 


3    Rich.  Eq.   33 
EDWARD   FOOTMAN  et  al.   v.   BENJAMIN 

R.  PENDERGRASS  et  al. 

SAME  V.  WILLIAM  STAGGERS  and  W.  H. 

CARTER,   Sheriff. 

(Columbia.     Nov.   and  Dec.  Term,  1850.) 

[Fraudulent   Conveyances  <©=32.] 

The  current  of  decisions  in  this  State  seems 
to  be  that  the  Statutes  13  and  27  Eliz..  are  in 
affirmance  of  the  common  law;  and,  at  the  com- 
mon law,  no  distincti<iu  exists  between  the  rights 
of  creditors  and  purchasers  as  against  a  prior 
voluntary  conveyance. 

[Ed.  Note. — For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  §  3;    Dec.  Dig.  <©=>2.] 

[Fraudulent   Conveyances  <©=>74,  75.] 

A  voluntary  conveyance,  without  actual 
fraud  in  its  origin,  is  valid  against  the  claims 
of  a  subsequent  purchaser  or  creditor  of  the 
donor  without  notice. 

[Ed.  Note.— Cited  in  Smith  v.  Smith,  24  S. 
C.  315. 

For  other  cases,  see  Fraudulent  Conveyances, 
Cent.  Dig.  §§  189,  191;   Dec.  Dig.  <©=>74,  75.] 

[Fraudulent  Conveyances  <©=>29S.] 

A  subsequent  sale  of  the  property  by  the 
donor,  without  notice  to  the  purchaser,  is  evi- 
dence, but  not  conclusive  evidence,  of  fraud  in 
the  prior  voluntary   conveyance. 

[Ed.  Note. — For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  §§  892-895 ;  Dec.  Dig. 
«©=5298.] 

[Fraudulent  Conveyances  i©=3275.] 

As  against  such  a  purchaser,  without  no- 
tice, the   onus   of   shewing   that   the    voluntary 


conveyance  was  without  fraud,  is,  it  seems,  up- 
on the  donee. 

[Eu.  Note — For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  §  807;  Dec.  Dig.  <©=> 
275.] 

[Fraudulent    Conveyances    <S=»132.] 

The  continued  possession  of  the  donor  is 
also  a  badge  of  fraud,  but  that  is  explained 
where  the  possession  is  consistent  with  the  terms 
of  the  conveyance. 

[Ed.  Note. — For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  §§  407,  422 ;  Dec,  Dig. 
©=132.] 

[Bales   <©=>2.35.] 

A  purchaser,  with  notice,  cannot  avail  him- 
self of  the  Statute  27  Eliz.;  and  such  notice  as 
would  put  the  party  on  the  enquiry,  as  would 
enable  him  witu  ordinary  diligence  to  ascertain 
the  fact,   is  deemed  sufficient. 

[Ed.  Note.— Cited  in  Gibbes  v.  Cobb.  7  Rich. 
Eq.  67. 

For  other  cases,  see  Sales,  Cent.  Dig.  §  681; 
Dec.  Dig.  <©=3235.] 

Before  Dunkin,  Ch.,  at  Williamsburg, 
March,  1850. 

In  the  case  first  stated.  Footman  v.  Pen- 
dergrass,  the  following  is  the  decree  of  the 
circuit  Chancellor: 

Dunkin,  Ch.  This  cause  was  originally 
heard  by  the  late  Chancellor  Caldwell,  at 
March  sittings,  1848.  On  appeal  from  his 
decree,  the  case  was  remanded  to  the  Circuit 
Court  for  rehearing,  on  the  ground  that  his 

*34 
Honor,  the  presiding  Chancellor,  *had  incor- 
rectly permitted  a  commission  to  be  receiv- 
ed in  evidence,  which  had  been  conveyed 
from  the  Commissioners  in  Orangeburg  by 
Wm.  C.  Footman,  the  husband  of  one  of  the 
parties  in  interest.     (See  2  Strob.  Eq.  317.) 

The  case  was  again  fully  heard.  The  ma- 
terial facts,  as  set  forth* in  the  decree  of 
Chancellor  Caldwell,  were  fully  substantiat- 
ed. So  far  as  a  negative  is  susceptible  of 
proof,  it  was  shewn  that  Wm.  C.  Footman 
was  clear  of  debt  at  the  date  of  the  instru- 
ment, although,  as  intimated  b.y  the  Chan- 
cellor, the  property  is  only  protected  from 
the  future  debts  or  contracts  of  Wm.  C.  Foot- 
man, and  not  from  existing  engagements.  It 
is  very  doubtful  whether,  at  the  time  of  mak- 
ing the  deed.  Footman  had  any  purpose  of 
removing  to  South  Carolina.  The  evidence 
does  not  seem  to  warrant  that  inference. 
But  after  he  returned  to  the  State,  it  is  diffi- 
cult to  say  that  there  was  any  attempt  to  con- 
ceal the  situation  of  tlie  property.  On  the 
contrary,  the  general  understanding  of  the 
community,  as  proved  by  the  defendant's  wit- 
nesses, was,  that  from  his  coming  back  no 
credit  should  be  given  to  Footman  unless 
his  wife  .ioined  in  the  contract.  R.  G.  Fer- 
rell  gives  the  probable  reason  whj'-  the  deed 
itself  was  not  put  on  record  in  the  clerk's 
office  at  Williamsburg.  He  was  clerk  of  the 
Court  and  register  of  deeds.  Peter  M.  Oliver 
brought  him  the  deed.  The  witness  told  him 
it  was  well  drawn,  but  the  probate  was  not 
such  as   would  authorize   him  to  record  it. 


14 


<g=»For  othsr  cases  see  same  topic  and  KEY-lsUMBEIl  in  all  Koj -Numbered  Digests  and  Indexes 


FOOTMAN  V.  PENTDEUGRASS 


•37 


Oliver  himself  took  It  back,  and  said  he 
woitld  have  it  sent  to  Geor^n  and  pi-oved. 
Oliver  himself  was  a  very  ui)rl«ht  man,  in- 
capalile  of  fraud  himself,  or  of  countciiancinj? 
fraud  in  another.  Footman  had  manicil  his 
half  sister,  and  he,  Oliver,  had  married  the 
sister  of  the  defendant.  Tenderjirass.  Oliver 
recommended  to  the  defendant  to  make  the 
loan,  hut  told  him  he  must  liave  the  signature  j 
of  Mrs.  Footman.  Oliver  must  have  known 
of  the  existence  of  tlie  deed;  hut  both  he, 
and  probably  Footman,  and  his  wife.  thoUL'ht 
lliat  if  Mrs.  Footman  joined  in  the  mortiiajie. 
it  would  be  perfectly  valid.  I'enderjirass 
.says,  and  the  Court  does  not  doubt  the  cor- 
rectness of  his  assertion,  that  he  was  un- 
aware of  the  existence  of  the  deed  when  he 
*35 

njade  the  *loan.  yet  he  certainly  was  advised 
that  he  could  not  safely  treat  with  Footman, 
unless  his  wife  united  in  the  contract.  But 
even  a  bona  tide  purchaser  for  valuable  con- 
sideration, without  any  notice  to  put  him  on 
the  intpiiry,  cannot  defend  himself  against 
one  having  the  legal  title.  It  is  impossible 
not  to  sympathise  with  the  defendant,  who 
seems  to  have  been  not  onl.v  a  confiding,  but 
an  indulgent  creditor.  Fntil  the  I'ecent  case 
of  Keid  v.  Lamar,  [1  Strob.  Eq.  127,]  the  pow- 
er of  a  married  woman  in  relation  to  the 
e.state  settled  upon  her,  was  not  very  distinct- 
ly detined,  or  w'ell  understood,  even  l)y  the 
profession. 

The  Court  does  not  undertake  to  repeat 
all  that  is  said  in  Chancellor  Caldwell's  de- 
cree, but  adopts  it  as  the  decree  now  made. 
There  was  no  proof  as  to  the  time  of  the 
death  of  Peter  Oliver  Footman,  or  v*ho  was 
his  legal  representative.  Tli*>  legal  title  to 
the  slaves  claimed  is  in  Edward  Footman, 
the  trustee,  and  he  is  entitled  to  a  decree  for 
.si)ecific  delivery.  That  is  the  only  issue  pre- 
sented by  the  pleadings. 

It  is  ordered  and  decretnl,  that  the  defend- 
ant, Renjamin  H.  I'endergrass,  be  perpetual- 
ly enjoined  from  selling  the  negroes  under 
the  mortgage,  and  that  he  forthwith  deliver 
such  as  are  in  his  power  or  possession,  to  the 
complainant,  and  that  he  account  for  the 
hire  of  such  of  the  slaves  as  have  been  under 
Ins  control  or  possession ;  and  that  it  be  re- 
ferred to  the  Commissioner  to  ascertain  and 
report  the  same.  The  plaintiffs  to  pay  their 
own  costs,  and  Wm.  C.  Footman  to  pa.v  the 
costs  of  the  defendant,  Benjamin  II.  Fender- 
grass. 

In  the  case  of  Footman  v.  Staggers  I't  Car- 
ter, the  following  is  the  circuit  decree: 

Dunkiji,  Ch.  This  case  was  heard  with 
that  of  tlie  same  plaintiffs  against  Bcnj.  K. 
i'endergrass.  The  difference  in  the  circum- 
stances is,  that  pending  the  proceedings  in 
that  case,  and  after  an  injunction  ordered 
by  Chancellor  Johnston,  the  defendant,  N^il- 
liam  Staggers,  caused  a  levy  to  l)e  made  on 
two  of  the  uegroes  embraced  in  the  deed  to 


the  i»!aintl(T.  and  purchased  them  him.self  at 
the  sherilT's  sale. 

•36 

*It  is  ordered  and  decreed,  that  the  defend- 
ant, William  Staggers,  deliver  up  to  the 
plaintiff  ihe  slaves,  Prince  and  George,  and 
account  for  their  hire  since  15  Ai>ril,  1847, 
to  ascertain  winch  hire  a  reference  is  order- 
ed. Co.sts  of  the  proceedings  to  be  paid  by 
the  defendant,  William  Staggers. 

The  defendants,  Pendergrass  and  Stag- 
gers, appealed,  on  the  foUowing  grounds: 

l^t.  Because  all  tiie  circumstances  of  the 
whole  tran.^action  shew  that  the  deed  origi- 
nated in  fraud,  and  tlie  Chancellor  should 
so  liave  decreed. 

2nd.  Because  the  deed  being  the  voluntary 
conveyance  of  the  husband  to  his  wife  and 
children  after  marriage,  was  void  against 
sul)se(iuent  creditors  and  purchasers. 

ord.  Becau.se  the  deed  is  to  be  regarded  as 
a  post  nuptial  settlement,  and  void  against 
creditors  and  purchasers. 

4tli.  Becau.se.  in  any  event,  the  Chancellor 
should  have  decreed  the  interest  of  the  said 
W.  C.  Footman,  as  a  distributee  of  the  de- 
ceased child,  IVter  Oliver  Footman,  under 
the  said  deed,  liable  to  the  claim  of  the  ap- 
pellants. 

5th.  Becau.se  the  decree  is  in  other  respects 
against  justice,  equity  and  conscience. 

F.  J.  Moses,  for  appellants, 
Ilaynsworth,  Rich,  contra. 

DCNKIX.  Ch..  delivered  the  opinion  of  the 
Court. 

Both  the  Chancellors  who  heard  these  caus- 
es at  the  circuit  having  concurred  in  the 
oi)inion  that  there  was  no  fraud  in  fact  in 
the  deed  of  March,  1S.S2,  it  would  reiiUire  a 
strong  case  of  misapprehension  on  their  part, 
to  induce  this  Court  to  revise  the  decree  on 
the  first  ground  assumed  by  the  appellants. 
But  so  far  from  this,  although  the  ground 
was  taken,  no  commentary  on  the  evidence 
was  oft'ered,  and  no  argument  urged  on 
which  it  was  to  be  sustained. 

The  parties  had  formerly  resided  in 
Orangeburg  district,  in  South  Carolina,  and 
removed  to  (Jeorgia.  Before  leaving  this 
State,  Footman  had  been  embarrassed,  but  it 

*37 
was  proved  by  Col.  *«ilover  of  Orangeburg, 
that  Footman  afterward  receiviul  a  legacy 
from  .Mr.  Caldwell,  a  relative,  and  that  the 
witness,  as  his  a.gent,  discharged  every  debt 
which  he  knew  to  exist  against  him.  There 
was  no  proof  that  an.v  debt  remained  unpaid. 
Mr.  Robert  Habersham,  of  Savannah,  was 
the  factor  of  Footman  while  in  (Jeorgia.  He 
j>roved  that  in  March,  l.s;>2,  he  owed  no  debts 
except  one  or  two,  for  the  discharge  of 
which,  funds  were  placed  in  the  hands  of 
witness,  and  the  debts  paid.  This  is  the  sub- 
stance of  his  testimony,  although  his  exam- 
ination   was   not   put    in  possession   of   the 

15 


^37 


3  RICHARDSON'S  EQUITY  REPORTS 


Court.  Superadded  to  this,  is  tlie  express  ] 
provision  of  tlie  deed,  tliat  tlie  exemption  of 
tlie  property  is  only  from  "such  debts,  or 
contracts,  as  may  hereafter  be  incurred,  or 
entered  into,  by  the  said  William  C.  Foot- 
man." The  deed  was  recorded  in  the  proper 
office  of  the  county  in  which  the  parties  re- 
sided in  the  month  after  its  execution,  to 
wit,  on  the  11th  April,  1832.  In  the  decree 
last  pronounced,  it  is  said  to  be  "very  doubt- 
ful whether,  at  the  time  of  making  the  deed. 
Footman  had  any  purpose  of  removing  to 
South  Carolina.  The  evidence  does  not  seem 
to  warrant  that  inference."  If  this  is  a  mis- 
apprehension, it  could  be  demonstrated  by 
the  adduction  of  the  evidence.  The  deed  was 
executed  on  the  5th  March,  1832.  Footman 
did  not  remove  to  South  Carolina  till  the 
Fall  of  that  year,  and  the  liegroes  remained 
until  the  following  year.  But  after  his  re- 
turn to  South  Carolina,  the  deed,  which  had 
been  recorded  in  Georgia,  was  carried  to  the 
clerk  of  the  Court  in  Williamsburg,  (to  which 
district  they  had  removed,)  for  the  purpose 
of  being  placed  on  record.  But  Mr.  Ferrell, 
the  clerk,  testified,  that  he  told  the  person 
who  brought  it,  that,  although  the  deed  was 
properly  drawn,  the  probate  was  not  such  as 
would  authorize  him  to  record  it.  But  it 
was  abundantly  proved,  and  particularly  by 
the  defendant's  witnesses,  that  from  the  time 
of  Footman's  return  to  this  State,  no  credit 
would  be  given  to  him  unless  his  wife  joined 
in  the  contract.  In  the  language  of  the  wit- 
nesses, she  was  regarded  as  a  sole  trader. 
Under  these  circumstances,  some  four  years 
after  Footman's  return  to  this  State,  to  wit, 
in  February,  1S37,  the  defendant  made  the 

*38 
loan.  Peter  *M.  Oliver,  the  friend  and  broth- 
er-in-law, both  of  Footman  and  the  defend- 
ant, and  who  had  carried  the  deed  to  the 
clerk's  office  for  record,  advised  the  defend- 
ant to  make  the  loan,  but  told  him  to  have 
the  signature  of  Mrs.  Footman.  Oliver  was 
a  man  of  unimpeachable  integrity.  The  de- 
fendant took  the  bond  of  Mr.  and  ]Mrs.  Foot- 
man, and,  to  secure  the  payment,  they  exe- 
cuted to  him  a  mortgage  of  a  tract  of  land, 
and  also  of  a  portion  of  the  slaves  included 
in  the  deed  of  March,  1832.  It  is  intimated 
in  the  decree  of  the  Circuit  Court,  that  all 
the  parties  probably  acted  under  a  misappre- 
hension of  the  extent  of  Mrs.  Footman's 
power  over  her  separate  estate.  Wiser  men 
than  the  defendant,  and  better  lawyers  than 
Footman,  have  fallen  into  similar  errors. 
I'endergrass  says  he  did  not  know  of  the  ex- 
istence of  tl'-is  deed,  and  his  assertion  is  en- 
titled to  full  credit.  But  is  it  not  demon- 
strated that  before  he  made  the  loan,  he  was 
distinctly  advised  that,  in  order  to  render 
the  mortgage  of  the  slaves  valid,  Mrs.  Foot- 
man must  join  in  the  execution  of  the  in- 
strument. If  Footman  alone  was  the  owner 
of  the  slaves,  why  take  the  joint  bond  and 
joint  mortijage?     Did  not  this  clearly  indi- 

.16 


cate  that  Mrs.  Footman  had  an  Interest  in 
the  premises,  and  put  him  on  the  inquiry  as 
to  the  extent  of  her  authority? 

But  the  second  ground  assumes  the  posi- 
tion, and  it  is  on  this  that  the  counsel  chief- 
ly relies,  that  although  the  deed  of  March, 
1832,  was  bona  fide,  and  that  the  party  was 
not  in  debt  at  the  time,  yet,  being  voluntary, 
it  is  void  against  subsequent  creditors  and 
purchasers. 

I  think  the  proposition  is  properly  put. 
For  although  many  of  the  English  cases  cit- 
ed are  on  the  Statute  27  Eliz.,  yet  it  is  con- 
ceded that  this  statute  embraces  only  con- 
veyances of  real  estate.  But  the  current  of 
our  own  decisions  seems  to  be,  that  the  stat- 
utes, both  of  13  and  27  Eliz.,  were  only  in 
affirmance  of  the  common  law.  I  am  not 
aware  that  by  the  common  law  any  distinc- 
tion existed  between  the  rights  of  creditors 
and  those  of  purchasers.  Conveyances,  which 
wei'e  fraudulent  and  covinous,  were  void  as 
to  both.  But  one  of  the  leading  cases,  ad- 
duced in  support  of  the  appeal,  was  Cath- 

*39 
cart  V.  Robinson,  (5  I'eters,  *264  [8  L,  Ed. 
120]).  This  turned  on  the  construction  to  be 
given  to  the  Statute  27  Eliz. ;  Chief  Justice 
Marshall  says,  the  recent  English  decisions 
upon  this  statute  "go  beyond  the  construc- 
tion which  prevailed  at  the  American  revolu- 
tion, and  ought  not  to  be  followed."  He  fur- 
ther says  that  "the  principle  which,  accord- 
ing to  the  uniform  course  of  this  Court,  must 
be  adopted  in  construing  the  Statute  27  Eliz. 
is,  that  a  subsequent  sale  without  notice,  by 
a  person  who  had  made  a  settlement  not  on 
valuable  consideration,  was  presumptive  evi- 
dence of  fraud,  which  threw  on  those  claim- 
ing under  such  settlement,  the  burthen  of 
proving  that  it  was  made  bona  fide."  None 
of  our  own  decisions  go  beyond  this.  To  say 
that  a  second  sale  for  valuable  consideration, 
by  a  man  who  had  previously  made  a  volun- 
tary settlement  of  the  same  property,  is,  per 
se,  conclusive  evidence  of  fraud  in  the  settle- 
ment, seems  not  sanctioned  by  reason.  A 
second  sale  for  valuable  consideration,  by  a 
man  who  has  already  sold  the  same  estate  to 
another  purchaser,  is  conclusive  evidence  of 
fraud,  but  surely  not  in  the  former  sale,  but 
in  the  second ;  and  so,  if  a  father  in  affiu- 
ent  circumstances  makes  a  deed  of  gift  of 
two  slaves  to  his  son,  and  five  years  after- 
wards sells  the  same  slaves  for  valuable  con- 
sideration, how  can  it  be  affirmed  with  rea- 
son that  this  is  conclusive  evidence  of  fraud 
in  the  previous  gift?  It  indicated  caprice 
and  injustice  to  his  child,  and  fraud  in  the 
sale  to  the  bona  fide  purchaser,  but  is  any 
thing  else  than  conclusive,  that  the  gift  five 
years  previously,  was  concocted  in  fraud. 
Hudnal  v.  A\  ilder,  (4  McC.  294  [17  Am.  Dec. 
744,])  was  determined  on  the  ground  of 
fraud  in  fact  in  the  previous  voluntary  set- 
tlement, as  aflirmed  by  two  concurring  ver- 
dicts.   It  was,  therefore,  unnecessary  to  give 


FOOTMAX  V.  PENDERGIIASS 


*42 


fi  construction  to  tlio  Statute  27  Eliz.,  even 
if  it  had  applied  to  personalty.  Judge  Nott, 
liowever,  oft'ers  some  observations  on  the 
reason  of  the  law  for  considering  fraudulent 
voluntary  transfers  by  a  jirantor.  who  still 
continues  in  possession.  "Possession."  .says 
he,  "is  the  highest  evidence  recogiuzed  hy 
law,  of  a  right  to  personal  property.  A  ven- 
der continuing  in  possession,  is  regarded,  as 
to  creditors  or  subsetiuent  purchasers,  as  the 
owner,  against  the  most  solemn  uncondition- 

*40 
al  deed  to  a  bona  *fide  purchaser  not  in  pos- 
session." He  afterwards  says,  "if  such  gifts 
or  conveyances  are  to  prevail  against  credi- 
tors and  bona  tide  purchasers,  it  is  impossi- 
ble to  foresee  to  what  extent  frauds  may  not 
be  carried."     It  will  be  perceived  that  credi- 
tors  and   subsequent   purchasers   are   iilaced 
by  him  in  the  same  category,  and  their  rights 
on  the  same  footing.     But  the  .Judge  admits, 
as    has    Ix^en    repeatedly    adjudicated,    that, 
where  the  object  of  the  deed  was  to  make 
provision  for  the  wife  and  children  who  were 
living    with   the   donor,    his    i)ossessi(ui    was 
consistent  with  the  terms  of  the  deed.  and. 
therefore,  repelled  the  presumption  of  fraud 
arising  from  the  variance  between  the  terms 
of  the  deed  and  the  i)ossession.     But  if  the 
deed  were,  per  se,  fraudulent,  as  to  creditors 
and  purchasers,  because  voluntary,  how  could 
this  explanation  make  any  ditlerence?     The 
common  law,  as  has  been  said,  recognizes  no 
distinction    between    the   rights  of   creditors 
and   sul>.se(iuent   purcha.sers   in    reference   to 
voluntary  deeds.     I  am   unable  to   find   any 
decision  of  our  own  Courts,  in  which  a  deed 
has  been  declared  void  in  favor  of  a  subse- 
(luent  purchaser,  which  would  not  also  have 
been   declared   void   in    favor  of  a   creditor. 
Both  stand  on  the  character  of  the  voluntary 
settlement.     The  iiKjuiry  always  is  bona  fide 
or  mala  fide.     The  decisions  point  out  vari- 
ous badges  of  fraud,  such  as.  in  some  cases, 
the  continued  possession  of  the  donor,  his  ex- 
isting indebtedness.  &c.  &c. ;    and  the  execu- 
tion of  a  second  deed,   for  valuable  consid- 
eration, of  the  .same  i)roperty.  may  well  war- 
rant a  jury  in  referring  back  the  fraudulent 
purpose  to  the  time  of  the  execution  of  the 
I»revious  voluntary  .settlement.     But  it  is  no 
where  said  that  this  is  a  legal  inference,  or 
a  presumption  not  to  be  repelled  by  proof  to 
the  contrary.     If  it  eonld  be  shewn  that  the 
donor  had  abundant  means,  not  only  at  the 
time  of  the  gift,  but  at  the  time  of  the  sukse- 
Miient  sale,  and  that  he  was  entirely  able  to 
i'ldciiinify    the   purchaser  on    his    warranty. 
Would   not  this  evidence  satisfactorilv   repel 
any    presumption    of    fraud    in    the   original 
gift,  and  shew,  that  if  any  fraud  existed,  it 
was  in  tlie  second  sale,   and   in   tlult   aloneV 
Is    there    any    adjudication    of    our    Courts, 
which    would    warrant    the   purchaser    in    in- 

*41 
sisting  on    *the   voluntary    character   of   the 
settlement,  as  conclusive  evidence  of  fraud, 
3  Kicu.Ey.— 2 


and  in  retaining  th(>  projierty  against  the 
donee,  although  abundantly  i)rotected  by  his 
warranty'/  If  not,  then  the  execution  of  the 
second  din-d  is  oidy  one  of  the  circumstances 
from  which  fraud  in  the  former  deed  may  be 
inferred;  and  this  is  in  perfect  harmony 
with  Cathcart  v.  Bobinson.  The  ju<lgment 
of  the  Sui)reme  Court  of  the  Cnited  States  in 
that  ca.se  carries  the  ductrine  tpiite  as  far  as 
it  has  been  hitherto  recognized  in  this  State, 
and  that  only  throws,  on  those  claiming  un- 
der the  voluntary  settlement,  the  onus  of 
shewing  that  it  was  made  bona  fide. 

But  there  can  be  no  doubt  that,  according 
to  the  American  decisions,  a  purchaser,  with 
notice,  cannot  avail   himself  of  the   Statute 
27  lOliz.,  and  it  is  equiilly  well  settled,   that 
such  notice  as  would  put  the  party  on   the 
en(|uiry,  as  would  enable  him  with  ordinary 
diligence  to  ascertain  the  fact,  is  deemed  suf- 
ficient, ([lludnal  V.  Teasdall]  1  McC.  2:;i  [1(1 
Am.  Dec.  G71].)     The  defendant  was  about  to 
lend  his  money  to  a  man  who,  according  to 
the  distinct  testimony  of  his  own  witnesses, 
for  the  last  four  or  five  years,  had  no  credit 
unless   his  wife  joined   in   the  contract.      He 
was  cautioned  that  he  must  have  her  signa- 
ture in  this  particular  transaction.     But  Mrs. 
Footman,  being  a  married  woman,  could  have 
no  authority  to  do  any  act   but   as  derived 
from  some  deed,  or  will.     The  fact  of  re(iuir- 
ing  her  signature  to  the  mortgage,  and  th(> 
fact  of  her  joining  in  tne  execution,  while  it 
shewed  that  Footman  was  not  understood  to 
possess  the  absolute  dominion  over  the  prop- 
erty,  pointed  also  to  the  exi.stence  of  some 
authority  under  which  his  wife  acted.     This 
was   the  inquiry    which   the   defendant    was 
bound  as  a  prudent  man  to  pursue.     Oliver, 
who  had  given  him  the  caution,  had  himself 
carried  the  deed  to  the  clerk's  ottice  for  rec- 
ord.     He  would  certaiidy  have  told  him  of 
the  existence  of  the  deed,  (as  was.  in  fact,  im- 
plied by  his  caution  to  him,)  although  it  is 
most   probable   he   would  at   the   same   time 
have   assured   him.   that    Mrs.    Footman   was 
authorized  by  the  deed  to  execute  the  mort- 
gagi'.     The  Circuit  Chancellor  intimates  the 
oiiinion,   that   such   seems  to  have   been   the 
view  of  all   the   partii's   to   the   transaction. 

*42 
*I!ut  this  can  have  no  elTect  on  the  construc- 
tion which  the  Court  nuist  give  to  the  deed, 
or  upon    the   rights  of  the   parties  claiming 
under  that  deed. 

This  Court  perceives  no  error  in  the  de- 
crees which  are  the  subject  of  this  ai)peal.  It 
is  ttrdered  and  decreed  that  the  .same  be 
altirmed,  and  the  aiipeals  dismissed. 

JOHXSTOX,  Ch.,  concurred. 


DAIKJAX.  Ch..  dissenting.  Wm.  C.  Foot- 
man, originally  an  inhabitant  and  citizen  of 
South  Carolina,  but  afterwards  residing  in 
Bryan  County,  in  the  State  of  Georgia,  at  the 
last  mentioned  place  executed  a  deed,  bearing 

17 


*42 


RICHARDSON'S  EQUITY  REPORTS 


date  the  5th  day  of  March,  1832,  by  which 
he  conveyed  to  Edward  Footman  sundry  ne- 
groes, therein  named,  constituting,  so  far  as 
appears,  all  his  property,  and  certainly  the 
great  bulk  of  his  estate,  in  trust  for  the  sole 
and  separate  use  of  his  wife,  Mariah  H. 
Footman,  and  of  his  children,  then  in  esse, 
and  any  future  issue  to  be  begotten  between 
the  said  Wm.  C.  Footman  and  his  wife 
Mariah  H.  Footman.  At  the  date  of  the  deed 
the  parties  and  slaves  resided  in  Bryan  Coun- 
ty, in  the  State  of  Georgia,  and  it  appears  to 
have  been  duly  registered  according  to  the 
statutory  provisions  of  that  State.  Chancel- 
lor Caldwell  (whose  statement  of  the  proof 
Chancellor  Dunkin  in  the  main  adopts,)  says 
that  "the  donor  had  formed  the  intention  of 
removing  to  South  Carolina  before  the  execu- 
tion of  the  deed,  and  accordingly  did  remove 
to  this  State  afterwards."  After  the  execu- 
tion of  the  deed  the  negroes  remained  in 
Georgia  about  a  year,  and  were  then 
brought  to  this  State.  There  is  no  evidence 
that  the  trustee,  who  did  not  reside  in  South 
Carolina,  ever  accepted  the  trust,  or  had  any 
knowledge  of  the  deed  by  which  it  was  creat- 
ed. AVm.  C.  Footman  and  family,  on  their 
return  to  South  Carolina,  settled  in  Williams- 
burg district,  where  Mrs.  Footman,  though 
not  engaged  in  mercantile  pursuits  or  trade 
of  any  kind,  was  reputed  to  be  a  feme  sole 
trader.  It  is  a  popular  error  that  any  mar- 
ried woman,  whether  engaged  in  trade  or  not, 
can  become  a  free  dealer,  as  it  is  called,  sim- 
ply by  a  publication  of  her  intention  to  as- 

*43 
sume  that  *character.  The  property  remain- 
ed in  the  possession  of  Wm.  C.  Footman,  and 
was  ostensibly  his  own.  The  only  suspicion 
upon  his  title  was,  that  Mrs.  Footman,  as  a 
sole  trader,  might  have  some  claim  upon  it. 

Under  these  circumstances,  the  defendant, 
Pendergrass,  on  the  2d  day  of  Feln-uary,  1837, 
loaned  Footman  and  wife  ^2;2S2,  taking  their 
bond,  payable  in  ten  years;  and,  to  secure  the 
payment,  took  from  them  a  mortgage  of  a 
tract  of  land,  and  four  slaves  (the  slaves  be- 
ing some  of  those  embraced  in  the  trust  deed.) 
And  afterwards,  on  the  11th  March,  1845, 
Footman  and  wife  being  indebted  to  Pender- 
grass for  arrears  of  interest  and  for  supplies 
of  corn  and  advances  of  money,  executed  to 
him  a  bond  for  $1,070,  payable  on  the  11th 
March,  1846;  and,  to  secure  the  payment, 
they  executed  a  mortgage  of  sundry  other  ne- 
groes, being  of  those  embraced  in  the  deed  of 
trust.  It  was  not  proved  that  the  existence 
of  this  deed  was  known  to  more  than  two  per- 
sons in  South  Carolina.  The  defendant  was 
advised,  on  loaning  the  money,  to  have  the 
signature  of  Mrs.  Footman  to  the  bond;  but 
It  was  not  .shewn  that  the  ground  of  this  ad- 
vice was  the  fact  of  the  property  being  settled 
in  trust.  But,  on  the  contrary,  the  defendant, 
answering  re.sponsively  to  the  bill,  has  stated 
his  utter  ignorance  of  that  fact,  and  that  the 
reason  of  his  joining  Mrs.  Footman  in  the 
18 


bond  and  mortgage  was  the  general  impres- 
sion that  she  was  a  sole  trader.  One  thing 
is  certain,  the  Footmans  (husband  and  wife,) 
borrowed  the  defendant's  money  to  a  large 
amount,  (considering  their  means,)  and  mort- 
gaged negroes  to  secure  the  debt,  without  giv- 
ing him  the  slightest  intimation  that  the 
property  upon  which  they  obtained  the  loan 
was  conveyed  by  a  prior  deed  of  trust.  This 
certainly  was  a  vile  fraud  upon  the  defend- 
ant, whatever  may  have  been  the  character 
of  the  trust  in  its  inception. 

Both  the  Chancellors,  who  have  heard  this 
cause  on  circuit,  liave  decided  that  there  was 
no  actual  fraud  proved  as  to  this  deed  at 
its  execution;  or,  in  other  words,  that  no 
fraud  was  then  meditated.  Upon  this  ques- 
tion of  actual  fraud,  according  to  the  proof 
made,  I  should  have  come  to  the  same  con- 

*44 
elusion.  But  I  *cannot  say  that  my  suspi- 
cions have  not  been  strongly  awakened,  and 
that,  in  my  apprehension,  there  is  not,  if  I 
may  be  allowed  to  use  the  expression,  an  odor 
of  fraud  arising  from  the  circumstances. 
And  if  (according  to  some  of  the  decisions) 
a  voluntary  convej'ance,  coming  into  collision 
with  a  subsequent  bona  fide  conveyance  for 
valuable  consideration,  is  subject  to  the  prima 
facie  presumption  of  fraud,  which  it  is  neces- 
sary to  rebut,  then  I  think  the  complainants 
have  most  signally  failed ;  for  in  my  judg- 
ment, the  circumstances  elicited  on  the  trial, 
if  such  prima  facie  presumption  is  to  have 
its  weight,  serve  rather  to  strengthen  than 
to  rebut  it. 

But  the  great  question  of  this  case,  and 
one  that  is  highly  important  in  reference  to 
its  general  bearing,  I  will  now  proceed  to 
discuss.  Is  it  true,  as  an  abstract  legal 
proposition,  that  a  voluntary  conveyance, 
without  actual  fraud  in  its  origin,  is  valid 
against  the  claim  of  a  subsequent  purchaser 
for  valuable  consideration,  and  without  no- 
tice? Upon  this  question  the  majority  of 
this  Court,  as  at  present  constituted,  has 
responded  in  the  affirmative.  I  feel  con- 
strained to  say,  in  reference  to  the  judgment 
which  has  been  announced,  that  I  differ  toto 
coelo.  My  opinion  on  this  question  has  not 
been  hastily  adopted,  nor  formed  at  the  pres- 
ent time.  It  is  coeval  with  my  earliest  ac- 
quaintance with  this  branch  of  the  law.  It 
was  derived  from  the  most  authoritative  ex- 
positors, and  has  been  strengthened  by  sub- 
sequent study  and  research.  An  opinion 
thus  deliberately  formed,  I  find  it  difHcult 
to  yield  without  a  struggle ;  more  particu- 
larly as  I  have  read  or  heard  nothing  to 
shake  it,  and  find  myself  supported  by  some 
of  the  ablest  and  most  learned  Judges  who 
have  ever  presided  in  the  English  or  Ameri- 
can courts. 

Is  the  legal  proposition,  as  I  have  above 
stated  it,  true?  There  are  few,  I  presume, 
who  would  have  the  temerity  to  deny  that 
the  converse  of  the  proposition  is  the  law 


FOOTMAN  V.  TEXDERGRASS 


that  at  tliis  day  prcviiils.  mid  for  agos  past 
has  jji-fvalled.  in  WcstiuinsttT  Hall.  Indeed, 
many  of  the  Enjilish  decisions,  (in  fact,  hy 
far  the  greater  part.>  go  so  far  as  t<»  say 
that  want  of  notite  is  ininniterial.  and  that 
the  prior   voluntary  conveyance,   though   un- 

*45 
impeached  f()r  *aitual  fraud,  is  void  against 
the  sultseipient  purchaser  for  valuahle  con- 
sideration, even  with  notice.  We  know,  from 
the  most  authentic  judicial  history  of  those 
times,  that  this  construction  of  the  statute 
l-'T  Eliz.  prevailed  in  the  English  courts  from 
a  period  almost  cotemporary  with  its  en- 
actment. In  rpton  V.  liassett,  Cro.  Eliz.  44.1, 
(only  ten  years  after  the  enactment  of  27 
Eliz.)  "there  was  an  evident  admission  and 
understanding."  .says  ChanceHor  Kent,  in 
Sterry  v.  Arden.  (1  .Johns.  Ch.  L'ni.t  "of  all 
the  Judges,  that  a  voluntary  conveyance  was 
void  under  the  27  Eliz.  against  a  sulisei|uent 
liona  tide  purchaser  for  valuahle  consider.a- 
tion."  I  have  examined  this  case,  and  con- 
cur with  the  learned  Chancellor  in  the  in- 
ference which  he  has  deduced  from  it.  I 
lemark,  further,  that  Owen,  .J.,  "accorded" 
as  the  reporter  has  expressed  it.  with  the  : 
other  Judges  "in  omnihus.  and  said  that  he  j 
was  present  at  the  making  of  the  .statute."  | 

Early  in  the  next  reign,  in  the  5th  of 
Jame.s  the  first,  the  same  construction  was  ] 
recognized  in  a  manner  still  more  explicit. 
In  Colville  v.  Parker,  fCro.  Jac.  158.)  which 
was  an  information  in  the  King's  Bench 
against  fraudulent  conveyances,  the  case  of 
one  Woodie  was  cited  as  ha\ing  been  hefore 
that  time  decided,  where  it  was  held  that  a 
voluntary  conveyance  was  void  against  a  suh- 
.se<juent  purchaser  without  notice,  "because," 
as  it  was  said,  "it  was  a  voluntary  convey- 
ance at  first,  and  shall  he  deemed  fraudulent 
from  the  beginning." 

The  troubled  and  disastrous  reign  of  the 
tirst  Charles  furnishes  no  case  or  i)recedent, 
so  far  as  my  re.searches  have  extended,  hear- 
ing upon  this  question.  In  that  period  of 
civil  strife  cases  involving  this  (piestion  ei- 
ther did  not  ari.se,  or  the  history  and  record 
of  them  have  been  swept  away  and  lost 
amidst  the  convulsions  and  (onfusion  of  the 
times.  Nor  does  the  judicial  iiistory  of 
England  under  the  Commonwealth,  and  the 
protectorate  of  Cromwell,  throw  any  ligiit 
upon  this  subject. 

The  succeeding  reign  of  Charles  the  Second 
furnishes  several  cases.  The  cases  of  this 
reign  are  much  relied  on  by  those  who  have 
advocated  the  opposite  doctrine  to  that  which 
I    have    adopted.      At    that    period    it    was 

*46 
thought  necessary  that  the  (iucs*tion  of  fraud 
should  be  submitted  to  a  jury.  And  in 
(Jarth  v.  Mois,  (Keb.  4N(i,  l."i  <'ar.  II.,)  it  was 
held  by  the  Court,  in  submitting  "evidence 
to  a  jury  on  this  <iuestion.  that  a  voluntary 
conveyance   executctl,   is   not   fraudulent   be- 


cause voluntary,  but  is  great  evidence  of 
fraud  as  against  an  after  ci»nveyance  made 
bona  fide,  because  the  statute  avoids  such 
deeds  as  are  bona  tide  and  on  consiileration, 
if  made  ea  intentione  to  defraud  purchasers. 
And  therefore  this  fraud  must  be  found  iiy  a 
jury."  1  have  extracted  the  whole  case  from 
the  report.  It  is  but  a  nisi  prius  decision  at 
best,  and  very  meagerly  and  unsatisfactorily 
reported.    Let  it  go  for  what  it  is  worth. 

Jenkins  v.  Kemeshe.  1  I>ev.  150,  (in  King's 
Bench,  16  Car.  II.,)  is  also  a  cjise  which  has 
been  much  relied  on  by  those  who  advocati» 
a  contrary  doctrine.  But  on  an  examination 
of  thar  ca.se  it  will  be  found  not  to  be  in 
point.  Sir  Nicholas  Kemeshe  was  tenant  for 
life  in  certain  messuages:  remaindi-r  to  his 
st»n  Charles  in  tail  general,  with  remainder 
over.  They,  (Sir  Nicholas  and  his  son 
Charles,)  on  the  marriage  of  Charles  with 
Blanche,  his  first  wife,  and  in  consideration 
of  the  marriage  and  a  marriage  pi>rtiou  of 
fL'.."»00,  levy  a  fine  and  recovery,  to  the  use 
of  Sir  Nicholas  for  life,  remainder  to  Charles 
and  the  heirs  of  his  lx)dy  begotten  on 
Blanche,  remainder  to  the  heirs  of  the  body 
of  Charles  generally,  with  power  on  the  iiart 
of  Sir  Nicholas  to  charge  all  and  singular  the 
premises  with  the  payment  of  £2.1XH>,  by  way 
of  mortgage.  Upon  which  Sir  Nicholas  and 
Charles,  without  reciting  the  power,  convey 
a  portion  of  the  premises  to  Jenkins,  by  way 
of  mortgage.  Sir  Nicht)las  dies.  I'.lanche 
also  dies,  without  issue.  And  Charles  mar- 
ries a  second  wife,  by  whom  he  has  issue  the 
defendant.  And  the  money  not  being  paid, 
the  plaintiff,  the  son  of  Jenkins,  brings  eject- 
ment. I'pon  the  trial  two  questions  arose. 
The  first  was  as  to  the  execution  of  the  pow- 
er, and  whether  it  was  legal  and  valid.  .\nd 
the  second  (piestion  was,  whether  the  consid- 
eration of  the  setilement,  which  was  held  to 
be  valuable,  extended  to  the  issue  of  the 
second  marriage.  It  was  decided  that  it  did. 
The  defendant   was  considereil   as  one   hold- 

♦47 
ing  untler  a  purchase  for  valu*al  le  consider- 
ation, and  the  judgment  of  the  Court  was  for 
him. 

In  Lavender  v.  Blackstone,  ili  Lev.  14U.  -7 
Car.  II.,)  a  settlement  after  marriage  was 
held  to  be  purely  voluntary,  and  void  against 
a  subseiiuent  mortgagee. 

In  Troilgers  v.  Langham.  (1  Sid.  !•".;!. i  cited 
by  EUenborough  in  ottley  v.  Manning,  a 
father  conveyed  an  estate  to  trustees  for  the 
benefit  of  his  daughter  till  her  marriage,  and 
after  her  marriage  to  raise  a  portion  for  her. 
The  conveyance  to  trustees  for  th"  btnefit  of 
the  daturhter  was  perfectly  free  from  fraud 
in  fact.  Vet  it  was  held  to  be  a  voluntary 
conveyance  in  its  «trigin,  and  void  by  the 
statute  li7  Eliz.  against  purchasers  for  val- 
uable ct»nsideration. 

In  Jones  v.  I'urefoy,  (1  Vern.  4<I.  A.  I). 
l(jsi:,)  a  voluntary   settlement,   thou;^li  unim- 


*47 


3  RICHARDSON'S  EQUITY  REPORTS 


penciled  for  actual  fraud,  was  vacated  in  be- 
half of  a  subsequent  mortgagee. 

White  V.  Hussey,  was  decided  in  1690 
(Prec.  in  Ch.  14.)  Here  the  question  arose 
directly  between  the  person  claiming  under 
the  voluntary  settlement,  (who  was  the  set- 
tler's mother,)  and  the  subsequent  purchaser, 
who  claimed  in  the  character  of  a  mortgagee 
for  valuable  consideration  without  notice. 
"Upon  hearing  the  cause,"  says  the  reporter, 
(Thos.  Finde,  Esq.)  "the  Court  unanimously 
decreed  for  the  plaintiff,  (the  mortgagee,) 
though  it  was  strongly  insisted  by  the  de- 
fendants that  they  could  not  do  so  without 
directing  a  trial  at  law,  whether  the  settle- 
ment was  fraudulent  or  not;  for  that  fraud 
or  not,  was  triable  only  by  a  jury,  especially 
where  the  fraud,  if  any,  was  only  from  its 
being  voluntary.  But  the  commissioners  of 
the  great  seal  were  all  of  the  opinion  that 
they  might  decree  a  conveyance  to  be  fraud- 
ulent, merely  for  being  voluntary.  And  so 
they  did  in  this  case." 

In  Sir  Ralph  Bovey's  case.  (Vent.  193,) 
Lord  Hale  did  say  "that  though  every  volun- 
tary conveyance  carries  an  evidence  of  fraud, 
yet  it  is  not  upon  that  account  only  always 
to  be  reckoned  fraudulent,  or  to  be  avoided 
by  a  subsequent  purchaser  for  a  valuable 
consideration."  lie  had  said  in  Lavender  v. 
Blackstone,  already  cited,  that   a   voluntary 

*48 

conveyance  is  only  prima  *facie  evidence  of 
fraud.  His  opinions,  as  quoted  in  both  of 
these  cases,  are  dicta  merely.  For  in  Laven- 
der V.  Blackstone,  the  voluntary  settlement, 
though  free  from  actual  fraud,  was  set  aside 
in  favor  of  the  assignee  of  the  purchaser  for 
valuable  consideration.  And  in  Sir  Ralph 
Bovey's  case,  the  settlement  was  not  volun- 
tary, but  was  founded  upon  the  consideration 
of  marriage,  which  is  always  regarded  as 
valuable,  and  it  was  held  valid  against  the 
subsequent  grant  to  Sir  Ralph  Bovey,  found- 
ed upon  a  money  consideration. 

In  1726,  in  (Jardener  v.  Painter,  (Cas. 
Temp.  King,  65,)  Lord  King  said  it  could 
iiever  be  a  question  whether  a  voluntary  set- 
tlement be  good  against  purchasers. 

Two  years  later,  in  Tonkins  v.  Ennis, 
(Mich.  T.  1727,  1  Eq.  Cas.  Abr.  334,)  it  was 
adjudged  by  the  whole  Court  that  "a  pur- 
chaser for  valuable  consideration  shall  hold 
or  take  place  against  a  prior  voluntary  settle- 
ment, though  he  had  express  notice  thereof 
at  the  time;  such  voluntary  settlement,  by 
the  27  of  Eliz.,  being  made  void  against  a 
purchaser,  with  or  without  notice." 

An  early  distinction  was  taken  by  the  I']ng- 
lish  Judges  in  their  construction  of  the  13th 
Eliz.,  (the  object  of  which  was  to  protect  the 
rights  of  sulisisting  creditors,)  and  the  27tb 
Eliz.,  (the  design  of  which  was  to  protect  the 
rights  of  future  or  subsequent  purchasers.) 

Russell  V.  Hammond,  (1  Atk.  13,  A.  D. 
1738,)    was   a    case   arising   under    the    13th 

?.0 


Eliz.,  and  was  between  creditors  and  the 
parties  claiming  under  a  prior  voluntary  set- 
tlement. There  was  no  proof  of  actual 
fraud ;  and  it  was  held  that,  a  settlement 
being  voluntary,  is  not  for  that  reason  fraud- 
ulent against  creditors  under  the  13th  Eliz., 
but  evidence  of  fraud  only:  and  that  it  was 
not  fraudulent  where  the  person  making  it 
was  not  indebted  at  the  time. 

In  Walker  v.  Burrows,  (1  Atk.  93,  A.  D. 
1745,)  Lord  Hard  wick,  who  also  decided  the 
case  last  cited,  observed,  "it  has  been  said 
that  all  voluntary  settlements  are  void 
against  creditors,  equally  the  same  as  they 
are  against  subsequent  purchasers  under  the 
27th  Eliz.     But  this  will  not  hold ;    for  there 

*49 

is  always  *a  distinction  upon  the  two  stat- 
utes. 'Tis  necessary  on  the  13th  Eliz.  to 
prove  that  at  the  making  of  the  settlement 
the  person  conveying  was  indebted  at  the 
time,  or  immediately  after  the  execution  of 
the  deed,  &c.  But  upon  the  statute  27  Eliz. 
which  relates  to  purchasers,  there  indeed  a 
settlement  is  clearly  void  if  voluntary — that 
is,  not  for  valuable  consideration.  And  the 
subsequent  purchaser  shall  prevail  to  set 
aside  such  settlement.  But  this  can  only  be 
applied  to  subseipient  purchasers,  and  there- 
fore there  is  a  plain  distinction  between  the 
two  statutes." 

I  pause  liere  for  the  purpose  of  making  a 
passing  comment  on  these  decisions  of  Lord 
Hardwick,  and  of  developing  more  fully  the 
distinction  he  has  drawn  in  the  construction 
of  these  two  statutes.  The  13th  Eliz.  being 
directed  again.st  the  perpetration  of  frauds 
upon  subsisting  creditors,  it  is  obvious  that 
its  provisions  do  not  apply  where  he  is  not 
indebted  at  the  time,  or  immediately  after- 
wards; which  the  Courts  have,  by  a  liberal 
construction,  decided  to  be  the  same  as  ex- 
isting indebtedness.  But  the  27th  Eliz.  is  for 
the  relief  not  of  purchasers  whose  titles  or 
claims  were  prior  to  the  voluntary  settle- 
ment, for  these  need  no  protection ;  but  for 
the  relief  of  subsequent  purchasers  for  val- 
uable consideration,  (and  as  the  American 
cases  and  some  of  the  later  English  author- 
ities say,)  vathout  notice.  A  party  making 
a  voluntary  settlement,  who  is  indebted  at 
the  time,  may  yet  commit  no  actual  fraud, 
and  never  contemplate  any  fraudulent  act 
whatever.  But  in  every  instance  of  a  subse- 
quent sale  to  a  purchaser  for  valuable  con- 
sideration without  notice,  there  is  a  gross  and 
actual  fraud  perpetrated  by  the  vender  upon 
the  vendee.  And  policy  as  well  as  authority 
warrants  the  construction  that  makes  this 
positive  fraud  relate  back  to  the  time  of  the 
prior  voluntary  settlement,  and  taints  it  with 
an  inq)lied  premeditated  and  fraudulent  in- 
tent. There  is  another  distinction  between 
the  case  of  a  creditor,  and  that  of  a  pur- 
chaser, which  entitles  the  latter  to  greater 
consideration.     The  creditor  gives  his  credit 


FOUTMAX   V.  I'ENDKRGKASS 


upon  the  faith  of  the  whole  estate  of  his 
debtor;  while  the  purchaser  and  inortiiaiiee 
(who  throufrh  the  whole  course  of  the  Eng- 
lish adjudications  on  this  subject  is  ret,'ard- 

♦50 

ed  as  a  pur*chaser,)  looks  only  to  the  specific 
property  purchased  or  niortfraired. 

I  resume  my  review  of  the  En^ilish  cases. 
And  I  will  here  go  back  a  few  years  for  the 
purpose  of  noticing  the  case  of  Oxley  v.  Lee, 
decided  A.  D.  IT.iG,  and  reported  in  a  note 
in  1  Atk.  025.  In  this  case  there  was  a  con- 
veyance to  trustees,  for  the  consideration  of 
love  and  affection,  to  the  use  of  the  donor's 
daughter.  The  plaintiff,  Oxley,  afterwards 
purchased  the  premises  for  valuaide  consid- 
eration. The  decree  was,  that  the  trustee 
should  convey  the  legal  estate  to  the  pur- 
chaser, and  that  the  deed  of  settlement 
should  be  delivered  up. 

About  this  time  (namely,  in  17o7,)  the  orig- 
inal text  of  the  "'Treatise  of  Eciuity,"  of  which 
Fonblanque  is  the  editor,  was  published. 
Tliis  is  confesse<lly  a  work  of  great  author- 
ity. In  this  treatise  the  doctrines  held  by 
Ixird  Ilardwick  as  to  the  rights  of  purchas- 
ers under  tlie  I'Tth  of  Eliz.  are  explicitly  as- 
serted. (1  Fonb.  267.)  t^tzer  v.  Fitzer,  (2 
Atk.  512,  A.  D.  1742,)  was  a  case  in  which 
Fitzer,  the  defendant,  after  a  separation  from 
his  wife,  the  complainant,  made  a  voluntary 
settlement  upon  her  and  his  datighter,  out 
of  property  which  he  had  ac(iuired  by  his 
wife.  The  husband  afterwards  became  a 
bankrupt,  and  assigned  to  the  other  defend- 
ant, Steiihens,  all  his  estate,  real  and  per- 
sonal, including  the  property  settled  upon  his 
wife  and  daughter.  Stephens,  by  the  assign- 
ment to  him,  combined  the  character  of  cred- 
itor and  purchaser.  The  Lord  Chancellor 
(Ilardwick)  said  to  counsel,  during  the  prog- 
ress of  the  cause,  "have  you  any  Instance 
of  its  being  held,  in  this  Court,  that  a  con- 
veyance from  a  husband  to  his  wife,  with- 
out any  pecuniary  consideration  moving  from 
the  wife,  has  been  held  to  be  good  against 
creditors?"'  The  Attorney  (General,  who  ap- 
pealed for  the  complainant,  admitted  that 
natural  love  and  affection  would  not  be  a 
consideration,  but  suggested  that  there  was 
a  deed  of  separation,  and  the  liability  of  the 
husband  for  the  maintenance  of  the  wife  and 
daughter  would  be  a  sulMcient  consideration. 
Nevertheless  the  Court  decreed  the  settle- 
ment void  to  the  extent  of  the  claim  of  the 
defendant,  Stephens. 

*51 

*Taylor  v.  Jones,  (2  Atk.  000,  A.  D.  1743.) 
before  the  Master  of  the  Rolls,  was  a  con- 
test between  the  creditors  of  the  husband, 
Jones,  and  the  persons  claiming  under  a  vol- 
untary settlement  made  by  him  ui)on  his  wife 
and  children.  There  was  no  i)retence  of  ac- 
tual fraud.  "The  first  question,"  says  the 
Master  of  the  Kolls,  "is,  wht-ther  this  settle- 
ment, made  in  trust  for  the  wife  and  chil- 


dren, is  fraudulent  In  general,  as  it  stands 
single  and  independent  of  the  plaintiffs,  the 
creditors.  It  has  been  insisted  on,  for  the 
wife  and  children,  that  this  settlement  is  for 
a  good  consideration;  nay,  looked  upon  very 
often  as  a  valuaide  consideration,  since  they 
are,  in  some  res|tects,  esteemed  creditors  in 
regard  to  the  father.  There  is  no  doubt  but 
that  It  is  a  valuable  consideration  as  against 
a  father,  even  after  marriage,  and  even 
against  a  voluntary  conveyance.  But  I  con- 
sider it  a  standing  rule,  as  to  creditors  for  a 
valuable  consideration,  that  such  a  settle- 
ment is  always  looked  ui»on  as  fraudulent," 
&c.    And  accordingly  it  was  so  decreed. 

In  White  v.  Sanson,  (.3  Atk.  409,  A.  D. 
1710,)  which  was  also  a  case  before  Lord 
Ilardwick,  the  husband  and  wife  had  joined 
in  a  settlement  out  of  the  wife's  estate  not 
reduced  to  possession.  This  was  held  not  to 
be  fraudulent.  "For  nothing,"  .said  his  lord- 
ship, "could  be  more  just  than  for  the  hus- 
band to  provide  for  the  wife  and  children  out 
of  her  own  estate."  He  observed  that  this 
"at  law  would  not  be  deemed  fraudulent 
against  creditors;  nay,  even  against  a  subse- 
quent purchaser,  which  is  stronger;  because 
I  hardly  know  an  instance  where  a  volun- 
tary conveyance  has  not  been  held  fraudu- 
lent against  a  sul)sequent  purchaser." 

In  Lord  Townshend  v.  Windham,  (2  Ves. 
Sr.  10,)  Lord  Ilardwick  said:  "On  the  27  of 
Eliz.,  every  vohmtary  conveyance  made, 
where  afterwards  there  is  a  subseipient  con- 
veyance for  valuable  consideration,  though 
no  fraud  in  that  voluntary  conveyance,  nor 
the  person  making  it  at  all  in  debt ;  yet  the 
determinations  are  that  such  mere  voluntary 
Conveyance  is  void  in  law  by  the  subsequent 
purchase  for  valuable  consideration." 

In    Hamilton   v.    Mitton,    (2    Wilson.    35S, 

*52 

note,  (>  Geo.  3,)  Lord  *Chi(>f  J.  Wilmot  said, 
"the  Stat.  27  Eliz.  was  made  in  favor  of  sub- 
sequent purchasers  paying  a  valual)le  con- 
sideration, as  against  persons  whose  title  is 
not  supported  by  such  ctnisideration." 

Goodright  v.  Moses,  (2  William  lilackst one's 
Hep.  lOiy,  15  Geo.  3,)  was  the  case  of  a  vol- 
untary settlement  and  a  subsequent  sale  for 
a  valuable  consideration.  Lord  I'hief  J.  De 
Grey  said,  "the  deed  of  1747  was  only  a  vol- 
untary conveyance  within  the  true  meaning 
of  the  Stat.  27th  Eliz.,  being  foundtMi  upon  a 
good  and  not  upon  a  valuable  consideration; 
and  therefore  c-annot  be  set  up  against  a 
bona  lide  purchaser." 

The  case  of  Taylor  v.  Still  is  cited  by  Sug- 
den  (p.  4S3)  as  having  i»een  decided  in  1703. 
In  this  case  Lord  Xorthington  is  said  to  have 
held  it  be.vond  dispute,  that  a  voluntary  set- 
tlement should  be  set  aside  in  favor  of  a  sub- 
sequent purchaser  for  valuable  considera- 
tion, even  with  notice.  And  Rathurst,  J.,  said 
he  knew  Lord  Ilardwick  had  so  decided  in 
twenty  instances. 

21 


*52 


3  RICHARDSON'S  EQUITY  REPORTS 


Tn  Chapman  v.  Emery,  (1  Cowp.  278,  A.  D. 
1775,)  one  Richard  Emery  after  marriage 
made  a  settlement  of  the  premises  in  ques- 
tion upon  liimself  for  life,  remainder  to  his 
wife,  remainder  to  their  issue  in  tail.  And 
three  years  after\A-ai'ds  he  mortgaged  the  same 
premises  to  secure  the  payment  of  a  hona 
fide  debt  then  contracted.  There  was  some 
contradictory  evidence  as  to  wlietlier  the 
moi'tgagee  liad  notice.  There  was  no  allega- 
tion of  actual  fraud  in  the  voluntary  settle- 
ment. Lord  Mansfield  held  that  the  mort- 
gagee was  a  purchaser,  and  that  the  settle- 
ment was  void  as  to  him.  lie  went  further, 
and  held  that  notice  was  not  material. 

I  have  thus  presented  a  careful  and  chron- 
ological analysis  of  all  the  English  cases  and 
authorities  that  were  accessible  to  me,  for 
the  purpose  of  shewing  what  a  slight  founda- 
tion exists  for  the  assumption  that,  at  the 
period  of  the  separation  of  the  North  Amer- 
ican colonies  from  the  motlier  country,  tlie 
question  that  I  have  been  discussing  was  not 
settled  in  England,  and  that  diversity  of 
opinion  prevailed  in  that  country  on  the 
question.  I  think  I  may  .safely  say  that  at 
that  period  the  right  of  a  purchaser  for  a 
valuable  consideration   to  set   aside   a   mere 

*53 

volun*tary  settlement  or  conveyance,  was  as 
well  settled  as  any  other  principle  of  English 
jurisprudence  whatever ;  and  nothing  but 
what  were  there  c<»nsidered  the  most  apocry- 
phal cases  (and  those  very  few,)  could  be  ad- 
duced in  support  of  the  contrary  doctrine. 
Chief  Justice  Marshall,  in  Cathcart  v.  Robin- 
son, (5  Peters's  R.  204  [8  L.  Ed.  120], l  has  lent 
his  high  reputation  and  commanding  influ- 
ence to  the  i)romulgation  of  this  error.  He 
felt  himself  at  liberty  to  adopt  the  dicta  of 
Lord  Hale,  which  had  been  uttered  more 
than  a  century  before  the  revolutionary  war, 
that  a  voluntary  conveyance  as  against  a 
subsequent  purchaser  was  to  be  regarded  us 
only  prima  facie  fraudulent.  If  this  rule 
v.-ere  ai^iilied  to  Footman  v.  I'endergrass,  the 
deed  should  be  set  aside.  For  if  the  onus  is 
upon  Footman,  to  shew  that  the  settlement 
is  not  fraudulent,  he  has  failed  most  signal- 
ly ;  for  to  my  judgment  the  circumstances  of 
the  case  rather  vend  to  strengthen  the  pre- 
sumption of  law. 

After  all,  it  is  a  very  great  fallacy  to  re- 
fer to  the  period  of  ti;e  American  Revolution 
for  the  purpose  of  deteriniiiing  whether  any 
principle  of  the  English  Chancery  system  is 
of  force.  At  all  events,  it  is  not  applicable 
as  a  criterion  in  South  Carolina,  where  the 
English  Chancery  system  was  adoi>ted  long 
before  that  time  by  an  Act  of  our  Provincial 
Legislature. 

I  will  now  proceed  with  my  review  of  the 
English  decisions.  In  Cadogan  v.  Kennet, 
(2  Cowp.  4.S2,)  A.  I>.  1776,  which  was  a  case 
of  creditors  arising  under  the  l.Sth  Eliz., 
and  not  under  the  27  E!iz.,  Lord  Mansfield 
22 


decided,  that  a  fair  voluntary  conveyance 
is  good  again.st  creditors.  He  says  the  Stat- 
utes of  Eliz.  "cannot  receive  too  liberal  a 
construction,  or  be  too  much  extended  in 
suppression  of  fraud,"  Traveling  out  of 
the  issue  before  him,  he  does  say  in  this  case 
that  "the  27  of  Eliz.  does  not  go  to  voluntary 
conveyances,  merely  for  being  voluntary,  but 
to  such  as  are  fraudulent." 

And  in  Watson  v.  Routledge.  (2  Cowp.  7().").) 
A.  D.  1777,  he  said  something  to  the  same 
effect.  But  in  this  case,  the  question  now  at 
issue  did  not  arise.  The  prior  voluntary  con- 
veyance was  for  love  and  affection  to  a  neph- 

*54 

ew,  a  son  of  the  grantor's  *sister.  The  sec- 
ond conveyance  was  to  another  nephew,  in 
consideration  of  £200,  f(n-  a  property  proved 
to  be  worth  £2000.  This  was  considered  no 
purchase  at  all,  but  a  gift.  It  was  considered 
a  fraudulent  artifice  and  combination,  on 
the  part  of  tlie  grantor  and  second  grantee, 
to  defeat  the  first;  and  so  it  was  adjudged. 

In  the  dicta,  which  Lord  Mansfield  sufl'ered 
to  fall  from  him  in  the  two  last  mentioned 
cases,  he  forgot  that  he  had  himself  decided 
to  the  contrary.  In  the  prior  case  of  Emery 
V.  Chapman.  And  in  Hill  v.  Bishop  of  Exe- 
ter, (2  Taunt.  82,)  decided  by  Lord  Mansfield 
in  1809,  we  find  him  declaring  that  as  "to 
the  general  doctrine  that  voluntary  .settle- 
ments, however  reasonable,  are  void  against 
a  subsecjuent  purchaser  in  consideration  of 
money,  there  can  be  no  doubt,  for  very  strong 
cases  liave  decided,  that  if  a  man  after  mar- 
riage make  the  most  prudent  settlement  on 
his  wife  and  chiUlren,  such  a  deed  as  every 
wise  man  must  approve,  if  the  father  is  dis- 
honest enough  to  sell  it  afterwards  for  mon- 
ey, he  may."  I  tliink  after  this,  his  dictum 
in  the  intermediate  case  of  Cadogan  v.  Ken- 
net,  is  entitled  to  but  little  weight.  Indeed, 
he  himself  intimates,  that  the  latter  case 
was  not  considered  in  reference  to  the  author- 
ities that  might  have  been  cited.  He  says, 
that  in  the  argument,  he  had  expected  an 
authority,  but  did  not  get  it.  And  in  Watson 
V.  Routledge,  lie  supported  his  opinion  by 
cases  that  are  not  considered  as  cases  of 
voluntary  conveyances,  but  as  cases  in  which 
the  settlements  were  supported  by  valuable 
consideration,  such  as  the  consideration  of 
marriage,  i^c. 

In  Evelyn  v.  Templar,  (2  Bro.  C.  C.  14s.) 
A.  D.  1787.  it  was  decided  by  Lord  Thurlow, 
that  a  prior  voluntary  settlement  by  a  hus- 
band after  marriage,  though  not  indebted  at 
the  time,  was  void  against  a  subsequent  pur- 
chaser, though  with  notice. 

In  Bothell  v.  :\rartyr,  (1  B.  &  I'.  N.  R.  .".32.) 
A.  I).  1805,  it  was  held  by  Sir  James  Mans- 
field, "that  it  cannot  now  be  held,  that  a 
prior  voluntary  conveyance  shall  defeat  a 
<'onveyance  to  a  purchaser  for  valuable  con- 
sideration, without  overturning  the  settled 
and  decided  law."     He  regretted  that  a  con- 


FOOTMAX  V.  PEXDEIIGRASS 


*hl 


*55 


stnicrioii  had  *i)revailc(l.  whi.-h  ronflerefl  no- 
tico  to  tlu'  suIisiMiuciit  iiiir<liiiscr  iiniiiatcriiil. 
Tliis,  I  will  reiuark,  is  the  only  part  <»f  tlie 
constructioii  of  the  L'7  of  Kliz..  whirh  has 
Leeii  regretted  liy  the  Kii^lish  JiKl^es.  And 
in  the  American  eases,  this  principle  of  the 
Kiiu'lisli  decisions,  lias  not  been  followed,  hut 
notice  has  heen  considered  as  destroyini,'  tlie 
riirht  of  a  siihse(|iient  purchaser  to  have  a 
prior  volnntary  settlement  vacated  in  his 
iiehalf. 

In  IMIN.  the  elalioi'.itcly  considered  case  of 
Ottey  V.   Mannimr.  (!»  East.   ".!).)  was  decided 
l>y  Lord  KllenborouKh.  in  which  it  was  held, 
that  a  voluntary  .settlement  of  lands,  in  con- 
.sideration   of  natural   love  and   affection,   is 
\(>id  against  a  subsequent  purchaser  for  val- 
uable  c<insideration.    though    with    notice   of 
the  prior  settlement  before  all  the  purchase 
money  was  paid,  or  the  titles  executed ;  and 
thouj-'h  tile  settler  had  other  property  at  the 
time,  and  was  not  indebted:  and  though  there 
was  no  actual  fraud   in  tlie  transaction.     I 
cannot  resist  the  temptation  of  quoting  the 
triumphant    vindication    by    Lord    Ellenbor- 
ough.  of  the  construction  of  the  L'Tth   Kliz.. 
which  the  English  Judges  have  adopted.     lie 
observes   that    "the   Judges   might    very    well 
appr(>hend.  that  suhseiiuent  purchasers  might 
be  continually  defrauded  by  such  secret  con- 
veyances,  if  they   should    lie   held  good;   and 
that  when  the  question  was  between  one  who 
had  paid  a  valuable  consideration  for  an  es- 
tate, and  another  who  had   paid  nothing,  it 
was  a    just   presumption    of  law,   that   such 
voluntary  conveyance,   founded  only  in  con- 
sideration of  affection  and  regard,  if  coupled 
with    a    subseipient   .sale,    was   meant    to  de- 
fraud  those,  who  should  afterwards  become 
l>urchasers    for   valuable   consideration;   and 
tiiat  a  different  construction  would  have  .so 
narrowed  tlie  operation  of  the  Statute,  as  to 
leave  the  persons  meant  to  be  protected   by 
it.    subject    to   almost    all    the   mischiefs   in- 
tended to  be  remedied.     And  it  is  certainly 
more   fit   upon   the   whole,    that   a   voluntar.v 
grantee  should  be  disappointed,  than  that  a 
fair    iiurchaser    should    be    defeated."      The 
<ase   of   Otley    v.    Manning   has    placed    this 
rule  of  construction  upon  immutable  foiuida- 
tiniis.     I   here  close  my  review  of  the  English 
cases.     T,,  trace  them  fuithei-  would  be  alto- 
gether a  work  of  supererogal  ion. 


settlement,  but   made  for  a  valuable  consid- 
eration, and  to  a  purchaser  chargeable  only 
with  notice  in  law.     The  (piestion  arising  on 
this  first  point,  is  dctinitively  .settled  in  Eng- 
i  land  by  determinations  of  a  recent  date,  in  the 
I  four  great  Courts  at  Westminster.     And  it  is 
imiiossible  for  me  not  to  feel  all  the  respect, 
which    is    justly    due    to    decisions    of    such 
great  weight  and  authority."     "It   has  been 
suggested."  continues  he.  "that  this  is  a  prin- 
ciple settled  in  England  since  our  revolution; 
but  it  appears  to  me.  that  the  late  ca.ses  have 
declared  no  new  doctrine,  and  have  only  fol- 
h)wed  the  rule  as  they  fcnind  it  long  before 
settled,   by  a   series  of  juflicial  decisions  of 
too  much  authority  to  be  then  shaken."     In 
this  case,  the  purchaser  had  heard  that  the 
vendor    had    made    .some    provision    for    his 
daughter  of  the  (ireenwich   street   property, 
which  was  the  subject  of  the  purclia.se.    This 
the  learned   Chancellor  construed   to  be  im- 
plied notice;  and  decided,  that  he  would  not 
bold  the  purchaser  affected  with  the  impli.-d 
notice.     But  he  intimates  if  the  notice  had 
been  actual,  he  would  not  have  been  entitled 
to  claim  against  tlie  prior  voluntary  convey- 
ance.    The  voluntary  deed  was  set  aside  in 
favor  of  the  subseiiuent  purchaser. 

I  have  already  alluded  to  the  case  of  Cath- 
cart  V.  Robinson,  (5  Peters,  204  [S  L.  Ed. 
120].)  Chief  Justice  Marshall  .says,  "'tho 
rule,  which  has  been  uniformly  observed  by 
this  Court,  in  construing  statutes,  is  to  adopt 
the  construction  made  by  the  Courts  of  the 
couiitry  by  whose  Legislature  the  Statute 
was  enacted.  This  rule  may  lie  su.sceptible 
of  some  modifications,  when  applied  to  lUit- 
ish  statutes,  which  are  adopted  in  any  of 
*57 


*56 

*I  shall  notice  only  two  of  the  Ameri<'an  de- 
cisions upon  this  subject  out  of  South  Caro- 
lina. The  first  of  these  to  which  I  invite 
attention,  is  that  of  Sterry  v.  Arden.  (1 
Johns.  Ch.  2(51.)  Chancellor  Kent,  than 
whom  no  greater  name  has  ever  adorned  the 
judbial  station  in  America,  thus  sums  uii  the 
•  luestion:  "  Here  then,"  says  he,  "is  the  case 
of  a  fair  volnntary  conveyance,  made  by  a 
father  to  his  daughter,  he  not  appearing  to 
be  indebted  at  the  time,  and  a  sul)sc(p^ent 
sale  made  by  him  with  intent  to  defeat  that 


these  States,  By  *adopting  them,  they  be- 
come as  entirely  our  own.  as  if  thev  had 
been  enacted  by  the  Legislature  of  the  State. 
The  received  construction  in  England,  at 
the  time  they  are  admitted  to  operate  in  this 
country,  indeed,  to  the  time  of  our  .separa- 
tion from  the  British  empire,  may  very  prop- 
erly be  considered  as  accompanying  the  stat- 
utes themselves,  and  as  forming  an  integral 
part  of  them."  It  would  be  arrogant  in  me 
to  endeavor  to  add  any  thing  to  the  force  of 
the.se  obs(>rvations.  on  that  part  of  the  sub- 
je<'t.  The  Chief  Justice  then  proceeds  to  re- 
mark, "at  the  commencement  of  the  Amer- 
ican revolution,  the  construction  of  the  Stat. 
27  of  Eliz.  seems  not  to  be  settled."  The 
error  of  this  conclusion.  I  think,  has  been 
sufiiciently  demonstrated  in  the  foregoing 
review  of  the  British  decisions. 

I  pass  on  to  consider  the  judicial  interpre- 
tations which  have  been  given  to  the  27 
Eliz.,  in  South  Carolina.  The  cases  bearing 
on  the  ipiestion  are  very  few.  which  is  only 
to  be  accounted  for,  on  the  supposition  that 
the  law  has  been  regarded  as  settled.  A.s 
far  as  the  decisions,  or  any  expression  of 
opinion  on  the  iiart  of  the  Judges,  have  gone, 

23 


^57 


3  RICHARDSON'S  EQUITY  REPORTS 


they  are  in  the  strictest  conformity  with  the! 
doctrine  established  by  tlie  English  decisions  ; 
with  this  exception  only,  that  a  subsequent 
purchaser,  with  notice,  is  not  entitled  to  set 
aside  a  prior  voluntary  settlement. 

The  case  of  Barrineau  v.  McMurray  &  Mc- 
Gill,  (3  Brev.  204.)  presented  some  circum- 
stances that  might  have  been  regarded  as 
amounting  to  actual  fraud.  It  is  not  certain, 
therefore,  that  in  the  view  of  the  whole  Court, 
the  decision  turned  upon  this  construction 
of  tlie  Stat.  27  Eliz.  But  Judge  Brevard, 
after  some  remarks  upon  the  facts,  says, 
"how  far  the  deed  is  to  be  considered  valid, 
or  sufficient  to  transfer  the  estate  in  opposi- 
tion to  the  prior  deed  to  Belsey  Brown,  must 
turn  on  the  true  construction  of  the  27th 
of  Eliz." 

He  goes  on  in  the  broadest  terms,  to  adopt 
the  construction  of  the  English  Courts. 
This  doctrine,  iie  observes,  "has  been  some- 
times doubted,  in  consequence  of  certain 
expressions  of  Lord  INIansfield,  in  Gadogan 
v.  Kennet  and  Watson  v.  Routledge.  It  seems 
to  me  that   in   those   cases,   Lord   Mansfield 

*58 
has  *confounded  the  rights  of  creditors,  with 
these  of  purchasers ;  whereas,  the  Statutes 
of  13  and  27  Eliz.  appear  to  liave  different 
objects  in  view.  He  says  truly,  that  volun- 
tary conveyances  may  be  good  against  cred- 
itors ;  but  it  does  not  follow  that  they  are  so 
against  purcliasers.  Voluntary  conveyances 
are  not  void,  merely  because  they  are  vol- 
untary, but  because  from  the  circumstance 
of  their  being  voluntary,  coupled  with  the  cir- 
cumstance of  a  subseiiuent  sale  and  convey- 
ance, for  valuable  consideration,  by  the  same 
person  who  made  the  voluntary  conveyance 
it  is  to  be  collected  and  legally  inferred,  pur- 
suant to  the  27  of  Eliz.,  that  the  voluntary 
conveyance  was  fraudulent ;  and  because  the 
statute  declares  such  voluntary  conveyance 
void  as  against  such  purchaser." 

In  Hudnal  v.  Wilder,  (4  McC.  294  [17  Am 
Dec.  744],)  tliis  question  was  considered,  and 
decided.  I  say  decided;  for  on  a  careful 
examination,  I  can  come  to  no  other  conclu- 
sion. It  was  an  action  of  Trover,  for  a  ne- 
gro named  Frank.  And  the  circumstances 
of  the  case  were  these.  One  Luke  Norris. 
then  "the  owner  of  the  slave  in  question,  on 
the  loth  Feb.,  1809,  conveyed  the  negro,  with 
otiier  real  and  personal  property,  to  Hudnal, 
the  plaintiff,  in  trust,  for  the  sole  and  sepa- 
rate use  of  liis  own  wife  for  life,  remainder 
to  such  children  of  the  marriage  as  should  be 
living  at  her  death,  remainder  to  himself. 
He  was  much  indebted  at  the  time,  a  circum- 
stance which,  thougli  very  material  as  re- 
gards tlie  claims  of  creditors,  is  not  very 
material  as  regards  the  rights  of  a  subse- 
'juent  purchaser  for  valuable  consideration, 
sinless  an  actual  fraud  was  intended  against 
Uie  rights  of  creditors.  For  the  Stat.  27 
Eliz.,  by  the  most  uniform  construction, 
•nakes  the  prior  voluntary  settlement  void 
2i 


as  to  the  subsequent  purchaser,  whether  the 
donor  be  indebted  or  not  at  tlie  time  of  the 
gift.  On  the  17th  iNIarch,  1818,  Norris,  on  the 
point  of  removing  to  tlie  west,  sold  Frank  to 
Teasdale,  the  defendant's  testator,  for  .$900, 
which  was  paid  in  cash.  There  was  some 
evidence  to  the  effect  that  Teasdale  had  no- 
tice of  the  prior  voluntary  settlement;  but  it 
was  not  made  clear  that  he  had  such  notice, 
before  he  had  completed  the  sale,  and  paid  tho 

*59 
purchase  money.  *The  action  was  brought 
by  Hudnal,  the  trustee,  against  Wilder, 
Teasdale's  executor.  Thus  the  issue  was  di- 
rectly made  between  the  party  claiming  un- 
der the  prior  voluntary  conveyance,  and  one 
claiming  under  a  subsequent  purchaser,  for 
valuable  consideration  made  nine  years  after- 
wards. It  is  difhcult  to  conceive  a  case  in 
which  the  question  under  discussion  could  in 
a  more  direct  manner  be  presented  for  the 
judgment  of  the  Court,  than  Hudnal  v.  Wild- 
er. Upon  the  question,  whether  notice  would 
affect  the  claim  of  the  subsequent  iturchaser, 
the  Court  was  with  the  plaintiff;  thus  mod- 
ifying to  this  extent  the  English  decisions. 
They  adopted,  in  this  particular,  a  construc- 
tion which  the  English  Judges  liave  regretted 
iiad  not  been  adopted  in  England  from  the 
first,  but  which  they  found  liad  been  so  well 
established,  that  they  did  not  consider  them- 
selves at  liberty  to  modify  it.  But  in  other 
respects,  and  particularly  upon  the  question 
now  before  this  Court,  the  decision  in  Hud- 
nal V.  Wilder  conformed  strictly  with  the 
English  decisions.  The  verdict  was  for  the 
defendant.  The  plaintiff,  on  the  hearing  be- 
fore the  Court  of  Appeals,  had  the  benefit  of 
the  judgment  of  that  Court,  as  to  the  effect 
of  notice  on  the  rights  of  the  subseijuent 
purchaser.  The  evidence  on  that  point  not 
being  clear,  and  the  law  having  been  present- 
ed to  the  jury  in  accordance  witli  the  opinion 
of  the  Court  of  Appeals,  they  refused  to  dis- 
turb the  verdict  on  that  ground.  The  other 
questions  before  the  Court  were,  first,  wheth- 
er the  Stat.  27  Eliz.  embraced  in  its  purview 
conveyances  of  personal  property,  which  was 
decided  in  the  affirmative.  And  the  great  and 
principal  question  of  the  case  was  that  which 
I  am  now  considering.  Hear  Judge  Nott,  the 
organ  of  the  Court,  on  this  subject.  "It  has 
already  been  remarked,"  he  says,  "that  the 
English  decisions  under  the  27  Eliz.  lia\e 
gone  the  whole  length  of  declaring  that  a 
subsequent  sale  to  a  bona  fide  purchaser, 
even  with  notice,  shall  prevail  against  a  prior 
voluntary  deed.  These  decisions,  I  shall 
undertake  by  and  by  to  shew,  cannot  be  sup- 
ported by  any  just  construction  of  the  statute. 
But  so  far  as  they  have  gone  to  declare,  that 
a  subsequent  sale  to  a  bona   fide  purchaser 

*60 
without  notice,   shall    *itself  be   evidence  of 
fraud  to   avoid   a  voluntary  deed,   I   do  not 
know  that  they   have  ever   been   questione'i. 
And  we  have  been  so  much  iu  the  habit  of 


iiolmp:s  v.  holmes 


•62 


resiH'C'tiiiff  the  Eni^lish  dodsions  as  authority,  f 
on  all  their  statutes  which  have  heeu  made 
of  force  here,  that  I  do  not  recollect  that  we 
have  ventured  to  put  a  different  construc- 
tion upon  one.  which  has  come  down  to  us 
throutrli  a  train  of  decisions,  stamped  with 
the  approbation  of  tlie  able  judges  of  that 
count rv."  The  defendant  was  pernutted  to 
retain  his  verdict  upon  this  construction  ;  a 
construction  which,  I  have  siiewn.  was  adopt- 
ed at  a  period  contenii)oraneous  with  the  en- 
actment of  the  law,  and  which  has  prevailed 
through  every  succeediiiR  age  and  generation, 
in  England,  down  to  the  present  times,  with 
as  little  variation  as  can  be  challenged  for 
any  otiier  important  itrinciple  of  the  Enjilish 
jurisprudence.  And  I  have  also  shewn  it  to 
he  a  construction  which  has  been  adopted  in 
South  Carolina,  whenever  the  <piestion  has 
been  mooted  in  our  Courts ;  and  once  directly 
in  the  way  of  decision,  by  an  able  body  of 
Judges,  sitting  as  a  Court  of  Appeals  in  the 
last  resort,  in  a  case  where  the  rights  of  the 
parties  turned  directly  upon  that  construc- 
tion. If  I  am  to  have  any  respect  for  the 
authority  of  English  decisions,  upon  the  Eng- 
lish statutes,  (made  of  force  by  a  solemn  Act 
of  our  Legislature,)  transmitted  to  us  in  an 
unbroken  series  through  nearly  three  cen- 
turies :  if  I  am  to  have  any  respect  for  the 
decisions  of  our  own  Courts,  solemnly  atfirm- 
ing  the  English  interpretations :  if  I  am  not 
to  cut  loose  from  the  control  of  all  prece- 
dents, and  the  exposition  of  remote  times  in 
regard  to  an  old  statute;  expositions  made 
by  abler  and  wiser  judges  than  myself,  then 
I  am  not  permitted  to  adopt  any  other  con- 
struction of  the  27  Riz.,  than  that  I  have 
contended  for. 

Appeals  dismissed. 


3    Rich.  Eq.   *6I 

*.MARY  T.   HOLMES  .t  al.   v.   ELIZABETH 
HOLMES. 

(Ci)luniliia.      Nov.   and   Dec.   Term,   ISoO.) 

\Eriiiitn  C=4L'.] 

<Jnt'i\  :  ("an  a  purchase,  at  a  sale  bv  the 
Master  imdci-  a  decree  bo  set  aside  for  fraud. 
■  ou  riiU'  against  the  purdiaser  to  .sliow  cause? 
or  must  th..  prmeoding  be  l.y  1)111  V  If  it  can  be 
set  aside  on  rule,  the  case,  it  seems,  must  be 
tried  and  afljudsed  ou  the  facts  admitted  in  the 
answer  to  the   rule. 

[Ed.  Note.— Cited  in  Orr  v.  Orr,  7  S.  C.  383. 

For    other   cases,    see    Enuity,    Cent.    Dig.    §§ 
lift,  120:    Dec.  Dig.  <S=42.1  ^ 

[■/iidifial  Hales  (gzslO.l 

To  render  a  purchase,  at  a  public  sale,  un- 
der a  decree  in  Chancery,  void  because  the  bid- 
duigs  were  joint,  or  there  was  a  partnershii) 
among  the  bidders,  it  must  apiiear  tliat  there 
was  a  fraudulent  intent  to  depress  and  chill 
the  sale,  to  obtain  the  i)roperty  at  an  under- 
value, or  to  obtain  other  undue  or  unconscien- 
tious advantages. 

[Va].     Note.— For    other    cases,    see    .Tndicial 
Sales.  Cent.  Dig.  §  43  ;    Dec.  Dig.  <®==>19.] 


[Juflifinl    fi'alcK    C=10.1 

I'er.sons  may  lawfully  unite  for  the  purpose 
of  making  a  1)1(1  among  themselves,  where  nei- 
ther is  able  to  purchase,  or  desires  to  own,  the 
whole  property. 

[Ed.  Note. — For  other  cases,  see  Judicial 
Sales,  Cent.  Dig.  §  43;    Dec.  Dig.  <g=>U>.] 

Before  Johnston,  Ch.  at  Edgefield,  June, 
1S50. 

This  case  will  be  sulHciently  understood 
from  the  opinion  delivered  in  the  Court 
of  Appeals. 

Carroll,  (irillin,  for  ai)i)ellaut3. 
Wardlaw,  contra. 


delivered    the    opinion    of 


dai{(;ax,  cii. 

the  Court. 

By  a  decree  of  the  Court  of  Eciuity,  the 
real  e.state  of  the  late  \yilliam  Holmes  was 
sold  at  Edgefield  Court  House,  on  the  first 
.^londay  in  December,  1S4!»,  l)y  the  Conunl.s- 
sioner  in  Equity.  At  this  sale,  one  Tandy 
Burkhalter  became  the  purchaser  of  said 
real  estate,  at  the  price  of  $5.50  per  acre, 
he  being,  at  that  price,  the  highest  and  last 
bidder.  Burkhalter  having  complied  with 
the  terms  of  the  sale,  the  Commissioner  ex- 
ecuted to  him  a  conveyance  for  the  land. 

This  was  a  rule  against  the  purchaser,  to 
shew  cau.se  why  the  sale  should  not  be  va- 
cated, and  the  deed  of  the  Commissioner  in 
l-jpiity  to  him  set  aside,  "on  the  ground  of 
an  unlawful  agreement,  between  the  said 
Burkhalter  and  A.  B.  Kilcrease.  not  to  hid 
against  each  other  for  said  laud  at  said 
sale;  which  agreement  was  carried  out,  and 
whereby  the  .said  sale  of  .said  land  was  great- 
ly affected,  to  the  serious  injury  of  the  es- 
tate of  the  said  William  Holmes,  deceased." 

The  rule  was  supported  by  the  affidavit 
*62 
of  Kilcrease.  who  *stated  that  the  lands  of 
the  estate  of  William  Holmes  adjoined  the 
lands  of  both  him.self  and  Tandy  Burkhalt- 
er; that  they  each  desired  a  portion  of  the 
lands  about  to  be  sold;  that  they  had  a 
conference  upon  the  subject;  and  the  re- 
sult was,  an  agreement  not  to  bid  against 
each  other  at  the  .sale;  and  that  they  fur- 
ther agreed  on  the  nmnner  in  which  the 
said  real  estate  should  be  divided  between 
them,  if  bought.  The  deponent  further  stat- 
ed, that  he  attended  the  sale  but  made  no 
bid,  and  that,  if  he  had  been  the  bidder,  he 
would  have  given  seven  dollars  per  acre, 
rather  than  the  land  should  have  been 
bought  by  any  other  person.  He  further 
stated,  that  both  he  and  Burkhalter  were 
able  to  have  bought  and  paid  for  the  whole 
of  the  land. 

From  the  affidavit  of  J.  B.  Talburt,  it  ap- 
pears that  Burkhalter,  after  the  sale,  re- 
fused to  let  Kilcrease  have  the  part  of  the 
land  he  wanted,  except  at  the  price  of  .$12 


<g=5For  other  cases  see  same  topic  and  KEY-NUMBER  ia  all  Key-Numbered  Digests  and  Indexes 


25 


'02 


3  RICHARDSON'S  EQUITY  REPORTS 


per  acre.    Burklialter  stated  to  the  deponent,  ] 
that  he  had  acted  wrong  in  not  telling  Kil- ! 
crease  on  the   day  of   sale,  that  if  he,  Kil- 
crease,  wanted  any  part  of  the  land  he  must 
be  the  highest  ludder. 

The  answer  of  Bnrldialter  to  the  rule  denies 
all  the  material  allegations  set  forth  in  the 
affidavit  of  Kilcrease,  and  especially  denies 
all  partnership,  or  combination,  with  Kil- 
crease in  the  purchase.  He  admits  they 
had  a  conversation  about  the  land  before  the 
sale ;  that  Kilcrease  asked  him  if  he  intended 
to  bid  for  the  land,  and  that,  on  being  answer- 
ed affirmatively,  Kilcrease  said  he  wanted  a 
portion,  which  he  pointed  out,  and  spoke  of 
his  wish  to  have  a  road  through  it  to  his 
plantation.  To  this  Burkhalter  replied, "if  I 
buy  the  land,  I  will  not  hinder  you  from  a 
road,  and  I  will  cut  you  off  a  piece."  This, 
he  says,  was  the  whole  substance  of  the 
conversation,  and  he  denies  having  agreed 
to  sell  Kilcrease  any  particular  quantity  of 
the  land  in  the  event  of  his  buying  it,  or 
at  any  stipulated  price. 

Upon  this  state  of  facts,  the  rule  came  on 
for  trial.  The  Chancellor  who  heard  the 
cause  ordered  the  rule  to  be  discharged,  and 
confirmed  the  sale ;  the  discharge  of  the 
rule  to  operate  no  prejudice  to  the  parties  in 
filing  a  bill. 

From  this  order,  an  appeal  has  been  tak- 
*63 
en.  and  notice  given  *of  a  motion  to  be  made 
before  this  Court,  to  reverse  the  said  order, 
and  to  set  aside  the  sale,  on  the  groimds, 

"1st.  That  there  was  an  unlawful  agree- 
ment between  the  said  Tandy  Burkhalter 
and  A.  B.  Kilcrease,  entered  into  before  the 
sale,  not  to  bid  against  each  other  at  said 
sale,  which  agreement  was  carried  out, 
whereby  the  parties  in  interest  were  greatly 
injured." 

"2d.  Because,  upon  the  affidavits  submit- 
ted, and  iipon  the  law,  and  from  considera- 
tions of  public  policy,  the  sale  of  the  land 
should  have  been  set  aside." 

I  will  not  undertake  to  say,  that  a  cjues- 
tion  of  this  kind  may  not  be  raised  on  a  rule 
to  shew  cause.  In  Hamilton  v.  Hamilton, 
(2  Rich.  Eq.  .355  [46  Am.  Dec.  58]),  the  ques- 
tion as  to  the  validity  of  the  sale  was  made 
in  this  way.  There,  titles  for  the  property  sold 
had  not  been  executed  by  the  Master.  Chan- 
cellor Harper,  who  tried  that  cause,  seems 
to  have  considered  the  case  of  an  executory 
contract,  in  reference  to  this  point,  as  not 
different  from  one  in  which  titles  have  been 
executed  and  delivered.  He  says  "the  prin- 
ciple upon  which  the  cases  go  is  this ;  that 
by  the  falling  of  the  auctioner's  hammer, 
and  the  entry  of  the  sale  by  the  Master  in 
his  book,  the  contract  is  complete ;  different 
from  the  English  practice,  according  to 
which  there  is  no  contract  till  the  biddings 
are  rt'ported.  and  the  sale  confirmed.  With 
us,  upon  the  falling  of  the  hammer,  and  the 
entry  of  the  sale,  the  purchaser  has  a  right 

26 


to  demand  a  title  as  a  matter  of  course." 
The  Chancellor  appears  to  have  doubted  his 
authority  to  take  cognizance  of  the  cause  in 
this  form  of  proceeding.  For  he  says,  "it 
being  a  complete  executory  contract,  I  must 
seek  for  something,  which  will  authorize  me 
to  set  it  aside ;  and  it  seemed  to  be  agreed, 
that  the  motion  was  to  be  decided  c*i  the 
evidence  before  me,  as  if  a  bill  had  been 
filed  for  that  purpose." 

Upon  this  question,  (as  to  the  proper  mode 
of  proceeding)  the  Court  means  to  conclude 
nothing  at  the  present  time.  My  individual 
opinion  is,  that  a  proceeding  by  bill  is  the 
most  proper  mode  to  bring  such  question,  as 
is  here  raised,  to  a  hearing.  Certainly,  if 
the  question,  as  to  the  fairness  of  the  sale, 

*64 
is  to  be  *tried  upon  a  rule,  against  the  pur- 
chaser, (unless  the  facts  can  be  agreed  on, 
as  in  the  case  of  Hamilton  v.  Hamilton.) 
the  case  must  be  tried  and  adjudged  upon 
the  facts  admitted  in  the  answer  to  the  rule. 
The  purchaser,  whether  he  claims  under  a 
deed  executed,  or  an  executory  contract 
that  is  complete,  has  rights,  which,  in  a  dis- 
puted state  of  facts,  are  not  to  be  concluded 
by  the  affidavits  of  witnesses,  who  liave  not 
been  subjected  to  the  ordeal  of  a  cross-ex- 
amination. 

If  this  case  is  to  be  adjudged  by  the  an- 
swer of  Buckhalter,  (the  purchaser)  to  the 
rule  which  has  been  served  upon  him.  there 
is  not  the  slightest  ground  for  the  interfer- 
ence of  this  Court  in  setting  aside  the  sale. 
According  to  his  statement,  the  transaction 
wears  the  most  innocent  aspect  imaginable. 
But  this  Court  is  of  opinion  that,  upon  the 
shewing  made  in  the  affidavit  of  Kilcrease, 
the  principal  witness  for  the  party  moving 
in  this  proceeding,  there  are  no  such  facts 
presented  which,  if  they  were  uncontested, 
would  authorize  the  Court  to  vacate  the  sale. 
This  proceeding  seems  to  have  been  institiit- 
ed  imder  a  misapprehension  of  the  cases  up- 
on this  subject.  It  is  not  e^^-y  joint  bid- 
ding, or  partner.ship  among  bidders,  at  a  sale 
under  a  decree  in  Chancery,  that  is  corruiit 
and  fraudulent.  Such  joint  or  partnership 
biddings  may  be  perfectly  legitimate.  To 
render  them  unlawful  and  void,  there  must 
be  a  fraudulent  intent  to  depress  and  chill 
the  sale,  to  obtain  the  property  at  an  under 
value,  or  to  obtain  other  undue  and  un- 
conscientious advantages.  An  estate  might 
be  offered  for  sale,  which  neither  of  two 
joint  bidders  would  be  able,  separately,  to 
purchase.  Or.  it  might  be.  that  neither  of 
two  joint  bidders,  though  al)le  as  to  jie- 
cuniary  means,  would  desire  to  purchase  tlie 
whole  of  the  estate  offered  for  sale ;  though 
each  would  be  desirous  to  become  the  owner 
of  a  part.  Such  persons,  if  not  permitted  to 
unite  in  their  biddings,  would  not  enter  into 
the  competition  at  all.  To  adopt  so  strin- 
gent a  rule  as  that  contended  for.  in  refer- 
ence to   sales  in   Chancery   would,   in   many 


HULL  V.  HULL 


*6G 


instances,    have    the    effect    of   dlnilnishin;,'. 
instead  of  tiihancini:  the  prices.     In  tlie  very 

*65 
case  relied  on  in  support  *of  tliis  motion, 
(Ilaniihoti  V.  Ilaniiiton.)  it  is  said  hy  tlie 
Cliancelhir  who  ch-livered  the  oiiinion  of  the 
Court,  citin>?  witii  approbation  tlie  case  of 
Smith  V.  Greenlee.  (2  Dev.  12.S,)  'it  is  shewn, 
liowever,  in  tliat,  as  in  other  cases,  that 
liersons  may  proiierly  uiute  for  tlie  purpose 
of  making  a  bid  anionj;  themselves,  where  no 
one  of  tlie  associates  was  able  to  purchase, 
or  desired  to  own.  the  entire  property  ex- 
posed to  sale."  A  fraud  in  a  case  like  this, 
as  in  every  other  case,  must  be  judged  of  by 
all  the  attendant  circumstances.  If  the  eo- 
jiartnership  in  bidding  appears,  from  the 
attendant  circumstances,  to  have  been  en- 
tered into  with  a  fraudulent  intent  to  de- 
I)ress  and  chill  the  sales,  and  to  obtain  un- 
due advantages  in  the  purchase  of  projjerty. 
the  sale  will  he  vacated.  If  such  joint  bid- 
ding has  no  such  fraudulent  intent,  and  is 
bona  fide,  it  will  not  have  the  effect  of  viti- 
ating the  sale. 

The  Court  is  satisfied  with  the  Circuit  de- 
cree. It  is  ordered  and  decreed  that  the  Cir- 
cuit decree  be  afhrmed  and  the  appeal  be 
dismissed. 

JOHNSTON  and  DINKIX,  CC.  concurred. 
Appeal  dismissed. 


3    Rich.  Eq.   65 

WILLIAM  HULL  and  Othcr-s  v.  ANN  HULL 
and  Others. 

(Columbia.     Nov.  and  Dec.  Term,  IS.jO.) 

\Ej-rfutors  and  Administrntom  <S=li7'J.] 

The  direction  in  a  will,  that  the  executor, 
"out  of  the  testator's  estate  pay  oil"  all  hi.s  just 
debts  and  funeral  expenses, "  is  some  evidence, 
that  the  testator  intended  that  the  persDualty — 
the  fund  at  the  executor's  dispusal— shoiihl  be 
tirst  used  for  the  payment  of  debts. 

[Ed.  Note. — For  other  cases,  see  E.xecutors  and 
Administrators.  Cent.  Dig.  SS  T71,  TSl-TSS; 
Dec.  Dig.  <®=>272;    Wills.  Cent.   Dig.  §  2151.] 

[Executors   and  Administrators  <©=3272.] 

Where  the  testator,  niniseif,  ^'ives  no  direc- 
tion on  tile  subject,  the  per.sonal  estate  is  the 
primary  fund  for  the  payment  of  debts :  and,  as 
between  devisees  and  IcKatees,  the  persoiuilty 
must  he  exhausted  in  payments  of  dt>l)ts,  befoio 
the  realty  can  be  resorted  to  for  that  i)uri)<)se.(a) 

[Ed.  Note.— Cited  in  Farmer  v.  Si)eii.  11 
Rich.  Eq.  549;  Richardson  v.  Inpleshy.  l.'l  liii  li. 
K(\.  ni> ;  Laurens  v.  Read,  14  Rich.  Ei|.  2li."» ; 
Kinslcr  v.  Holmes,  2  S.  C.  4'.»4  ;  McFadden  v. 
llellt-y.  28  S.  C  324,  5  S.  E.  812.  l.'J  Am.  St. 
Rep.   675. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  SS  771,  7S1-7SS ;  Dec.  Dig. 
<g=>272:    Wills.  Cent.  Dig.  S  2151.] 

(«t  The  following  ease,  bearing  iiimn  the  ap- 
plicability   of    the    personal    estate,    before    the 


♦66 

*[Ererutors  and  Ailiiiinistrtiior-i  0=*3.5.?.l 

In  estimating  the  value  of  estates  in  land, 
a  fee  conditiunal  should  lie  valued  as  hi;;li  as  a 
fee  simple ;  espi.-eially  where  the  donee  has  a 
child  living. 

[Ed.   .Note.— Cited  in  Du  Pont  v.  Du  Bos,  52 
S.  C.  Append.  (>0S. 

For  other  cases,  .see  F^xecutors  and  Adminis- 
trators. Cent.  Dig.  S  145U;    Dec.  Dig.  <S=>:i5:i.) 

[WiUs   «S=>7SS.] 

Where  devises  and  bequests  to  a  bastard, 
are  avoided,  under  the  Act  of  1705,  for  the  ex- 
cess (jver  one  fourth  of  the  testator's  estate, 
the  basta'il  has  the  riuht  to  elect  what  piojierty 
he  will  retain— throwing  oflf  the  excess— or  to 
retain  the  whole  and  pay  for  the  excess;  parti- 
tion will  not  be  resorted  to  except  where  no 
election  is  made. 

[Ed.  Note.— Cited  in  Williams  v.  Halford,  7o 
S.  C.  124.  53  S.  E.  8,S. 

For  other  cases,  see  Wills,  Cent.  Dig.  §  '2012  ; 
Dec.   Dig.  (©=37.s.s.] 

[This  ea.se  is  also  cited  in  Moore  v.  Hood,  !> 
Rich.  Eq.  327,  70  Am.  Dec.  210;  Small  v. 
Small,  Itj  S.  C.  71,  as  to  the  necessity  of 
niiikinu:  heirs  or  devisees  parties  to  a  pro- 
ceeding by  executor  or  administrator  for 
sale  of  lands  for  payment  of  debts.] 

Before  Dargan,  Ch.,  at  Edgefield,  June. 
1.S49. 

In  this  case — which  came  upon  exceptions 
to  the  Conimis.sioner's  report,  in  obedience 
to  the  order  of  reference  made  by  the  Court 
of  Appeals,  2  Strob.  E<i.  174-105— the  de- 
cree of  his  Honor,  tlie  Circuit  Chancellor, 
is  as  follows: 

Dargan,  Ch.  This  case  having  been  refer- 
red, by  the  Court  of  Appeals,  to  the  Commis- 
sioner in  Equity,  to  enipiire  and  report  as  to 
various  matters  of  fact,  necessary  to  be  as- 
certained before  a  final  adjudication  of  the 
questions  between  the  parties  could  be  made, 
the  Coniinissiouer  has,  at  this  term,  reported 
upon  all  the  matters  submitted  to  him.  To 
this  report,  both  complainants  and  defend- 
ants liave  excepted,  and  this  is  the  form  in 
which  it  coiues  before  me  for  a  hearing. 

I  will  consider  the  defciidants's  excei»tituis 
first,  as  they  raise  questions  that  may.  in 
soiiu'  measure,  be  considered  as  preliminary 


real  estate,  in  the  payment  of  debts,  is  subjoin- 
ed bv  way  of  note  to  the  above  case: 
•66 

♦E.  W et  al.  V.  F.  H . 

lieforc    De    Saussure,   Ch..   at   Newberry,    June, 
1810. 

This  bill  was  filed  to  .--et  aside  the  sale  of  a 
trait  of  2.50  acres  of  land  of  the  testator,  sold 
under  execution  against  the  defendant,  as  ad- 
ministrator cum  testamento  annexo,  of  the  es- 
tate of  the  testator;  and  also  ti>  compel  the 
defendant  to  account  for  the  value  of  another 
tract  of  138  acres,  of  the  testator,  also  sold  un- 
der  execution   against   the   defendant. 

The  testator  (lied  in  the  latter  [lart  of  the 
year  1S04.  leaving  a  last  will  and  testament,  by 
which  he  devised  the  two  tra<'ts  of  laml  afore- 
said, to  the  ciiinplainants,  his  widow  and  chil- 
dren ;  and,  after  payment  of  debts,  the  remain- 
der of  his  estate  to  his  widow  and  chihlrcn. 
The  executor  named  in  the  will  having  lefused 
to  qualify,  administration  with  the  will  an- 
nexed was  ^iranted  to  defeiulant,  who,  in  Feb'y, 


C=>F*or  other  cases  see  same  topic  and  KEY-NUMBER  iu  all  Key-Numbered  Digests  and  Inde.xes 


27 


*G7 


3  RICHARDSON'S  EQUITY  REPORTS 


*67 

*to  those  presented  in  tbe  exception  of  tTie 
compUvnants.  The  defendants's  first  excep- 
tion to  the  report  is,  "because  the  Commis- 
sioner has  erred  in  charging  the  balance  of 
the  debts,  after  exhausting  the  intestate 
pi-operty,  to  the  bequests  to  the  defendants, 
until  the  amount  of  said  bequests  was  ex- 
hausted, and  then  apportioning  the  balance 
of  debts  still  unpaid,  between  the  devises  to 
the  defendants ;  whereas,  it  is  submitted, 
that  where  devises  and  specific  legacies  have 
to  abate  to  pay  debts,  there  is  no  legal  dis- 
tinction between  real  and  personal  property, 
and  that  the  value  of  both  devises  and  be- 
quests should  contribute  rateably,  without 
regard  to  the  distinction  between  real  and 
personal  property." 

This  exception  raises  a  very  important 
question,  and  I  am  not  aware  that  the  par- 
ticular question  here  made,  has  ever  been 
expressly  decided,  in  any  case  occurring  in 
the  Courts  of  this  State.  If  the  point  were" 
to  be  adjudicated  by  the  law  of  England,  the 
way  would  be  perfectly  clear  and  open.  I 
would  have  but  to  travel  a  broad  and  beaten 
path,  so  well  defined  that  it  would  be  impos- 
silile  to  commit  an  error.  In  the  Courts 
which  sit  in  Westminster  Hall,  on  a  bill  to 
marshall  the  a.ssets  of  a  testator  for  the 
payments  of  debts,  a  specific  legacy  would,  in 
a  question  like  this,  undoubtedly  be  primarily 

*68 
liable,  in  exonera*tion  of  a  devise  of  real 
estate,  which  is  always  specific ;  and  the 
primary  fund  would  have  to  be  exhausted 
before  the  devise  could  be  touched.  And  in 
support  of  this  doctrine,  as  strong  an  array 
of  authorities  and  decisions,  flowing  in  an 
uniform  and  unbroken  current,  could  be  pre- 
sented, as  could  lie  adduced  in  support  of  any 
principle  of  British  jurisprudence  whatever. 
The   origin   of  this   deed   preference   of  the 


1805,  made  sale  of  the  per.soualty  to  the  amount 

*67 
of  .*I8.33.  The  defendant  *after\vards  confessed 
judgment  on  two  notes  of  tlie  testator,  appar- 
ently for  a  considerable  sum,  but  on  which 
there  was  due  only  a  very  small  balance.  Un- 
der the  execution  issued  on  this  judgment,  the 
two  tracts  of  land  were  sohl  by  tlie  sheriff — 
the  tract  of  2.")0  acres  to  the  defendant  him- 
self, and  the  tract  of  138  acres  to  one  C. 

De  Saussure.  Ch.  It  was  shewn  by  the  very 
clear  report  of  the  referee,  Mr.  Farnandis,  that 
there  was  a  lai-ge  balance  (jf  the  j)ersonal  assets 
of  the  estate  in  the  hands  of  tlie  defendant : 
much  more  than  enough  to  have  paid  off  the 
balance  due  by  the  estate  of  the  testator,  on  the 
"^ '  "'"''■"""♦■  'f  '*^  hnd  be"n  applied  to  the  pay- 
ment. But  the  funds  of  the  personal  estate 
were  not  so  applied  :  and  levies  were  made  on 
two  tracts  of  laud  belonging  to  the  testator's 
estate;  one  containing  l.'IS  acres,  and  the  other 
cftntaining  nearly  250  acres,  but  levied  on,  the 
14th  June.  1808,  as  containing  100  acres.  The 
two  tracts  were  put  up  to  sah'.  bv  the  sheriff 
of  Newberry,  and  sold,  7th  Aug,"  1809.  The 
former  tract  (of  138  acres)  was  knocked  off  to 
one  C.  for  .$472 ;  which  was  a  small  price. 
The  other  tract  of  (of  250  acres)  was  knocked 

*68 
ofiE  *at  $126,  to  Mr.  J.,  who   was  bidding  for 

28 


English  law,  in  favor  of  the  heir  or  devlsco, 
over  the  legatee  or  inheritor  of  personal 
property,  is  to  be  looked  for  in  remote  ages. 
Among  a  people  living  under  the  feudal 
system,  landed  estate  constituted  the  pre- 
dominant element  in  the  social  and  political 
organization.  And  hence,  we  can  hardly  be 
surprised  at  the  vast  imiwrtanee  that  was  at- 
tached to  its  possession.  The  aggregate  of  the 
personal  property  then,  embraced  but  a 
small  portion  of  the  wealth  of  the  nation, 
while  the  few  goods  and  chattels,  that  were 
possessed  by  the  humbler  classes,  were  in- 
secure, and  liable  to  be  snatched  away  by  the 
lawless,  marauding  barons.  The  lands  were 
all  monopolised  and  held  by  the  strong 
arm  of  military  power.  Commerce  had  not 
then  expanded  her  sails  upon  every  sea.  and 
iu  co-operation  with  the  mechanic  arts,  and 
a  inore  enlightened  agriculture,  swelled  the 
wealth  of  the  nation  in  personal  property, 
to  the  enormous  and  incalculable  amount  that 

*69 
*now  exists.  The  feudal  system  yielded  to 
the  irresistible  influence  of  advancing  civili- 
zation ;  but  it  yielded  slowly,  and  its  stern 
features  are  still,  and  for  a  long  period 
to  come  will  remain,  deeply  impressed  iipon 
the    civil   polity   of  the   British   Isles.     And 

defendant,  the  administrator.  The  land  was 
conveyed  to  defendant,  by  the  sheriff,  and  has 
been  kept  bv  him  ever  since  as  his  property. 

It  was  fully  proved  that  this  tract  of  250 
acres,  purchased  by  defendant  at  the  sheriff's 
sale,  for  .$120,  was  worth  at  the  time  of  the 
sale,  at  least  .$7  more  per  acre,  which  would 
amount  to  .$1750;  and  is  worth,  at  this  time, 
at  least  .$13  per  acre,  which  would  amount  to 
$3250. 

It  was  also  proved  that  defendant  not  only 
did  not  pay  the  debt  on  judgment  out  of  the 
personal  estate,  but  pointed  out  the  lands  to  be 
levied  on  and  sold  to  pay  the  debts:  and  that  he 
employed  Mr.  J.  to  bid  for  him.  without  inform- 
ing him  that  himself  was  administrator,  but  as- 
signing as  a  reason  for  his  request,  that  if  lie 
bid  openly,  himself,  others  would  run  up  the 
land  upon  him  to  a  high  price.  Mr.  Fernandis, 
who  thought  the  land  worth  $8  per  acre,  at  the 
time  of  the  sale,  did  not  bid,  because  he  saw 
Mr.  J.  bidding,  with  whom  he  was  intimate,  and 
did  not  choose  to  interfere. 

Upon  this  state  of  facts,  supported  bv  proofs, 
*69 
it  is  contended  by  the  *complainants,  that  the 
sale  of  the  250  acres,  was  fraudulent  and  void. 
After  a  careful  examination  of  the  facts,  it  ap- 
pears beyond  all  doubt,  that  there  were  funds 
arising  from  the  personal  estate,  in  the  hands 
of  the  administrator,  which  were  more  than 
suflicient  to  have  paid  the  debts;  and  at  all 
events  to  have  satisfied  the  judgments.  That^ 
even  if  that  had  not  been  the  case — the  sale 
of  the  tract  of  138  acres  (bought  by  C.)  was 
more  than  sufficient  to  pay  the  delits.  No  ne- 
cessity, then,  existed  for  the  sale  of  the  250 
acres.  Yet.  it  aj^pears.  that  the  administra- 
tor, who  ought  to  have  protected  the  estate,  not 
only  did  not  perform  his  duty,  by  paying  the 
debt,  but  pointed  out  the  land  to  be  levied  on 
and  sold  under  the  execution. 

The  levy  was  made  on  the  tract  as  containing 
only  100  acres;  and  Mr.  Farnandis,  (then  iu 
the  sheriffs  ofiice,)  proved  that  it  was  usual  to 
set  up  land  at  the  quantity  represented. 

How  this  error  arose,  does  not  appear.  But 
the  administrator — who  was  intimately  acquaint- 


IIILL  V.  HULL 


*71 


even  here  In  this  new  and  distant  land,  and 
under  our  rei)ul>lican  institutions.  ditTcrin;: 
so  widely  fnini  those  of  niedia'val  a.ws,  it 
not  unfreiiuently  imposes  its  rude  shackles 
upon  the  adniiinstration  of  justice.  Such  is 
the  ori;,'in  of  that  preference,  j;iven  hy  the 
Knt,'lish  law,  to  the  devisee  over  the  lejiatee, 
and  which  discrinunates  unreasonably  a\id 
luijustly  between  them.  I  have  alluded  to 
the  vast  increase,  in  modern  times,  of  wealth 
in  personal  property  in  the  I  nited  Kinjrtlom. 
It.s  a f^i; rebate  value  now,  jireatly  exceeds 
that  of  the  real  estate.  This  chanjie  in  the 
condition  of  the  country,  as  to  the  relative 
value  of  real  and  personal  i)roperty,  it 
niijrht  be  .supposed  would  lead  to  some  modi- 
fication of  those  distinctions  which  the  law 
makes  between  them,  and  this  result  has 
happened  to  a  very  considerable  extent : 
but,  thonph  the  feudal  system  has  passed 
away,  leaviiiff,  however,  its  strons;  imitress 
upon  the  institutions  of  our  mother  country, 
there  are  causes  still  in  operation,  that  im- 
part to  real  estate  an  importance  beyond 
its  intrinsic  value.  The  hereditary  nobility 
constitute  the  jireat  bulwark  of  the  British 

*70 
monarchy;  *the  privileged  classes  form  a 
harrier,  that  interposes  between  the  throne, 
and  pop\ilar  encroachments  and  republican 
tendencies.  The  existence  of  their  privi- 
leges, is  identified  with  the  prerojratives  of 
the  crown.  They  support  the  throne,  not  as 
their  war-like  ancestors  did.  hy  the  sword 
and  by  military  array,  but  by  the  infiuence  of 
their  enormous  wealth,  and  tlu'ir  power  as 
hereditary  le,i;islators.  They  are  the  stronj,' 
pillars  that  support  this  ancient  monarchy. 
Volcanic  and  pent  up  fires  snuuilder  beneath 
the  venerable  pile ;  the  waves  of  popular 
discontent  dash  madly  round  the  foundations. 
Take    away    the    barrier,    from    which     the 


ed  with  the  affairs  of  the  estate,  and  with  the 
land— iniiilit   have  corrected    it. 

*70 

*The  witnesses  do  indeed  siiy,  that  they  did 
not  see  any  iniproper  condnct  in  tlie  administra- 
tor on  tlie  (lay  of  sale;  or  liear  him  make  anv 
ndsreiM-eseiitatidn.  That  mijriit  l)c  avtdded  by 
an  experienced  man.  who  was  endoavorinj,'  to 
force  a  sah'  of  land  of  the  estate  iu  his  hands, 
that  he  niij;ht  l)uy  it  in  at  a  very  low  price. 
Tile  eviih-nce  of  the  facts— the  ovidentia  rei— is 
irresistilih'  in  tlie  case.  The  non-application  hv 
the  administrator,  of  the  assets  in  his  hands— 
which  were  more  than  sufhcient  to  pay  thejiidg- 

inent  —  I'iiises   n    viii1i>iif   nri'<iini>if ii,!-,    ■t,r.,i,\^t    1.;,., 


iw  f;ri  iiie  uuKi  US  luw  as  possiiiie.  Ills  em 
ployinj;  (hy  wliat  ajipears  now  to  be  au  imposi 
ti(in  on  lumi  [iiivately  a  third  persou,  a  gentle 
nian  of  most  respectable  chara<'ter,  who  was 
ignorant  of  his  situation  as  administrator,  and 
did  not  know  the  l:ind,  to  hid  for  him.  proves 
a  deliberate  prosecution  (.f  that  desimi.  And 
^vhcn  th.-it  friend  had  bid  in  the  land,  at  ton 
times  less  than  its  then  value,  his  takin;;  ad- 
vantage thereof,  and  accepting  an  absolute  title 


surge  is  made  to  recoil ;  remove  the  w»Msiht 
by  which  the  popular  upheaval  is  repressed, 
and  the  HocmI  and  the  earthquake  would  do 
their  work  in  an  instant;  and  this  proud 
and  powerful  monarchy,  in  all  its  colo.ssal 
proportions,  would  be  swept  away  at  once 
and  forever.  No  rettective  nnnd  that  has 
pondered  upon  the  rise  and  fall  of  empires, 
can  douitt  for  a  moment,  that  the  same  revo- 
lutionary vortex  that  swallows  u\t  the  Urit- 
ish  nobility,  will  also  ingulf  the  Hritish 
monarchy.  These  views  are  forcibly  folt, 
if  not  acknowledged,  by  their  enlightened 
statesmen  and  pid)lic  functionaries.  They 
are  appreciated   by  the   middle  classes,   and 

*71 
by  all  the  friends  of  peace,  order  and  ♦sta- 
bility,   who   hence   sui)nHt   to   adndtteil    evils 
and   abuses,   "rather   tli.m    lly   to   those   tln'y 
know  not  of."' 

The  British  nobility  are  essentially  a 
landed  aristocracy.  They  have  other  forms 
of  wealth  of  cour.se;  but  their  diginty  and 
fannly  pride,  are  made  to  rest  principally 
upon  their  territ(u-ial  domains.  A  landless 
noble  is  an  unfortunate  being.  A  Duke,  a 
.Manpiis.  or  other  hereditary  peer,  without 
a  rental,  is  an  object  of  contempt  to  his  own 
order,  and  of  ridicule  to  the  classes  beneath 
them.  The  same  remarks  aiiply,  with  greater 
or  less  force,  to  other  orders  of  the  nobility, 
and  the  gentry  generally.  Very  great  stress 
is  laid  upon  their  hereditary  real  estates. 
And  no  sooner  has  a  tradesman,  who  has 
amassed  a  fortune,  received  the  order  of 
knighthood,  or  retired  without  that  di.stinc- 
titni, — or  a  judge,  or  a  successful  soldier,  en- 
riched by  the  rewards  of  the  State,  been  rais- 
ed to  the  peerage,  than  they  look  about  for 
investments  in  real  estate.  They  purchase 
country  seats,  and  their  appurtenances,  and 
hope  to   become  the  founders  of  aristocratic 


*71 
to   himself,    is    the    *completi(in    of   the    scheme, 
which  was  to  enrich  himself,  at  the  expense  of 
the    widow    and    the   orphans,    who.se   estate   and 
who.se   interests   he   had   in   charge. 

It  is  wonderfid  that  a  person  of  so  much  nn- 
derstandini;.  shoidd  be  so  blinded  by  interest, 
as  to  be.iinile  himself  into  a  belief  that  such 
transactions  cnuld  escape  the  scrutinizing  eyes 
of  Coui-ts  of  justice. 

It  is  the  <luty  of  this  Court  to  correct  such 
transactions:  and  that  duty  must  he  perform- 
ed. It  would  he  a  disgrace  to  the  adnniustra- 
tion  of  justice,  if  this  wei-e  not  uniforndv  cor- 
rected,  when   brou-ht  to  the   view  <if  the  Toiu-t. 

The  administrator  had  n()  right,  in  the  cou- 
lidential  relation  iu  which  he  stood,  to  become 
the  purchaser;  at  all  events,  not  under  such 
I'ircunistances  as  he  apiiears  to  have  created, 
or  availed  himself  of.  to  irain  a  most  advan- 
ta.!r<>ous  bargain  to  hiniseli".  to  the  y:reat  lo.ss 
and  ruin  of  the  widow  and  children,  whose  \wr- 
snnal  estate  was  in  his  hamls.  and  nui;ht.  and 
ouiiht  to  have  been  applied  to  prevent  the  sale 
of  the  land  alto;rether. 

It  was  alle-rod  hy  the  counsel  for  the  defend- 
ant, that  if  the  Court  should  set  aside  the  sale, 
and  order  an  account  for  rents  and  pr<]fits, 
it  would  be  proi»er  to  make  some  allowance  to 
the  defendant  for  his  imi)rovcments.  This  de- 
fendant is  not  entitled   to  any   favor  from   the 

29 


3  RICHx'^RDSON'S  EQUITY  REPORTS 


houses,  and  to  transmit  their  honors  and  pos- 
ses>;ions  to  their  posterity.  It  cannot  be  de- 
nied that — where  orders  of  nobility  are  to 
exist — landed  property   constitutes  the   best 

*72 
form  *of  wealth,  and  the  most  stable  founda- 
tion on  which  the  dignity  of  ancient  and 
aristocratic  liouses  can  repose.  Such  an  es- 
tate is  less  likely  to  be  alienated  or  dissipat- 
ed. With  such  an  estate  the  owner  can  more 
easily  identify  himself,  than  with  money  or 
stocks.  The  capitalist  cannot  love  his  money, 
as  an  individual  or  a  thing;  but  the  moral 
sentiments  cluster  thickly  and  strongly 
around  ancestral  hall>5  and  hereditary  for- 
ests, lands,  parks  and  waters.  If  such  an 
estate  is  alienated  from  necessity  or  caprice, 
the  price  is  soon  dissipated,  and  the  degrada- 
tion of  the  owner  from  his  castle,  soon  fol- 
lows. 

Thus,  it  has  become  a  prevailing  principle 
in  the  English  law,  to  give  preference  to 
land,  and  a  prevailing  sentiment  in  the  aspir- 
ing portion  of  English  society,  to  seek  that 
mode  of  investment.  Hence  their  law  of  en- 
tails, and  their  laws  of  primo-geniture,  the 
policy  of  which  is  to  sustain  their  ancient 
aristocratic  houses,  by  preserving  their  estates 
from  alienation  and  disintegration.  Hence 
the  law,  which  exempted  real  estate  from  the 
payment  of  debts,  except  those  secured  by 
specialty;    and  even  in  that  case,  the  remedy 

*73 
of  the  creditor  was  restricted.  And  *hence 
the  principle,  which  has  become  the  subject 
of  enquii-y  in  this  case,  by  which  a  preference 
is  given  to  a  devisee,  over  a  specific  legatee, 
in  the  payment  of  the  testator's  debts.  ]N'one 
of  the  causes  which  in  the  mother  country 
conspired  to  produce  this  unjust  and  unrea- 
sonable distinction,  are  in  operation  with  us. 
We    are   far   enough   removed,    both    in    the 


*72 

Court;  but  he  is  *entitled  to  justice;  and  if 
he  lias  made  any  valuable  and  durable  improve- 
ments, beneticial  to  the  complaiuauts,  he  ought 
to  be  allowed  some  compensation  for  them. 
That  must  be  the  subject  of  further  examina- 
tion. 

It  is  ordered  and  decreed  that  the  purchase 
made  by  the  defendant,  at  sheriff's  sale,  of  the 
tract  of  250  acres  of  laad,  be  declared  null  and 
void,  and  set  aside;  that  the  defendant  deliver 
up  the  sheriff's  conveyance  to  him  to  be  can- 
celled ;  that  he  deliver  quiet  possession  of  said 
land  to  the  complainants;  that  he  account  be- 
fore Mr.  Farnaudis,  the  referee,  for  tlie  rents 
and  profits  thereof,  (in  which  account  he  shall 
be  allowed  all  reasonable  deductions  for  actual 
expenditures,  and  iinin'oveinents  on  said  land, 
beneticial  to  the  comphiiiiants.) 

It  is  further  ordered  and  decreed,  that  all  the 
matters  of  account  between  these  parties  be 
referred  to  Mr.  Farnandis,  to  settle  and  adjust, 
including  the  price  of  the  land  purchased  by  C. 

This  defendant  to  pay  all  the  costs  of  suit. 

An  appeal  from  this  decree  was  heard  at 
Columljia,  December  Sittings,  1819,  when  it 
was  affirmed  by  the  whole  Court,  consisting  of 
Chancellors  De  Saussure,  Waties,  Gaillakd, 
James  and  Thompson. 


O'iS'eall,  for  complainants. 

Crenshaw  &  McDuffie,  for  defendant. 


lapse  of  time  and  the  form  of  our  institutions 
from  the  feudal  system,  not  to  be  fettered 
bj'  its  dogmas,  where  they  are  felt  to  be  in- 
convenient, unreasonable  and  unjust ;  more 
particularly  where,  as  in  this  case,  we  are 
not  bound  by  any  authoritative  decision  of 
our  own  Courts.  The  statute  de  donis  con- 
ditionalibus  has  never  been  of  force  in  this 
State.  We  have  abolished  long  since  thtj 
law  of  primogeniture.  Our  law  of  descent 
is  adapted  not  to  aristocratic,  but  to  republi- 
can forms  of  society.  Its  policy  is  rather 
to  pull  down,  than  to  build  up  and  sustain, 
great  and  overgrown  estates.  By  the  Statute 
5  Geo.  2,  Ch.  7,  A.  D.  1732,  we  have  abolish- 
ed all  distinctions  whatever,  between  real 
and  personal  estate,  in  the  payment  of  debts. 
By  its  provisions,  lands  are  declared  to  be 
assets  for  satisfying  the  claims  of  creditors, 
and  are  made  liable  to  execution,  "towards 
the  satisfaction  of  such  debts,  duties  and  de- 
mands, in  like  manner  as  personal  estates  in 
any  of  the  said  plantations  respectively,  are 
seized,  extended,  sold  or  disposed  of,  for 
the  satisfaction  of  debts."  (2  Stat.  571.)  In 
the  construction  of  this  Act,  our  Courts  have 
held  (and  this  has  long  been  the  settled  law,) 
that  the  lands  of  an  intestate,  which  have 
descended  to  the  heir,  or  of  a  testator,  which 
have  been  given  by  will  to  a  devisee,  may  be 
levied  on  and  sold  by  the  sheriff,  under  an  ex- 
ecution against  the  executor  or  administrator, 
without  nuiking  the  heir  or  devisee  a  party 
to  the  proceedings,  by  notice  or  otherwise ; 
although  there  may  be  sufficient  personal  as- 
sets to  satisfy  the  debts.  Martin  v.  Latta, 
(4  McCord,  128;)  D'Urphey  v.  Nelson,  (lb. 
129,  note.)  The  Stat.  5  Geo.  2,  and  the  judi- 
cial interpretation  it  has  received,  have  plac- 
ed real  and  personal  property  upon  precisely 
the  same  footing,  as  it  respects  the  compul- 
sory satisfaction  of  debts.  Every  portion  of 
a  testator's  estate  is  liable  to  his  creditors. 

*74 
In  regard  to  them,  the  ques*tion.  as  to  which 
fund  is  primarily  liable,  does  not  arise.  And 
they  have  the  same  facilities  of  relief,  in  the 
way  of  process,  for  enforcing  payment  against 
the  one,  as  against  the  other. 

Such  being  the  state  of  our  law,  and  its 
policy  on  this  subject,  is  there  any  thing  in 
justice  or  reason  which  would,  as  between  a 
devisee  and  a  specific  legatee,  subject  the 
property  given  by  t^ie  testator  to  the  latter, 
to  the  payment  of  his  debts,  to  the  exemption 
of  that  given  to  the  former,  by  the  same  bene- 
factor? Lands  have  not  here  that  adven- 
titious value,  which  for  causes  we  have  inves- 
tigated, obtains  in  the  parent  country.  They 
are  not  more  valuable  than  personal  prop- 
erty; than  negroes,  for  example.  Indeed  the 
latter,  if  facility  of  converting  them  into 
cash,  at  an  established  marketable  value, 
may  be  considered  a  test,  are  the  most  desir- 
able of  the  two.  Setting  aside  tlie  reasons 
to  be  derived  from  the  s(icial  polity  of  Eng- 
land, past  and  present,  is  there  a  single  ar- 


30 


HULL  V    HULL 


*76 


{ruinont  by  which  the  distinction  can  he  vin- 
dicated? Is  there  any  sound  lesral  idiilosophy 
which  supports  it?  Is  it  not  opposed,  to  jus- 
tice and  condemned  hy  reason?  Wliere  a  tes- 
tator fiives  a  tract  of  hind  to  one,  and  a 
chattel  to  anotlier  of  liis  friends.  l»y  the  same 
specific  form  of  laii^'uage,  and  a  description 
which  identities  liotli.  a  rule  that  would  make 
one  of  those  jiifts  lialile  before  the  other,  for 
the  payment  of  debts,  is  notliiuK  less  than 
absurd ;  except,  indeed,  where  the  rule  has 
originated  in  some  sreat  and  controlling 
policy.  If  the  testator  indicates  which  fund 
shall  be  primarily  liable,  it  is.  of  course,  a 
different  question;  for  his  will  is  the  law  of 
the  case.  But  the  distinction,  which  is  ob- 
noxious to  the  charfie  of  absurdity,  is  where 
both  are  given  in  the  same  form  of  language, 
without  any  expression  fmm  tiie  testator,  as 
to  which  fund  shall  be  primarily  liable.  Let 
me  illustrate  by  an  example.  The  testator 
says,  "I  give  and  devise  to  my  son,  Michael, 
my  house  and  lot,  in  the  town  of  Columbia, 
on  which  I  live,"  &c.  "To  my  daughter, 
Mary,  I  give  and  becpieath  the  following 
slaves,  namely,  Tom.  Dick,  Bet."  &c.  The 
testator  dies  indebted  to  the  value  of  the 
slaves,  which  he  intended  as  a  provision  for 
his  daughter,  who  must  now  remain  portion- 

*75 
less,  *and  be  turned  a  beggar  upon  the  world, 
because  her  legacy,  although  as  specifically 
intended  for  her,  as  the  real  estate  was  in- 
tended for  the  son,  is.  by  the  rule,  primarily 
liable.  Is  it  not  the  better  and  more  equita- 
ble rule,  that  the  devise  and  legacy  should 
abate  pro  rata?  I  dare  afhrm  that  the  rule 
which,  in  such  a  case,  would  subject  the 
legacy  to  the  exoneration  of  the  devise, 
would,  in  nine  times  out  of  ten,  defeat  the 
intention  of  the  testator.  When  a  testator 
gives  his  legatee  a  specifically  described 
negro,  he  as  clearly  means  that  his  legatee 
shall  have  and  enjoy  that  iiarticular  negro, 
as  when  he  gives  to  his  devisee  his  land. 
Where  the  testator  has  not  intimated  the 
slightest  distinction  between  them,  nor  hinted 
which  would  be  primarily  liable  for  debts, 
ui»on  what  principle  of  justict'  can  the  Court 
interfere,  and  say  that  the  one  of  those  two 
eiiually  favored  objects  of  the  testator's  love 
and  bounty  shall  pay  the  debts — even  to  the 
entire  exhaustion  of  his  share,  and  to  the  ex- 
emption of  the  other?  There  is  no  principle 
upon  which  such  an  interposition  can  be  jus- 
tified. The  intention  (»f  tiie  testator,  we  are 
taught,  is  the  pole  star  in  the  construction 
of  wills.  We  carefully  and  laboriously  .seek 
it,  through  all  the  obscurities  of  language, 
and  by  rules  of  interpretation  that  are  .sanc- 
tioned by  reason  and  experience.  And  when 
we  have  found  the  intention  of  the  testator, 
we  are  obliged  to  enforce  it;  unless,  indeed, 
it  be  that  such  intention  be  contrary  to  the 
policy  of  the  law.  I'.ut  in  this  case,  we  are 
called  upon  to  violate  the  manifest  inten- 
tion of  the  testator,  not  becausj  that  inten- 


tion is  opposed  to  the  policy  of  our  own  laws, 
liut  because  such  a  decision  would  be  more  in 
consonance  with  the  policy  of  a  distant  and 
alien  land. 

If  we  were  trammelled  iiy  precedents  and 
decisions  of  our  own  Courts,  the  case  might 
present  a  more  dubious  aspect.  But  I  have 
looked  over  the  reported  decisions,  and  do 
not  find  that  this  point  has  ever  i>eeu  made 
as  an  issue  and  adjudicated  by  the  Court. 
Dicta  there  are,  contrary  to  the  conclusion 
to  which  my  judgment  has  led  me.  But  opin- 
ions upon  collateral  (luestions  of  law,  ex- 
pressed, arguendo,  by  the  Judge,  who  acts 
as  the  organ  (jf  the  Court,  in  delivering  its 

*76 
judgment,    cannot    be    con*siilered    more    au- 
thoritative than  his  own  indjvi<lual  and  pri- 
vate opinions.     Indeed  it  is  exceedingly  un- 
fair to  consider  them  the  result  of  his  own 
settled   and   deliljerate  judgment.      Such   col- 
lateral matters  are  not  discussed  before  and 
adjudged    by   the   tribunal    that    decides   the 
ca.se.  and  oftentimes  are  but  slightly  consid- 
ered by  the  Judge  who  expresses  liis  o|iinion 
upon    them.      Therefore,    upon    the    .soundest 
piinciples.   they    are    regarded   as    fallacious 
guides.     I  would  not  impugn  the  decisions  in 
which  their  dicta  have  been  expressed,   nor 
deny  that,  as  a  general  rule,  personal  prop- 
erty should  be  the  primary  fund  for  the  pa.v- 
mont    of    debts.      But    I    say    that    the    rule 
should  admit  of  some  qualilication.  and  that 
a  specific  legacy  of  personal  property  should 
he  liable  only,  pari  passu,  with  a  devise  of 
land;  and  not  liable  at  all.  until  other  assets. 
real  or  personal,  not  specifically  disposed  of. 
or  charged  with  ()r  devised  for  the  payment 
of  debts,  are  exhausted.     It  is  said  by  the 
Lord    Chancellor,    in    Ilarmood    v.    Oglander. 
(S  Ves.  lOG.j   "that  in  the  adnunistration  of 
assets,   ordinarily,  the    fir.st   fund   apidicalile 
is    the   personal    estate,    not    specifically    be- 
(lueathed;  then  land  devLsed  for  the  payment 
of  debts,  not  merely  charged,  but  devised  or 
ordered   to  be   sold;    then  descended   estate: 
then    lands    charged    with    the    payment    of 
debts."     It   is  obvious,    therefore,   that   even 
in   England   the  intention  of  the  testator  is 
respected,   and  the   legatee  is   protected,   ex- 
cept  where  he  comes  into   conflict   with  the 
devisee:  in  which  case,  the  latter  is  exonerat- 
ed  until    the   interest   of   the    former   is   ex- 
hausted.     For  such   a   distinction.    I   see.  as 
I  have  said,  no  reason  applicable  to  the  state 
of   circumstances    existing    in    this    country. 
In  Warley  v.  Warle.v.  (Bail.  K(|.  400.)  Chan- 
cellor  Harper,   in  allusion  to  the  rules  pre- 
vailing in  the  English  Court,  in  the  admiuTs- 
tration  and  marshalling  of  assets,  says,  "we 
have  adopted  the  English  rule  to  a  consider- 
able extent;  but  the   aitproximation   of  rea'l 
and  personal  estate,  in  descent  and  in  other 
particulars,  has  shaken  the  rule  a  good  deal." 
From  which  I  infer,  that  it  was  the  opinion 
of   that    philosophic    jurist    that   our   Courts 
were    not,    in   the    altered   circumstances    of 


*76 


3  RICHARDSON'S  EQUITY  REPORTS 


this  country,  bound  to  follow  the  English  de- 
cisions on  this  subject. 
*77 

*It  was  urged,  in  the  argument  of  this 
cause,  that  the  first  clause  of  G.  H.  Hull's 
will,  in  whi  h  he  expressed  his  wish  that  his 
executor  should  "out  of  his  estate,  pay  off 
all  his  just  debts  and  funeral  expenses,"  was 
an  indication  of  an  intention  that  the  per- 
sonal estate  should  be  primarily  liable ;  be- 
cause the  real  estate  not  being  devised  to 
the  executor  for  this  purpose,  nor  any  au- 
thority given  to  him  to  sell  it,  the  implication 
is,  that  he  meant  that  the  executor  should 
pay  the  debts  out  of  the  personal  estate  only. 
This  construction  is  somewhat  specious,  but 
it  does  not  strike  me  as  correct.  The  word 
"estate,"'  embraces  the  realty,  as  well  as  the 
personal  property.  The  words  of  the  clause 
would,  in  England,  be  sufficient  to  charge  the 
real  estate,  in  cases  where  it  was  exempt. 
And  if  so.  the  construction  contended  for,  can- 
not be  the  true  one.  I  cannot  suppose  the 
testator  to  have  entered  into  the  nice  legal 
distinction  which  this  meaning  would  imply. 
I  think  it  clear  that  he  thought  his  devises 
and  specific  legacies  would  remain  intact, 
and  that  the  general  residuary  estate,  would 
be  sufficient  to  pay  his  debts. 

After  a  great  deal  of  deliberation,  I  have 
adopted  the  conclusion,  intimated  in  the  fore- 
going remarks,  to  sustain  the  first  exception 
of  the  defendants,  which  is  accordingly  done. 

The  third  exception  of  the  defendants  is, 
"because  the  Commissioner,  in  ascertaining 
the  value  of  the  real  and  personal  estate,  de- 
vised to  defendant,  Zulina,  has  estimated 
the  fee  simple  value  thereof;  wliereas,  it  is 
submitted,  that  she  could  have  the  enjoy- 
ment of  the  property,  but  for  life,  without 
the  power  of  disposing  of  it  at  her  death, 
and  that  her  interest  therein,  should  have 
been  estimated  and  valued  accordingly." 
The  appeal  decree  directs  the  Commissioner 
to  ascertain  and  report  "the  nett  value  of 
the  devises  and  legacies  to  Zulina ;  and  the 
excess  received  by  her,  over  one-fourth  of 
the  testator's  estate,  clear  of  debts."  The 
same  decree  has  ;idjudged  that  she  takes  a 
fee  conditional  in  the  real,  and  a  life  estate 
in  the  personal  estate.  In  regard  to  the 
personal  estate,  the  children  of  Zulina,  if 
she  had  any,  would  take  as  purchasers.  In 
regard   to   the   real    estate,    they   would   not 

*78 
take  as  purchasers,  but  by  way  of  ♦limita- 
tion, and  per  formam  doni.  If  she  takes  a 
fee  conditional,  as  she  does  by  the  express 
terms  of  the  appeal  decree,  as  well  as  upon 
principle  and  authority,  then  the  ulterior 
limitations  over  in  the  event  of  her  dying 
without  issue,  are  void.  A  remainder  cannot 
be  limited  after  a  fee  conditional.  The  only 
abridgment  of  her  interest  in  the  land,  is 
its  being  reduced  from  a  fee  simple  to  a 
fee  conditional.  The  question  then  occurs, 
whether,  in  valuing  her  interest  in  the  real 

32 


property,  there  is  to  be  any  deduction  in  its 
estimated  value,  in  consequence  of  its  being 
a  fee  conditional,  instead  of  a  fee  simple.  If 
Zulina  Hull,  (now  Bryan)  should  have  chil- 
dren capable  of  inheriting  this  fee  condition- 
al, then  she  may  alien  and  bar  the  issue. 
It  then  becomes  in  marketable  value  and  for 
all  practical  purposes  and  uses,  equal  to  a 
fee  simple.  If  she  does  not  alien,  it  is  true 
that  she  can  not  devise  it;  but,  on  this  con- 
tingency, it  must  descend  to  her  issue,  per 
formam  doni.  If  slie  suffers  it  thus  to  de- 
scend without  exerting  her  rights  of  aliena- 
tion, it  will  be  her  own  election,  and  she 
cannot  complain.  If  she  forbears  to  bar  the 
issue,  having  the  power  to  prevent  the  de- 
scent, it  may  be  considered  as  her  own  vol- 
untary disposition  of  the  estate;  and  it  will 
go  as  most  persons  would  desire  their  es- 
tates to  be  disposed  of  after  death.  The 
only  feature  that  can  depreciate  the  value  of 
a  fee  conditional  is,  the  possibility  of  a  re- 
verter, to  the  heirs  of  the  testator.  This 
reverter  is  not  considered  in  law  as  an  es- 
tate. It  is  too  small  and  remote  an  interest 
to  have  that  character  impressed  upon  it.  It 
is  too  remote  and  contingent  to  be  valued. 
There  is  no  appreciable  interest  left  in  the 
donor.  I  do  not  know  by  what  process,  or 
mode  of  calculation,  we  could  estimate  the 
value  of  a  possibility  of  reverter  to  the  tes- 
tator. The  value  of  the  possibility  of  rever- 
ter constitutes  the  only  difference  between 
the  value  of  an  estate  in  fee  simple,  and  an 
estate  in  fee  conditional.  It  is  admitted  that 
Zulina  has,  at  this  time,  a  child  or  children. 
If  she  has,  her  fee  conditional  estate,  for 
all  practical  purposes,  is  worth  as  much  as 
if  she  held  it  by  a  fee  simple  title.  There 
was  no  evidence  as  to  the  birth  of  children, 
but  the  fact  was  admitted  at  the  trial.    At  all 

*79 
events,  *she  being  a  young  woman,  and  mar- 
ried, the  contingency  of  a  reverter  of  the  es- 
tate is  exceedingly  remote.  I  think,  there- 
fore, that  the  principle  on  which  the  Com- 
missioner valued  the  devise  was  correct. 

The  case  is  very  different  as  to  her  legacy. 
The  Court  of  Appeals  has  adjudged  that  she 
takes  only  a  life  estate  in  the  personal  prop- 
erty. It  has  gone  farther,  and  has  adjudged 
that  the  remainder  to  her  children,  after 
the  termination  of  her  life  estate,  was 
to  be  excluded  in  the  valuation  of  the  fourth 
of  her  father's  estate,  which  she  is  entitled 
to  retain  under  the  provisions  of  the  Act. 
The  language  of  the  decree  is  most  explicit. 
"But,"  says  the  Court,  "if  we  should  take 
into  consideration  bounties  of  this  remote 
description,  we  should  entangle  ourselves  in 
inextricable  difficulties  in  the  application  of 
the  statute.  And  we  deem  it  safer  1«  hold, 
that  the  interests  of  the  children  of  Z^ilina, 
who  take  as  purchasers  distinctly  from  their 
mother,  and  not  through  her,  and  in  connec- 
tion with  her,  shall  not  be  considered  as  a 
gift   to  her."'     In  connection  with  this   part 


HULL  V.  HULL 


*S2 


of  the  decree,  the  (liroction  to  the  Coiimiis- 
sioner  to  report  the  nett  vakie  of  the  devises 
and  les;iieies  to  Zuliiia.  has  a  lueaniiij;  and  an 
object.  It  will  he  perceived  that  the  huij;ua;r<' 
of  the  passaj^e  quoted,  repels  tiie  idea  of 
exeludinj;  fniui  the  valuation  the  interest 
which  the  cliildren  take  in  a  fee  conditional: 
where  they  do  not  '"take  as  purdmsers  dis- 
tinctly from  the  mother,  hut  throuu'h  her. 
and  by  way  of  limitation."  While  the  prin- 
ciple is  as  distinctly  declared,  that  where  a 
life  estate  is  given  to  the  parent,  with  re- 
mainder directly  to  the  issue  as  purchasers, 
the  life  estate  is  alone  to  he  regarded  as  a 
gift  to  the  parent.  There  are  fanuliar  and 
practical  modes  hy  which  the  value  of  a  life 
estate  may  he  ascertained.  The  proeess, 
though  in  some  degree  necessarily  arbitrary, 
is  every  day  resortetl  to  in  the  Courts  iioth 
of  law  and  equity.  Approximation  is  the 
only  thing  possible,  or  that  is  aimed  at,  in 
such  estimates.  The  Commissioner  was  in 
error  in  placing  the  fee  simple  value  on  the 
negroes   given   to    Zulina    by    testator's   will. 

*80 
So    much    *therefore,    of    the    exception    of 
Zulina,  as  relates  to  the  valuation  of  the  ne- 
groes bequeathed  to  her,  is  sustained. 

The  fifth  exception  of  the  defendants  is, 
"becau.se  the  defendants,  Bryan  and  wife, 
have  a  right  to  select  out  of  the  property 
devised  and  bequeatiied  to  the  wife,  the  par- 
ticular projierty  which  they  prefer  to  keep: 
and.  in  throwing  off  the  e-xcess  of  one-fourth, 
they  have  the  same  right  to  i)oint  out  what 
property  is  thus  rejected.  In  this  case,  .said 
Bryan  and  wife  elect  to  take  in  the  first 
place  the  whole  personal  bequest  to  her,  and 
the  balance  in  real  estate.'"  This  exception 
raises  another  difficult  question.  It  is  singu- 
lar that  an  Act  so  short,  and  apparently 
so  simple  in  its  provisions,  should  have  given 
rise  to  .so  much  litigation  in  the  Courts,  and 
so  many  difliculties  in  its  construction.  I 
can  scarcely  hope  to  pa.ss  through  the  laby- 
rinth of  difficulties  presented  in  this  case, 
without  falling  into  .some  error.  The  (pies- 
tion  made  in  this  exception  seems  to  have 
been  decided  in  favor  of  the  exceptants,  in 
the  unreported  case  of  CJardner  v.  Atkin.son 
(.MS.  Decisions,  Book  B.  p.  .'UO  Columbia). 
I  have  not  seen  that  case.  It  is  quoted  by 
Ch.  Johnston,  in  his  circuit  decree  in  this 
proceediiii:.  d'  Strob.  Eq.  isT.t  I  should  not 
consider  the  jirinciple  of  construction,  that  ob- 
tained in  that  case,  (Jardner  v.  Atkin.son, 
entirely  free  from  doul>t.  There  are  dilfi- 
culties :  l»ut.  upon  the  whole.  I  incline  to 
thiidv  that  the  decision  may  be  supported, 
as  the  correct  interpretation  of  tiie  Act.  As 
Chancellor  Joinistoii  has  s.-iid.  in  his  circuit 
decree  in  this  ca.se,  "it  is  the  amount  or 
value  of  the  excess  over  one-fourth  that  is 
declared  void,  and  if  the  bastard  will  pay  up 
tliat  excess  in  value,  he  is  entitled  to  the 
devise  of  the  whole  estate."  The  Act  dof^s 
not  declare  that  the  gift  shall  be  void  for 
3  Bich.Eq.— 3 


the  excess  over  one-fourth,  but  "that  it  shall 
be  null  and  void,  for  so  nimlt  of  tliv  amnunt 
or  value  thereof,  as  shall  or  may  exceed  such 
fourth  part,"  &c.  It  aiijiears  to  me.  that 
there  is  sigrdficancy  in  the  pet-uliar  form 
of  the  phraseology,  that  I  have  placed  in 
italics. 

The  Act  does  not  say  in  words  what  dis- 
P'osition  is  to  be  matle  of  the  portion  of  the 

*81 
gifts  to  the  illegitimate  child,  that  is  ♦de- 
clared void.  That  is  left  to  implication.  But. 
by  judicial  construction,  it  is  not  absolutely 
null  and  void,  but  vuidalle.  at  the  instance  of 
the  lawful  wife  and  ciiildren.  In  Owens  v. 
Owens,  (MS.)  it  was  held  that  the  will  of 
a  testator  was  good  and  valid  against  all 
the  world,  except  as  against  the  lawful 
wife  and  children.  And  in  r.reithaui)t  v. 
liauskett.  (1  Itich.  Eq.  4(i.j.t  it  was  held,  by 
Chancellor  Harper,  that  the  right  to  vacate 
tiie  gift  for  the  excess,  was  so  entirely  a 
t)ersonal  privilege  to  the  wife  and  children, 
that  it  did  not  survive  to  the  executor. 

The  force  and  effect  of  the.se  decisions,  and 
of  this  construction  is  to  establish  this  prin- 
ciple, that  the  lawful  wife  and  children  are 
not  joint  tenants,  or  tenants  in  conunon, 
with  the  Illegitimate  child,  where  the  gift 
exceeds  the  fourtii  of  the  te.stat<»r's  estate. 
If  the  Act  constituted  them  joint  tenants, 
or  tenants  in  conunon,  the  estate  or  interest 
of  the  wife  and  lawful  children  would,  on 
their  death,  descend  to  the  heirs  at  law,  or, 
in  ca.se  of  a  chattel,  be  transmitted  to  the 
personal  representatives.  The  right  then  of 
the  wife  and  lawful  children  in  such  a  case, 
is  not  an  estate  or  vested  interest.  It  is 
not  devisable,  descendible  or  transmissible : 
is  it  even  assignable?  If  it  is,  and  should 
not  be  recovered  in  the  life  of  the  party  as- 
signing, the  assignment  would  be  defeated. 
What,  then,  is  the  interest,  which  the  wife 
and  lawful  children  take  in  the  gift  to  the 
bastard,  where  it  exceeds  a  fourth?  It  is 
anomalou.s,  and  difficult  to  be  defined.  It 
may  be  called  a  claim  entirely  personal  to 
them,  to  which  they  are  entitled  under  the 
restrictions  which  I  have  above  expressed; 
a  claim  to  call  on  the  illegitimate  child  for 
"the  amount  or  value.''  of  what  said  child 
has  received  over  the  one-fourth  part  of 
testator's  e.state.  The  legal  title  of  tiie  bas- 
tard is  goo<l  and  perfect,  sultject  only  to  this 
purely  personal  equity,  created  by  the  Act. 
in  favor  of  the  wife  and  lawful  children. 
If  they  obtain  the  excess  over  the  fourth  in 
"amount  or  value,"  is  not  the  si)irit  of  the 
Act  as  well  as  its  words  satisfied? 

Suppose  that  the  bastard  takes,  by  tiie  will. 
*82 
houses,  lands  or  *chattels.  which  exceed  the 
fourth  by  au  inconsiderable  amount ;  will 
it  be  said  that  pecuniary  compensation  for 
the  excess  would  not  satisfy  the  re(piisitions 
of  the  law?  Or  suppo.se.  as  in  this  ca.se,  the 
bastard  takes  negroes  by  the  gift,  to  which 

3;J 


*S2 


3  RICHARDSON'S  EQUITY  REPORTS 


she  is,  or  may  be  attached,  as  well  as  lauds 
as  the  claimants  have  no  legal  title  or  estate 
in  any  of  the  property;  may  she  not  say  to 
them,  I  will  satisfy  your  claim  out  of  the 
lands?  It  seems  to  me  that  Bryan  and  wife 
ho^'e  a  right  to  elect  what  property  they 
will  keep,  to  make  up  their  lawful  fourth, 
and  to  throw  off  the  excess.  This  exception 
is   sustained. 

I  come  now  to  the  consideration  of  the  ex- 
ceptions on  the  part  of  the  complainants. 
Th|S  first  claims  an  imqualified  right  of 
partition  of  the  property,  on  the  part  of  the 
complainants,  with  an  account  of  rents  and 
profits.  I  have  already  decided  this  question, 
in  my  decision  upon  the  fifth  exception  of 
the  defendants.  The  unqualified  right  to  a 
partition  would  pre-suppose  that  the  wife  and 
lawful  children  had  an  estate  or  vested 
right  in  the  property,  to  the  amount  of  their 
claim.  This,  we  have  seen,  is  not  the  case. 
There  are  circumstances  in  which  partition 
may  be  proper,  and  even  necessary,  and 
where  the  Court  will  resort  to  this  process, 
as  a  means  of  obtaining  the  proper  and  nec- 
essary results.  It  must  be  subordinate  to 
the  right  of  the  illegitimate  child,  to  elect 
what  property  to  retain,  to  make  up  the 
fovirth,  and  what  she  will  throw  oft";  and 
also  to  satisfy,  by  pecuniary  compensation, 
the  excess  in  amount  or  value  over  the  fourth< 
If  the  bastard  refuses  or  omits  to  throw  oft'. 
or  to  give  pecuniary  compensation  for  the  ex- 
cess, partition  may  be  resorted  to,  in  the  dis- 
cretion of  the  Court,  for  the  purpose  of  dis- 
pensing justice  among  the  parties.  This 
exception  is  overruled. 

The  complainants's  second  exception  is, 
because,  "even  if  the  plaintiffs  have  no  right 
to  partition  of  the  specific  property  given 
to  the  defendant,  Zulina,  by  the  will  of 
Gideon  H.  Hull,  they  are  at  least  entitled 
to  such  proportion  of  the  income  and  profits 
thereof,  accrued  since  his  death,  as  the  ex- 
cess of  the  provision  for  her  above  one-fourth 
part  of  the  clear  value  of  his  whole  estate 
bears  to  the  whole  value  of  such  provision,  in 

*83 
lieu  of  inter*est  upon  the  sum  at  which  such 
excess  is  estimated."  As  a  result  of  the  de- 
cisions on  this  statute,  and  of  the  principle 
that  the  right  of  the  wife  and  lawful  chil- 
dren is  a  mere  personal  claim,  awaiting  their 
demand,  and  that  they  have  no  estate  in  the 
property,  I  doubt  if  they  are  entitled  to  in- 
terest or  rents  and  profits  until  a  demand  is 
made.  Of  this  they  could  not  complain, 
as  in  the  most  of  instances  it  would  be 
tlieir  own  default,  if  the  demand  was  not 
immediately  made.  On  this  point,  I  express 
no  opinion,  but  say  that  they  are  entitled  to 
interest,  .or  an  account  for  rents  and  profits, 
(if  entitled  at  all)  according  as  the  illegiti- 
mate child  may  elect  to  make  pecuniary 
compensation,  or  a  partition  of  the  specific 
property  be  resorted  to  as  a  necessary  pro- 
cess, to  ascertain  and  put  them  in  possession 

34 


of  their  rights.     This  exception  is  overruled. 

It  is  ordered  and  decreed,  that  the  report 
be  re-committed  to  the  Commissioner,  and 
that  the  parties  have  the  rights  belonging  to 
them,  as  declared  in  tliis  decree,  and  that 
the  report  be  re-formed  and  made  conforma- 
ble to  the  principles  herein  above  set  forth. 

The  complainants  appealed,  on  the  grounds, 

1st.  That  the  decree  is  erroneous  in  decid- 
ing that  lands,  specifically  devised,  are 
chargeable,  and  must  contribute  for  payment 
of  the  testator's  debts,  rateably  with  person- 
alty specifically  bequeathed,  where  the  will 
does  not  otherwise  direct. 

2d.  That,  according  to  the  correct  con- 
struction of  Gideon  H.  Hull's  will,  the  entire 
personalty  of  his  estate  is  charged  primarily 
with  the  payment  of  his  debts,  and  must  be 
exhausted  before  tiny  contribution  for  that 
purpoj^e  can  be  exacted  from  the  real  estate 
devised. 

3d.  That,  instead  of  the  excess  in  value  of 
the  provision  made  for  the  defendant,  Zu- 
lina, by  the  will  of  Gideon  H.  Hull,  above  the 
one-fourth  part  of  the  clear  value  of  his  es- 
tate, estimated  in  money,  wiih  interest  there- 
on, the  plaintitt's  are  entitled  to  have  parti- 
tion made  between  her  and  them  of  the  spe- 
cific property  given  to  her  by  the  will,  and 
an  account  of  the  income  and  profits  of  the 
same,  accrued  since  the  testator's  death. 

4th.  That  the  decree  errs  in  t^ustaining  the 
*84 
fifth  exception  of  *the  defendant,  Zulina, 
to  the  Commissioner's  report,  the  law  admit- 
ting no  such  right  of  election  on  her  part  as 
is  set  up  by  that  exception,  and  recognized 
by  the  decree. 

The  defendants  also  appealed,  on  the 
ground. 

As  to  that  part  of  the  decree  which  sus- 
tains the  Commissioner's  report,  and  over- 
rules no  much  of  defendants's  third  exception 
to  that  report  as  relates  to  the  valuation  of 
the  interest  which  Zulina  Bryan  took  under 
the  will  in  tlie  real  estate  devised  to  her,  the 
defendants  submit,  and  will  endeavor  to 
maintain,  that  the  interest  she  took  in  the 
real  estate  devised  to  her,  whatever  be  its 
legal  character  or  denomination,  is  less  than 
an  absolute  or  fee  simple  title ;  that,  at  the 
death  of  the  testator,  it  was  practically,  at 
most,  but  a  life  estate  to  an  unmarried  fe- 
male infant,  about  ten  years  of  age,  with  the 
capacity  of  becoming  enlarged  to  a  fee  sim- 
ple, upon  her  living  to  the  age  of  twenty-one 
and  having  lawful  issue.  The  estimated  val- 
ue of  these  contingencies  should  have  been 
ascertained  by  the  Commissioner,  and  deduct- 
ed from  the  intrinsic  value  of  the  lands. 

Carroll,  Yancey,  for  complainants. 
Bauskett,   Gray,  for  defendants. 

JOHNSTON,  Ch.,  delivered  the  opinion  of 
the  Court. 

Of  the  numerous  questions  presented  by 
this  appeal  the  only  one  argued  was  that  re- 


HILL  V.  HILL 


spcctinfT  tlie  relativo  liabilities  of  icai  ainl 
iKTsoiial  estate  to  tlio  payinciit  of  the  dclits 
of  a  (Icceased. 

lU'ffiH'  imtceedinj,'  to  llic  iiKirc  particular 
<Iis(»issi«»n  of  it,  it  may  ho  proper  to  licstow 
a  |)assiiiy  attention  ui)on  the  direction  of  the 
testator,  that  the  executor,  -out  of  his  es- 
tate, pay  oft-  all  his  just  del.ts  and  funeral 
expenses."  In  the  absence  of  any  specific 
indication  of  the  fund  out  of  wliicli  the  pay- 
ment .should  be  made,  tliis  direction  is  .some 
evidence  of  intention  that  tlie  executor  .should 
employ  the  personalty,  which  is  at  his  dis- 
posal, as  the  means  of  accomplishing  the  end 
pointed  out. 

"If,"  says  a  respectable  elementary  writ- 
er,(/>)  "the  executor  is  i.ointed  out  'as  the 
person  to  pay,  that  excludes  tlie  presumption 
•'85 


*that  other  persons,  not  named,  are  requir- 
ed to  \my;"  and  "if  the  testator  directs  a 
l)articular  person  to  pay.  he  is  presumed,  in 
tile  alis(>nce  of  all  other  circumstances,  to 
intend  him  to  pay  out  of  the  funds  with 
which  he  is  intrusted,  and  not  out  of  other 
funds,  over  which  he  has  no  control.'' 

Tlie  distinction,  thouirh  nice,  is — as  this  au- 
thor Justly  observes— clear  in  theory,  how- 
ever didicult  in  its  application  to  particular 
cases. 

r.ut.  without  the  aid  of  this  clause,  the  ma- 
jority of  the  Court  is  prepared  to  sustain 
I  he  proposition  submitted  in  ar.uument  by 
the  i)laiiititrs'  coun.sel ;  that,  in  tlie  adminis- 
(ration  of  tlie  assets  of  a  testator,  who  has 
i-'iven  no  specific  direction  on  the  subject— as 
between  legatees  of  the  real  and  personal  es- 
tate—the jiersonal  estate  is  liable  for  tlie 
payment  of  debts,  before  resort  to  the  realty. 
It  is  hardly  necessary  to  remark  that  credi- 
tors are  not  concerned  in  the  (piestion.  The 
(  haiicelb.i-  lias  jiroperly  ol)served  that  "every 
I'orfion  of  a  testator's  esfat(>  is  liable  to 
creditors,"  and,  therefore,  "iu  n-anl  to 
them,  the  question  as  to  whicii  fund  is  pri- 
marily liable,  does  not  arise.  They  have  the 
same  facilities  of  relief,  in  the  way  of  i)ro- 
"fss.  for  eiiforcinf,'  payment  a^Mlllst  the  one 
as  a^'ainst  the  other." 

It  is  stated  in  the  decree— and  it  is  true, 
beyond  controversy— that,  by  tlie  law  of  Kn«' 
l.tiid.  (whicli  is  our  law,  except  .so  far  as  we 
bii\f  inodilicd  it.)  per.sonal  esfat«'  is  tlie  pri- 
I'liMy  fund,  as  between  iiersonal  and  real  es- 
iMle.   staiidin-  in   the  .same  circumstances. 

Has  this  law  ever  been  abrot^ated  or  modi- 
lie<l  in  this  StateV  Until  the  present  time. 
I  believe  it  lias  been  received  and  accept. <d 
••IS  th,.  un(|ue.sti(,ned  law  of  the  hmd.  both  by 
the  comniuiiity,  the  profession,  and  the  Lejj- 
islature;  and,  if  there  has  been  no  express 
adjudication  on  the  point  now  presented, 
it  may  be  accounted  for  by  the  fact,  that  tlie 
doctrine  was  never  doubted:  and,  therefore, 
the  question  was  never  raised. 


(^)  li  iStory  Eq.  §  1247. 


r  It  is  not  perceived  that  the  leirislafion  of 
tills  State  has  abolished  tlie  distinction  be- 
tween real  and  per.s..nal  property,  in  respect 
to  their  administration. 
♦  86 
*It  is  true  the  statute  de  donis  has  not  been 
adopted  by  us.  Fees  conditional,  unless 
alienated  by  tlie  tenant,  or  charjied  by  him 
in  his  life  time,  as  it  is  said  he  may  do.fri 
descend,  upon  his  deafli.  per  formaiii  d<mi: 
and  tliouj,'li.  by  the  Statute  .">  Geo.  1'.  ch.  7,  (l' 
Stat.  r>7L  P.  L.  27*0,)  of  which  I  shall  speak 
hereafter,  they  may  be  as  lialile.  in  the 
hands  of  the  special  ln'irs.  as  lands  held  in 
fee  simple  are  liable  in  the  hands  of  tlie  heirs 
f-'eiieral  (which  may  \h'  (huibtedi;  this  does 
not  prove  that  they  are  e<iually  liable  with 
personal  estate. 

It  is  also  true  that  we  have  altered  the 
law  of  descent  as  to  real  e.state.  The  in- 
heritance is  no  longer  confined  by  primo- 
f-'eniture,  but  falls  eiiualJy  upon  all  the  chil- 
dren. Does  it  follow  that  the  Intention  was 
to  strij)  the  children  of  their  inheritance.— 
to  abolish  the  distinction  between  this  species 
of  property.— which  is  in  its  nature  inherita- 
ble, and  gt>es  to  the  heirs,  and  the  chattel 
property,  whicli  goes  to  the  pei-sonal  repre- 
sentative, and  in  which  the  i.ssue  of  the  de- 
ceased have  only  an  interest  resultinu:  to 
them,  after  the  representative  has  perform- 
ed his  duties  out  of  itV 

The  Statute  ,->  (Jeo.  2.  ch.  7,  §  4.  r2  Stat.  .-)71.) 
is  no  i)roof  (further  than  that  it  has  not  been 
rt'pealed  by  us.)  of  the  policy  of  this  State. 
It  was  enacted  by  a  foreign  legislature  in 
17:^2.  while  we  were  yet  a  colony.  It  has 
express  and  exclusive  reference  to  the  in- 
terests of  creditor.s.  and  was  probably  intend- 
ed to  give  confidence  and  security  to  the 
Knglish  merchants  with  wlioni  the'coloni.sts 
dealt.  There  is  nothing  in  it  to  aftect  the 
relative  liability  of  lands  and  pei-sonal  prop- 
<'rf.\-.  as  between  the  heirs  and  distributees. 
or  the  devisees'  and  legatees;  and.  as  we 
have  before  observed,  the  (piestion  as  between 
them  is  one  in  which  creditors  have  no  con- 
cern. 

The  decisions  upon  (bis  statute,  to  which 
the  decree  refers,  (which,  by  the  wav.  have 
I'een  greatly  niodilied.)  (d)  recognize  the  dis- 
tinction between  the  liability  of  huuls  and 
chattels.  How  then  can  they  be  authority 
for  the  position  that  there  is  no  distinction? 
♦87 

♦'I'he  earlie.st  of  the.se  decisions  adjudged 
(though  with  a  strength  that  has  been  di- 
minislu.d  by  suli.sequent  ca.ses.)(e)  that  an  ex- 
ecution obtained  by  a  creditor  against  the 
personal  represent.-itive  of  his  deceased  debt- 
or, migiit  be  levied  upon  his  land.s,  in  the 
bands    of    his    heir,   or    devisee,    though    the 


(ti   Izard  V.  Izard.  Bail.  E(j.  2:J4,  o. 

((/)  See  the  oases.  4  MeC  129;  2  Hill  .•"i7'l  • 
Spoors  Eq.  250;    2  Hill  K,,.  2(i0. 

('•I  Soo  the  cases,  4  McC.  12I( ;  2  Hill  570- 
Spoor's  Eq.  250;    2  Hill  E.j.  200! 

25 


-87 


3  RICHARDSON'S  EQUITY  REPORTS 


heir  or  devisee  was  no  party  to,  nor  had  no- 
tice of.  the  suit  in  which  the  execution  was 
obtained,  and  though  there  were  personal  as- 
sets in  the  hands  of  the  representative  to 
satisfy  the  debt. 

It  is,  perhaps,  unfortunate  that  the  cases 
alluded  to,  occurred  in, — and  that  the  ques- 
tions involved  in  them,  were  consequently 
presented  to, — a  law  Court.  Had  the  credi- 
tor brought  his  case  in  equity,  where  perfect 
relief  could  have  been  administered  with  ref- 
erence to  the  rights  of  all  parties  concerned, 
he  might  have  brought  in  not  only  the  heir, 
but  the  executor,  and  the  decision  would 
have  been  such  as  not  only  to  secure  the 
creditor  in  all  liis  just  rights,  but  to  adjust 
the  liabilities  of  the  heir  and  executor  ac- 
cording to  the  relation  subsisting  between 
them,  and  arising  from  the  assets  received 
by  them,  respectively. 

The  earlier  law  decisions  to  which  I  have 
alluded,  did  not,  it  seems  to  me,  sufficiently 
distinguish  between  the  liability  of  the  land, 
created  by  the  statute,  and  the  remedy,  or 
means  of  enforcing  that  liability.  Too  much 
stress  was  laid  on  the  mere  words  of  the 
statute,  as  respected  the  remedy. 

No  doubt  exists  that  lands  ai'e  made  liable 
under  the  statute,  but  the  material  question 
in  this  case,  was  in  no  respect  within  its  pro- 
vision ;  and  that  question  is  affected  by  the 
decisions  referred  to  in  the  decree,  only  so 
far  as  they  affirmed  the  right  of  the  creditor 
to  sell  the  land  in  the  hands  of  the  heir,  or 
devisee,  under  a  proceeding  against  the  ad- 
mini^^j:rator  or  executor  alone. 

Tliese  decisions  have  never  been  satisfac- 
tory to  the  profession. (/)  To  sell  a  man's 
land  for  debt,  witliout  impleading  him,  when 
the  land  was  not  bound  by  a  judgment  when 
it  came  to  his  possession,  and  when  assets 
are,  or  may  be.  in  the  hands  of  an  agent  ex- 
pressly  ai)pointed   by   law   to  pay  the  debt, 

*88 
is  against  *common  right.  The  Courts  have, 
on  several  occasions,  expressed  their  regret 
that  the  decisions  were  ever  made,  and  de- 
clared their  determination  never  to  extend 
them,  and  have,  in  fact,  materially  restricted 
them.  Tlie  decree,  in  this  case,  violates  de- 
liberate opinion.s  thus  expressed,  by  assum- 
ing that  the  decisions  are  unexceptionable, 
declarative  of  the  true  policy  of  tlie  State, 
and  entitled  to  be  extended  to  new  results 
beyond  the  points  decided. 

These  decisions  do  not  determine  that  the 
land — though  liable — is  not  the  secondary 
fund.  Tlie  Judges  were  of  a  different  opin- 
ion. It  was  not  decided  in  these  cases,  nor 
could  it  lie  decided  in  a  law  forum,  at  least 
in  such  a  proceeding,  that  the  heir  or  dev- 
isee had  no  recouise  over  against  the  exec- 
utor, or  against  the  legatee,  to  whom  the 
executor  had  paid  the  personal  assets.     The 


(/)  See   note   (d)   and  Speer's  Eq.  252;    Rice 

Eq.  3S!S. 


only  judgment  given  was,  that  the  land  was 
liable  to  the  unpaid  creditor.  I'pon  the 
Chancellor's  own  principle,  the  heir  was  en- 
titled to  an  after  proceeding  for  contribution. 
This  is  proof  that  there  is  a  right  to  recover 
over.  Is  there  any  thing  in  the  decisions  re- 
ferred to,  to  shew  the  extent  of  this  right, 
to  shew  that  it  is  limited  to  an  equal  con- 
tribution, and  shall  not  go  to  the  whole  loss 
sustained  by  the  heir?  If  not,  then  those 
decisions  have  determined  nothing  on  the 
questions  we  are  now  discussing. 

Taking  those  cases  (I  still  mean  tlie  earlier 
cases  quoted  in  the  decree)  to  have  decided 
nothing  more  than  that  the  land  of  a  de- 
ceased was  liable  for  his  debts,  (and  this  is 
all  they  did  decide.)  their  only  fault  was, 
that  the  judgment  was  made  to  bear  upon  a 
party  who  was  never  impleaded.  The  error 
in  this  decree  consists  in  extending  those  de- 
cisions, by  inference,  into  adjudications  that 
land  is  equally  liable  with  personalty  tor 
debts — when  that  point  was  not,  and  could 
not  have  been,  adjudged  in  the  cases. 

The  decree  is  not  only  confessedly  contrary 
to  the  law,  as  we  borrowed  it  from  England, 
but  is,  as  we  have  just  shewn,  unsupported 
by  the  cases  referred  to,  to  sustain  it. 

What  else  is  there  to  support  it? 
*89 

*The  argument  is  that  it  is  demanded  by 
our  peculiar  policy. 

At  an  earlier  period  of  my  judicial  life,  I 
would  have  said  roundly — as  I  have  perhaps 
somewhere  said — that  questions  of  policy  are 
exclusively  for  the  legislature,  and  that  the 
sole  duty  of  the  Courts  is  to  declare,  and  not 
to  reform,  the  law.  Greater  experience  has 
chastened  and  modified  many_  of  my  earlier 
opinions ;  and  among  others,  to  a  slight  ex- 
tent, those  bearing  upon  this  subject. 

While  the  legislative  power  extends  to  all 
questions  of  policy,  and  while  to  the  legiS' 
lature  belongs  the  right  to  alter  and  reform 
the  law,  at  their  discretion,  with  no  other 
limit  than  the  constitution,  the  judicial  pow- 
er, as  it  had  always  been  exercised  by  Courts 
of  justice,  was  vested,  by  the  constitution,  ia 
the  judicial  forums. 

It  is  their  province  to  declare  the  law. 
But  the  law  has  never  been  stationary.  It 
is,  and  has  ever  been,  actuated  by  certain 
great  cardinal  principles ;  and  it  is,  and 
ever  has  been,  the  function  of  Courts  of  jus- 
tice to  apply  these  principles  to  the  affairs  of 
men,  brought  under  their  cognizance,  as  they 
may  be  varied  by  their  circumstances,  or  the 
circumstances  of  the  community,  or  the  age. 

By  this  process  it  must  necessarily  occur, 
that  in  the  application  of  the  leading  or  ele- 
mentary principles,  some  subsidiary  or  sec- 
ondary rules  or  principles,  become,  in  the 
progress  of  time,  more  developed  or  perfect- 
ed, and  others  more  I'estricted,  according  as 
they  serve,  more  or  less,  to  promote  and  ad- 
minister the  great  ends  of  forensic  justice. 

Sometimes  a  new  subject,  tit  to  be  brought 


Ill    1,1,    v.    Ill    I.I, 


*92 


umlor  judicial  cofiuizanco,  is  discovered, 
wiiicli  liiid  idtlieito  escaped  oliservatioii,  al- 
tliuu.L'h  tiu'  law  of  the  forum  fully  einlirace<l 
it.  And  .sonietlme.s  a  remedy  is  brought  to 
view,  which  had  not  lieeii  hitherto  adminis- 
tered, luit  which  the  powers  of  the  Court 
eiiaided  it.  iipnn  iiriiiciple,  to  administer, 
and  hound  it  to  administer.  Sometimes  the 
lej^isiature  introdu<es,  hy  statute,  a  principle, 
or  ena<ts  a  measure,  as  a  measure  of  policy, 
Icavinji  the  principle  or  the  measure,  to  be 
curried  out  to  its  lej,'itimate  results. 
*90 

♦What  is  a  Court  to  duV  It  is  its  shame, 
if  pos.sessins  light,  it  does  not  discern  its 
duty;  and.  if  possessing  the  power,  it  does 
not  employ  it  to  the  purposes  for  which  it 
was  created.  It  is  its  glory,  if  calling  into 
exercise  the  great  principles  at  its  command, 
it  so  employs  them  as  to  advance  the  reme- 
dies within  its  jurisdiction. 

Such  an  exercise  of  power  has  been  called 
legislation — bench-made  law.  It  is  unjustly 
so  deiiominatt'd.  It  does  not  originate  |>olicy, 
but  perfects  it.  It  does  not  generate  reforms, 
but  carries  them  out.  It  does  not  create 
principles,  but  develops  them.  It  is  bench- 
declared  law.  not  inferior  in  authority,  or  iu 
excellence,  to  any  other.  Its  progress  is 
gradual,  and  occasions  no  sudden  revolu- 
tions, to  the  surprise,  or  ruin,  of  the  inter- 
i'sts  of  society.  Iteing  the  offspring  of  ac- 
knowledged principles,  it  commends  itself,  by 
the  power  of  those  primiiiles,  to  who.se  to 
whom  it  is  applied.  And  being  tested,  at 
each  step  of  its  development,  by  practical  ex- 
perience, it  may  be  modi  lied,  restricted  or 
amplilied.  as  that  experience  dictates. 

These  functions  may  be  performed  by  the 
bench  ;  and  rightly,  usefully,  and,  I  add,  con- 
stitutionally performed.  I'.ut  the  work  must 
be  done  gradually,  and  with  a  constant  re- 
gard to  precedents,  and  an  anxious  reference 
to  first  principles.  Suddeu  changes,  great 
changes,  changes  looking  to  reform,  or  dic- 
tated by  policy  alone,  belong  exclusively  to 
the  legislature.  To  the  Court  belongs  the 
development  of  pre-existing  principles. 

Then,  what  principles  have  we  on  which 
to  rest  the  great  innovation  proposed  by  the 
decree? 

If  we  look  to  the  origin  and  history  of  ad- 
ministration, or  to  the  apparatus  by  which 
it  always  has  been,  and  now  is,  accomplish- 
ed, or  to  the  respective  cpmlities  of  real  and 
liersonal  property,  we  shall  be  led  to  con- 
clusions very  ditferent  from  those  proposed 
for  our  adoption.  If  we  look  to  precedents, 
and  to  the  opinions  of  our  own  Courts,  and 
the  acti(tn  of  our  own  legislature,  we  shall 
perceive  what  surprise  and  revulsion  of  prop- 
erty *.itere.sts,  and  what  inconvenience  in  the 
adiiiinisti-ation  of  t'slat«'s,  the  adoption  of 
that  proposition  would  occasion. 
*91 

*.\dniinistratiou  was  originally  confined  to 
personal  property,  and  the  course  and  sub- 


jet  ts  of  it  have  never  been  altered,  except 
by  statute.  It  was  performed  hy  the  Ordi- 
nary, originally,  at  his  discretion:  then,  ac- 
cording to  a  course  prescribed;  afterwards 
by  deputies  apiK)inted  by  him.  The  duties  of 
these  adnnnistrators,  except  when  named  by 
a  testat(»r,  were  secured  by  liond,  according 
to  the  value  of  the  personalty. 

To  accomplish  the  purposes  of  administra- 
tion, the  iiersonalty  vests  in  the  personal  rei>- 
resentative,  as  its  legal  owner.  Why?  To 
give  him  that  control  necessary  to  the  per- 
fect adnnnistration  of  it.  Only  an  equitable 
interest  falls  to  the  distributee  or  legatee, 
to  be  enforced  after  the  payment  of  debts. 

This  is  the  (piality  of  personalty.  Is  it  the 
(juality  of  real  estate?  No.  That  descends 
to  the  heir.  The  title  does  not  vest  in  the 
(tersonal  representative;  nor  has  he  any  con- 
trol of  such  property,  except  what  may  re- 
sult from  the  provisions  of  the  will.  If  it 
is  devi.sed,  unless  devised  to  the  executor,  or 
[lower  is  given  him  to  dispose  of  it,  he  has 
no  iM)wer  to  interfere  with  it,  and  the  devisee 
takes  it  without  his  as.sent. 

This  distinction,  in  the  qualities  of  the 
two  species  of  property,  forms  t>ne  reason  of 
the  relative  liability  for  debts.  The  executor 
has  the  control  of  the  one  and  not  of  the 
other. 

Are  there  no  other  reasons  why  land 
should  be  more  favored  than  chattels? 

May  it  not  be  for  the  interest  of  infant  or 
female  devisees,  to  have  their  inirtions  in 
that  species  of  property,  which  is  more  per- 
manent in  its  character,  less  subject  to  be 
eloigned,  or  devastated,  upon  which  the  mari- 
tal right  of  the  husband  of  a  female  heir 
would  not  so  fully  attach,  and  which  cannot 
be  alienated  without  her  express  consent 
after    attaining    majority? 

.May  it  not  be  for  the  beneht  of  estates, 
that  the  debts  be  paid  primarily  out  of  that 
species  of  property  which  is  more  perish- 
able, and  more  subject  to  be  eloigned  or 
devastated;  and  which,  as  we  all  know,  and 
as  the  decree  states,  is  more  .s;ileable,  and 
is  less  liable  to  be  .sacrificed. 

Is  nothing  due  to  sentiment?  Is  the  home 
*92 
of  one's  ancestors.  *the  place  of  one's  nativ- 
ity, with  which  all  the  recollections  of  child- 
hood are  associated,  to  be  put  on  a  footing 
with    vulgar    chattels? 

The  decree,  in  putting  real  and  personal 
property  upon  the  same  footing,  disregards 
the  distinctive  qualities  of  the  two  .species 
of  property.  Can  any  sagacity  foresee  the 
results? 

Aliens  are  incapable  of  taking  real  estate 
by  inheritance,  but  may  take  per.sonalty.  Is 
it  not  desirable  to  reserve,  to  those  taking 
under  a  will,  that  si>ecies  of  property  to 
which  allegiance  is  annexed? 

IIow  will  the  proposed  alteration  affect 
the  widow's  right  to  take  dower  by  election? 

Will  it  not  augment  the  necessities  for  that 

37 


*f)2 


3  RICHARDSON'S  EQUITY  REPORTS 


election,  and  call  for  the  choice  at  an  earli- 
er period  in  the  administration,  when  it  will 
l;e  more  ditiicult  to  make  it? 

Then,  the  decree  establishes  a  principle,  as 
I  have  said,  contrary  to  the  constant  cur- 
r--^nt  of  professional  opinion,  to  the  practice 
of  our  Courts,  and  to  the  legislation  of  the 
State.  As  evidence  that  it  is  contrary  to 
the  opinion  of  the  profession  as  represented 
by  the  Judges,  (besides  referring  to  what  is 
said  in  this  very  case  (g) — whicli  is  almost 
a  decision  for  the  case —  and  to  what  is  said 
in  Laurens  v.  Magrath,  1  Rich.  Eq.  300,  which 
is  almost  a  decision  of  the  question,)  I  have 
only  to  refer  to  Stuart  v.  Carson,  1  Des.  513, 
decided  in  1796,  and  to  the  long  current  of 
cases  which  have  followed  it,  as  Halybur- 
ton  V.  Kershaw,  (3  Des.  115;)  Dunlap  v. 
Dunlap,  (4  Des.  329;)  Hall  v.  Hall,  (2  l\IcC. 
Eq.  269 ;)  Warley  v.  Warley,  (Bail.  Eq.  397 ;) 
North  V.  Talk,  (Dud.  Eq.  212;)  Gregory  v. 
Forester,  (1  McC.  Eq.  329;)  Goodhue  v.  Barn- 
well, (Rice  Eq.  240;)  Pell  v.  Ball,  (1  Speers' 
Eq.  523 ;)  and  Jenkins  v.  Hanahan,  (Chev. 
Bq.  135.) 

What  is  said  in  these  cases,  though  it  may 
not  amount  to  decision,  gives  unmistakable 
evidence  of  settled  opinion ;  especially  the 
elaborate  and  most  enlightened  view  taken  of 
the  subject  in  Warley  v.  Warley,  which  has 
never  before,  so  far  as  I  know,  been  dis- 
puted. 

*93 

*The  decree  is  also  contrary  to  the  prac- 
tice of  both  Courts. 

For  some  evidence  of  the  practice  of  this 
Court,  I  refer  to  the  case  of  Swift  v.  Miles, 
(2   Rich.   Eq.   154.) 

That  of  the  Court  of  Law  is  more  explicit. 
The  Rule  of  that  Court  requiring  executors 
and  administrators,  pleading  plene  adminis- 
travit,  to  file  with  the  plea  a  full  and  par- 
ticular account  of  their  administration,  ou 
oath,  with  an  ottice  copy  of  the  inventory 
and  appraisement  of  the  goods  and  chattels, 
evidently  recognizes  the  liability  of  person- 
alty before  realty. 

The  22d  Rule  (of  those  adopted  the  4th 
July,  1758)  directs  that  this  be  done  "to 
the  end  it  may  appear  to  the  Court  that  the 
personal  assets  of  the  testator  or  intestate 
are  really  and  in  truth  fully  administered:" 
— after  a  preamble,  reciting  that  suits  were 
freipiently  brought  against  executors  and 
administrators,  to  subject  real  estate  of  tes- 
tators or  intestates  to  the  suing  creditor, 
and  that  upon  plea  that  the  personal  estate 
was  fully  administered,  to  which  (admitting 
the  plea)  replication  was  made,  that  testa- 
tox',  or  intestate,  died  seized  of  lands,  t&c, 
which  course  of  practise  was  "injurious  to 
those  persons,  who  by  devise,  descent  or 
otherwise,  are  interested  in  the  lands  of  the 
original  debtor;  and  by  fraud  or  collusion 
real  assets  may  be  subjected  and  made  liable 
to  the  payment  of  debts,  before  the  person- 


(g)  2  Strob.  Eq.  193. 


al   assets  are  exhausted  and  fully  adminis- 
tered:—    for    prevention    whereof,"    &c.(/i) 

The  6th  Rule  (of  those  adopted  in  1800) 
requires  the  same  account,  on  oath,  to  ac- 
company the  plea  of  plene  administravit,  "to 
the  end  that  it  may  appear  to  the  Court  that 
the  personal  assets  of  the  testator,  or  intes- 
tate, are  really  administered,  to  the  extent 
pleaded."  (i) 

The  6th  Rule  (adopted  in  1814)  is  in  iden- 
tical words. (y) 

The  6th  Rule  (adopted  in  1837)  is  in  the 
same  words — omitting  the  word  "personal" 
before  "as.sets,"  (k)  probably  to  make  the 
Rule  more  perfect,  by  meeting  and  providing 
for  the  case  where  the  will  charged  lauds 
primarily  or  equally  with  personalty,  and 
directed  the  executor  to  sell. 
*94 

*To  what  has  been  said,  I  add  that  the 
deci'ee  is  contrary  to  the  legislation  of  the 
State ;  and  if  the  policy  which  the  decree 
advances  is  the  policy  of  the  State,  the  Leg- 
islature was  never  aware  of  it. 

The  Statute  of  1789,  Sec.  20,  (5  Stat.  109,) 
prescribing  the  oath  of  an  executor  or  admin- 
istrator, with  the  will  annexed,  requires  him 
to  execute  the  will  "by  paying  first  the  debts, 
and  then  the  legacies,  contained  in  said  will, 
as  far  as  his  (testator's)  goods  and  chattels 
will  thereunto  extend,  and  the  law  charge 
me,"  and  to  make  a  true  inventory  of  the 
goods  and  chattels ;  and  the  bond  required 
from  an  administrator,  cum  testamento  an- 
nexe, is  directed  to  be  conditioned  for  the  ad- 
ministration of  the  goods  and  chattels  only — 
although  by  the  Act  of  1787,  such  adminis- 
trator might  sell  lands  directed  by  the  will 
to  be  sold,  without  saying  by  whom,  the  pro- 
ceeds probably  being  regarded  as  personalty. 

By  the  19th  section  of  the  same  statute 
of  1789,  (5  Stat.  109.)  power  was  conferred 
on  the  Ordinary,  which  he  has  possessed  ever 
since,  to  sell  personalty  of  testators  or  in- 
testates, for  payment  of  debts,  as  well  as  for 
division,  or  to  prevent  loss  of  perishable  ar- 
ticles— yet  he  had  no  power  to  sell  real  es- 
tate, for  any  purpose,  until  1824,  when  he 
was  empowered  to  sell  lands  for  division 
only.(0 

The  Statute  of  1842,  (11  Stat.  232,)  author- 
izing ordinaries,  in  certain  cases,  to  pay  over 
to  executors  or  administrators  the  proceeds 
of  real  estates,  sold  by  them  for  division, 
provides  that  this  be  done,  "if  the  personal 
estate  of  any  (such)  testator,  or  intestate, 
in  the  hands  of  the  administrator  or  execu- 
tor, or  if  the  assets  set  apart  by  a  (the)  last 
will  and  testament,  be  insufficient  to  pay  the 
debts  of  the  deceased." 

We  have  seen  that  the  doctrine  of  the  de- 
cree  is    unsupported    by   authority ;     that   it 


(h)  Miller's  Comp.  4—5. 
(j)  Miller's  Comp.  14. 
(j)   Miller's  Comp.  22. 
(A)  ^Miller's  ('omp.  34. 
(Z)  6  Stat.  248. 


38 


TAYLOR  V.  M(  RA 


*97 


is  luit  diily  ••(intrary  to  tho  EiiiilisU  aiithori- 
th's.  iMit  idi.tiar.v  to  tho  judicial  oi)ini<m  of 
tliis  State;  i-oiitiary  tn  tlic  practlLv  of  the 
Courts,  from  the  earliest  times  to  the  pres- 
ent; contrary  to  the  lejrislation  of  the  State; 
that   it  Confounds  the  wt'll   detined  and  very 

*95 
distinct  (lualities  of  tiie  two  s{>ecies  of  *i)roi)- 
erty,  and  sacrifices  interests  of  devisees  and 
lieirs  in  real  estate,  without  reason  or  ne- 
cessity; and  that  it  lays  the  foundation  for 
further  results,  the  effect  of  which  cannot  he 
foreseen. 

To  this  I  might  add  that  the  doctrine  is 
contrary  to  that  of  other  States,!'")  who.se 
condition  and  laws  are  similar  to  our  own, 
and  whose  iiolicy  mu.vt,  therefore,  be  the 
same;    but  I  hasten  to  a  conclusion. 

It  is  arijuod  that  when  a  testator  disposes 
of  real  and  personal  property,  in  the  same 
words,  to  different  per.sons,  his  intention  is 
defeated,  if  the  personal  lejracy  is  taken  for 
debt,  in  exoneration  of  the  devise  of  the  real- 
ty. This  is  only  true,  if  we  suppose  him  to 
have  drawn  his  will  in  i.urnorance  of  th(;^  law. 
Like  disappointments  freipiently  occur  where 
that  is  the  case,  and  can  scarcely  be  prevent- 
ed. But  if  a  testator  knows  that  unless  he 
expressly  makes  real  and  personal  equally 
liable,  the  legacies  must  contribute  before  the 
devises ;  he  umst  intend  when  he  gives  them 
in  the  same  terms,  that  the  former  shall  be 
liable  before  the  latter,  and  is  not  disappoint- 
ed when  the  law  takes  its  course. 

Suppose  the  legal  operation  of  his  will  had 
been  explained  to  this  testator,  and  that  he 
still  adhered  to  and  executed  his  will,  (and 
this  is  the  legal  presumi»tion),  where  is  the 
ground  for  disappointment?  The  disappoint- 
ment would  have  existed  only  if  the  legal  op- 
eration of  his  will  had  been  disallowed. 

After  all  that  can  be  said,  the  general  rea- 
soning of  the  decree  applies  as  well  to  ca.ses 
of  inte.stacy  as  to  tho.se  of  testacy;  and  if 
lands  should  be  put  on  the  same  footing  with 
Iiersonalty  in  the  one  ca.se.  it  should  in  the 
other;   and  who  is  prepared  for  that? 

If  not  prepared  to  go  so  far,  .nnd  yet  pre- 
pared to  apply  the  doctrine  proposed  to  tes- 
tate proixrty— leaving  intestate  to  be  govern- 
ed by  a  different  rule,  have  we  not  anomalies 
enough  in  the  law  already,  without  adding 
this  to  the  number? 

We  prefer  to  stand  where  we  are.  and  it  is 


*96 
♦Ordered,  That  so  nuich  of  the  decree  as 
sustains  the  first  excei)tion  of  the  defendant, 
Ann  Hull,  be  reversed,  and  rhat  said  excep- 
tion be  overruied  :  and  that  with  this  modi- 
lication  the  decree  be  affirmed. 

DUNKIN.  C.  concurred. 
Decree  modified. 


3  Rich.  Eq.  96 
WII.LI.VM  J.  TAYLOR.  Executor  of  Towell 
.M<Ra.  1  »o(ias..<|,  v.  ^L\RV  M.  McRA.  A.  C. 
SI'Al.N,  Ilrr  Committcf.  MARY  .McKA  and 
Jl'LIA  M.RA.  WILLIA.M  KIRKLAND 
and  .M.VR(;aR1:T  SARAH,  His  Wife,  and 
DINCAX  .MiRA. 

(Columbia.     Nov.  anl  Dec.  Term,  1S50.) 

LI.  Insane   I'erxuns   iQ=34<).] 

Testator,— haviii;;  a  wife,  who  was  a  lunatic, 
and  graud-ehikireu,  l)wt  uo  lawful  child.— l)y  the 
first  clause  of  his  will,  devised  and  bequeathed 
Ins  whole  estate  to  \V.  T.,  iu  trust  for  his  two 
ille^itinuite  children ;  by  the  second  clause  he 
declared,  that  if  the  precetliug  clause  should  be 
declared  void  by  any  Court  in  this  State,  au- 
thorised so  to  decide,  then,  he  irave  one-fourth 
of  his  estate  to  his  two  illegitimate  children, 
and  the  other  three-fouiths  to  his  friend  and 
executor,  W.  T. ;  by  another  and  the  last  clause, 
he  appointed  \\ .  T.,  executor,  concluding,'  the 
same  as  follows:  "to  his  siiecial  kindness  and 
protection,  I  commit  my  beloved  daughter  and 
son,  and  invoke  for  them  his  most  kind  attention 
and  protwtion."  Jlcld,  that  the  committee  of 
a  lunatic  wife,  niiudit,  under  the  Act  of  1795, 
elect  to  avoid  jiift.s  t<i  ille^'itimate  children ; 
hut  that,  iu  making  such  election,  he  was  sub- 
ject to  the  control  and  direction  of  the  Court. 
[Ed.  Note.— Cited  in  Bouknight  v.  Brown.  10 
S.  C.  KiS. 

For  other  cases,  see  Insane  Persons.  Cent. 
Dig.  }j  (i-J:    Dec.  Dig.  <g=»40.J 

12.   ir/Z/.s-  (2=:3(>75.] 

That  the  clause,  commending  the  illegitimate 
cliddren  to  the  kindness  and  protection  of  W. 
T..  created  no  trust  in  their  favor. 

[Ed.  Note.— Cited  in  Gore  v.  Clark.  .37  S  C. 
040.  K;  S.  E.  til4.  L>0  L.  R.  A.  405;  Beatv  v. 
Richardsmi,  50  S.  C.  190,  34  S.  E.  7:^.  40  L. 
R.  A.  517. 

Eor  other  cases,  see  Wills,  Cent.  Dig.  §  15SS: 
l>ec.  Dig.  <S=>075.] 

|;!.   Wills  (S=>S5G.] 

'ihat  if  the  clause,  devising  and  bequeathing 
the  whole  estate  to  \V.  T.  in  trust  for  the  two 
diegitimate  children,  should  he  declared  void 
by  the  Court,  then.  W.  T.  w<udd  take  absolutely, 
and  discharged  of  any  trust,  three-fourths  of 
the   estate. 

I  Ed.   Xote. — Eor  other  cases,  see  Wills    Cent 
Dig.  S  1*171' :    L>ec.  i>ig.  <©=3850.] 
!4.    U/7/.S-  <s=5782.] 

That  the  Court  would  not  permit  tho  com- 
mittee of  the  wife  to  avoid  the  gifts  to  the  il- 
legitimate children,  as  the  effect  of  his  election 
would  be,  not  to  benefit  the  wife.  Init  only  to 
vest   three-fourths  of  the  estate  in  W.   T. 

I  Ed.   Xote.— For  other  cases,  see  Wills.  Cent 
I>ig.  §  1>0:W;    Dec.  Dig.  (®=>7S2.] 


15 


<S=>7S5.1 

maiul-cliildren  had  no  right,  under  the 

•.t5.  to  avoid  gifts  to  illegitimate  chil- 


li-///.. 

That 
Act  of  1 
dien. 

I  Ed.  Note.— For  other  ca.ses.  see  Wills    Cent 
Dig.  §  IHCJS;    Dec.  Dig.  <©=>7S5.] 


(ni)  3     .Johns.     Ch.     14N;      1     l-ai-e      l«)(i- 
Mmi.li.  201:    1  S.  .V-  R.  45:{ :    M      il    &  j% 
0  .Ma.ss.  R.  151 ;    1.3  S.  &  R.  ;J4S. 


!Tliis  case  is  also  cited  in  Gore  v 
S.  C.  ,5.37.  10  S.  E.  614.  20  L. 
and    distinguished    therefrom.] 

*97 


Clarke,  .37 
R.  A.  405, 


fore    Dunkin.    Ch.,    at    Kershaw,   June, 


1S4S. 

Tl'.is   case   will   be   sufliciently   understood 

from    the  decree   of  his   Honor,   the  Circuit 

Chancellor,  which  is  as  follows: 


<&=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


39 


*97 


3  RICHARDSON'S  EQUITY  REPORTS 


Dunkin,  Ch.— The  will  of  rowell  McRa 
l;ears  date  the  11th  day  of  Jaimary,  1S44 ; 
and  the  testator  died  on  the  19th  day  of 
May,  1847.  Tlie  coinphiinaat  is  tlie  executor 
of  the  will,  and  asks  that  the  trusts  of  the 
same,  as  well  as  of  the  will  of  Duncan  jNIc- 
Ra.  may  be  "declared  and  executed,  so  far 
as  resi)ects  the  estates  in  his  hands."  .  The 
devisees  and  legatees  of  Powell  McRa,  as 
well  as  his  heirs  at  law,  are  made  defend- 
ants ;  but  none  of  the  other  parties  interest- 
ed under  the  will  of  Duncan  McRa  are  par- 
ties to  these  proceedings. 

By  the  first  clause  of  Powell  McRa's  will, 
his  whole  estate  is  devised  to  the  complain- 
ant in  trust  to  pay  his  debts,  and  two  small 
annuities,  and  to  support,  maintain  and  ed- 
ucate his  two  natural  children,  called,  in  his 
will,  Margaret  Sarah  McRa,  and  Duncan  Mc- 
Ra ;  and  "so  soon  as  either  of  them  become 
of  age,  or  marry,  to  convey  to  each  of  them 
one  half  of  my  said  estate,  real  and  person- 
al, to  them,  their  heirs  and  assigns  forever." 

The  second  clause  is  as  follows:  "but  if 
the  foregoing  clause  of  this  will  shall  be  de- 
clared null  and  void  by  any  Court  of  this 
State,  authorized  so  to  decide,  then,  and  in 
that  case,  I  give,  devise  and  bequeath  to  my 
children,  Margaret  Sarah  McRa  and  Duncan 
McRa,  aforesaid,  one-fourth  part  of  the  clear 
value  of  my  estate,  after  the  payment  of  my 
debts,  to  them,  their  heirs  and  assigns  for- 
ever." And  after  providing  for  the  death  of 
either  of  them  under  age,  or  unmarried,  the 
will  proceeds:  "and  I  give,  devise  and  be- 
tjueath  the  other  three-fourth  parts  of  my 
said  estate  to  my  friend  and  executor,  Wil- 
liam J.  Taylor,  to  him,  his  heirs  and  assigns 
forever."  The  last  clause  appoints  the  com- 
plainant executor  of  the  will,  and  concludes: 
"to  his  special  kindness  and  attention  I  com- 
mit my  beloved  daughter  and  son,  and  invoke 
for  them  his  most  kind  attention  and  protec- 
tion." 

Powell  McRa  had  been  separated  from  his 
wife  for  more  than  thirty  years ;    and  on  the 

*98 

Gth  March,  1817,  complete  and  mutual  *re- 
leases  of  all  conjugal  and  marital  rights  had 
been,  on  valuable  consideration,  executed,  re- 
corded, and  carried  into  effect ;  a  copy  of  the 
instrument  was  adduced  at  the  hearing,  but 
was  not  furni.shed  to  the  Court.  John  Sin- 
gleton, the  father  of  Mrs.  McRa,  was  one  of 
the  parties  to  the  deed,  and  Duncan  McRa, 
the  father  of  Powell  McRa,  was  a  subscriliing 
witness.  Among  other  provisions  of  the  deed, 
I'owell  McRa  conveyed  thirty  slaves  to  John 
Singleton,  in  trust  for  Mrs.  Mary  Martha  ^Ic- 
Ra,  his  wife.  Within  the  last  few  years,  Mrs. 
McRa  has  been  found  of  unsound  mind,  and 
the  defendant,  Albertus  C.  Spain,  appointed 
her  committee.  The  answer  of  the  committee 
submits,  that  the  testator,  "having  a  lawful 
wife,  to  wit,  the  said  Mary  Martha  McRa, 
then  living,  all  gifts  or  bequests  for  the  ben- 
40 


efit  of  his  natural  children  beyond  one-fourth 
part  of  his  estate,  are  null  and  void,  by  the 
Act  of  1795 ;  and  that  the  remaining  three- 
fourths  are  either  distributable  among  IiIkS 
heirs  at  law,  and  next  of  kin,  or  vest  in  the 
said  Mary  .Martha  McRa,  widow  of  the  said 
Powell  Mclfa." 

The  Act  of  1795,  (5  Stat.  271.)  has  recently 
received  the  deliberate  consideration  of  the 
Court,  in  the  case  of  Hull  v.  Hull,  (2  Strob. 
Eq.  174,)  at  'Columbia,  in  May,  1848.  "The 
general  scope  and  intention  of  this  Act,"  says 
the  Court,  "are  very  evident.  Its  provisions 
were  intended,  so  far  as  the  Legislature  could 
safely  interpose  for  that  purpose,  to  prevent 
a  man  who  had  forgotten  his  domestic  duties, 
from  squandering  his  property  upon  rhe  ob- 
ject of  his  perverted  affections,  to  the  wrong 
and  injury  of  his  family;  and  by  depriving 
him  of  the  means  of  rewarding  the  associates 
of  his  vitiated  appetites,  or  providing  for 
their  progeny,  to  discourage  both  him  and 
them  from  entering  into  such  immoral  and 
pernifiious  connexions."  The  Court  after- 
wards say:  "It  was  long  ago  determined,  ia 
Owens  V.  Owens,  (MS.)  that  the  will  of  a  tes- 
tator in  favor  of  his  mistress  or  illegitimate 
children,  was  a  good  and  valid  will  as  to  all 
the  world,  except  his  lawful  wife  and  chil- 
dren ;  and  so  far  has  this  doctrine  been  car- 
ried, that  in  Breithaupt  v.  Bauskett,  (1  Rich. 
Eq.  405,)  it  was  held  by  Chancellor  Harper, 
that  the  election  to  avoid  it  was  so  complete- 
ly personal  to  these  parties,  that  the  priv- 

*99 
ilege  *expired  with  the  life  of  the  wife,  and 
could  not  be  exercised  by  her  executor.    The 
instrument  is  not  void,  but  voidable,"  &c. 

Many  of  the  circumstances  of  this  case  il- 
lustrate the  propriety  of  the  decision  in  Breit- 
haupt V.  Bauskett.  The  right  to  avoid  the 
will  or  deed  should  be  subject  to  the  personal 
discretion  of  the  injured  party.  "The  object 
of  the  Act,"  say  both  Chancellor  Harper  and 
the  Court  of  Appeals,  in  Hull  v.  Hull,  "was  to 
provide  for  the  personal  support  of  the  wife 
and  legitimate  children."  These  parties  were 
separated  by  mutual  consent  in  1817 ;  and 
ample  support  was,  by  the  terms  of  the  deed 
of  separation,  secured  to  the  wife ;  at  least 
she,  and  those  most  interested  in  her  happi- 
ness, were  willing  so  to  consider  it.  The 
property  settled,  passed  into  the  possession 
of  her  trustee,  and  so  remained.  It  was  said 
at  the  bar,  that  the  illicit  connexion  of  the 
testator  with  the  mother  of  his  illegitimate 
children  did  not  commence  until  seven  years 
after  the  separation  from  his  wife.  By  the 
terms  of  the  settlement  of  1817,  the  wife 
released  and  renounced  all  claim  which 
might  accrue  to  her,  on  the  death  of  her  hus- 
band, to  any  part  of  his  estate.  It  is  not 
necessary  to  determine  how  far  the  deed  is 
obligatory  on  the  wife ;  but  it  would  be  a 
violation  of  the  well  settled  principles  of 
this  Court  to  permit  her  to  avoid  the  will, 
without   bringing   into   the   estimate   of  her 


TAYLoIl    V.  McRA 


*l<t2 


liusi  iiiid's  estate,  the  iimperty  settli'tl  upon 
her  l).v  the  deed  of  1M7.  Heiii;;  discovert,  she 
oufrht  to  have  the  privih'j^e  of  (h'terinliiiii;; 
wliether  that  deed  shoiihl  stand  as  the  final 
adjustment  of  lier  ri;.'hts  in  tlie  estate  of  her 
hnsliand.  But  Iieinix  now,  l).v  the  act  of  (iod, 
c'iviliter  niortna.  lier  li.L'ht  to  avoid  the  will 
is  at  least  suspended. 

lint  ar  the  time  of  the  death  of  I'nwell 
McUa,  in  1S47.  he  left,  hesides  his  widow, 
two  ^rand  ehildren,  the  issue  of  a  deceased 
son,  who  are  Infant  defendants.  On  their 
hehalf  it  was  insi.sted  that.  alth<»uj:h  not 
within  the  strict  letter  of  the  Act  of  17!)."), 
their  case  was  within  the  mischief  intended 
to  be  prevented  !)y  it ;  and  that  the  terms 
shonld  he  con.stnied  to  include  i^rand  chil- 
dren. On  this  point,  the  opinion  of  Chancel- 
lor Harper,  in  Smith.  Kx'r.  Tarr,  v.  Iloates 

*100 

et  a!..  (.MS.)  at  Charleston,  in  January,  *l.sii!), 
is  very  direct;  and  is  reconuuended  as  well 
by  the  reasoning  as  by  the  authority  of  his 
name.  The  testator  had  left  the  .greater  part 
of  his  property  to  two  illesritimate  children  ; 
and  he  left  al.so  a  legitimate  ^crand  child. 
The  bill  was  tiled  by  the  executor  to  obtain 
the  direction  of  the  Court,  and  the  question 
was,  whether  the  case  fell  within  the  provi- 
sions of  the  Act  of  17!>r).  "The  Act,"  says  the 
Chancellor,  "speaks  oidy  of  lawful  children: 
but  it  is  contended  tiiat  the  case  of  grand 
children  comes  within  the  reasons  of  the  Act, 
and  the  mischief  to  be  remedied  ;  and  cases 
have  been  cited  to  shew  that,  in  the  coristruc- 
tion  of  wills,  the  term  children  has  often 
been  taken  to  mean  ^'rand  children.  It  is  ad- 
mitted, however,  that  such  is  not  the  natural 
si>,Miification  of  the  word;  but  that,  in  the 
cases  where  it  has  bi'cn  so  taUcn,  it  was 
because  the  intention  so  ro  use  it  nmst  be 
necessarily  inferred  from  the  context,  or 
from  the  circumstance  that  there  were  no 
children  to  whom  it  could  be  applied.  But 
there  is  no  such  necessity  in  construing:  the 
Act  of  the  Ix'gislature:  the  Legislature  may 
have  intended  the  ca.se  of  children  alone. 
There  is  nothing  ambiguous  in  the  term  to 
authorize  me  to  resort  to  construction,  de- 
rived from  the  spirit  and  objects  of  the  Act. 
If  the  words  of  a  .statute  are  i)lain,  the 
words  nnist  govern;  though  it  may  seem  to 
us  that  an  analogous  case,  equally  re<iuiring 
a  remedy,  is  left  unprovid«'d  for.  Reasons 
may  l»e  conceived,  however,  for  making  a  dis- 
tinction between  the  case  of  children  and 
grand  children.  IJrand  children  must  have 
had  a  mature  parent,  to  whom  the  duty  of 
providing  for  them  more  imme<liately  apper- 
tained, and  who  may  have  had  abilily  to  do 
so."'  The  claim  of  the  grand  chikl  was,  ac- 
cordingly, rejected ;  and  this  decision  has 
bei-n  more  than  once  adverted  to  by  the 
App(>al  Court  without  dis.sent,  although  the 
point  has  ui'ver  been  the  sui>jcct  of  direct 
adjudication. 


But,  from  another  vi(>w,  it  seems  to  the 
<"ourt  very  inunaterial,  either  to  the  wife 
or  to  the  grand  children  of  the  testator, 
whether  the  first  dau.se  of  the  will  be.  or  be 
not,  obnoxious  to  the  provisions  of  the  Act 
of  17'.>.").  In  the  second  clause  the  testator 
has  provided  for  the  contingency:   and  in  the 

♦101 
event  that  the  devises  *and  iuMpiests  should 
only  be  valid  t<»  the  extent  of  one-fourth  of 
his  estate,  he  (h'vises  and  betpieaths  the  re- 
maining thri'e-fourths  to  his  friend,  the  com- 
plainant. It  is  true  that  in  a  sul)se<iuent 
clause  the  complainant  is  also  appointed  ex- 
ecutor, and  tl-.at  the  children  are  "connnitted 
to  his  special  care  and  protection."  It  was 
faintly  argued  that  the.se  words  created  a 
tru:.t.  But  the  language  of  the  will  is  too 
explicit  to  be  misundeistood.  Three-fourths 
of  the  estate  are  devised  to  the  conqtlainant, 
"his  heirs  and  assigns,  forever,"  but  "charged 
with  the  maintenance  and  support  of  the 
testator's  sister,  Margaret  Ilouseal.  and  an 
ainuiity  of  one  hiuidred  dollars  besides,  from 
the  period  of  his  death."  In  all  other  re- 
spects, and  for  all  other  purposes,  the  estate 
was  ab.solute  in  the  devi.see,  and  the  disposi- 
tion of  it  left  entirely  to  his  discretion.  See 
2  Story's  Eq..  §  1070.  It  was  then  argued 
that  this  provision  was  a  fraud  on  the  law_ 
In  this  connection  the  language  of  the  Court., 
in  Hull  V.  Hull,  is  pertinent.  In  considering 
the  Act,  with  reference  to  its  general  inten- 
tion, it  must  be  remembered  that  there  are 
few  rights  more  valued  by  the  citi/en,  or 
more  universally  respecteil  by  the  Iv<'gisla- 
ture.  (of  wiiich  we  have  abundant  evidence 
in  this  very  statute.)  than  the  jus  disponendi :. 
and  no  construction  in  abridgment  of  tbi.s 
right  can  be  conformable  to  the  spirit  and  in- 
tent of  this  Act,  except  where  the  abridgment 
arises  necessarily  from  the  application  of  the 
Act  to  the  cases  which  it  describes,  or  be- 
comes neces.sary  in  carrying  its  provisions 
into  elTect,  as  provisions  of  a  remedial  .stat- 
ute. The  Act  declares  the  beciuest  to  be  void 
so  far  as  it  exceeds  one-fourth  of  the  testa- 
tor's estate.  It  is  not  provided  that  the  sur- 
plus .shall  belong  to  the  wife  and  children. 
If  there  is  a  residuary  clause  to  a  stranger, 
as  was  held  in  Breithaui>t  v.  Bauskett,  the 
suriilus  would  pa.ss,  under  that  residuary 
clause,  as  of  any  other  property  not  effectual- 
ly given.  If  the  policy  of  the  law  were  not 
sulhciently  vindicated  by  declaring  void,  to  a 
certain  extent,  the  intended  bounty  to  the 
illegitimate  children,  it  is  the  duty  of  the 
Legislature,  not  of  the  Court,  to  abridge  the 
jus  disiKtnendi  on  the  part  of  the  citizen.  If 
no  trn.st  is  established,  how  can  the  bequest 

*102 
to  the  conqilainant  be  regarded  as  a  *frauJ 
ui)on  the  law".'  No  one  doubts  the  right  of 
the  testator  to  leave  his  entire  estate  to  a 
stranger,  regardless  of  the  claims  of  conjugaL 
or  parental  ties.     His  Juotives,  however  urr- 

41 


no2 


3  RICHARDSON'S  EQUITY  REPORTS 


worthy,  however  inexcusable,  are  not  the  sub- 
ject of  inquiry.  This  riglit  would  not  be  im- 
paired or  forfeited,  because  he  announces  on 
the  face  of  the  will  his  abhorrence  of  the 
law  which  has  checked  the  current  of  his 
Iiounty  in  a  particular  direction.  If  the  pro- 
visions of  the  will  are  within  the  prescribed 
limits  ;  if  no  more  is  given  to  the  illegilimnte 
children  than  the  law  allows ;  if  the  law  has 
not  declared  that  the  surplus  shall  be  devis- 
ed to  the  wife  and  children ;  or,  as  in  the  Act 
of  1841,  that  it  should  be  held  for  the  benefit 
of  the  distributees,  or  next  of  kin ;  then  it  is 
Impossible  to  declare  that  the  bequest  to  the 
complainant  is  a  violation  of  law  or  a  fraud 
upon  the  law. 

But,  as  has  been  already  declared,  the 
provision  in  behalf  of  the  illegitimate  chil- 
dren is  not  open  to  impeachment  at  the  in- 
stance of  any  of  the  parties  before  the  Court. 

It  is  ordered  and  decreed  that  the  com- 
plainant execute  the  will  of  Powell  .McKa, 
deceased,  according  to  the  principles  of  this 
decree.  Parties  to  be  at  liberty  to  apply  for 
such  further  orders  as  may  be  deemed  neces- 
sary. Each  party  to  pay  their  own  costs ; 
those  of  the  complainant  to  be  a  charge  on 
the  estate  of  his  testator. 

The  defendants,  Albertus  C.  Spain,  on  be- 
half of  Mrs.  Mary  Martha  McRa,  and  the 
infants,  Mary  and  Julia  McRa,  appealed 
from  so  much  of  his  Honor,  the  Chancellor's 
decree,  as  established  the  entire  validity  of 
the  gifts,  legacies,  devises  and  bequests  to 
their  co-defendants,  Mary  Kirkland  and  Dun- 
can McRa,  or  on  failure  of  the  same,  to  the 
conq)lainant ;  and  they  moved  that  the  said 
decree  be  reformed  in  this  respect — so  as  to 
restrain  the  said  gifts,  legacies,  devises  and 
beiiuests,  to  one- fourth  part  of  the  clear 
\  alue  of  the  testator's  estate ;  and  further, 
that  the  right  of  the  appellants  to  the  re- 
maining three-fourths  of  the  said  estate  be 
established  and  declared  by  the  decree  of 
this  Honorable  Court.  In  support  of  which 
motion,  they  relied  upon  the  .following 
grounds.. 

*103 

*1.  That  the  said  gifts,  legacies,  devises 
and  bequests,  are  clearly  void,  under  the 
Act  of  1795,  as  against  the  testator's  widow, 
Mrs.  Mary  Martha  ^IcRa,  for  the  excess  over 
one-fourth  part  of  the  clear  value  of  his  es- 
tate: and  that  the  circumstance  of  her  being 
a  lunatic  does  not  deprive  her  of  the  right  to 
avoid  the  said  gifts,  legacies,  devises  and 
beipiests,  but  only  of  the  discretion  to  waive 
her  objection  to  them ;  and  that  it  is  both  the 
right  and  duty  of  her  connnittee  to  insist  up- 
on the  said  objection. 

2.  That  the  settlement  of  1817  is  neither 
obligatory  and  binding  on  the  widow,  Mrs. 
McRa ;  nor,  if  it  were,  does  it  impair  her 
right  to  avoid  the  gifts,  legacies,  devises  and 
bequests  aforesaid,  under  the  Act  of  179.j. 

o.  That  by  the  well  settled  rules  of  cou- 
42 


struction,  the  words  "lawful  children,"  in 
the  Act  of  179.5,  must  be  construed  to  mean 
"issue,"  and  to  include  all  legitimate  lineal 
descendants;  and  that  the  infant  defendants, 
Mary  and  Julia  jNIcRa,  are,  therefore,  clearly 
entitled,  in  their  own  right,  to  the  protection 
of  the  Act  of  1795,  and  to  avoid  the  gifts, 
legacies,  devises  and  bequests  aforesaid,  as 
to  all  but  one-fourth  part  of  the  clear  value 
of  the  testator's  estate. 

4.  That  the  devise  over  to  the  complainant, 
in  the  event  of  the  legacies  and  devises  to  the 
testator's  illegitimate  children  being  declar- 
ed void,  is  a  phiin  fraud  upon  the  law,  and, 
therefore,  a  nullity;  and  that  were  it  other- 
wise, yet  the  gift  is  plainly  in  trust  for  the 
same  children,  and,  therefore,  void,  for  the 
same  reasons  which  invalidate  the  direct  gift. 

5.  That  his  Honor  erred  in  directing  the 
costs  of  the  defendant,  A.  C.  Spain,  the  c-om- 
mittee  of  Mrs.  INIary  Martha  McRa,  and  of 
the  infant  defendants,  Mary  and  Julia  McRa, 
to  be  paid  by  themselves. 

Mo.ses,  for  appellants. 

DeSaussure,  Chesnut,  Smart,  contra. 

WARDLAW,  Ch.,  delivered  the  opinion  of 
the  Court. 

The  circuit  decree,  in  this  case,  is  placed 
*104 
on  the  grounds,  1st,  *that  the  committee  of  a 
lunatic  wife  has  not  the  privilege  to  avoid, 
under  the  Act  of  1795,  the  gift,  by  a  testator, 
to  his  illegitimate  children,  for  the  excess  of 
the  subject  of  gift  beyond  one-fourth  of  the 
clear  value  of  his  estate ;  and  2d,  that  the 
only  effect  in  this  case  of  avoiding  the  gift, 
for  such  excess,  would  be  to  vest  such  excess 
in  the  plaintiff,  who  is  a  stranger  to  any 
trust. 

To  establish  the  doctrine  contained  in  the 
first  ground  might  do  no  great  mischief  in 
this  particular  case,  but  in  many  conceivable 
cases,  would  produce  great  hardship  and  in- 
justice. If  a  wife,  having  no  separate  es- 
tate, who  had  been  driven  to  madness  by 
the  infidelity  and  brutality  of  her  husband, 
were  deprived,  by  his  devise  to  his  bastards, 
of  the  means  of  food  and  raiment,  and  left  to 
depend  upon  the  charity  of  the  world  to  sup- 
ply her  destitution,  could  we,  possessing  the 
reason  and  sensibilities!  of  human  nature, 
venture  to  hold  that  the  committee,  under 
the  supervision  of  tliis  Court,  might  not  avail 
himself  in  her  behalf  of  the  provisions  of 
the  Act  of  1795'?  In  the  parallel  disability 
of  infancy,  it  is  the  personal  privilege  of  the 
infant  to  avail  himself  of  the  plea  of  infancy 
to  avoid  a  contract,  and  yet  hisi  guardian 
may  resort  to  this  defence  in  the  infant's 
behalf.  In  the  case  of  Hill  v.  Hill,  (3  Strob. 
Eq.  94,)  this  Court  allowed  the  committee 
of  a  lunatic  wife  to  assert  her  equity  to  a 
settlement  out  of  her  estate,  and  the  present 
case  is  within  the  same  principle.  In  Par- 
nell  V.  Parnell,  (2  Phil.  158.)  Sir  Wm.  Scott 
adjudged,  that  the  committee   of  a  lunatic 


TAYLOR  V.  McRA 


noi 


may  institute  procppdinps  against  the  wife  of 
tilt'  lunatic  for  adultery.  It  would  lie  a  j;reat 
reproaeli  to  this  Court,  which  professes  in 
a  peculiar  manner  to  protect  the  ritrhts  of 
infants,  married  women,  and  lunatics,  to  add 
additional  iirivation  to  loss  of  mind — the 
greatest  attliction  of  rrovidence. 

But  this  priviU'f,'e.  by  the  committee  of  a 
lunatic,  to  avoid  fiifts  under  the  Act  of  179"). 
must  be  exercised  under  the  supervision  of 
the  Court,  which  will  in  a  proi)er  case  con- 
trol his  election.  In  general,  where  it  Is 
doubtful  whether  the  interests  of  the  wife 
will  be  promoted  by  such  intervention  on  the 

*105 

part  of  her  com*mittee.  the  Court  will  direct 
the  proper  inquiry  to  be  made  by  its  pi'oper 
otlic-er.  This  inquiry  will  usually  be  con- 
fined to  pecuniary  interests.  This  Court  does 
not  determine  questions  according  to  the 
factitious  dictates  of  a  code  of  honor,  or  deli- 
cacy, but  according  to  settled  rules  of  law  and 
honesty.  Still,  in  the  present  case,  many 
reasons  might  be  found  to  induce  the  Court 
not  to  interfere  in  behalf  of  the  wife,  at  least 
sua  sponte.  She  is  amply  provided  for ; 
she  was  separated  from  her  husband  for 
thirty  years  before  the  execution  of  the  will ; 
in  1817,  her  father,  interfering  in  her  behalf, 
received  from  the  husband  twenty-four  ne- 
groes for  her  sole  and  separate  use.  and  cove- 
nanted in  her  behalf,  and  with  her  written 
aiiprobation,  that  she  should  make  no  further 
claim  upon  the  husliand's  estate.  It  may 
be  true  that,  in  this  State,  under  the  decisions 
in  Reid  v.  Lamar,  (1  Strob.  E(i.  88.)  and  like 
cases,  this  covenant  Avould  impose  no  legal 
obligation  on  the  wife,  although  it  might  be 
different  in  England,  where  the  wife  has  the 
power  to  alien  and  incumber  her  separate  es- 
tate. Yet  it  would  hardly  be  consistent  with 
good  faith  on  the  part  of  the  wife,  to  disturb 
now  a  family  arrangement,  which  has  been 
executed  for  thirty  years,  the  effect  of  which 
disturbance  would  be  to  throw  heavy  respon- 
sibilities on  her  father  and  trustee.  It  is 
unnecessary,  however,  to  conclude  any  thing 
on  this  point,  as  the  decree  must  be  sustained 
on  the  other  ground  taken  by  the  Chancellor. 
We  will  not  permit  the  committee  here  to 
avoid  this  gift  to  the  testator's  illegitimate 
children,  for  the  necessary  result  would  be 
to  vest  the  estate  in  the  plaintitT.  It  has 
been  strongly  urged,  that  the  alternative  de- 
vise to  the  idaintift".  is  a  mere  fraud  upon 
the  Act  of  1795,  and  that  this  appears  by  the 
will.  It  is  not  prefendi'd  that  there  is  jiny 
secret  trust  on  the  part  of  the  plaintiff  for 
the  illegitimate  children,  and  it  is  conceded, 
that  the  gift  to  the  iilaintitl:  makes  him  the 
absolute  proprietor  of  tiie  estate,  unless  the 
terms  of  the  will  create  an  express  trust. 
The  course  of  Courts  of  Ecpiity,  of  late  years, 
has  been  against  the  c-onversion  of  legatees 
into  trustees,  by  vague  exi)ressioiis  of  wi.shes. 
or  recommendation,  in  the  disposition  of  the 


•106 
estate;  (Sale  v.  ♦Moore,  1  Sim.  534;  Mere- 
dith V.  Ileneage.  lit.  r>42 ;  Wright  v.  Atkyns.  1 
Tur.  &  Russ.  14;{t ;  and  here,  there  is  nothing 
more  than  a  comniendation  of  his  children, 
by  the  testator,  to  the  kindness  and  protec- 
tion of  his  executor,  without  reference  to  the 
estate,  and  after  a  contingent  gift  thereof  in 
fee.  It  is  said,  however,  that  the  gift  to  the 
plaintiff,  being  on  the  contingency,  expressed 
in  the  will,  that  the  juvvious  devise  to  the 
illegitimate  children  should  be  declared  void 
by  any  Court  of  this  State,  authorized  so  to 
decide,  affords  indubitable  evidence  of  the 
purpose  of  the  testator,  to  evade  the  Act  of 
1795.  It  may  be  conceded,  that  such  was  the 
purpose  of  the  testator,  if,  to  keep  the  pro- 
visions of  his  will  out  of  the  operation  of 
the  Act  can  be  called  evasion;  but  surely  it 
is  not  the  province  of  the  Court  to  usurp  leg- 
islative power,  and  extend  the  Act  to  cases 
not  within  its  enactments.  The  Act  does  not 
declare  void,  gifts  to  a  stranger  by  an  adul- 
terer, or  father  of  bastard  children,  and  it 
may  be  well  doubted,  whether  such  abridg- 
ment of  the  jus  disponendi,  would  ever  have 
met  with  the  favor  of  the  legislature.  Nor 
does  the  Act  declare,  even  in  cases  where  the 
gift  is  voidable,  that  the  void  excess  shall  go 
to  the  wife  and  children,  only  that  the  gift 
to  the  mistress  or  bastards,  shall  be  void 
for  the  excess  above  one-fourth  of  the  clear 
value  of  the  donor's  estate.  Its  great  object, 
is  to  brand  and  punish  incontinence  in  par- 
ticular cases,  by  restricting,  to  a  limited  ex- 
tent, bounty  to  a  mistress,  or  bastards.  If, 
here,  where  the  devise  is  not  prohibited  by 
the  statute,  we  must  nevertheless  pronounce 
it  void  as  an  evasion,  we  in  effect  pronounce 
that  an  adulterer,  or  father  of  bastard  chil- 
dren, having  a  wife,  or  lawful  children,  must 
give  three-fourths  of  his  estate  to  his  wife  or 
children. 

It  is  objected  to  our  conclusion,  that  we 
ratify  a  scheme  by  which  the  purpose  of  the 
Act  of  1795  may  be  always  defeated.  But 
we  do  no  more  here,  than  we  do  in  every 
case  where  we  give  construction  to  a  statute. 
It  is  the  duty  of  Judges  to  expound  and  not 
to  make  the  law;  to  declare  what  cases  are 
within,  and  what  without,  legislative  enact- 
ments; but  not  to  include  within  these  enact- 
ments, upon  our  notions  of  policy,  the  cases 

*107 
♦omitted  by  the  Legislature,  whether  by  acci- 
dent or  design.  It  is  for  the  Legislature  and 
not  for  us  to  correct  any  supposed  mischief, 
in  the  present  state  of  the  law,  on  this  and  all 
subjects. 

In  Wadlington  v.  Kenner,  OIS.)  and  In 
two  circuit  opinions  of  Chancellor  Harper, 
one  cited  in  the  decree  [B.  v.  B..  1  Rich.  Eq. 
4()5.1  and  the  other  reported  [Ford  v.  Mc- 
Ebray]  1  Rich.  Eq.  474,  it  has  been  decided 
that  grand  children  could  not  interpose  to 
avoid  gifts  under  the  bastardy  Act,  and  we 
acquiesce  in  these  decisions. 

43 


*107 


3  RICHARDSON'S  EQUITY  REPORTS 


The  fifth  ground  of  appeal  is  sustiiinetl, 
and  it  is  ordered  that  tlie  costs  of  A.  C. 
Spain,  committee,  and  of  Mary  and  Julia 
McRa,  be  paid  by  the  plaintiff  out  of  his 
testator's  estate. 

In  all  other  respects  the  decree  is  affirmed 
and  tlie  appeal  dismissed. 

JOHNSTON  and  DUNKIN,  CC,  concur- 
red. 

DARGAN,  Ch.,  dissenting. 

I  do  not  concur  with  the  majority  of  this 
Court  in  the  decree  which  they  have  render- 
ed. The  testator,  Powell  McRa,  having  a 
lawful  wife  and  grand  children,  but  no 
lawful  children,  gives  the  whole  of  his 
estate,  in  trust,  to  pay  his  .debts  and  two 
.small  annuities,  and  to  support,  maintain 
and  educate  his  two  natural  children.  Mar- 
garet S.  and  Duncan  McRa  ;  and  so  soon 
as  either  of  them  becomes  of  age  or  mar- 
ries, to  convey  to  each  of  them  one-half  of 
his  estate,  real  and  personal,  to  them,  their 
heirs  and  assigns  forever.  The  will  then 
provides,  that  if  the  foregoing  clause  of  this 
will  shall  be  declared  null  and  void  by  any 
Court  in  this  State,  authorized  so  to  de- 
cide, the  testator  gives  to  the  said  illegiti- 
mate children  one-fourth  part  of  the  clear 
value  of  his  estate,  real  and  personal,  after 
the  payment  of  his  debts,  to  them,  their 
heirs  and  assigns  forever.  In  this  event,  he 
also  gives  the  remaining  three-fourths  of  his 
estate  to  the  complainant ;  and  after  nomi- 
nating the  complainant  as  his  executor,  he 
concludes  as  follows:  "To  his  special  kind- 
ness and  attention,  I  commit  my  beloved 
daugliter  and  son,  and  invoke  for  them  his 
most  kind  attention  and  protection." 

Such  is  the  will.  In  its  construction,  sev- 
*108 
eral  questions  have  *a risen.  I  concur  in  the 
opinion  that  grand  'children  have  no  right  to 
vacate  the  illegal  provisions  of  a  will  in 
favor  of  illegitimates.  If  grand  children 
were  so  entitled,  by  a  parity  of  reasoning 
and  the  same  wide  construction,  remote  de- 
sc-endants  would  have  the  same  right.  Such 
an  interpretation  would  comport  neither 
with  the  language  of  the  Act  nor  its  ob.iects. 

I  think,  too,  that  the  derision  in  Breit- 
haupt  V.  Bauskett  is  correct,  and  that  the 
right  to  vacate  a  deed  or  will,  which  is  in 
violation  of  the  provisions  of  the  Act  of 
1795,  is  personal  to  the  wife  and  lawful  chil- 
dren ;  such  a  di.sposition  is  valid  against  all 
the  world  Itut  them  ;  and  their  riglit  is  so 
far  personal,  that  it  does  not  survive  to  the 
personal  representatives  of  the  wife  and  law- 
ful children.  But  when  it  is  asserted  that 
the  right  is  personal,  in  a  sense  that  would 
forbid  a  lunatic  wife  or  child  from  making 
the  claim,  or  its  being  made  in  tlieir  be- 
lialf,  I  differ  entirely.  Such  a  conclusion  is, 
in  my  judgment,  a  most  unwarranted  infer- 
ence from  the  decisions;    which,  when  they 

44 


declare  that  the  right  is  personal,  nt^an 
only  that  it  is  personal  in  the  sense  of  the 
legal  maxim,  "actio  personalis  moritur  cum 
persona."  This  clearly  is  the  doctrine,  and 
none  other.  In  tlie  circuit  decree  it  is  de- 
cided that  the  lunatic  wife  of  Powell  McRa 
is  civiliter  mortua ;  and  being  civiliter  mor- 
tua,  she  cannot  exercise  her  personal  dis- 
cretion in  asserting  her  claim,  and  that  this 
Court  cannot  do  it  for  her.  I  am  not  aware 
that  a  lunatic,  in  conse<]uence  of  lunacy, 
loses  any  of  his  civil  rights  besides  that  of 
making  contracts  and  testamentary  disposi- 
tions of  his  property.  The  male  lunatic 
cannot  exercise  any  of  his  political  rights 
and  franchises.  He  has  the  same  rights  of 
person  and  of  property  as  if  he  was  sane. 
In  the  case  of  an  election  being  necessary, 
this  Court  will  exercise  the  right  in  his 
behalf.  I  will  not  discuss  this  subject  fur- 
ther, but  content  myself  with  thus  entering 
my  protest  against  the  doctrine  of  the  decree 
on  this  point. 

I  concur  in  the  opinion  that,  if  the  com- 
plainant takes  the  three-fourths  of  the  e.s- 
tate  given  to  him,  he  takes  it  discharged  of 
any  trust.  If  there  were  a  direct  and  secret 
understanding  between  the  testator  and  him- 

*109 
self  that  he  should  hold  for  the  *benefit  of 
the  illegitimates,  on  proof  of  that,  the  gift 
to  him  should  be  vacated  on  the  application 
of  the  wife.  But,  as  regards  Taylor,  no  such 
fraudulent  intent  or  violation  of  the  Act  ap- 
pears upon  the  face  of  the  will.  No  trust 
is  created  nor  legal  or  equitable  obligation 
imposed.  The  moral  obligation  he  might  or 
might  not  fulfil,  as  his  own  sense  of  duty  or 
honor  should  dictate. 

But  the  difficulty  with  me  lies  in  another 
view  of  the  case.  The  lunacy  not  being  an 
impediment,  the  widow  of  I*owell  ]\IcRa  has 
a  right,  under  the  Act  of  1705,  to  vacate  the 
gifts  to  the  illegitimate  children,  for  the  ex- 
cess over  one-fourth  of  the  clear  value  of 
the  estate.  But,  by  the  decree  in  this  case, 
Taylor's  right,  under  the  will,  is  superior  to 
that  of  the  wife:  while  confessedly,  and  by 
the  decision  in  Owens  v.  Owens,  approved  in 
this  case,  the  right  of  the  illegitimate  chil- 
dren is  superior  to  that  of  Taylor.  The  wife 
and  lawful  children  are  preferred  to  the  Il- 
legitimates; the  illegitimates  are  preferred 
to  Taylor;  and  Taylor  is  preferred  to  the 
wife.  Here  is  a  circle.  In  this  conflict  of 
claims,  why  sliould  the  preference  be  given 
to  the  person  claiming  under  tlie  executory  de- 
vise? He  is  not  entitled  until  the  wife  comes 
into  the  Court  and  obtains  a  decree  vacating 
the  provisions  of  the  will.  The  wife  must 
have  a  decree  before  Taylor's  right  arises. 
And  in  the  self  same  decree  in  which  lier 
right  is  accorded  to  her,  it  is  snatched  away 
and  given  to  another.  Tliis  is  keeping  the 
word  of  promi.se  to  the  ear,  and  breaking  it 
to  the  hope. 

I   protest   against    the   decree,   because   it 


Ml   l.Lli.AN    \.   WALLACE 


*ir2 


puts  a  coiistniotion  ui»oii  t\w  Art  tif  1T!I."», 
by  whidi  the  Act  stands  iviii'aled,  niul  is 
virtually  expunged  from  tiie  statute  book. 
Tliis,  I  am  aware,  is  strong  lanijuage.  but 
is  well  warranted  by  an  interpretation 
which  enables  any  well  advised  or  acute 
testator  to  defeat  entirely  the  provisions 
of  the  Act.  When  this  decree  is  reiiorted.  it 
will  be  a  publication  to  tiie  world  of  a  form, 
under  the  sanction  of  this  Court,  by  which 
rights  of  wives  and  children,  under  the  Act 
of  17n."»,  ma.v  be  completely  frustrated.  The 
.sagarious    and    well    informed    will    l»e    thus 

♦110 
enabled  to  evade  the  law.  wiille  *wills 
drawn  by  the  ignorant,  or  without  the  ad- 
vice of  counsel,  will  still  fall  umler  its  opera- 
tlcMi.  Will  any  wife,  or  lawful  child,  here- 
after, in  the  case  of  a  will  after  tliis  form, 
come  into  this  Court  to  vacat«'  its  unlawful 
lirovisions  in  favor  of  the  concubine  and  the 
illegitimates?  Cui  bono?  For  what  purjjose 
should  they  come?  The  only  effect  of  their 
application,  and  a  decree  in  their  favor,  is 
to  give  the  property  to  a  remainder-man, 
who  may  keep  it  himself,  or  bestow  it  where 
the  law  has  not  allowed  the  testator  to  be- 
.stow  it.  Strange,  inconsistent,  absurd  doc- 
trine !  I  that  the  only  effect  of  a  decree  of  the 
Court  of  Equity  in  favor  of  a  person,  is  not 
to  give  that  person  the  benefit  of  the  decree, 
but  instantly  to  take  it  away.  Rut  why 
should  the  wife  and  lawful  children  spend 
nione.v  and  time  in  unnecessary  litigation, 
and  fruitlessly  expose  to  the  gaze  and  com- 
ment of  the  world  their  domestic  sorrows 
and  wrongs?  They  come  into  Court  with 
the  Act  of  1795  in  their  hands.  They  bring 
their  claims  within  its  provisions.  The 
Court  says,  yes;  you  are  entitled  to  vacate 
the  illegal  disi>ositions  of  tlie  will,  and  here 
is  a  decree  in  your  favor ;  and  then,  as  it 
were  in  mockery,  the  Court  says,  this  de- 
cree in  your  favor  is  but  the  condition  on 
which  the  property  is  to  be  taken  from  you. 

We  have  a  maxim  in  our  law-books,  as 
old  as  the  common  law  it.self.  th;it  it  is  the 
duty  of  Courts  in  their  interpretation  of 
statutes,  .so  to  construe  them,  as  to  advance 
the  remedy  and  suppress  the  inisdiief.  The 
decision,  in  this  case,  withholds  the  remedy, 
and  provides  a  way  in  wliich  the  misciuef 
may  be  iierpetrated  with  impunity. 

This  Act  of  ITO.j,  consisting,  as  it  does, 
of  but  a  few  lines,  has  given  rise  to  nuich 
ditlicult  and  embarrassing  litigation.  Ques- 
tions have  risen  under  it  which  no  human 
sagacity  could  havo  foreseen.  The  Courts 
have  often  been  called  on  for  its  construc- 
tion. Decision  after  decision  has  been  made, 
and  interpretation  piled  upon  interi)retation. 
until  the  Act  is  covered  all  over  by  interpre- 
tations and  judicial  conunentaries.  One  in- 
terpretation has  lieen  made  the  platform 
of  another.  Inferences  are  made  from  the 
language  of  the  commentary,  instead  of  the 


*111 
words  of  *the  Act,  the  original  complexion 
of  which  is  lost  sight  of.  We  have  gone  on 
in  this  way.  until  we  are  involved  by  this 
case  in  a  iterfe<'t  labyrinth.  whi<h  we  may 
break  through  but  cannot  unravel.  The  Act. 
anil  all  its  tall  superstructure  of  judicial 
construction  and  conunentary.  have  now  fall- 
en down  together;  for  the  effect  of  the  pres- 
ent decision  is.  in  substance,  to  declare  that 
there  is  a  form  by  which  its  provisions  may 
be  defeated  and  .set  at  naught. 
.\.l)peal  dismissed. 


3    Rich.  Eq.    Ill 

FlJAXfLS    MILIJ(;A\   ct    :d.   v.   DANIEL 

WALLACE. 

(Colurnliia.     Nov.  and  Dec.  Term,  1850.) 

[JJijinlii  c=:;!M).i 

1  »«t<ii(l;uir.  a  Commissioner  in  Equity,  bav- 
ins: fmids  of  tlio  Court  tu  the  amount  of  about 
.'Sl.(i(KK  in  Ills  hands,  was  ordered  by  the  Court 
to  invest  the  same  at  interest,  on  ^ood  personal 
socurit.x':  <iii(>  .M.  ciwcd  tiic  defendant,  on  his 
private  account,  ahoiit  SL<i<iO.  ami  ilefendant. 
as  Couunissioner,  loaned  .M.  the  Ij^l.UlH),  on  bund 
and  personal  security,  retaining,  by  M.'s  of- 
fer, out  of  that  sum,  the  aniount  that  M.  owed 
the  defendant.  .\I.  and  his  surety  afterwards 
liecanie  iasohent.  ami  uothinir  coidd  l)e  collectetl 
on  his  t)on(l:— //rW,  that  defendant  had  not  in- 
vested the  Ji^l.liOO  in  conformity  to  the  order  of 
(^ourt.  and  that  he  was  liable  for  the  whole 
amount  thereof,  with  interest. 

|Ed.  Xote.— ( "ited  in  Spear  v.  Spenr.  0  Rich. 
E(l.  I'.lS :    Nance  v.  Nance.  1  S.  C.  220.  221. 

For  other  cases,  see  Equity,  Cent.  Dig.  §  S60: 
Dee.  Dig.  <®=j:U)G.] 

Before  Dargan,  Ch..  at  Tnion.  .Tune.  l^^O. 

So  much  of  the  Circuit  decree  us  relates 
to  the  point  on  wliiih  this  ca.se  was  decided, 
is  as  follows: 

Dargan,  Ch. — Daniel  Wallace,  the  defend- 
ant, as  Conuuissioner  in  Equity  for  Union 
district,  was  in  possession  of  a  fund  belonging 
to  the  complanants.  called  the  Mulligan  fund. 
At  June  Term,  ls."U;.  this  fund,  amounting 
to  one  thousand  five  hundred  and  eighty- 
eight  dollars  and  seventy-seven  cents,  lieing 
cash  in  the  hands  of  the  Comnussioner  in 
Eipiity,  was,  by  an  order  of  the  Court,  direct- 
ed to  be  invested  at  interi'st  ^m  good  i>ersonal 
securities.  The  Commissioner  was  ordered  to 
make  the  investment.  In  June.  is;'.7.  in  the 
execution  of  this  order,  he  took  the  bond  of 
Daniel    A.    Mitchell,    as    principal,    and    om' 

*112 
•William  T.  Crenshaw,  as  surety,  for  the 
amount  of  the  fund.  The  reason  the  defend- 
ant assigns  for  not  having  sooner  made  the 
investment,  is,  that  sucii  was  the  abundance 
of  money,  that  he  was  unable  to  effect  a  loan. 
At  June  Term.  1S40,  the  Comuussiouer  re- 
liorts  to  the  Court,  that  altluaigh  he  cou- 
sid«>rs  the  parties  to  the  bond.  (Mitchell  and 
Crenshaw.)  to  whom  the  fund  was  loaned,  as 
solvent,  yet,  as  they  were  somewhat  embar- 
rassed with  debt,  he  rec»unmends  that  an  or- 


^=»For  other  cases  see  same  topic  and  KEY-NU.MBEK  iu  all  Key-Numbered  Digests  and  Indexes 


45 


^112 


3  RICHARDSON'S  EQUITY  REPORTS 


(ler  be  made,   requiring  additional   security,  ] 
and  that  on  failure  to  comply  within  a  rea- 
sonable time,  the  bond  should  be  put  in  suit.  ! 

The  order  was  passed,  and  in  pursuance 
thereof,  one  Giles  N.  Smith  was  given  as  ad- 
ditional security  to  the  bond. 

At  June  Term,  1842,  the  defendant  reported 
that  he  was  "not  well  satisfied  that  the  se- 
curities to  the  boiid  were  sufficient,"  and  rec- 
ommended that  an  order  be  passed,  requiring 
that  a  new  bond,  with  two  good  and  sutrt- 
cient  securities,  be  given  within  a  reasonable 
time,  and  in  default  thereof,  that  the  bond  be 
put  in  suit.  The  Court  made  an  order  accord- 
ing to  the  recommendation  of  the  Connnis- 
sioner.  Mitchell  was  served  with  a  notice  of 
the  order,  and  failing  to  comply,  the  bond 
was  lodged  with  an  attorney  for  suit,  and  a 
writ  was  issued  on  the  25th  February,  1843. 
Before  judgment  was  recovered,  Mitchell  and 
Smith  had  confessed  judgments  to  more  fa- 
vored creditors ;  the  former  to  a  very  large 
amount.  The  property  of  the  obligors  to  the 
bond  has  all  been  sold  by  the  sheriff,  with  the 
exception  of  some  negroes  carried  off  by 
Mitchell  from  the  State.  None  of  the  pro- 
ceeds of  the  sale  has  been  applied  to  this 
claim,  which  has  been  utterly  lo«t  by  the  in- 
solvency of  the  parties. 

•  The  complainants  have  filed  their  bill 
against  the  defendant,  for  the  purpose  of 
making  him  liable  for  not  having  invested 
the  fund  in  conformity  with  the  order  of  the 
Court. 

They  allege  that  Daniel  A.  Mitchell  was  in- 
debted to  the  defendant,  and  that  the  de- 
fendant, instead  of  loaning  the  fund,  kept  it 
himself,  and  gave  up  to  Mitchell  the  bond  or 
note  on  which  he  was  privately  indebted  to 
the  defendant,  and  took  his  bond,  with  Cren- 
shaw as  surety,  for  the  amount  of  the  Mulli- 

*113 
gan  *fund.  The  only  evidence  on  this  point, 
is  that  which  is  afforded  by  the  defendant's 
answer.  The  defendant  was  particularly  in- 
terrogated in  regard  to  this  transaction,  and 
the  facts  as  he  states  them,  are  to  be  re- 
garded as  the  only  evidence  by  which  the 
question  is  to  be  adjudged.  The  defendant 
denies  that  Mitchell  was,  at  the  time,  indebt- 
ed to  him  the  whole  amount  of  the  Mulligan 
fund.  The  precise  amount  of  Mitchell's  in- 
debtedness to  him,  he  does  not  remember. 
He  has  no  means  now  of  ascertaining,  but 
believes  that  it  was  something  over  one  thou- 
sand dollars.  He  did  keep  to  himself  as  much 
of  the  Mulligan  fund  as  was  equal  to  the 
debt  which  Mitchell  owed  him,  turned  over 
to  him  the  balance  in  cash,  and  took  his  bond, 
with  Crenshaw  as  surety,  for  the  whole 
amount  of  the  Mulligan  fund.  He  had  then 
on  hand  that  fund  in  cash,  in  the  specific 
bills  in  which  it  had  been  paid  to  him.  He 
was  not  anxious  to  realize  his  debt  on  Mitch- 
ell at  that  tme.  It  was  Mitchell's  offer  to 
discount,  in  the  loan,  the  amount  that  he 
owed  to  the  defendant.    According  to  the  de- 

46 


fendant's  best  recollection,  there  was  no  pre- 
vious agreement  to  this  effect  between  Mitch- 
ell and  the  defendant;  nor  was  the  collection 
of  his  own  debt  against  Mitchell,  any  induce- 
ment in  negotiating  the  loan  to  him.  This  is 
substantally  the  defendant's  statement  of 
facts. 

The  question  is,  whether  this  was  an  in- 
vestment according  to  the  order  of  the  Court. 
I  am  far  from  thinking  that  the  bona  fides 
of  the  defendant  is  to  be  impugned  in  this 
transaction.  His  character  for  official  and 
private  integrity,  and  his  present  high  posi- 
tion, would  forbid  any  such  conclusion.  Nor 
is  there  any  thing  in  the  facts,  as  they  ap- 
pear to  the  Court,  from  which  such  an  infer- 
ence could  be  deduced.  But  the  question  is, 
whether  he  has  followed  the  terms  of  the  or- 
der, in  investing  the  Mulligan  fund:  and 
whether  the  policy  and  settled  principles  of 
the  law  do  not  forbid  that  the  financial  officer 
of  the  Court  should  be  permitted  to  mingle 
up  his  own  private  money  transactions  with 
those  of  his  official  trust.  I  am  of  opinion, 
that  he  did  not  pursue  the  terms  of  the  order 
in  the  investment.  He  did  not  invest  the 
Mulligan  fund,  except  in  part.    To  the  amount 

*114 
of  *a  thousand  dollars  or  more,  he  invested 
his  own  debt  or  claim  against  Mitchell,  and  to 
that  amount  retained  the  Mulligan  fund  in 
his  own  hands. 

There  may  not  have  been,  on  the  part  of  the 
Commissioner,  the  slightest  want  of  honesty 
of  purpose  in  this  transaction.  Let  that  be 
conceded.  But  that  is  not  the  question.  It 
is  necessary  that  the  financial  department 
of  the  Court  should  be  kept  pure,  and  without 
suspicion.  It  is  important  that  the  officer 
in  charge  of  it,  should  not  be  exposed  to  the 
temptation  of  making  unlawful  gain,  and 
therefore,  that  he  should  be  subject  to  rules, 
which  should  forbid  his  embarking  in  private 
speculation,  in  connection  with  affairs  of  his 
office,  however  innocent  and  lawful  such 
speculations  might  be,  if  disconnected  with 
his  oHicial  duties.  In  order  to  carry  out  this 
policy  effectually,  it  is  necessary  that  rules 
should  be  established  and  infiexibly  adhered 
to,  which  should  forbid  all  such  dealings  and 
transactions.  The  enquiry  in  such  case,  is 
not  whether  the  particular  transaction  is  fair 
and  honest.  It  may  be  a  very  corrupt  trans- 
action, and  yet  be  made  to  wear  a  very  fair 
exterior.  Such  is  the  power  of  the  officer, 
on  account  of  the  nature  of  the  trust  and 
confidence,  that  a  transaction  of  this  charac- 
ter is  difficult  to  be  probed  to  the  bottom ;  to 
say  nothing  of  that  numerous  class  of  cases, 
in  which  the  rights  of  parties  committed  to 
his  hands  might  be  grossly  injured,  without 
ever  coming  to  their  knowledge,  or  if  known, 
without  the  ability  or  energy,  on  the  part  of 
the  persons  injured,  to  seek  redress  by  ap- 
pealing to  Courts  of  justice.  To  prevent  such 
great  mischiefs,  the  law  inhibits  such  deal- 
ings altogether. 


MULI-ICJAN  V.  A\  ALLAfTE 


ni7 


I  Jim  not  aware  of  any  case  that  is  precise- 1 
ly  a  pre*  odeiit  for  tliis.     liut  I  am  satisfied  | 
tliat    it    falls   within    well    settled    principlt's  | 
and  aiialn^'ies.     A  Commissicmer  in   iMpiity. 
like  all  other  agents  and  trnstees  to  sell,  can-  j 
not  purchase  at  his  own  sale,  however  fair 
the     competition.     e<iuivalent    the    price,     or 
honest   the   transaction   in   every   particular. 
The  (thject  of  the  rule  is  to  prevent  such  pur- 
<-liases  altogether;  the  tendt-ncies  being,  (how- 
ever fair  and  honest  the  particular  transac- 

*115 
tioii.)  to  lead  to  cor*ruption  and  peculation, 
it    removes    temptiition,    l>y    withholding    all 
inducements  by  which  cuiiidity   may   be  ex- 
cited, j 
In  Com.  of  Tublic  Accounts  v.  Itose.  (1  Des.  j 
461.)  it  was  held  that  an  Attorney  lieneral,  I 
acting  for  the   State  in  a  suit  upon  a  bond 
placed    in    his    hands    for   collection,    cannot 
discharge    or    release    the    same    by    taking 
lands  or  other  property  in  payment,  the  pro-  | 
ceeds  of  which  he  applied   to  his  own  use, 
without  accounting  to  the  State.     Though  he 
had    delivered    up    the    bond    and    mortgage 
by  which  the  debt   was  secured,  the  debtor 
was  not  thereby  discharged,  but  the  original 
debtor  w-as  decreed  to  pay  the  debt.     In  the 
case  of  Latham  v.  Sarrazin,  cited  in  the  last 
mentioned  case  as  having  been  then  recently 
decided,  it  was  held  that  an  attorney  can  do 
no  act  incompatible  with  the  nature  and  end 
of  his  authority;    and  that  if  he  gives  a  dis- 
charge, or  releases  the  debt  without  receiving 
it.  his  client  would  not  be  bound  by  it. 

In  .Tannesou  v.  Forbes.  Walker  and  others. 
('.',  Des.  niiJt.)  ForlK^s,  an  attorney,  had  gotten 
possession  of  a  bond  by  assignment,  from 
\V.  II.  (iibbes,  the  Master  of  the  Court.  The 
.•issignment  was  made  to  Forbes,  not  for  his 
own  beiietit,  but  for  third  persons,  who  were 
interested  as  creditors,  and  he  assigned  it  to 
the  defendant.  Walker,  in  .satisfaction  of  his 
own  debt.  It  was  decreed  by  the  Court,  that 
the  assignment  by  Forbes  was  void,  and  the 
bond  was  enforced  against  the  obligor,  ftu- 
(he  benefit  of  the  persons  originally  interest- 
ed in  it. 

In  the  Treasurers  v.  McDowell.  (1  Hill. 
1S4  |li(J  Am.  Dec.  1661.)  it  was  held  that 
tiiougli  an  attorney  has  an  authority,  after 
.judt.'ment.  to  receive  his  dieiifs  money  from 
the  defendant  in  execution,  and  thereby  to 
discharge  the  judgment,  he  cannot  discharge 
the  judgment  by  accepting  an  indenndty,  or 
by  making  executory  contracts  in  relation  to 
his  client's  rights.  Jackson  v.  r.artlett.  (S 
Johns.  ;U>6);  Kellogg  v.  Cilbert.  (1<»  Johns. 
•JliO.) 

It  seems  to  me  that  the  foreiroing  cases 
present  strong  analogies  for  the  case  now 
before  me.  In  the  latter,  tiie  defendant,  the 
Connni.ssioner  in  Ktiuity.  was  ordered  to  in- 
vest a  certain  sum.  then  in  cash  in  his  hands. 

*116 
at  interest.     lu  the  execution  of  the  ♦order, 


he  kept  to  himself,  and  for  his  own  u.se.  a 
portion  of  tlie  fund,  and  invested  a  debt  due 
himself  on  a  note.     This,  I  have  said,  is  no 
compliance  with  the  terms  of  the  order.     It 
is  objected  to  this   view  of  the  case,  that  it 
was   the   same   tiling   substantially,    because, 
if  tlie  cash  had  been  paitl  to  Mitchell  on  the 
loan,  he  could  then  forthwith  have  handed  it 
over    to   the   defendant,    in    payment    of   his 
note,  and  the  effect  of  the  rule  would  be  to 
require  an  enipty  formality,  and  something 
to  be  done  by  indirection,  which   could   not 
be  d(uie  directly.    The  Court  would  look  with 
great  jealousy  upon  a  case  where  the  trans- 
action had  assumed  the  form  stated  in  this 
argument.     lUit  I  apprehend  it   will  not  be 
doubted,  that  if  an  attorney  were  to  satisfy 
the   claim   of  his   client,   or   the   sheriff   thai 
of  a  plaintilf  in  execution  in  his  hands,  by 
receiving  property  to  liis  own  use,  or  by  ac- 
cei)ting    in    satisfaction    his    own    debt,    the 
whole  transaction   would   be  held   void,   and 
the  original  debt  enforced — yet  the  argument 
here  urged  in  favor  of  the  defendant,  would 
apply  with  equal  force  in  the  case  supposed; 
for  there,   the  debtor  might  go  tlirough  the 
formality  of  paying  the  money  to  the  attor- 
ney, or  sheriff,  and  receiving  back  and  giv- 
ing his  own  debt,  or  other  property,  in  pay- 
ment.    In  either  case  the  objection  is  una- 
vailing.   In  the  present  instance,  that  subter- 
fuge or  contrivance  lias  not  been  resorted  to. 
If  it  had,  the  Court  would  have  looked  close- 
ly  into  the  transaction.      It  is  time  enough 
to  decide  such  a  case  when   it  arises.     The 
decree  of  the  Court  must  be  against  the  de- 
fendant, for  the  sum  of  one  thousand  dollars 
with  interest,  for  he  admits  that  he  received 
at  least  that  much  of  the  Mulligan  fund,  in 
payment  of  his  note  on  Mitchell. 

It  is  ordered  and  decn-ed.  that  the  d.^fend- 
ant  a<'count  befiu-e  the  Commissioner  of  this 
(\)urt.  for  one  thousand  dollars,  and  the  in- 
terest thereon,  so  far  as  the  same  has  not 
been  paid,  anil  that  the  I'ommissioner  rei>ort 
thereon. 

The  defiMulaiit  a|ipealeil,  on  the  following 
grounds: 

1.  r.ecause  the  Commissioner  complied 
with  the  order  of  the  Court,  in  loaning  the 
money,  and  the  decrt'c  should  have  been  for 
defendant. 

'117 

♦2.  Because  the  Commissioner  was  guilty 
of  no  omission  or  neglect  of  duty,  but  on 
the  contrary,  used  unusual  diligence  in  en- 
deavoring to  secure  the  fund. 

.'{.  Because  the  decree  should  have  con- 
formed to  the  former  order  of  the  Court,  di- 
rectiiii:  one-half  the  interest  to  be  approjiriat- 
ed  to  the  payment  of  certain  debts,  although 
the  defendant  should  be  liable. 

The  complainant  also  appealed,  on  the 
ground: 

Because,  from  the  case  made,  the  Chancel- 

47 


'117 


3  RICHARDSON'S  EQUITY  RErORTS 


lor  should  have  decreed  against  the  defend- 
ant for  the  whole  demand. 

Bobo,  for  complainants. 
Herudon,  Dawkins,  for  defendant. 

WARDLAW,  Ch.,  delivered  the  opinion  of 
the  Court. 

The  reasoning  and  authority  by  which  the 
Chancellor  has  been  conducted  to  the  conclu- 
sion, that  the  defendant  did  not  invest  the 
fund  in  question  in  conformity  to  the  order 
of  the  Court,  are  so  satisfactory,  that  addi- 
tional observations  would  add  little  to  their 
strength.  But  in  determining  the  extent  of 
defendant's  lialiility.  the  decree  does  not 
seem  to  carry  out  fully  its  owu  principles. 
To  secure  the  faithful  execution  of  his  du- 
ties, by  the  officer  having  charge  of  the 
funds  in  the  custody  of  the  Court,  it  is  in- 
dispensable that  he  should  be  held  to  such 
strict  accountability,  as  will  disable  him 
from  making  profit,  by  mixing  private  affairs 
with  his  official  functitms.  To  remove  all 
temptation  to  the  officer  to  engage  in  private 
speculations  with  trust  funds,  we  must  de- 
clare all  such  transactions  to  be  unlawful. 
This  is  a  rule,  founded  on  policy,  and  of 
general  application,  and  not  depending  upon 
the  fairness  or  fraud  of  particular  transac- 
tions. A  trustee  to  sell,  is  forbidden  to  pur- 
chase at  his  own  sale,  however  full  may  be 
the  price  he  offers,  and  however  frank  and 
honest  may  be  his  conduct;  and  so  a  trustee 
to  lend,  shall  not  make  the  loan  to  himself, 
nor  in  lending  to  another,  substitute  his  own 
'rights  and  credits"  for  the  trust  money. 
Without  meaning  to  impeach  the  honesty  of 
the  defendant  in  this  case,  it  is  proper  to 
suggest,  that  an  officer  might  be  too  readily 

*118 
in*duced  to  lend  fifteen  hundred  dollars  of 
the  fujids  of  the  Court,  upon  insufficient 
security,  if,  in  the  process,  the  temptation 
be  offered  to  him  that  he  may  cotempo- 
raneously  collect  his  owu  debt  for  $1000  from 
the  borrower.  One  great  purpose  of  estab- 
lishing, as  a  rule,  that  such  transactions  are 
unlawful,  is  to  avoid  the  necessity  of  inquiry 
into  the  circumstances  of  particular  cases. 
The  opportunities  of  evasion,  and  the  diffi- 
culty of  scrutiny,  are  so  great,  that  an  in- 
flexible rule  on  the  subject  is  a  matter  of 
necessity.  If  tlie  officer  will  mingle  his  pri- 
vate affairs  with  his  oHIcial  functions,  he 
shall  do  it  at  the  hazard  of  indemnifying 
suffering  parties  to  the  full  extent  of  then- 
loss. 

It  is  manifest  in  this  case,  that  full  jus- 
tice cannot  be  done  to  the  plaintiffs,  by  fix- 
ing the  liability  of  defendant  at  any  sum 
short  of  the  whole  amount  of  the  fund  he 
was  directed  to  invest.  The  defendant  states 
in  his  answer,  that  he  does  not  remember, 
a-id  has  no  means  of  ascertaining,  the  pre- 
cise amount  of  the  borrower's  delit  to  him. 


but  that  it  was  something  over  one  thousand 
dollars.  The  debt,  then,  was  more  than  one 
thousand  dollars,  and  why  should  defend- 
ant's liability  be  limited  to  that  sum,  or  any 
other  less  than  the  whole  amount  of  the 
fund?  The  impossibility  of  ascertaining  pre- 
cisely the  sum,  and  all  the  confusidu  on  the 
subject,  have  been  produced  by  the  official 
misconduct  of  the  defendant,  and  he  must 
pay  the  penalty. 

On  the  defendant's  third  ground  of  ap- 
peal, it  has  been  suggested  to  the  Court, 
that  by  the  original  order  of  the  Chancellor, 
dire;ting  the  sale  of  the  estate,  the  proceeds 
of  which  constitute  the  fund  in  question,  one- 
half  of  the  interest  of  the  fund  was  to  be 
appropriated  to  the  payment  of  certain  tlebts 
of  Mulligan,  until  they  were  extinguished, 
and  the  other  half  only  to  be  aiipropriated 
for  the  use  of  the  plaintiffs.  If  this  be  so, 
one-half  of  the  interest  of  the  fund  must  be 
applied  to  the  creditors,  protected  by  the 
original  order,  and  one-half  to  the  use  of  the 
plaintiffs,  until  the  interest  lawfully  accru- 
ing, would  extinguish  the  debts,  and  after- 
wards the  whole  interest  be  applied  to  the 
use  of  the  plaintiffs;  all  proper  payments 
of  interest  being  allowed. 

*119 

*It  is  ordered  and  decreed,  that  the  de- 
fendant account  with  the  plaintiffs,  before 
the  Commissioner  of  this  Court,  for  one  thou- 
sand five  hundred  and  eighty-eight  dollars 
and  seventy-seven  cents,  and  the  interest 
thereon  from  June,  1837,  on  the  principles  of 
this  decree;  and  that  the  circuit  decree  be 
modified  accordingly. 

•TOHNSTON,  DUNKIN  and  DARGAX,  CC.^ 
concurred. 

Decree  modified. 


3    Rich.  Eq.    119 

JOHN  Z.  HAMMOND  v.  JAMES  R.  AIKEN 
and  JOS.  KENNEDY. 

(Coluoibia.     Nov.   and  Dec.  Term,  1850.) 

[Assiffnments  for  Benefit  of  Creditors  €=-0S; 
Partnership  <g=:3289,  291.] 
A  firra  doing  business  in  W.  was  dissolved, 
but  uo  notice  of  the  dissolution  was  published 
in  a  newspaper;  about  the  time  of  the  dissolu- 
tion. K.,  a  member  of  the  firm,  gave  a  nute, 
ill  tlie  name  of  the  firm,  to  a  bank  at  C.,  which 
note  was,  after  the  dissolution,  renewed  by  an 
agent  acting  under  a  seak'd  power  of  attorney 
given  by  K.  in  the  name  of  the  firm;  ]icld, 
that  the  notice  of  the  dissolution  was  insufli- 
cient,  so  far  as  the  bank  at  C.  was  concerned; 
that  the  firm  were  liable  on  the  nnte,  whether- 
given  before  or  after  the  dissolution;  and  that, 
if  the  renewal  was  void,  the  bank  had  the  right 
to  recover  on  the  original  note,  which  it  had 
retained ;  held  further,  that  an  assignee  of  the 
firm,  for  the  payment  of  the  debts  thereof, 
had  properly  paid  this  debt  to  the  bank,  al- 
though   he,    the    assignee,    may    have    had    the 


48 


<£=:5For  otlaer  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbeied  Digests  and  Indexeo 


HAMMOND  V.  AIKKN' 


^122 


reciuisitc  uritice  of  tlip  dissdhition,  iiiid  tlint  the 
dt'ljt   was  oontractcd   aftt'i wards. 

[Ed.  Note— For  other  cases,  see  Assignments 
for  Benefit  of  Creditors.  Cent.  Dip.  S  STi) :  Dee. 
Dii;.  <S=:3:i<).S;  I'artnership.  Cent.  Dig.  SS  »!.")(!, 
(ir.T:    Dee.  Dig.  <S=>:iS!>.  2U\.] 

[J'(irtii(rsliii>   <C=>-S<>.1 

K.,  hefore  tlie  dissolution,  gave  his  individ- 
ual note  to  H.  &  \V..  for  another  note,  which 
he  used  for  the  benefit  of  the  tirni;  K's  note 
was  not  paid  a'  niaturit.v,  and  he  gave  a  draft 
for  the  aniouni  thereof  to  II.  &  \V. ;  the  draft 
was  pi-otcsted.  and  then  K.  after  the  di^snlut inn. 
gave  H.  iK:  \V.  a  note,  in  tiie  name  of  the  linn, 
for  the  amount  of  the  draft;  held,  that  the  firm 
were  not  liable  for  this  note ;  and  that  the  as- 
signee was  not  justified   in   paying   it. 

[Va\.  Note. — For  other  cases,  see  I'artnership, 
Cent.  Dig.  S  G4r.;    Dec.  Dig.  <©=>liS(;.] 

Before   Dargun,    Ch.,    at    Fairtiidtl,   

Term,  1S50. 

The  decree  of  his  Iliaior,  the  presiding 
Chancellor,  is  as  follows: 

Dargan,  Ch.  The  decree  of  the  Court  of 
Appeals  remanded  this  case  to  the  (Mrciiit 
Court,  only  as  to  the  two  matters,  namel.v, 
the  note,  purporting  to  he  the   note   of  the 

*120 
firm  of  Jos.  Kennedy  *&  Co.  to  the  Branch 
Bank  at  Camden,  amounting  at  its  payment 
hy  the  assignee  to  .$;!r_*.S5 ;  and  the  note,  pur- 
porting to  be  the  note  of  the  same  firm,  to 
Hazeltine  &  Walton,  amounting  at  its  pay- 
ment to  $llli!).Sl.  The  assignee.  James  K. 
Aiken,  has  paid  tliese  notes,  as  the  notes  of 
Jos.  Kennedy  «Jc  Co.,  and  claims  credit  for 
their  payment,  in  the  settlenient  of  his  ac- 
counts. By  the  comiilainant.  this  is  resisted, 
on  the  ground,  that  hy  the  terms  of  the  as- 
signment, he  was  the  assignee  only  for  the 
payment  of  the  debts  of  Jos.  Kennedy  &  Co., 
and  these  are  not  the  debts  of  Jos.  Kennedy 
&  Co.,  having  been  executed  after  the  dissolu- 
tion of  the  partner.ship. 

The  dissolution  took  place  some  time  in  the 
fore  part  of  the  year  1841.  But  the  precise 
time  is  not  satisfactorily  proved.  A.  II. 
Chambers  says,  "there  was  a  sale  of  the 
goods  of  Joseph  Kt>nnedy  «fc  Co.,  about  the 
15th  of  Fell.,  1841 ;  that  sale  was  in  pursu- 
ance of  some  advertisements  posted  up  some 
time  previous,  at  different  places  in  the  town 
of  Winnsl'orough,  in  which  the  dissolution  of 
the  firm  of  Jos.  Kennedy  &  Co.  was  made 
public."  This  is  loose.  Was  the  dissolution 
at  tliat  time  prospective,  or  liad  it  then  tak- 
en place?  Why  were  not  the  advertisements 
themselves  produced,  or  some  evidence  offer- 
ed to  prove  more  sjiecilically  their  contents? 
It  seems  certain,  that  the  business  of  the  firm 
went  on  after  the  auction  ;  for  O.  U.  Thomp- 
son says  he  "was  acting  as  clerk  tor  Jos. 
Kennedy  &  Co.,  in  the  spring  of  1841 ;  thinks 
he  left  them  about  the  i:!th  March,  1841 ; 
feels  jjretty  certain  that  the  time  is  correct. 
After  witness  left  them,  one  of  the  Mr.  Twit- 
lys,  or  probably  two  of  them,  acted  as  clerks 
for  the  firm.  Witness  thiidcs  the  Twittys  re- 
mained with  Jos.   Kennedy  &  Co.  as  clerks 


abiait  three  months.  Witness  knows  of  no 
di.ssolution  of  the  partnership,  but  that  while 
lie  was  acting  as  clerk,  there  was  an  auction 
of  goods  that  continut'd  two  da.\s.  Shortly 
after  this  auction,  witness  left  their  i-niidoy- 
ment.  There  were  gi>ods  remaining  after 
the  sale,  but  their  amount  was  im-onsldcr- 
able."  Strange,  that  there  siiould  have  been 
an  actual  diss(»lution,  and  the  acting  clerk  of 
the  house  know   nothing  about  it'.     1  shall  as- 

*121 
sunie  in   what  is  *to   follow,   that   thore  has 
been  no  actual  dissolution  .satisfactorily  prov- 
ed, prior  to  the  IL'th  of  May,  ls41. 

The  note  paid  by  the  assignee,  tlii'  prii.ci- 
pal  of  which  was  for  .^'HlO,  and  intorest  to 
the  time  of  payment  $l:J..s.j,  was  executed 
by  Ch.  J.  Shannon,  after  the  dissolution  of 
the  firm,  under  the  authority  of  a  sealed 
liower  of  attorney,  given  him  by  Joseph  Ken- 
nedy, in  the  name  of  the  firm.  This  note 
was  a  renewal  of  a  previous  ni>te,  itself  a 
renewal.  The  original  debt  to  the  liank  was 
for  .$10(X),  spcured  by  a  note  piiyable  at  six- 
ty days,  signed  by  "Jos.  Kenne<iy  &  Co.,'' 
and  dated  12th  May,  1841.  I  aui  not  satis- 
fied, as  I  have  said,  that  the  partnership  was 
dissolved  at  this  time.  The  renewals  may 
have  been  void  as  notes,  having  been  ex- 
ecuted after  the  dissolution,  and  by  an  attor- 
ney too,  who,  so  far  as  it  appears,  may  have 
been  api»ointed  by  KenncMly  after  the  dissolu- 
tion. But  if  the  renewals  were  void,  the 
bank  had  a  right  to  recover  on  the  original 
note,  (which  ir  retained,)  the  balance  that 
was  due. 

In  the  foregoing,  I  have  assumed  that  the 
original  note  to  the  bank  was  exei  utcd  be- 
fore the  dissolution  of  the  partnership.  If 
it  was  afterwards  it  could  not  have  been 
long.  Tliere  is  no  proof  that  this  firm  had 
any  previous  dealings  with  the  bank.  '  WJien 
a  i)artnership  is  dissolved,  and  one  partner, 
for  whatever  reasons,  is  no  longer  willing  to 
be  responsible  for  the  acts  of  his  co-partners, 
reason  and  justice  require  tiiat  the  world 
should  be  fully  apprisetl  of  the  dissolution  of 
their  joint  liability,  and  that  the  severance 
of  the  partnership  should  be  made  as  notori- 
ous as  the  partnership  itself  was.  Accord- 
ingly it  has  bcfu  decided,  that  particular  per- 
sons, such  as  those  having  dealings  with  the 
firm,  must  have  particular  notice,  and  the 
world  in  general  must  have  general  n.itice.  If 
suHicient  notice  is  not  given,  all  the  meiubers 
will  still  be  liable  for  contracts  made  by 
their  co-partners."  Carey  on  Tart.  182.  "No- 
tice in  the  gazette  is  sufficient  to  those  who 
have  had  no  previous  dealings  with  the 
firm."'  lb.  183.  The  same  author,  \).  185,  re- 
marks: "it  has  been  decided,  that  a  retiring 
l»artner  is  liable  after  the  lap.se  of  seven 
years  from   the  period  of  dissolution,  when 

*122 
no  notice  was  given  in  the  *gazette,  and  the 
dissolution  was  not  known  to  the  creditor. 


@=>For  other  ca-ses  see  same  topic  and  KEY-NU.MBBR  in  all  Key-Numbered  Digests  aud  Inde.\es 
3  Kich.Eq.— 4  49 


*122 


3  RICHARDSON'S  EQUITY  REPORTS 


though  generally  known  in  the  neighborhood 
where  the  business  was  carried  on." 

There  was  no  notice  whatever  of  the  dis- 
solution of  the  partnership  of  Jos.  Kennedy 
&  Co.  ever  published  in  a  newspaper.  The 
only  notice  ever  given,  was  that  mentioned 
by  the  witness,  Chambers,  as  having  been  in- 
troduced in  the  advertisement  of  sale  posted 
up  in  different  places  in  the  streets  of  Winns- 
borough.  This  may  have  been  sufficient  for 
the  general  public  of  Winnsborough.  I  am  of 
the  opinion,  that  it  is  not  sufficient  for  the 
citizens  of  Camden,  more  particularly  at  so 
early  a  period  after  the  dissolution.  I  doubt 
very  much  the  notoriety  of  this  event,  even 
in  the  community  of  Winnsborough ;  for  of 
all  the  witnesses  examined,  there  was  but 
one  who  speaks  of  their  having  been  a  dis- 
solution at  that  time.  It  was  a  fact  not 
even  known  to  the  principal  clerk  of  the 
house. 

If  the  payee  of  this  note,  from  the  want 
of  notice  of  the  dissolution,  could  have  recov- 
ered against  the  partnership,  the  assignee  was 
justified  in  paying  it,  and  must  have  credit 
for  the  payment,  though  he  may  himself 
have  had  the  requisite  notice  of  the  dissolu- 
tion, and  that  the  debt  was  contracted  after- 
wards. This  was  the  opinion  of  the  Court  of 
Appeals,  as  expressed  in  its  decree  in  this 
case.  So  much  of  the  complainant's'  first  ex- 
ception, as  relates  to  the  debt  due  to  the 
branch  bank  at  Camden,  is  overruled. 

The  debt  due  Hazeltine  &  Walton  stands 
upon  a  different  footing.  That  debt  unques- 
tionably did  not  stand  in  the  name  of  the 
firm  until  after  the  dissolution.  The  history 
of  the  transaction  is  as  follows:  one  J.  H. 
Propst  held  a  note  on  J.  &  J.  Nelson,  for 
$890.  About  the  13th  of  February,  1841,  he 
transferred  this  note  to  Kennedy ;  who,  in 
consideration  thereof,  gave  him  a  note,  at 
60  days,  payable  at  the  Commercial  Bank,  to 
Hazeltine  &  Walton.  This  note  was,  at  its 
maturity,  protested  by  the  bank  for  non  pay- 
ment. Kennedy  made  an  arrangement  with 
Haseltine  &  Walton,  by  which  he  took  up  his 
note,  and  gave  them  for  the  amount  thereof, 

*123 
a  draft,  at  60  days,  *on  Shannon  &  McGee. 
This  draft  was  also  protested.  And  Kennedy 
remained  the  individual  debtor  of  Hazeltine 
&  Walton.  In  satisfaction  of  the  draft  upon 
Shannon  &  McGee,  Kennedy,  after  the  dissolu- 
tion of  the  partnership,  executed  the  note  to 
Hazeltine  &  Walton,  in  the  name  of  "Jos- 
eph Kennedy  &  Co."  The  note  was  endorsed 
by  James  R.  Aiken  and  J.  J,  Myers. 

In  regard  to  this  debt,  no  credit  was  giv- 
en in  its  inception,  to  the  firm  of  Joseph 
Kennedy  &  Co.  Nor  was  any  such  credit 
given  in  any  of  the  changes,  or  renewals, 
which  it  underwent,  until  the  last.  And  in 
that  transaction,  Hazeltine  &  Walton,  the 
payees  of  the  note,  took  it  from  Kennedy,  as 
a  partnership  note,  knowing  that  it  was  Ihe 
individual  debt  of  Kennedy,  upon  which  the 
50 


partnership  was  not  liable.  They  have  no 
ground  to  complain  of  the  want  of  notice  of 
the  dissolution,  when  they  knew  that  the 
debt  for  which  they  took  the  partnership 
note,  was  not  a  partnership  liability.  Nor 
does  it  appear  that  there  were  any  dealings 
whatever,  between  the  payees  of  this  note, 
and  the  firm  of  Joseph  Kennedy  &  Co.  For 
a  creditor  of  an  individual  member  of  a  part- 
nership, to  take  from  his  debtor  a  note  in 
the  name  of  the  firm,  without  their  consent 
or  knowledge,  is  a  fraud  upon  the  other 
members.  And  though  such  note,  if  taken 
during  the  continuance  of  the  firm,  and 
transferred  to  a  third  party  without  notice, 
may  be  binding  upon  the  firm,  such  is  not  the 
case  where  the  question  is  between  the 
firm  and  the  payee. 

The  note  of  J.  &  J.  Nelson,  for  which  this 
debt  was  originally  contracted,  was  devoted 
to  partnership  purposes.  It  was  transferred 
by  Kennedy  to  Trenholm  &  Tomlinson,  in 
part  payment  of  a  bill  of  goods,  furnished  by 
them  to  Jos.  Kennedy  &  Co.  It  is  urged,  that 
because  the  consideration  of  the  note  went  to 
the  use  of  the  firm,  they  ought  to  be  liable. 
There  is  no  ground  for  any  such  conclusion. 
The  credit  was  given  to  Kennedy  individu- 
ally, and  he  gave  the  credit  by  advancing 
his  own  funds  to  this  extent,  in  paying  the 
debts  of  the  company.  There  is  no  equity 
for  a   subrogation.     And  if  there  was,   the 

*124 
subrogation  *could  be  only  to  the  rights  of 
Kennedy.  His  rights  depend  upon  a  settle- 
ment of  the  accounts,  and  the  closing  of  the 
balance  sheet.  If  on  accounting,  he  falls  in 
debt,  or  the  whole  capital  has  been  absorbed 
in  losses,  he  has  no  rights  in  the  property  of 
the  firm.  The  account  has  not  been  taken. 
And  for  all  that  I  know,  in  advancing,  for 
the  use  of  the  company,  the  note  of  J.  & 
J.  Nelson,  he  may  have  been  discharging 
but  a  small  part  of  his  obligations  to  the 
firm.  This  part  of  the  first  exception  is  sus- 
tained, and  the  Commissioner's  report  in 
that  regard  is  confirmed. 

The  defendant,  James  R.  Aiken,  appealed, 
and  moved  the  Court  of  Appeals  to  reverse 
the  decree  so  far  as  regards  the  Hazeltine 
&  Walton  claim ;  and  failing  in  that,  so 
to  modify  the  same,  as  to  reserve  or  suspend 
the  final  adjudication  of  the  Court  upon  the 
said  claim,  until  the  accounting  be  had  be- 
tween the  complainant  and  Joseph  Kennedy, 
the  defendant. 

The  complainant  api>ealed  from  so  much  of 
the  decree  as  over-ruled  his  exception,  on 
the  grounds: 

1.  Because  the  branch  bank  at  Camden 
could  not  in  law  have  recovered  judgment 
against  complainant  on  the  note  they  held 
signed  by  Joseph  Kennedy,  in  name  of  Jo- 
seph Kennedy  &  Co.,  and  therefore  the  pay- 
ment of  said  note,  by  defendant  Aiken,  was 
unauthorized. 

2.  Because,   under  the  facts  of  the  case, 


LESLY  V.  COLLIER 


♦127 


tlio  coniiilainnTit  was  not  liaMe  to  the  liaiik 
nil  siiid  note,  and  the  iiaynient  hy  Aikon  was 
(niauthorized. 

(VioUe,  Mc-Dowall  and  I?oylston,  for  de- 
fendants. 

Kuthind,   Boyce,  for  coinplainant. 

DARGAX,  Ch.,  delivered  tin-  ..pininn  of  the 
Court. 

Tills  Court  is  satisfied  with  tlu'  decree  of 
the  Chaneellor  who  tried  the  ease  on  the  Cir- 
<  nit.  And  it  is  not  de«Mned  neeessary  to  add 
any  thiny  to  what  is  .said  in  the  Circuit  de- 
cree, in  rej,'ard  to  the  questions  therein  tli.s- 
cussed.  If.  on  the  final  adjustment  of  the  ae- 
count.s  of  Joseph  Kennedy,  with  the  firm  of 
Joseph    Kennedy    &    Co.,    it    should    appear 

*125 
that  the  said  Joseph  Kennedy  *is  entitled  to 
any  tiiinj;,  as  a  halance  due  him,  arising  on 
the  effects  and  assets  of  the  said  firm,  in 
the  liands  of  James  II.  Aiken,  the  assi;rnee, 
the  Circuit  decree  does  not  conclude,  nor 
does  this  Court  intend  to  conclude,  the  said 
.lames  H.  Aiken  from  using  the  delit  of  Hazel- 
tine  &  Walton,  which  he  has  paid,  as  a  dis- 
count, or  set  oft',  against  any  halance  that 
may  be  found  due  to  Joseph  Kennedy,  on 
the  settlement  of  his  accounts,  in  manner 
as   aforesaid. 

It  is  ordered  and  decreed,  that  the  Cir- 
cuit decree  be  afiirmed,  and  the  api^eals  dis- 
missed. 

JOHNSTON    and    DUNKIN,    CC,    concur- 
red. 
Appeals    dismissed. 


3    Rich.  Eq.    125 

DAVID  LESLY,  Ordinary  nf  Al.l.cville.  v, 

WILLLVM  E.  COLLIER  and  Otlu-rs. 

(Colunil)ia.      Nov.   and   Dec.   Term,   1,S">0.) 

\l'crpctuiti(s  C=^4:     Wills  C==>S.~>2.| 

Testator  lnMiiicatlu'd  as  follows;  "I  give 
and  lic(|iu'atli  unto  P.  C,  and  in  tlie  event  of  his 
dynii,'  without  issue,  to  no  to  his  blood  rela- 
tions, the  following  negroes."  ike.  V.  C.  died, 
without  issue,  in  the  life-time  of  testator  ;  Held 
(li  that  it  was  not  the  iiitcMtion  of  testator 
that  the  "blood  relation.s"  should  take  as  the 
substitutes,  or  alternates  of  I'.  C,  in  the  event 
of  his  (lying,  in  the  lifetime  of  testator,  with- 
out issue:  tl')  that  test.itor  intended  a  limita- 
tion over  to  the  "blood  reliitions"  ;  Cti  that  siii'h 
liiriitation  over  was  too  remote;  and  (It  that 
by  the  death  of  V.  C,  in  the  life-time  of  testa- 
tor,  the   legacy  lapsed. 

I  Ed.  Note.— Cited  in  Clark  v.  Clark.  11)  S.  C. 
.•;4!l;  Key  v.  Weathersbee.  4P,  S.  C.  424,  21  S. 
E.  :V24,  4!»  Am.  St.  Iteii.  S4(). 

Eor  other  eases,  see  reipetnities.  Cent.  Dig. 
S  27;  Dec.  Dig.  Oi=>4 ;  Wills,  Cent.  Dig.  § 
21(;7;    Dec.  Dig.  <C=3.s.-,2.| 

Hefore  Caldwell,  Ch.,  at  Chambers.  Charles- 
ton,  Jairy,   ISoO. 

Caldwell,  Ch.  Edward  Collier  died  on 
the  7th  of  May,  1S4S,  leaving  his  last  will 
and    testament,    dated    2;{rd    of    Aug.,    18o7. 


liy  the  tenth  clause  he  hequeatheil  as  fol- 
lows: "I  give  and  bi^iueath  to  Patrick  Hen- 
ry Collier,  son  of  the  said  Sarah  Collier,  and 
in  the  event  of  his  dying  without  issue,  to  go 
lo  his  bliKxl  relatiiuis,  the  following  negroes: 
Alfrnl.  Satyra.  and  Eineliiie,  child  of  liet- 
sey,  with  all  their  increase."'  ratri<-k  Hen- 
ry Collier  died,  without  •  issue,  in  the  life- 
time of  the  testator,  leaving  his   mother   Sa- 

♦126 
rah  ♦Collier,  and  his  brothers,  James  G. 
C»>llier  and  William  E.  Collier,  and  his  sis- 
ters. Mariali,  (who  intermarried  with  J.  H. 
Hart.)  and  Lucinda,  (who  intermariieil  with 
A.  B.  Elliott,)  his  distributees;  the  mother 
has  since  died,  and  the  bndhers  and  sisters 
are  his  ne.xt  of  kin.  The  first  question  is, 
has  the  legacy  Iap.sedV  The  exiH-'Ution  of  a 
will  conveys  no  interest  or  estate  in  preseii- 
ti,  and  derives  all  its  efiicacy  from  the  death 
of  the  testator;  during  his  lifetime,  he  may 
alter,  amend  or  destroy  it;  and  from  its  am- 
bulatory nature,  the  doctrine  of  lai>se  neces- 
sarily arises  and  extends  its  eftects  to  be- 
tpiests  and  devises  with  or  without  limita- 
tion. When  the  legatee  dies  in  the  lifetime 
of  the  testator,  the  legacy  lapses.  Otir  stat- 
ute relaxes  this  stringent  rule  of  the  com- 
mon law  in  the  ca.se  of  a  child,  (dying  in  the 
lifetime  of  a  father  or  mother.)  leaving  is- 
sue not  e<iually  portioned  with  the  other 
children  of  the  father  or  mother  when  liv- 
ing; this  exception  cannot  exempt  the  b>g- 
acy  from  lapsing.  If  I'atrick  Henry  Collier 
had  survived  testator,  what  estate  would 
he  have  taken  under  the  will?  There  is  no 
direct  gift  to  his  i.s.sue ;  nor  do  the  terms 
of  the  will  tie  up  the  generality  of  the  ex- 
pression, "in  the  event  of  his  dying  without 
issue"  to  a  definite  period,  or  sin-cify  a  par- 
ticular class  t>f  issue  that  must  come  into 
esse  within  a  life  or  lives  in  being,  so  that 
the  words  have  all  of  the  characteristics  of 
an  indefinite  failure  of  issue.  To  give  the 
fullest  eft"ect  to  the  untechnical  f(>rm  of  the 
phrase,  that  the  legatee  would  take  an  in- 
terest in  the  property,  defi'asable  on  the  con- 
tingency of  his  dying  without  issiu'  in  the 
first,  second  or  some  more  remote  geiiera- 
ti(»n.  whenever  this  incident  luippened  th^ 
blood  relations  would  come  in.  If  this  was 
the  intention  of  the  testator,  the  words  he 
has  used  are  in  contraventicui  of  the  well 
e.stablished  rules  of  the  law,  and  caiuiot  be 
liermitted  to  prevail.  Croat  variety  of  ex- 
l)ression  has  been  u.sed  in  the  different  wills 
that  have  been  subjected  to  the  construction 
of  the  courts,  and  it  would  be  utterly  un- 
safe to  adopt  the  popular,  instead  of  the 
legal  interpretation  of  the  wonls  (tf  the  will. 
When  personal  property  is  liniit<'d  over,  if 
the  first  taker  "dies  without  issue,"  or  if  be 

*127 
"has  no  issue,"  or  if  he  *dit's  "beftire  he  has 
any  i.ssue,"  or  "in  default  or  want  of  issue," 
&c.    all    these   cases    are    clearly    within   the 


G=>For  other  cases  see  same  topic  and  KEV-NUMBEK  iu  all  Key-Numbered  Uigesls  aud  Indexes 


51 


*127 


3  RICHARDSON'S  EQUITY  REPORTS 


rule  of  being  too  remote:  the  extinction  of 
issue  not  being  restricted  to  any  piirticnlar 
point  of  time,  or  the  limitation  not  being 
confined  to  a  class  of  persons  designated 
with  certainty,  and  who  must  come  into  be- 
ing within  the  prescribed  period,  will  ren- 
der the  limitation  obnoxious  to  a  general  and 
indefinite  failure  of  issue.  The  only  two 
exceptions  to  the  general  rule  are,  when  the 
testator  having  no  issue,  devises  his  prop- 
erty on  failure  of  his  own  issue:  this  clear- 
ly indicates  that  he  intends  to  make  the  leg- 
acy contingent  on  the  event  of  his  leaving 
no  issue  surviving  him,  and  that  he  does 
not  contemplate  an  extinction  of  issue  at 
any  time,  (2  Fearne,  271,  Smith's  ed.)  ;  and 
the  other  exception  arises  when  the  testa- 
tor uses  the  expression  (or  what  is  equiva- 
lent to  it)  "leaving  no  issue." 

Independently  of  argument  in  the  abstract, 
this  case  has  been  settled  by  numerous  well 
considered  cases  in  England  and  in  this 
State.  AVhere  a  testator  gave  all  his  real 
and  personal  estate  to  A  and  his  male  issue ; 
for  want  of  such  issue  after  him,  to  B  and 
his  male  issue — Sir  William  Grant,  the  Mas- 
ter of  the  Rolls,  held  that  A  took  the  absolute 
interest  in  the  personal  estate,  Donn  v.  Pen- 
ny, (1  Mer.  20) ;  and,  in  a  more  recent  case, 
his  successor,  Lord  Langdale,  held,  w^hen  a 
testator  gave  £500  stock  to  S,  T  to  receive  the 
interest  during  life  and  then  to  her  issue, 
but  in  case  of  her  death  without  issue,  the 
£500  to  be  divided  between,  &c. ;  she  died 
without  issue — that  the  limitation  over  was 
void  for  remoteness,  and  she  took  an  ab- 
solute interest  under  the  first  words.  Attor- 
ney General  v.  Bright,  (2  Keen,  57.)  The  case 
of  Massey  v.  Hudson.  (2  Mer.  138,)  is  strong- 
ly illustrative  of  the  same  principle.  Many 
of  our  own  cases  have  settled  the  same 
point ;  I  shall  rely  upon  two — Dunlap  v. 
Dunlap,  (4  Des.  313,)  and  Postell  v.  Postell, 
<Bail.  Eq.  300)— the  latter  is  on  all  fours 
with  the  case  under  consideration  ;  there  the 
bequest  was  to  two  brothers,  ''to  them  and 
their  legal  issue,  and  should  either  die  with- 

*128 
out  lawful  issue,  the  *said  property  to  revert 
back  to  the  surviving  brother  or  his  lawful 
issue." 

I  am  of  opinion  the  legacy  lapses,  and  it  is, 
therefore,  ordered  and  adjudged  that  the  said 
negroes  in  the  tenth  clause,  and  their  issue, 
have  lapsed  by  the  death  of  I'atrick  Henry 
Collier,  and  the  same  is,  under  said  clause, 
intestate  property  of  the  testator ;  and  it  is 
ordered  that  David  Lesly,  Ordinary  of  Ab- 
beville district,  do  administer  the  said  prop- 
erty according  to  law. 

The  defendants  appealed,  and  moved  the 
reversal  of  Chancellor  Caldwell's  decree,  on 
the  grounds, 

1.  That  the  legacy  is  not  lapsed. 

2.  That  the  limitation  in  question  is  not 
too  remote,  uncertain,  nor  after  an  indefinite 
failure  of  issue. 

52 


3.  That  the  legacy,  according  to  circum- 
stances at  testator's  death,  was  direct,  abso- 
lute, and  unconnected  with  any  limitation, 
and  should  have  been  so  declared. 

4.  That  the  obvious  intention  of  testator 
was,  to  give  to  a  class,  and  that  the  same 
construction  should  have  been  applied  to  the 
item  in  question,  as  would  be  to  other  un(pies- 
tionably  good  bequests  to  others  of  the  class. 

Petigru,  Thomson  &  Fair,  for  appellants. 
McGowen,  contra. 

DARGAN,  Ch.,  delivered  the  opinion  of  the 
Court. 

On  this  appeal,  two  questions  have  been 
discussed.  It  has  been  argued  in  the  first 
place,  that  the  legacy  to  Patrick  Collier  did 
not  lapse  in  consequence  of  his  death  before 
the  testator,  because  the  limitation  over  to 
Patrick  Collier's  blood  relations,  in  the  event 
of  his  dying  without  issue,  is  not  too  remd'te 
and  uncertain,  nor  after  an  indefinite  failure 
of  issue ;  and  that  on  the  death  of  the  tes- 
tator, the  limitation  over  to  his  blood  rela- 
tions took  effect  in  favor  of  the  persons  who 
could  bring  themselves  within  that  descrip- 
tion.   This  is  the  appellant's  first  proposition. 

If  there  be  a  legacy  to  one,  for  life,  with 
remainder  to  another,  which  remainder,  on 
the  death  of  the  testator,  would  be  direct  and 
vested,  and  not  contingent,  and  the  person  in- 

*129 
tended  to  be  *the  tenant  for  life  dies  in  the 
lifetime  of  the  testator,  I  think  it  cannot  be 
doubted  that,  in  such  case,  the  legacy  does 
not  lapse,  but  on  the  death  of  the  testator, 
goes  at  once  to  him  who,  in  the  scheme  of  the 
legacy,  was  intended  to  be  only  a  remainder- 
man. And  it  may  be  true,  that  a  limitation 
over  in  favor  of  "blood  relations,"  as  a  class, 
might  be  valid  and  effectual,  provided  it  was 
conformable  with  all  the  rules  which  the  \a\v 
has  prescribed  against  the  creation  of  per- 
petuities. But,  conceding  that  the  limitation 
over  (in  this  case)  in  favor  of  the  first  taker's 
blood  relations,  was  not  too  remote  in  cou- 
se(pience  of  its  being  after  an  indefinite  fail- 
ure of  issue,  it  would  have  been,  (if  the  first 
taker  had  survived  the  testator,)  a  contingent 
limitation,  and  not  a  vested  remainder.  It 
would  have  been  contingent  upon  the  event 
of  the  first  taker's  dying  without  issue  living 
at  the  time  of  his  death.  And  if  this  condi- 
tion had  not  happened,  the  first  taker  would 
have  had  an  absolute  estate,  and  the  limita- 
tion would  have  been  gone  foi-ever.  And  I 
am  not  prepared  to  admit  that,  where  a 
legacy  is  given  to  one,  with  a  valid  but  con- 
tingent limitation  over,  and  the  legatee  dies 
in  the  lifetime  of  the  testator,  the  legacy 
does  not  lapse.  It  is  unnecessary  for  me  fur- 
ther to  develope  these  views,  or  to  sustain 
them  by  authority  or  illustration,  as  they 
are  not  immediately  involved  in  the  question 
which  the  Court  deems  it  incumbent  upon  it 
to   decide.     For,  as   to  the  question  of  the 


LESLY  V.  COLLIER 


»13i 


llmiration,  tho  Court  is  of  th«'  oiiinion.  that 
tho  liini.jitioii  (if  oiu-  was  infiMi(l*Ml>  is  after 
the  iiidefiiiite  failure  of  issue,  aiul,  therefore, 
void  for  Iieinu'  too  remote.  Iiid»'«Ml,  it  seems 
to  me  tliat  tliis  construction  is  too  clear  for 
discussion. 

The  second  i)roiiosilion  submitted  to  the 
Court  on  this  appeal  is  this— that  the  benefit 
intended  by  the  testator  to  Tatrick  Collier's 
l>lt»od  relations,  was  not  to  be  enjoyed  l)y 
them  in  succession  to  I'atrick  Collier,  or  aft- 
er the  efliux  of  any  estate  to  him  or  his' 
issue ;  but  was  a  direct  estate  to  them,  as  a 
substitutional  or  alternative  legacy,  jiiven  to 
tliem  as  a  class,  in  the  event  of  the  death  of 
I'atrick  Collier  without  issue  in  tlie  lifetime 
of  the  testator.  The  corollary  of  this  propo- 
*130 


sit  ion.  namely— that  nhe  legacy  has  not  laps- 
ed, is  perfectly  legitimate,  if  the  principal 
liroiiosition  has  been  sustained. 

It  is  perfectly  clear  that  this  i>osition  is 
entirely  inconsistent  with  the  first  grouml 
as.sumed.  that  there  was  a  valid  limitation. 
Hoth  cannot  be  true.  This,  however,  is  no 
saHsfactory  solution  of  either  question. 

If  a  testator  gives  a  legacy  to  one,  either 
aiisolutely  or  with  limitations,  and  declares 
that  if  the  Jirst  named  legatee  should  die  in 
his  lifetime,  the  sauje  legacy  should  go  to 
another  person,  or  to  a  clearly  designated 
<lass  of  persons,  capable  of  being  identitied ; 
and  the  first  of  the  alternative  k'gatees 
should  die  in  the  lifetime  of  the  testator,  un- 
<loul)tedly  this  Is  a  case  in  which  there  would 
Lie  no  lapse.  The  legacy  to  the  second  alter- 
native legatee  would  take  effect  as  a  sub- 
stantive legacy;  directly,  and  not  in  succes- 
sion to  the  first  named  or  iireferred  legatee. 
And  if  such  were  the  intention  of  the  testa- 
tor, clearly  to  be  inferred  from  the  whole 
will  by  a  fair  construction,  though  not  ex- 
presst'd  in  formal  language  to  rhat  effect, 
such  intention  would  be  respected,  and  efiica- 
cy  given  to  it  by  the  decree  of  the  Court.  In 
the  foregoing  remarks,  I  have  admitted  in 
the  broadest  terms,  the  legal  principles  upon 
which  the  .second  ground  discu.ssed  on  this 
appeal  is  ba.sed. 

Hut  the  Court  perceives  nothing  in  the 
will  of  Edward  Collier,  to  which  tbest-  uii- 
rpiestionable  legal  principles  will  apjily.  Ac- 
cording to  the  con.struction  which  the  Court 
has  given  to  the  will,  there  is  no  intention 
on  the  part  of  the  testator,  indicated  either 
directly  or  by  implication,  to  apiioint  the 
cla.ss  of  per.sons  called  the  blood  relations  of 
I'atrick  Collier,  as  a  .substitute  for  hnn.  in 
the  event  that  he  should  die  in  the  lifetime  of 
tlK>  testator.  The  clause  in  (luestion  is  as 
follow.s.  "I  give  and  bequeath  to  Patrick 
Henry  Collier,  .scm  of  the  said  Sarah  Collier, 
iind  in  the  event  of  his  dying  without  i.s.sue. 
to  go  to  his  blood  relations,  the  followln:.'  ne- 
groes," namely,  &c.  The  Court  perceives  in 
this,  nothing  but  a  common  and  fruitless  at- 


■  tempt  to  create  a  limitation  in  favor  of  the 
l)lood  relation.s,  which  is  ineffectual  from  an 
ignorance  or  misa]»preliension  of  those  well 

•131 
♦defined  legal  boundaries,  by  which  that  spe- 
cies «>f  estate  or  interest  in  property  is  re- 
stricted. Suppo.se  the  clau.se  had  read  thus: 
— "I  give  and  be<iueath  to  Patrick  Collier, 
the  following  negroes,  namely."  &c.  -and  in 
the  event  of  his  dying  without  issue,  the 
said  negroes  to  go  to  his  blood  relations." 
On  the  con.struction  of  such  a  clau.se,  could 
there  be  a  doul»tV  'Hie  transposition  of  the 
words  in  which  the  blood  relations  are  men- 
tioned, from  tlje  parenthetical  form,  does  not 
vary  the  plain  sense  and  meaning  of  the 
clause. 

To  adopt  the  construction  contended  for 
by  the  api)ellant.s,  the  copulative  conjunction 
which  stands  in  the  way.  mu.st  be  removed. 
The  Court  would  have  no  difficulty  in  chang- 
ing the  copulative  into  the  di.sjunctive  form 
of  exi»ression,  and  e  con  verso,  where  it  i^5 
neces.sary  to  effectuate  the  intention  of  the 
testator.  But  to  authorize  the  Court  to  take 
such  liberties  with  a  will,  the  intention  mu.st 
be  manifest.  It  is  done  in  the  constructitin 
of  wills,  to  jirevent  the  clear  intention  of 
the  testator  from  being  defeated.  It  will  not 
be  done  to  carry  into  effect  a  conjectural 
intention,  however  plausible  such  construc- 
tion may  be. 

It  is  to  be  remarked  in  this  ca.se,  that  the 
testator  gives  nothing  to  the  i.ssue  of  I'atrick. 
There  is  no  limitation  to  them,  contingent 
or  otherwise.  If  Patrick  had  died  in  tlie 
lifetime  of  the  testator  leaving  issue,  by  the 
terms  of  this  will  such  issue  could  not  take. 
The  word  issue  here,  is  a  word  of  limitation, 
and  not  of  purchase.  There  is  nothing  giv- 
en to  I'atrick's  issue  as  such,  and  if  there 
were,  there  is  nothing  to  limit  the  generality 
of  that  form  of  expression.  If  I'atrick  had 
died  in  the  lifetime  of  the  testator,  leaving 
issue,  there  being  nothing  given  to  them  as 
I)urcha.sers,  the  legacy  would  have  lap.sed ; 
for,  according  to  the  ai.pellanfs  own  con- 
struction, the  blood  relations  were  not  tt» 
take,  unless  Patrick  should  die  in  the  tes- 
tator's lifetime  without  issue.  The  testat«)r. 
therefore,  could  not  have  intended  the  blood 
relations  as  the  sub.stitutes  or  alternates  of 
I'atrick:  for,  by  legal  construction,  he  nuist 
be  considered  as  having  intended  a  lai.se. 
in  the  event  of  Patrick's  dying,  leaving  is- 
sue, in  his  lifetime. 

♦132 
♦If  the  words  of  the  bequest  had  been 
these:— "I  give  and  be(|ueatii  to  Patrick,  and 
in  the  event  of  his  death  to  go  to  his  blood 
relation.s,"  &c.  onutting  the  mention  and 
rondition  of  Patrick's  dying  without  issue, 
there  would  have  been  strong  reasons  and 
high  authority  for  the  construction  that 
would  give  the  property  to  the  blood  relations 
IS  the  alternates  or  .sub.stitutes  of  Patrick. 
But  the  unfriendly  interposition  of  the  words 

53 


*132 


3  RICHARDSON'S  EQUITY  REPORTS 


relating  to  Patrick's  issue  spoils  this  con- 
struction, and  renders  inapplicable  the  au- 
thorities cited.  The  strongest  of  them  in  sup- 
port of  the  appellants'  construction,  Galland 
V.  Leonard,  (1  Swans.  161)  is  an  anomalous 
case,  and  appears  to  have  been  decided  with 
reference  to  its  peculiar  circumstances.  An 
interpretation  was  given  to  the  will  to  re- 
concile direct  and  palpable  inconsistencies, 
and  to  harmonize  its  conflicting  provisions. 
In  these  provisions  there  was  much  com- 
plexity, and  the  testator's  meaning  was  care- 
fully gleaned  from  the  whole.  The  case  is 
not  considered  as  furnishing  a  parallel  to 
this. 

It  is  ordered  and  decreed  that  the  appeal 
be  dismissed,  and  the  circuit  decree  be  af- 
firmed. 

JOHNSTON,    DUNKIN    and   WARDLAW, 
CC.  concurred. 
Appeal  dismissed. 


3   Rich.  Eq.   132 
EDMUND  ATCHESON  and  Others  v.  DOUG- 
LAS ROBERTSON  and  .JOHN  HILL. 
(Columbia.     Nov.   and  Dec.  Term,  IS-jO.) 
[Executors   and   Administrators  <^=^125.'\ 

Testator  directed  his  two  executors  to  sell 
his  slaves,  prescribing  the  manner  of  sale;  the 
executors,  finding  the  manner  prescribed  im- 
practicable, and  the  necessity  of  a  sale  being 
manifest,  sold  in  a  different  manner;  they  botli 
signed  the  sale-bill,  which  was  returned  by 
them  to  the  ordinary ;  J.  R.,  one  of  the  ex- 
ecutors, took  the  larger  portion  of  the  notes 
given  for  the  credit  portion  of  the  sale,  and  kept 
the  whole  of  them  for  about  five  months,  wlien 
he  turned  over  about  one-half  to  his  co-executor, 
D.  R. ;  a  few  ysars  afterwards  J.  R.  died  in- 
solvent, having  wasted  the  assets  retained  by 
him ;  Held  thai  D.  R.  was  not  liable  for  the 
devastavit  of  J.  R. 

[Ed.  Note.— Cited  in  Clarke  v.  Jenkins,  3 
Rich.  Eq.  341;  Miller  v.  SHgh,  10  Rich.  Eq. 
249,  250 ;  Gates  v.  Whetstone,  8  S.  C.  247,  2S 
Am.  Rep.  284;  Tompkins  v.  Tompkins,  IS  S. 
C.  21. 

For  other  cases,  see  Executors  and  Adminis- 
trators,  Cent.  Dig.  §  512;    Dec.   Dig.  <©=>125.] 

*133 

*Before  Johnston,  Ch.,  at  Edgefield,  June, 
1850. 

The  decree  of  his  Honor,  tbe  presiding 
Chancellor,  is  as  follows : 

Johnston,  Ch.  William  Robertson  made 
his  will  on  17th  Septend)er,  1840,  and  ap- 
pointed as  executors  thereof,  his  nephews, 
James  Robertson  and  Douglas  Robertson, 
who  were  cousins ;  and  he  died  in  May,  1841. 
On  7th  June,  1841,  the  will  was  admitted  to 
prubate,  and  both  executors  qualified.  On 
24th  November,  1841,  the  executors  concurred 
in  a  sale  of  the  personalty,  for  the  aggregate 
sum  of  $9,40j.24,  and  both  signed  the  sale-' 
bill  and  were  present  when  it  was  returned 
to  the  ordinary,  on  2d  May,  1842 ;  but  all 
their    subsequent    returns    to    the    ordinary, 


were  separate.  Whether  they  joined  in  the- 
clerical  act  of  taking  from  the  purchasers'. 
at  the  sale,  the  securities  for  the  purchases, 
is  not  clear  by  the  proof,  nor  important ; 
but  my  conclusion  from  the  evidence  is,  that 
James  Robertson  took  the  larger  portion  of 
the  securities,  and  kept  the  whole  of  them 
in  his  possession  from  the  time  they  were 
taken  until  23d  April,  1842,  when  he  deliver- 
ed over  some  of  them,  to  the  sum  of  .$4,739.5.3^ 
to  his  co-executor,  Douglas.  James  Robert- 
son was  older  than  his  co-executor,  and  a 
more  expert  man  in  business,  and  enjoyed 
the  intimacy  and  confidence  of  his  testator ; 
and,  until  about  a  year  before  his  death, 
which  happened  about  the  close  of  the  year 
1847,  he  maintained  good  credit  with  the  com- 
munity, but,  as  the  event  lias  shown,  he 
wasted  the  assets  of  his  testator,  and  died 
insolvent,  and  may  have  been  insolvent  from 
the  time  of  his  appointment.  On  (ith  Septem- 
ber, 1847,  Douglas  Robertson,  who  seems  by 
the  evidence  to  have  been  recently  informed 
of  the  pecuniary  condition  of  his  co-executor,, 
took  from  the  said  James  Itobertson  a  mort- 
gage of  certain  negroes,  to  secure  himself 
from  the  consequences  of  any  maladministra- 
tion by  said  James. 

The  bill  is  filed  by  plaintiffs,  as  residuary 
legatees  of  said  William  Robertson,  against 

*134 

Douglas  Robertson,  surviving  exe*cutor,  and 
John  Hill,  representative  of  James  Robert- 
son, the  deceased  executor,  for  an  account 
and  settlement  of  the  estate  of  the  testator ; 
but  the  only  question  presented  for  my  de- 
cision now,  is  whether  Douglas  Robertson  is 
liable  for  the  devastavit  of  his  co-executor. 

The  general  doctrine  is,  that  one  executor 
is  not  liable  for  the  acts  of  his  co-executor ; 
and  I  see  nothing  in  this  case,  by  which 
Douglas  Robertson  has  adopted  as  his  own 
any  unlawful  act  of  his  co-executor.  He  has 
done  nothing  by  which  he  enabled  James  Rob- 
ertson to  obtain  possession  and  control  of 
any  assets  of  the  testator,  previously  within 
the  actual  power  of  him,  the  said  Douglas; 
he  has  been  merely  passive ;  and  without 
more  active  concurrence  in  the  acts  of  his 
co-executor,  I  find  neither  principle  nor  au- 
thority, upon  which  I  can  make  liini  liable 
for  assets  not  within  his  control,  and  for 
which  he  had  not,  by  some  act  of  his  own,, 
made  himself  chargeable.  In  my  judgment^ 
Douglas  Robertson  is  liable  only  for  the  as- 
sets delivered  to  him  by  James  Robertson. 

It  was  argued,  that  the  power  to  sell,  con- 
ferred by  the  will  in  this  case,  upon  the 
executors,  was  conditional  only,  and  that 
the  state  of  facts  justifying  the  sale  was  not 
proved  to  exist,  and  that  the  sale  was  there- 
fore an  unhnvful  act,  in  which  Douglas  con- 
curred. But  it  was  within  the  discretioi> 
of  the  executors,  and  it  is  not  for  the  plain- 
tiff's to  determine  upon  the  existence  of  the 


54 


®=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  ail  Key-Numbeied  Digests  and  Indexes 


ATCIIESON  V.  ROBERTSON 


*r.6 


slate  of  facts  upon  whirh  tlie  power  to  sell 
was  coiifernHl. 

Of  course  the  iiiort;.'a;ii>,  aliovo  niciitioiHMl. 
froui  James  Rohertsoii  to  Douglas  Uoliert- 
son,  MMist  be  allowed  to  avail  so  far  as  it 
may,  for  the  reiiniiurseineut  of  the  le;iatees 
for  the  devastavit  of  James  RohertsdU. 

The  shares  of  the  lej^atj^es  who  died  l)ofore 
testator,  fall  iuto  the  residue.  I>et  the  com- 
lulssioner  take  the  accounts  according  to  the 
Itrinciples  of  this  decree. 

The  plaintiffs  ai)peale(l.  upon  the  grounds 
following: 

1.  The  sale  by  the  executors  of  William 
Robertson,  of  the. personalty  of  his  estate, 
^vas    not    "directed    i>y    his    will,"    nor    was 

*135 
*it  authorized  by  "an  order  from  the  Court 
of  Ordinary,  or  the  Court  of  Equity."  It 
was.  therefore,  not  "valid  in  law  or  equity," 
and  the  defendant.  Douglas  Robertson,  hav- 
ing concurred  in  such  sale,  became  thereby 
responsible  jointly  with  his  co-executor, 
James  Robertson,  for  the  full  value  of  the 
chattels    thus    unlawfully    disposed    of. 

■J.  If  the  sale  in  question  were  lawful,  still 
Douglas  Robertson  should  be  held  responsi- 
ble for  the  proceeds,  as  he  co-operated  and 
<-oncurred  directly  with  his  co-e.\ecutor  in 
•fffecting  it,  and  as  by  the  account  thereof, 
rendered  by  him  to  the  ordinary,  he  an- 
jiounced  it  oliiciallj'  to  l)e  the  joint  act  of  his 
<-o-exe<utor  and  himself,  and  adnntted  their 
joint  liability  in  that  behalf. 

o.  The  assets  wasted  by  James  Roliertson, 
"came  to  his  liands,"  by  the  acts  of  his  co- 
executor,  Douglas  Roliertson,  who  ought 
therefore  to  be  charged  with  their  value. 

[For  subsequent  opinion,  see  4  Rich.  E(i. 
39.] 

Carroll,  for  appellants. 
Grithn.  contra. 

DT'NKIX,  Ch.,  delivered  the  opinion  of  the 
Court. 

The  testator,  contemplating  the  nt'cessity 
of  a  sale,  in  order  to  make  a  division  of  the 
slaves  among  the  nnmemus  legatees  men- 
ti(tned  in  the  sixth  and  .seventh  clauses  of 
his  will,  directs  bis  executors  to  have  them 
api)raised  and  sold  in  a  partiiular  manner, 
and  "to  account  with  the  respective  legatees 
for  the  sales  of  the  negroes."(a)     The  mode 

{a)  To  :i  proper  undorst.nnrlin^'  of  tliis  case, 
the  foUnwiiig  flnusps  of  tlio  will  of  Willi.iin 
Rolirrtsi'ii.  scfin  ti>  lie  iicii'ssary : 

"titli.  In  ciiiiipliaiico  with  a  indniiso  made  to 
my  last  wife.  I  will  and  lic(|iicatli  unto  Clnis- 
tiniia  Ilatclicr.  Joscpli  r.irkcr.  T'xMijaniin  r;irk(>r. 
Willi:iin  I'arkcr,  Ibzckinli  IV.-n  iics  jiiid  Tracy 
Hanics.  iiriw  tho  wife  of  otic  TaJi.v.  tlio  follow- 
ing negroes,  viz:  Old  Andrew,  Maiy.  Harriet, 
Chester,  .Jesse,  Charlesey,  John,  (Juincy,  Jim, 
I'hil,  George,  Peggy,  Young  Mary,  Odin,  to  be 
equally  divided  between  them  and  their  heirs 
forever. 

"7th.  I  win  and  bequeath  the  followin;:  ne- 
groes, viz: — Old  I'hil,  IVnipey.  Youii;:  Andrew. 
Peter,    Candis,    Caroliu;,    Creasy,    Elbert,    Au- 


•136 
of  sale  preseribetl  by  *the  testator  being 
found  impracticable,  and  the  necessity  of  a 
sale  manif«'st.  the  executors  sohl  the  slaves 
at  puldic  outcry,  and  both  signed  the  sale- 
idll,  which  was  returned  by  them  to  the  or- 
dinary. No  objection  is  ma«le  to  the  fair- 
ness of  the  sale,  or  to  the  terms,  or  to  the 
adequacy  of  the  prices  at  which  the  proper- 
ty was  sidd,  nor  is  it  sought  to  rescind  the 
sale.  Rut  the  purchasers  gave  notes  for  the 
credit  portion  of  the  sale,  and  James  Robert- 
son, one  of  the  executors,  took  the  larger 
portion    of    them    and    kept    the    whole,    for 


drew,  a  boy  about  three  years  old,  William  and 
Kitty,  to  l)e  divideil  as  follows:--Onc  share  b» 
uiy  sister,  Elizabeth  Horn,  if  she  be  livini;,  if 
not.  to  her  children — one  share  to  the  children 
of  my  deceased  brother,  Henry  Roliertson — one 
share  to  the  children  of  my  deceased  brother, 
I'eter  Robertson — one  share  to  my  sister,  Tem- 
I)erance  Robortscai,  if  alive,  if  not,  to  her  chil- 
dren— one  share  to  the  children  of  my  deceased 
brother,  John  Robertson— one  share  to  my  broth- 
er Iliiidon  Robertson,  ind  one  share  to  the 
children  of  my  deceased  brother.  Nathaniel 
Roi)ertson.  If  either  of  my  brothers  or  sisters 
die  before  my  death,  leaving  children,  their  chil- 
li 36 
dren,  respectively,  arc  to  take  the  *share  of 
tlu'ir  parents ;  and  in  case  the  children  of  ei- 
ther of  my  brothers  or  sisters  shoidd  die  before 
my  death,  then  the  share  herehy  given  to  such 
children,  shall  Ix^  divided  tMiually  among  my 
surviving  brothers  and  sisters,  and  the  children 
of  such  of  my  Inothers  and  sisters  who  may 
have  died,  the  said  children  taking  the  part,  re- 
spectively, to  which  their  parents  would  have 
been  entitled  if  livini:. 

"Dth.  1  devise  and  lje(|ueath  all  the  remainder 
of  my  real  estate,  and  all  the  residue  of  my  per- 
sonal estate  of  every  kind  and  description,  to 
the  persons  and  in  the  manner  mentioned  in  the 
seventh    clause    of    this    my    will. 

"10th.  As  it  may  be  impracticable  to  divide 
the  negroes  mentioned  in  th(>  sixth  and  seventh 
clauses  of  my  will,  among  the  legatees  therein 
named,  and  as  I  desire  to  consvdt  the  future 
comfort  of  my  negroes.  I  hereby  direct  and  re- 
quire my  exe<iitors,  after  my  death,  to  select 
three  disinterested  persons  to  ajipraise  my  saiil 
negroes,  and  my  executors  are  hereby  authorized 
and  required  to  allow  my  said  negioes  to  select 
their  owners,  who  may  be  jiermitted  to  take 
them  on  a  credit  of  twelve  UKaiths.  at  the  said 
ai)praisement,  giving  to  my  executors  their 
Ixnds  and  apjirovt-d  securities  for  the  nnmey. 
In  the  «aid  appraisement  and  sale  herein  di- 
rected, my  executors  are  reipiired  to  keep  dis- 
tinct, the  negroes  mentioned  in  the  sixth  clause, 
from  the  nciiroes  auMitioned  in  the  seventh  cl;iuse 
of    this    will.    :ind    account    with    the    resjiective 

j  legatees  mentioned  in  those  clauses  for  the  sales 
of  tiie  neiiroes  therein   mentioned." 

j     The  following  is  the  reason,  assigned  by  Doug- 
las Robertson  in  his  .-inswer,  why  the  executors 
sold    the  slaves    in    a    mode    difTereut    from    that 
[irescribed   by  the  testator: 
"As  to  the  sale  of  the   negroes   mentioned   in 

I  the  sixth  iind  seventh  clauses  of  the  will,  this 
defendant   answers,  that  nearly  all   of  the  .said 

negroes,  were  either  luiwillinir  or  unable  to  se- 
lect persons  who  would  take  them,  under  the 
provisions  of  the  will,  at  the  appraisement,  and 
as  the  legatees  were  very  numerous  and  nmch 
scattered,  a  large  portion  of  whom  ri>side  out 
of  the  State,  and  as.  unrler  the  ( ireumstances, 
the  estate  could  not  well  have  been  kept  to- 
gether, nor  actually  divided,  it  was  deemed  best 
for  all  concerned,  that  the  said  negroes  should 
be  sold." 

65 


^13: 


3  RICHARDSON'S  EQUITY  REPORTS 


about  five  nioutlis.  in  his  possession,  wlien 
aliout  one-half  of  tlieni  were  delivered  to  the 
defendant,  his  co-executor.  It  is  insisted 
that  the  defendant  is  liable  for  the  sums  re- 
ceived by  his  co-executor,  James  Robertson ; 
— first,  because  the  sale  was  not  directed  b.v 
the  will,  nor  authorized  by  any  decree  of  the 
Court  of  Ordinary,  or  Court  of  Equity.  It 
must  be  borne  in  mind,  that  this  is  not  a 
proceeding  to  invalidate  that  sale ;  and,  in 
reference  to  any  peculiar  liability  of  the 
defendant,  on  that  account,  it  is  proper  to  re- 
mark, that  what  this  Court  would  have  au- 
thorized, if  the  application  had  been  made,  it 

*137 
*will  now  sanction  when  done.  The  neces- 
sity of  the  sale  was  felt  by  the  testatoi*.  His 
regard  to  his  slaves  induced  him  to  prescribe 
the  particular  mode  of  accomplishing  his 
purpose.  When  this  was  found  imiiractica- 
ble,  the  executors  thought  they  might  adopt 
the  usual  mode  of  making  the  sale.  Strictly, 
this  was  not  authorized  by  the  will,  although 
the  executors  might  very  well  have  misap- 
prehended their  power,  and  especially  as  no 
objection  was  made  from  any  quarter.  But 
again,  it  is  said,  that  assuming  the  sale  to 
have  been  both  necessary  and  proper,  both 
executors  are  liable,  each  for  the  acts  of  the 
other,  because  both  concurred  in  the  sale. 
In  other  words,  that,  as  the  sale  was  made 
by  the  authority  of  both,  the  defendant  is 
responsible  for  any  sums  received  by  his  co- 
executor,  James  Robertson,  deceased.  "Noth- 
ing Is  clearer,  and  I  never  knew  it  question- 
ed," says  Sir  John  Strange,  in  Jacomb  v. 
Harwood,  (2  Yes.  Sen.  267,)  "that  one  execu- 
tor may  release  or  pay  a  debt,"  &c.  The 
notes  must,  from  necessity,  have  been  taken 
by  one  of  the  executors,  or  they  might  have 
been  divided.  But  the  possession  of  the 
notes  was  unimportant.  Each  had  a  right  to 
receive  the  proceeds  of  sales.  Without  fraud, 
a  purchaser  might  pay  to  either  of  the  exec- 
utors, whether  he  held  his  note  or  not,  and 
his  receipt  would  be  a  good  discharge ;  and 
so  it  was  expressly  ruled  by  the  Court  of 
Law  in  Gage  v.  Adm'r.  of  Johnson,  (1  McC. 
492.)  If  an  executor,  having  received  funds 
of  the  estate,  pays  or  delivers  them  over  to 
his  co-executor,  or  joins  in  a  misapplication 
of  them,  or  joins  in  a  receipt  which  enabled 
his  co-executor  to  receive  them,  he  may  be 
made  responsible.  But  the  general  rule  of 
the  Court,  as  declared  in  O'Neall  v.  Herbert, 
(McM.  Eq.  497,)  is,  that  one  executor  is  not 
liable  for  the  assets  which  come  into  the 
hands  of  his  co-executor ;  and  the  same  rule 
was  applied  to  joint  administrators  in  Cay- 
den  V.  Gayden,  (Id.  4.'!5).  Where,  as  in  this 
case,  the  sale  is  on  credit,  no  means  can  well 
be  devised  by  which  one  executor  could  pre- 
fvent  his  co-executor  from  collecting  the 
debts,  even  if  he  were  so  disposed,  or  had 
the  right  to  do  so.  The  case  of  Mathews  v. 
Mathews,  (Mc:m.  Eq.  410.)  was  cited  for  the 


*138 

appellant.  That  *was  an  application,  to  the- 
Court  of  Equity,  for  the  sale  of  land,  in 
which  both  the  executor  and  executrix  join- 
ed. The  purpose  was  to  change  the  invest- 
ment. The  Court  ordered  the  sale,  and  di- 
rected that  the  proceeds  should  be  re-invest- 
ed by  the  executor  and  executrix,  and  the  in- 
ves-tment  reported  to  the  Court.  The  execu- 
tor received  the  proceeds — no  re-investment 
was  made,  and,  five  years  afterwards,  he 
died  insolvent.  Chancellor  HARI'ER,  with 
nmch  reluctance,  held  the  executrix  respon- 
sible. "It  is  to  be  observed""  says  he.  "that, 
as  executors,  they  had  nothing  to  do  with 
the  land ;  there  does  not  appear  to  have  lieeu 
any  necessity  to  sell  for  the  purpose  of  debts ; 
and  in  procuring  a  sale  of  the  land,  they 
.seem  to  have  volunteered  to  act  as  trustees." 
Again ;  "being  a  party  to  the  suit,  Mrs. 
^lathews  was  bound  by  the  decree.  The  de- 
cree is,  that  the  executor  and  executrix  shall 
invest  and  report  to  the  Court,  making  it  the 
duty  of  both  to  see  to  the  investment.  By 
consulting  the  records  of  the  Court,  she 
might,  at  any  time,  have  seen  that  the  exec- 
utor had  not  reported  any  investment.  If 
she  had  applied  to  the  Court,  at  any  time 
within  five  years,  the  investment  by  him 
would  have  been  enforced."  The  decree  was 
aflirmed  by  the  Court  of  Appeals.  But  the 
avowed  reluctance  of  the  Chancellor,  as  well 
as  the  reasons  set  forth,  abundantly  prove 
that  as  a  general  rule,  each  executor  is  only 
responsible  for  his  own  acts  or  defaults. 

This  Court  concurs  in  the  judgment  of  the 
Chancellor,  and  the  appeal  is  dismissed. 

JOHNSTON    and   DARGAN,    CC,   concur- 
red. 

WARDLAW,  Ch.  having  been  of  counsel, 
did  not  sit  at  the  hearing. 
Appeal  dis;missed. 


3   Rich.  Eq.  *I39 

*A.  W.  THOMSON,  Ex'or  of  J.  PALMER,  v. 

E.   M.  PALMER   and   Others. 

(Columbia.     Nov.   an.l   Dec.  Term,   ISoO.) 

[Prhicipal   and   Siireti/   <S=>1S5V^.] 

Separate  judgments  were  recovered  on  the 
same  note  against  a  principal  and  his  two  sure- 
ties ;  after  the  death  of  the  principal.  R.  one 
of  the  sureties,  paid  the  amount  under  a  stip- 
ulation that  the  judgment  and  execution  against 
the  principal  should  be  assigned  to  him.  which 
was  subsequently  done:  JJeld  that  R.  was  en- 
titled to  be  paid,  as  a  judgment  creditor,  out 
of  the  assets  of  the  priiicii)al. 

[Ed.  Note.— Cited  in  Ex  parte  Ware,  5  Rich. 
Eq.  474. 

For    other    cases,    see    Principal    and    Surety, 
Cent.  Dig.  §  530 ;    Dec.  Dig.  <S=>lb;5'2-] 
[Executors  and  Administrators  <^=5lll.l 

Costs  recovered  in  a  suit  at  law,  against  the 
executor  of  an  insolvent  estate,  are  not  to  be 
paid  out  of  the  assets  of  the  estate ;    if  the  ex- 


56 


^;=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


THOMSON  V.  PALMER 


*141 


foiitor,  by  mis-plcadinfr,  make  himsrlf  iiersonally 
liablo  th(>rof<.i-,  )ip  niiist  tako  the  consequences, 
ami  cannot  chartje  tlieni  to  the  estate. 

(I'M.  Note.— For  other  ca.ses,  see  K.xeciitors 
and    Administrators,   Cent.   Dig.    §    441);     Dee. 

I»i-  <:=>ni.i 
\iiijiiii(tioti  (C=2;'.2.i 

Where,  after  an  order  enjoinin-jr  ail  the  cred- 
itors of  a  testator  from  suinu  tiie  e.xecntor, 
some  of  the  creditors  sued  tiie  executor,  tliey 
were  ordered  to  pay  not  only  their  own  costs  at 
law,  but  the  costs  of  th-*  executor  also. 

[Ed.  Note. — For  other  cases,  see  Iniunction, 
Cent.  Dij,'.    §  519:    Dec.   Dig.   <S=-J:;ii.|' 

[Executors   and   Adniinistraiors  <£=:3K)S.J 

Where  a  bill  is  filed  by  the  cxecut(u-  of  an 
insolvent  estate  to  enjoin  creditors  from  suins 
at  law  and  to  have  the  estate  adiuiuistered  in 
equity,  and  the  choses,  money,  &e.  of  the  estate 
are  turned  over  to  the  Conunissioner,  the  execu- 
tor is  only  entitled  to  have  a  schedule  and  state- 
ment reported  ot  what  he  has  turned  over;  he- 
is  not  entitled  to  credit  for  the  choses  turned 
over,  except  i)rima  facie;  for,  if  it  sliould  turn 
out  that  any  of  the  choses  arc  not  ^ood.  through 
the  laches  or  fault  of  the  executor,  he  should 
be   charged   with   the   amount. 

fEd.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  S  1615;  Dec. 
Di;:.  <S=540S.] 

[Executors  and  Administrators  (S=»40S.] 

Nor  is  the  executor  entitled  to  commissions, 
as  for  paying  away  money  in  debts  and  legacies, 
&.C.  for  choses  and  moaey  turned  over  to  the 
commissioner. 

•  I  Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  §  1G15 ;  Dec. 
Dig.  <@=40S.] 

Before  Johnston,  Ch.  at  Union,  June,  1848. 

Johnston,  Ch.  This  case  comes  up  on  the 
report  and  supplemental  report  of  the  com- 
missioner, to  which  the  plaintiff  has  put  in 
ei;iht,  and  the  creditors  of  the  testator  two 
exceptions. 

1.  The  plaintiff's  1st  exception  is,  ""because 
the  commissioner  has  allowed  Thomas 
Reeves's  dAnand,  the  surety  of  the  testator. 
to  rank  as  a  judj,'ment  debt,  whereas  justice 
to  the  simple  contract  creditors  reciuired 
that  it  should  rank  as  a  simple  contract 
debt." 

I  have  no  hesitation  in  overruliii;^  this  ex- 
ception. By  the  evidence,  it  appears  that 
Reeves  and  Williamson  were  sureties  to  a 
sealed  note,  given  by  Talmer  to  one  Wells 
of  Georgia.  Wells  sued  all  Ihe  iiarties  .sei)a- 
rately,  in  the  Federal  district  Court,  and  ob- 
tained    judgments    and     executions.       After 

*140 
Palmer's  death,  the  *exeiution  against 
Reeves  being  levied  on  his  land,  he  paid  the 
amount  to  the  agent  of  Wells,  under  a  stipu- 
lation that  the  judgment  and  execution 
against  Palmer  should  be  assigned  to  him, 
which  was  subsequently  done. 

It  has  been  determined  in  the  law  courts 
of  this  State,  that  where  a  surety  pays  oft" 
an  execution  against  his  principal,  under  an 
understanding  that  the  execution  should  be 
kept  open  for  his  benefit,  the  payment  does 
not  extinguish  the  lien,  so  far  as  it  can  oper- 
ate in  ills  favor.     The  law  of  this  Court  is, 


that  when  a  surety  pays  a  debt  of  his  prin- 
cipal, he  has  a  right  to  have  all  the  securities 
held  by  their  cre<litor  assigned  to  him  :  much 
more  is  he  entitled  to  it  where  the  payment 
was  made,  as  in  this  case,  up(»n  the  comlition 
that  the  assignment  would  be  made. 

The  lien  now  insisted  on,  was  a  subsisting 
lien  at  the  death  of  Palmer,  and  what  dif- 
ference can  it  make  to  the  other  creditors, 
whether  the  creditor  himself  enforced  it  or 
claimed  its  benetit,  or  assigned  it  to  another, 
that  he  might  do  soV  The  exception  is  over- 
ruled. 

The  2d  and  .'Jd  exceptions  will  l)e  taken  up 
with  the  creditor's  I'd   exception. 

4th.  The  plaintiff's  4th  exception  is,  ""be- 
cause the  commissioner's  report  has  over- 
charged the  executor  on  the  interest  account, 
having  charged  compound  interest,  without 
a  moment's  rest."  This  exception  ])roceeds 
upon  a  misconception  of  the  .scheme  and  cal- 
culations of  the  report,  as  will  appear  from 
an  attentive  examination  of  the  rejiort.  The 
exception    is   overruled. 

5th.  The  5th  exception  is,  '"because  the  com- 
missioner has  not  credited  the  executor  with 
the  cash,  notes  and  bonds  handed  over  by 
him  to  the  commissioner,  to  the  amount  of 
several  thousand  dollars."(fl) 

The    commissioner    has    misconceived    the 

[)un)ort    of   the   exception,    in    his   judgment 

overruling  it.    The  exception  does  not  call  for 

an  account  of  the  connnissioner's  adniinistra- 

*141 

lion  of  the  *funds,  but  merely  asks  that  the 
executor  be  credited  with  the  funds  turned 
over.  I  do  not  thiidv  the  executor  is  entitled 
to  credit  for  the  choses  turned  over,  except 
prima  facie.  If  it  should  turn  out  that  any 
of  the  choses  are  not  good,  through  the  laches 
or  fault  of  the  executor,  he  should  l>e  charged 
with  the  amount.  But  he  is  entitled  to  have 
a  schedule  and  statement  reported  of  what  he 
has  turned  over  to  the  commissioner,  and,  in 
this  view,  the  exception  is  sustained. 

Gth.  The  sixth  exception  is,  ""because  the 
report  does  not  credit  the  exe<-utor  with  full 
commissions,"  &c.  The  exception  has  been 
explained  into  an  assertion  that  the  executor 
is  entitled  to  connnissions,  (as  for  paying 
away)  for  choses  and  money  turned  over  to 
the  commissioner.  I  do  not  think  (as  I  have 
oflen  ruled  without  an  appeal)  that  this  is 
paying  away  money  in  debts  and  legacies,  &c. 
within  the  meaning  of  the  statute,  and  the  ex- 
ception is  overruled. 

7th.  The  .seventh  exception  will  be  consid- 
ered with  the  LM  exception  of  the  creditors. 

The  creditors's  two  exceptions  remain  for 
consideiation.  The  first  of  them  is,  ""because 
the  I'xecutor  of  Palmer  is  not  entitled  to 
a    credit    for    the    judgment    of    the     P.aiik 


_  («)  For  a  full  understanding  of  this  and  the 
7th  exception,  see  this  case  as  reported,  2  Rich. 
Iv!.  .'{2.  R. 


®=jFor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Inde.'ces 


■141 


3  RICHARDSON'S  EQUITY  REPORTS 


against  A.  W.  Tbomson,  as  a  judgment  debt 
at  the  death  of  the  testator,  inasmuch  as 
the  debt  upon  which  the  judgment  was  re- 
covered was  upon  a  simple  contract,  and  the 
judgment  was  recovered  since  the  testator's 
death.  This  item,  in  the  report,  is  set  down 
at  $674.66,  with  $20  costs."  The  exception 
does  injustice  to  the  report.  The  commis- 
sioner does  not  charge  the  estate  with  the 
judgment  recovered  against  Thomson,  as,  in 
itself,  a  judgment  against  the  testator,  or 
ranking  as  a  judgment  against  the  estate  at 
his  death.  But  regarding  the  liability  of 
the  estate  to  Thomson  as  a  simple  contract 
liability,  the  commissioner  allows  him  the  lien 
of  another  judgment,  which  the  commissioner 
conceives  he  held  as  colhiteral  security  to 
indemnify  him  on  that  contract.  The  facts 
are  these,  as  stated  by  the  commissioner  in 
his  judgment  upon  the  exception.  A  note  was 
discounted  in  the  Banli  in  1828,  endorsed  by 

*142 
John  Anderson,  Z.  P.  Herndon,  M.  B.  Bo*gan 
and  Daniel  A.  Mitchell,  for  about  $1500,  and 
as  security  to  his  indorsers,  Palmer,  the  testa- 
tor, and  his  father,  gave  a  confession  of 
judgment  for  $1500,  with  interest  from  2d 
July,  1828.  The  execution  under  this  judg- 
ment was  lodged  in  the  sheriff's  office,  July 
5th,  1828,  in  the  coroner's  office,  July  30th, 
1828,  and  again  in  the  sheriff's  office,  July 
19th,  1831.  On  the  14th  Jane,  1832,  Hern- 
don, one  of  the  indorsers,  made  the  following 
indorsement  on  the  execution:  "The  judg- 
ment in  this  case  having  been  given  to  secure 
the  plaintiffs  as  indorsers  of  the  defendants 
to  the  Bank,  and  the  note  upon  which  they 
were  indorsers  as  originally  made,  having 
been  taken  out  of  the  Bank  and  new  indors- 
ers given,  leaving  out  my  name,  this  is  to 
certify  that  I  have  no  other  interest  in  the 
judgment,  and  assign  to  the  remaining  in- 
dorsers all  my  interest  in  the  same,  June 
14th,  1832.  Z,  P.  Herndon."  There  is  the  fol- 
lowing indorsement  on  the  execution,  without 
date, — "I  assign  all  my  right  and  interest  in 
the  within  execution  to  those  who  may  in- 
dorse for  the  said  D.  and  J.  Palmer,  (.signed) 
John  Anderson."  "This  fi.  fa.  belongs  to  D. 
A.  Mitchell,  W.  K.  Clovvny,  John  Rogers  and 
A.  W.  Thomson,"  was  also  a  memorandum 
in  the  hand  writing  of  John  Rogers,  late 
clerk,  who  as  well  as  Anderson,  is  dead. 
There  is  also  the  following  indorsement,  with- 
out date,  "Received  $13.90,  attorney's  and  my 
cost.  (Signed)  B.  Johnson,  Sheriff',"  Thom- 
son took  a  confession  from  Palmer  for 
$909.69,  April  17th,  1842,  on  a  note  dated  Jan^ 
uary  1st,  1841.  Judgment  against  Thomson 
was  obtained  on  a  note  indorsed  by  him  in 
Bank,  dated  October  12th,  1841,  which  judg- 
ment he  paid  off,  amounting,  as  before  stated, 
to  $674.66.  The  commissioner  has  allowed 
him  the  benefit  of  the  first  mentioned  judg- 
ment to  the  extent  of  this  payment,  and  I 
cannot  say  that  there  is  not  some  intrinsic 
58 


evidence  in  the  circumstances  favoring  this- 
conclusion.  Still,  it  must  be  remembered- 
this  is  a  claim  touching  the  rights  of  other 
creditors  of  the  estate,  and  should  be  well 
supported.  It  is  true,  every  party  to  the 
ti'ansaction  is  dead,  except  Herndon,  Thom- 
son and  Clowny,  and  the  latter  may  be  inter- 
ested.    Still  I  think  there  must  be  better  evi- 

*143 
dence  accessible.  Plas  the  *Bank  been  ex- 
amined to  shew  that  the  indorsement  of  1841 
was  in  renewal  of  that  of  1828".''  Upon  the 
present  evidence  I  should  (but  with  great 
hesitation)  incline  to  sustain  the  commis- 
sioner's conclusion.  I  could  not  say  it  was 
grossly  erroneous.  If  creditors  wish  to  in- 
vestigate the  matter  further,  they  may  go 
before  the  commissioner.  If  not,  the  excep- 
tion is  overruled. 

2nd.  The  creditors's  second  exception  is, 
"Jjecause  the  counnissioner  ought  to  have 
charged  the  estate  with  the  costs  on  the 
suits  at  law,  brought  by  the  creditors 
against  the  executor,  as  a  preferred  debt,  or 
at  least  of  equal  degree  with  the  demands 
upon  which  the  costs  accrued.  And  if  the 
estate  is  not  chargeable,  the  executor  is  lia- 
ble, personally,  for  costs.  Fii'st,  for  the  pre- 
ferred debts,  inasmuch  as  there  were  ample 
funds  known  to  the  executor  to  pay  the 
debts ;  and,  secondly,  he  is  liable,  on  the 
grounds  of  his  plea  and  defence  in  all  the 
cases."  Connected  with  this,  is'  the  plain- 
tiff"'s  2d  exception.  "Because  the  commis- 
sioner has  charged  the  estate  of  Jeffrey 
Palmer  with  $382,121/2,  the  costs  of  the 
plaintiffs,  incurred  in  about  twenty-five  suits, 
which  plaintiffs  had  sued  at  law  after  they 
were  enjoined  by  the  order  of  this  Court,  and 
most,  if  not  all  of  them,  had  rendered  their 
demands  to  the  commissioner  of  "this  Court 
under  the  order ;"  also,  his  third  exception, 
"because  the  funds  of  an  insolvent  estate  are 
not  liable  for  costs  incurred  by  creditors 
suing  the  estate ;  but  the  creditors  thus 
suing,  must  pay  the  costs  out  of  their  share 
of  the  funds  of  the  estate;"  and  his  seventh 
exception,  "because  the  report  should  have 
appropriated  a  fund  to  pay  the  costs  in  this 
case,  and  the  costs  to  which  the  executor 
was  put  in  defending  himself  in  some  twen- 
ty or  twenty-five  cases,  in  which  the  commis- 
sioner has  taxed  the  costs  of  the  plaintiffs, 
as  stated  in  his  report." 

The  fact  is,  the  commissioner  has  made 
no  decision  or  recommendation,  either  as  to 
the  costs  of  the  case  or  any  other  costs,  and 
the  exceptions  are  intended  to  elicit  a  judg- 
ment from  the  Court  upon  the  sul)ject. 
There  is  no  difficulty  as  to  the  costs  of  this 
case.     They  must  be  allowed  out  of  the  es- 

*144 
fate,  and  the  *comnnssioner  is  so  instructed.. 
With   respect   to  the   suits   at  law    there   is 
more  difficulty.     The  testator  died  14th  July, 

1842.  The  executor  qualified  13th  January,, 

1843.  His    first    bill    was    filed    14th    June,. 


THOMSON  V.  PALMER 


•146 


184.1,  for  leave  to  sell  the  real  estate,  in 
order  to  pay  the  creditors,  on  wiiich  of  the 
same  date,  Chancellor  Johnson  passed  an 
order  that  a  rule  he  published  for  three 
months,  requiring  testator's  creditors  to 
bring  in  and  estal)lish  their  demands  liy  the 
first  of  the  succeeding  De<enil)cr.  What 
suits  had  been  hrought  befitrc  this  order 
does  not  appear,  but  there  is  a  list  of  suits 
Ijrought,  seven  in  number,  and  on  simple 
contract  debts,  the  (5th  and  2;id  September, 
1843.  To  six  of  them,  the  executor  pleaded 
the  general  issue,  and  gave  notice  of  the 
plea  of  plene  administravit.  but  did  not  iiut 
in  the  plea.  To  the  seventh,  which  was  a 
Summary  Process,  he  pleaded  the  general 
issue  and  gave  notice  of  the  plea  of  plene 
administravit  prneter,  and  decree  jiassed  for 
plaintiff.  On  2.3d  February,  1845,  writs  were 
lodged  in  some  other  cases  on  preferred  or 
specialty  debts;  in  one  of  which,  no  plea 
was  put  in ;  in  the  other  six,  the  plea  was 
the  general  issue.  None  of  these  creditors 
were  actually  enjoined  from  bringing  their 
suits,  although  they  were  requii-ed  to  estab- 
lish them  before  the  commissioner.  I  do  not 
think  they  can  legally  be  made  liable  for 
the  costs.  From  the  pleadings,  the  executor 
was,  in  most  of  the  cases,  liable  for  them 
personally.  But  I  think,  under  the  difticul- 
ties  of  his  position,  as  disclosed  in  the  previ- 
ous stages  of  this  litigation,  his  conduct 
must  be  held  to  have  ])een  that  of  a  faithful 
trustee,  and  he  is  entitled  to  these  costs  out 
of  the  estate.  In  other  words,  the  first  alter- 
native of  the  creditors's  second  exceittion, 
presents  the  true  rule  in  this  case. 

It  is  ordered  that  the  foregoing  opinion 
stand  as  a  decree  on  the  several  exceptions. 

It  is  further  ordered,  that  the  report  be 
reconmiitted.  to  be  reformed  according  to 
this  judgment. 

In  obedience  to  the  above  order  of  his 
Honor,    Chancellor    Johnston,    re-committing 

*145 
the  report  to  be  reformed,  the  commis*sion- 
er  made  a  second  report,  which  came  up,  on 
exceptions,  before  his  Honor,  Chancellor 
Dunkin,  in  June,  1849,  who  pronounced  the 
following  decree. 

Diuikin.  Ch.  This  cause  was  heard  on  the 
commissioner's  report,  prepared  under  the 
decree  of  Chancellor  Johnston.  The  excep- 
tions are  substantially  the  same  as  those 
made  to  the  former  report,  which  were  heard 
b.v  Chancellor  Johnston,  and  on  which  he 
has  pronounced  a  decree.  It  seems  to  me 
to  he  a  great  abuse  to  put  parties  to  the  ex- 
pense of  two  sets  of  exceptions,  two  rejtorts 
of  the  commissioner,  upon  the  same  excep- 
tions, and  the  trouble  of  investigating  the 
matter,  simply  to  ascertain  that  the  points 
have  been  made,  and  have  been  determined 
by  a  preceding  Chancellor,  whose  judgment 
is  conclusive  until  reversed  by  a  higher  trili- 
unal.  A  difficult.v  may  sometimes  occur  as 
to  the  time  at  which  the  appeal  should  lie 
taken,   but  no  sudi  difficulty  exists  iu  this 


caise,  and,  moreover,  the  practice  to  which 
the  Court  has  adverted,  affords  no  aid  or 
protection,  if  the  party  or  his  solicitor  has 
erred  in  judgunMit. 

It  is  ordered  and  decreed  that  the  excep- 
tions l)e  overruled,  and  that  the  report  of  the 
commissioner  i>e  contirmed  and  Itecome  the 
judgment  of  this  Court. 

The  complaint  api)eals  in  this  case  from 
the  decrees  made  by  Chancellors  Johnston 
and  I»uiikin.  and  will  insist  on  the  .same 
grounds  in  the  Court  of  Appeals,  that  were 
taken  as  exceptions  to  the  reports  of  the 
coujunssioner  made  in  the  case. 

The  creditors  also  appealed,  on  the  fol- 
lowing grounds,  viz: 

1st.  Because  the  executor  of  J.  Palmer  is 
lialde,  personally,  for  the  costs  of  the  suits 
at  law,  by  his  false  pleas  and  unnecessary 
defence. 

2d.  Because  the  extK-utor  of  Palmer  ought 
not  to  lie  allowed  the  judgment  of  John  An- 
derson and  other  v.  Daniel  Palmer  and  Jef- 
fre.v  Palmer.  There  is  evidence  on  the  fl.  fa. 
in  tins  case  that  it  has  been  satisfied,   and 

*146 
there  is  no  evidence  *of  any  connection  be- 
tween this  judgment  and  the  note  indorsed  l)y 
the  executor  for  J.  Palmer,  which  was  many 
years  after. 

Thom.son,  for  complainant. 
Ilerndon,  for  the  creditors. 

JOIIN8TON,  Ch.  delivered  the  opinion  of 
the  Court. 

Though  the  subjects  embraced  in  this  ap- 
peal are  numerous,  it  is  deemed  necessary 
to  take  notice  of  only  the  three  or  four  of 
them  that  were  regarded  of  importance  in 
the  argument. 

And,  first,  the  claim  of  Beeves  as  surety 
of  the  testator.  The  opinion  exjiressed  in 
the  decree  of  June,  1848,  meets  the  appro- 
bation of  this  Court.  We  deem  it  unneces- 
sary to  add  any  thing  to  the  reasoning  of 
the  Chancellor  on  this  point:  And  merely 
refer,  for  additional  authorit.v,  to  the  case 
of  King  V.  Aughtry.  (3  Strob.  Eq.  140i  in 
which  a  surety  who  i)aid  off  a  joint  judg- 
ment against  himself  and  his  principal,  aft- 
er the  princii)ars  death,  was  declared  en- 
titled to  have  it  set  up,  in  equity,  against  his 
( state. 

Witii  resi)ect  to  costs.  Tliis  Court  is  sat- 
isfied that  the  direction  to  allow  the  costs 
of  this  suit  out  of  the  estate  was  correct, 
and  according  to  usage.  With  regard  to  the 
costs  incurred  at  law,  by  both  parties,  it  Is 
necessary  to  distinguish  between  tho.se  in- 
curred before,  and  those  incurred  after  the 
li5th  of  June,  1843.  It  now  appears  that, 
after  the  order  of  the  14th  of  June,  1843, 
wiiich  was  brought  to  the  view  of  the  Chan- 
cellor, (and  which  merely  provided  for  call- 
ing in  the  creditors.)  another  order,  dated 
the  next  day.  was  passed  by  Chancellor 
Johnson,  enjoining  them  from  pro<"eeding  at 
law.      The    creditors    who    sued    after    that 

5d 


*146 


3  RICHARDSON'S  EQUITY  REPORTS 


order,  were  in  contempt ;  and,  so  far  from 
being  entitled  to  aslc  this  Court  to  give 
them  costs,  are  liable  to  an  order  that  they 
pay  all  the  costs,  of  both  parties,  in  those 
suits:    and  it  is  so  ordered. 

With  respect  to  costs  of  suits  brought  be- 
fore the  order  of  injunction,  the  determina- 
tion, must  depend  upon  other  principles. 
It  is  ruled  at  law,  in  the  case  of  Hutchin- 
son V.  Bates,  (1  Bail.  Ill)  that  the  cost  part 
of  Judgments  obtained  against  insolvent  es- 
tjttes,   (such  as  this  of  Palmer,  which  with 

*147 
the  addition  of  the  *realty.  is  not  good  for 
hardly  a  tenth  part  of  the  debts)  forms 
no  part  of  the  .iudgment  against  the  as- 
sets. To  allow  them  that  effect,  would  not 
only  entitle  the  suing  creditor  to  take  the 
proportion  of  assets  properly  assignable  to 
his  demand,  but  to  al)sorb  the  proportions  of 
other  creditors,  in  payment  of  his  costs. 

Upon  the  principles  of  that  case,  the  cred- 
itors who  sued  at  law  before  the  injunction, 
are  not  entitled  to  their  costs  out  of  the  es- 
tate. If  any  of  them  are  entitled  to  them 
against  the  executor  personally,  it  must  be 
owing  to  his  mis-pleatling,  (of  which  the  com- 
missioner will  enquire,  on  further  reference:) 
and,  in  that  case,  he  must  bear  the  conse- 
quences. 

The  view  now  taken,  shows  that  the  al- 
lowance to  the  executor  of  his  costs  at  law, 
out  of  the  estate,  was  lumecessary  and  im- 
provident, and  so  much  of  the  decree  is 
overruled. 

The  only  remaining  question  relates  to  the 
judgment,  the  lien  of  which  is  claimed  by 
the  plaintiff,  in  consequence  of  the  pay- 
ments made  by  him  to  the  Bank  as  surety 
of  his  testator.  In  the  investigation,  which 
the  Chancellor  allowed  to  be  made  at  the 
instance  of  creditors,  the  burden  of  clear- 
ing up  the  transaction  should  have  been 
thrown  on  the  plaintiff" ;  and  it  is  so  or- 
dered. 

It  is  ordered  that  the  decree  of  June,  1S4S, 
be  reformed  according  to  this  opinion,  and 
in  all  other  resi^ects  that  it  be  affirmed: 
that  the  decree  of  Chancellor  Dunkin  be 
set  aside;  and  that  the  reports  be  re-com- 
mitted to  the  commissioner  for  further  in- 
vestigation upon  the  points  above  indicated, 
and  to  be  reformed  according  to  the  forego- 
ing directions. 

DUNKIN   and  DARGAN,   CC,   concurred. 
Decree  reformed. 


risht  cannot  be  established  at  law,  without  the 
aid  of  the  discovery  which  he  seeks:  antl  the 
discovery  must  be  established  by  the  answer,  in 
order  to  entitle  the  Court  to  maintain  the  bill 
for  relief. 

[Ed.    Note. — For   other   cases,   see   Discovery, 
Cent.  Dig.  §  21 ;    Dec.  Dig.  <S=j19.] 

[Ditcorert/  <©==>6.] 

But  a  party  may  have  a  bill  of  discovery, 
not  only  wheie  he  is  destitute  of  otlier  evidence 
to  establish  his  case,  but,  also,  to  aid  such  evi* 
dence,  or  to  render  it   jnnecessary. 

[Ed.    Note. — For   other   cases,    see    Discovery, 
Cent.  Dig.  §  7;    Dec.  Dig.  <^=^Q.] 

Before     Dargan,     Ch.,     at     Spartanburgh, 
Term,  lS.oO. 


3   Rich.  Eq.  *I48 

*M.   C.    STACY,  Ex'or   of   Robert    Stacy,   v. 

JAMES   L.  I'EARSON,  GEORGE 

BOBBITT  et  al. 

(Columbia.     Nov.   and   Dec.   Term,   1S50.) 

[Discovery  <@=:=19.] 

Where   the  liill  is  for  discovery   and   relief, 
the  plaintiff  must  shew,   affirmatively,  that  his 


The  decree  of  his  Honor,  the  Circuit  Chan- 
cellor, is  as  follows. 

Dargan,  Ch.  The  complainant  charges  in 
his  original  bill,  that  the  defendants,  Pear- 
son and  Bobbitt,  confederating  together,  by 
fraud  and  collusion,  have  possessed  them- 
selves of  certain  notes  of  Bobbitt,  due  to 
the  testator,  Robert  Stacy,  at  the  time  of 
his  death,  and  refuse  to  deliver  them  up.  In 
his  amended  bill,  he  charges  the  same  collu- 
sive and  fraudulent  possession  of  another 
note,  due  by  the  defendant  Bobbitt,  to  the 
testator,  for  the  sum  of  two  hundred  and 
tifty  dollars.  The  notes  are  all  specihcally 
described,  and  the  complainant  seeks  a  dis- 
covery, and  that  the  notes  may  be  delivered 
up.  The  defendant,  Bobbitt,  has  pleaded  to 
the  jurisdiction  of  the  Court,  or  ratht>r  he 
has  insisted  upon  that  objection  in  his  an- 
swer, on  the  ground,  that  if  the  facts  stated 
are  true,  it  is  not  a  matter  of  equitable  cog- 
nizance, and  the  complainant  had  adequate 
remedy  at  law.  The  complainant  charged 
a  fraud  and  collusion,-  and  sought  a  dis- 
covery as  to  facts. 

He  had  a  right  to  a  discovery,  and  the 
Court  having  entertained  the  bill  for  a 
discovery,  had  the  right  to  retain  it  for  judg- 
ment. The  plea  or  objection  to  the  jurisdic- 
tion is  overruled.  Has  the  defendant,  Bob- 
bitt, fraudulently  possessed  himself  of  his 
notes,  due  to  testator,  by  collusion  with  one 
of  the  executors  (his  co-defendant,  Pearson,) 
as  charged  in  the  bill?  He  admits  in  his 
answer,  that  the  testator  did  hold  agahist 
him,  at  a  period  not  long  antecedent  to  his 

*149 
death,  the  notes  described  in  the  com*plain- 
ant's  original  bill.  But  he  says  that  these 
notes  were,  on  a  settlement  between  him  and 
the  testator,  paid  and  taken  up.  He  de- 
nies that  the  testator  ever  held  against  him 
a  note  like  that  described  in  the  comphiin- 
ant's  amended  bill.  But  he  does  not  deny 
that  he  owed  the  testator  the  sum  of  two 
hundred  and  fifty  dollars,  for  borrowed  mon- 
ey, which  the  complainant  supposed  and 
charged  to  have  beeu  secured  by  note. 

It  was  clearly  proved  that  Bobbitt  owed 
old  Mr.  Stacy  a  considerable  sum  of  money, 
equal,  or  about  equal,  to  the  value  of  his 
land,    and    that   this   indebtedness   continued 


60 


®=3For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


STACY  V.  PEAllSON 


*151 


up  to  a  very  short  iKMiod  lu'foro  tho  testa-  i 
tor's  death,  lie  toUl  one  witness  that  he  had  ] 
no  means  of  paying  tins  di'lit  Init  by  the  sale  j 
of  his  hind,  and  asked  the  witness  to  buy  it.  \ 
Ho  seemed  to  consider  the  land  as  already  j 
belonging  to  Stacy,  the  (Ider,  for  he  said  that  | 
it  was  a  cheap  l>argain  at  the  price  for  which 
Stacy  oflfere<l  to  sell  It. 

It  was  proven  by  one  witness,  that  on  a 
further  advance  by  testator,  in  taking  up  a 
note  of  Hohhitt  from  a  Mr.  Swan,  it  was 
stipulated,  that  if  Bohliitt  failed  to  pay,  old 
Stacy  was  to  have  his  land.  The  notes  were 
seen  in  testator's  iMisscssion  nof  long  before 
his  death.  The  evasions  of  this  defendant 
tell  strongly  against  him.  He  promised  to 
shew,  satisfactorily,  that  he  had  paid  the  tes- 
tator all  that  he  owed  him.  This  he  has 
failed  to  do.  The  land  has  not  been  disposinl 
of,  and  is  still  his.  He  has  not  shewn  how 
he  became  ixissessed  of  funds  to  discharge 
this  (comparatively  speaking)  large  indelit- 
edness.  I  am  perfectly  satisfied  fi'om  the 
evidence,  that  he  still  owes  the  three  notes 
described  in  the  original  bill.  He  flenied  in 
the  answer,  ever  having  owe<l  the  testator 
such  a  note  as  that  described  in  the  amended 
bill.  Yet,  as  I  have  remarked,  he  does  not 
deny  owing  the  sum  of  two  hundred  and  fif- 
ty dollars,  charged  to  have  been  borrowed 
from  the  testator.  1  cannot  say  that  I  am 
satisfied  that  he  ever  gave  his  note  for  this 
amount,  but  I  am  .satisMed  that  he  borrowed 
the  money.  lie  could  not  deny  borrowing 
this  sum,  but  evaded  the  question,  and  con- 

*150 
tended  that  he  had  paid  *all  that  he  owed. 
From  his  own  admission,  in  the  presence  of 
Mr.  Thomson  and  Mr.  Tet^ling,  it  is  iniix/s- 
sible  to  resist  the  conclusion,  that  he  bor- 
rowed money  from  old  ^Ir.  Stacy,  on  the 
Sunday  previous  to  the  Monday  on  which  he 
paid  two  hundred  and  fifty  dollars  to  Mr. 
Tucker,  on  the  execution  against  him.  The 
receipt  for  this  money  passinl  out  of  Bobbitt's 
possession  into  that  of  old  Mr.  Stacy.  At 
least,  there  is  strong  ground  for  such  an  in- 
ference. For  the  receipt  was  produced  upon 
the  trial,  by  the  complainant.  There  is  some 
signiticancy  in  this  fact.  It  ni»iy  have  been 
left  with  the  testator,  in  the  confidence  that 
evidently  subsisted  between  the  parties,  as 
a  memorandum  in  the  place  of  a  note. 

It  is  ordertHl  and  decreed  that  the  defend- 
ant, Hobbitt,  account  to  the  complainant, 
as  the  executor  of  K.  Stacy,  for  the  three 
notes  described  in  the  bill,  with  interest, 
and  for  the  sum  of  two  hundred  and  fifty 
dollars  without  interest,  and  that  the  com- 
missioner   state    the    accounts. 

The  evidence  in  support  of  the  complain- 
ant's charges  against  his  co-executor,  James 
L.  Pearson,  is  not  so  full  and  satisfactory. 

I  am  strongly  impressed  that  there  may 
be  something  wrong  in  his  conduct,  in  re- 
gard to  the  notes  which  he  owi'd  his  father 
previous  to  his  death.     His  answer  does  not 


come  up  fully  to  meet  the  allegations  of  the 
bill  in  this  partlcidar.  He  claimed  Bobbitt's 
notes  as  a  gift  from  his  father  to  his  wife, 
and  said  that  Bobbift  had  got  them  to  cal- 
culate the  interest,  and  refu.sed  to  deliver 
up  or  to  pay  them.  These  are  the  notes 
which  Bobbitt  says  he  has  fully  p.iid. 

Confederates  do,  sometimes,  f.iil  out  in 
th(>  division  of  the  spoil.  1  shall  not  con- 
clude any  thing  uihui  this  point  at  the  pres- 
ent  time. 

It  is  ordered  and  <lecreed  that  the  ac- 
counts of  .Tames  L.  Pearson,  as  one  of  the 
executors  of  Robert  Stacy,  be  referred  to  the 
comndssloner,  and  that  the  connnissioner.  in 
taking  the  account,  impiire  as  to  the  indebt- 
edness of  said  I'earson  to  testator  at  his 
death,  as  well  as  the  estate  sin<v  his  death, 
and  that  he  hear  testimony  on  the  subject. 
*151 

*lt  is  also  ordered,  that  the  account  of 
M.  C.  Stacy,  one  of  the  executors  of  It.  Stacy, 
deceased,  be  referred  to  the  Connnissioner, 
and  that  he  report  thereon. 

The  defendant,  I5obbitt.  aiii>ealetl.  and 
moved  this  Court  to  reverse  the  decree,  on 
the  grounds, 

1st.  Because  the  Court  had  no  jurisdiction 
of  the  case  as  made  by  the  bill  and  answer, 
as  there  was  a  plain  and  ade(iuate  remedy  at 
law. 

2d.  Because  the  bill  is  nudtifarious.  set- 
ting up  separate  and  distinct  demands 
against  the  defendants,  in  which  they  had 
no  interest  in  connnon. 

.'id.  Because  there  was  not  sufhcicnt  proof 
that  Bobbitt  had  not  paid  to  testator  the 
debts  which  he  owed  him,  to  overcome  the 
oath  of  Bobbitt  and  the  production  of  the 
notes  taken  up  and  cancelled. 

4th.  Becau.se  there  was  no  proof  that  Bob- 
bitt ever  borrowed  the  two  hundred  and  fifty 
dollars  referred  to  in  the  amended  bill,  or  if 
he  borrowed  it,  that  it  had  not  been  refunded. 

5th.  Because  the  decree  was,  in  other  re- 
spects, against  law  and  evidence. 

Bobo,  for  the  motion. 
Tucker,   contra. 

Dl'XKlX,  Ch.  delivered  the  opinion  of  the 
Court. 

The  allegation  of  the  complainant  is,  that, 
the  defendant,  Bobbitt,  was  indebted  to  the 
testator  on  four  promissor.v  notes,  which 
were  unpaid  at  his  death,  and  of  which  the 
defendant  obtained  posse.><sion  by  collusion 
with  J.  I>.  IVarson,  the  co-executor.  On  the 
subject  of  collusion,  the  Chancellor,  express- 
ing a  strong  impression  that  there  was  some- 
thing wrong  in  the  conduct  of  the  executor, 
distiiutly  declares  that  he  "shall  not  con- 
clude any  thing  upon  this  point  at  this  time." 

He  places  the  right  of  the  complainant  to 
implead  Bobbin  in  this  jurisdiction,  on  the 
ground  of  discovery;  and  that,  having  ju- 
risdiction for  the  purpose  of  discovery,  the 

61 


452 


3  RICHARDSON'S  EQUITY  REPORTS 


*152       . 

Court  was  at  liber*ty  to  go  ou  and  give  relief. 
Where  the  bill  is  for  discovery  and  relief, 
the  plaintiff  must  shew,  affirmatively,  that 
his  right  cannot  be  established  at  law,  with- 
out the  aid  of  the  discovery  which  he  seeks ; 
and  the  discovery  must  be  established  by  the 
answer,  in  order  to  entitle  the  Court  to  main- 
tain the  bill  for  relief.  Russell  v.  Clark's 
ex'rs,  (7  Cranch,  89  [3  L.  Ed.  271],)  Laight 
V.  Morgan,  (1  Johns.  Cas.  429.)  But  a  party 
may  have  a  bill  of  discovery,  not  only  where 
he  is  destitute,  of  other  evidence  to  establish 
his  case,  but,  also,  to  aid  such  evidence,  or 
to  render  it  unnecessary.  Mitf.  Eq.  PL  by 
Jeremy,  307 ;   see  also.  Story  Eq.  PI.  319,  note. 

In  this  case,  the  plaintiff's  demand  was 
purely  of  a  legal  character.  He  has  obtained 
from  the  defendant  the  discovery  which  he 
sought,  and  all  the  circumstances  disclosed 
by  that  answer,  as  well  as  those  to  which 
witnesses  have  testified,  are  peculiarly  prop- 
er for  the  consideration  and  adjudication 
of  the  ordinary  tribunal. 

It  is  ordered  and  decreed  that  the  plaintiff 
be  at  liberty  to  institute  proceedings  at  law 
for  the  amount  alleged  to  be  due  by  the  de- 
fendant, George  Bobbitt,  to  the  estate  of  the 
testator,  R.  Stacy,  deceased ;  that  the  pro- 
ceedings be  prosecuted  in  the  name  of  both 
the  executors,  as  plaintiffs,  and  that  the  de- 
fendant, J.  L.  Pearson,  be  enjoined  from  re- 
leasing, or  in  any  manner  interrupting  the 
recovery  of  said  demand.  It  is  further  or- 
dered, that  the  bill  be  retained  until  the 
determination  of  said  proceedings  at  law,  or 
until  the  further  order  of  this  Court. 

The  decree  of  the  Circuit  Court  is  modified 
according  to  the  principles  herein  stated. 

JOHNSTON,    DARGAN   and   WARDLAW, 
CC.  concurred. 
Decree  modified. 


3  Rich.  Eq.  *I53 

*IRA  ARNOLD,  Adm'r  of  Robert  Brownlee,  v. 

GEORGE  MATTISON. 

(Columbia.     Nov.   and  Dec.  Term,  1850.) 

[Mortgages  <®=>3S.] 

If  an  instrument  absolute  on  its  face,  can 
be  converted,  by  parol,  into  a  defeasible  instru- 
ment, except  where  the  omission  to  reduce  the 
defeasance  to  writing  was  occasioned  by  fraud 
or  mistake,  the  evidence  must  be  very  clear  and 
convincing;  and  where  the  allegations  of  the 
bill  are  denied  by  the  answer,  there  must  be 
more   than    the   testimony    of   one   witness. 

[Ed.  Note.— Cited  in  Lee  v.  Lee,  11  Rich.  Eq. 
582;  Anderson  v.  Rhodus,  12  Rich.  Eq.  107; 
Campbell  v.  Linder,  50  S.  C.  171.  27  S.  E.  648 ; 
Petty  V.  Petty,  52  S.  C.  55,  50,  29  S.  E.  40G; 
Brown  v.  Bank  of  Sumter,  55  S.  C.  70,  32  S. 
E.  816:  Brickie  v.  Leach,  55  S.  C.  524,  33  S. 
E.  720;  De  Hihns  v.  Free,  70  S.  C.  349,  49 
S.  E.  841;  "Williams  v.  McManus,  90  S.  C. 
493,  73  S.  E.  1038. 

For  other  cases,  see  Mortgages,  Cent.  Dig. 
§§  109,  110;   Dec.  Dig.  <©=>38.] 


[Equity  <©=^25.] 

Where  a  grantor  executes  an  absolute  con- 
veyance of  his  property  to  protect  it  against  the 
claim  of  his  creditor,  reserving,  by  secret  agree- 
ment, an  interest  in  himself,  neither  he,  nor  his 
administrator,  can  come  into  Court  to  be  re- 
lieved of  the  fraud. 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.  §  85;    Dec.  Dig.  tS=:525.] 

Before  Johnston,  Ch.,  at  Abbeville,  June, 
1850. 

The  following  is  the  decree  of  his  Honor, 
the  Circuit  Chancellor : 

Johnston,  Ch.  This  is  a  bill  for  the  sur- 
render of  certain  slaves  conveyed  to  the 
defendant  by  Robert  Brownlee,  the  intestate 
of  the  plaintiff,  by  an  instrument  purporting 
upon  its  face  to  be  an  absolute  bill  of  sale. 
It  is  alleged  to  have  been  intended  as  a  mort- 
gage ;  and  proof  was  introduced  of  a  parol 
stipulation,  that  it  was  to  become  defeasible 
by  the  re-payment  of  the  money  within  seven 
years  from  its  date. 

I  deem  it  sufficient  to  remark,  that  if  an 
instrument,  absolute  on  its  face,  can  be  con- 
verted, by  parol,  into  a  defeasible  instrament, 
except  where  the  omission  to  reduce  the  de- 
feasance to  writing  was  occasioned  by  fraud 
or  mistake,  the  evidence  must  be  very  clear 
and  convincing;  and  where,  as  in  this  case, 
the  allegations  of  the  bill  are  denied  by  the 
answer,  there  must  be  more  than  the  testi- 
mony of  one  witness.  (4  Kent,  143 ;  part  6, 
sec.  58.)  Neither  of  the.se  conditions  is  ful- 
filled in  this  case.  There  is  no  circumstance 
in  the  case  tending  to  show,  that  if  this  was 
a  bona  fide  transaction,  as  between  the  par- 
ties, any  defeasible  conveyance,  or  anything 
else  than  an  absolute  conveyance,  was  or 
could   have   been   contemplated. 

The  defendant  Mattison,  already  held  the 
oldest  lien  in  his  judgment,  for  the  money 
already  due  him ;  and  the  advances  which  he 
was  to  make  on  Brownlee's  account,  (which, 

*154 
together  *with  what  was  already  due  him, 
were  the  consideration  of  the  conveyance.) 
were  to  be  paid  on  another  judgment.  These 
gave  him  all  the  lien  he  needed.  Why,  then, 
under  the  circumstances,  convert  the  general 
lien  of  the  judgments  into  the  specific  lien  of 
a  mortgage?  What  motive  could  there  be 
for  such  a  procedure?  And,  if  no  motive 
for  a  lieu  could  exist,  is  not  the  inference 
natural  and  Irresistible,  that  an  absolute 
conveyance  was  designed?  I  can  draw  no 
other  conclusion,  if  the  transaction  was  not 
fraudulent.  If  fraudulent,  however,  the 
plaintiff  is  not  entitled  to  a  decree. 

There  are  only  two  conceivable  modes  in 
which  fraud  could  have  entered  into  the 
transaction : 

1.  It  may  have  been  intended  to  convey 
the  property  to  Mattison,  as  a  cover  against 
the  debt  of  Robertson,  drawing  nigh  to  judg- 
ment, as  testified  by  George  W.  Brownlee, 
coupled   with   a   secret  agreement,    reserving 


62 


<g=sFor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


BAILEY  V.  PATTERSON 


^156 


an  interest  in  Robert  Browiilt-o,  the  KiJiiitor. 
With  this  view,  several  circuiustjuues  in  tlie 
case  may  harmonize.  But  if  this  was  the 
nature  of  the  transaction,  neitlier  Robert 
Brownlee,  \Yho  was  particeits  criminis,  nor 
his  administrator,  who  stands  in  his  shoes, 
can  come  to  be  relieved  of  his  own  fraud. 
It  would  be  an  encourajrenient  to  fraud,  to 
allow  a  party  to  it  to  stand  in  the  same  con- 
dition of  safety  as  if  no  fraud  were  intended, 
and  in  an  iMiual  condition,  wbetlier  his  fraud 
were  successful  or  not.  Equity  will  e.xecute 
no  corrupt  agreement,  but  leave  the  [larties 
in  the  condition  they  have  prei»ared  for  them- 
selves. 

2.  If,  however,  the  fraud  was  of  another 
character ;  if  Mattison  imposed  an  alisolute 
bill  of  sale  on  Brownlee.  who  supposed  it 
contained  a  defeasance — this  is  not  the  case 
made  by  the  bill — and,  therefore,  no  decree 
can  be  given  on  the  evidence.  But,  as  I 
have  said,  it  Is  altogether  improbable  that 
these  parties  could  have  stipulated  for  a  de- 
feasible instrument  with  any  other  view 
than  to  defraud  third  persons,  and  upon  that, 
I  have  stated  my  conclusions. 

It  is  ordered  that  the  bill  be  dismissed. 
*155 

*Tlie  complainant  appealed,  on  the  follow- 
ing grounds: 

1.  Bwause  the  circumstances  inherent  in 
the  transaction,  and  the  other  evidence  of  the 
case,  were  suliicient  to  establish  the  fact, 
that  the  bill  of  sale  in  question  was  executed 
subject  to  a  defeasance,  to  become  void  on  the 
payment  of  defendant's  judgment,  and  the 
amount  paid  by  him  on  a  judgment  in  favor 
of  S.  L.  Maddox  against  the  complainant's 
intestate,  and  Geo.  W.  Brownlee,  and  was  in- 
tended  by  the  parties   as  a   mortgage  only. 

2.  liecause  it  is  respectfully  submitted, 
that  it  was  not  necessary  to  allege  in  the  bill 
that  the  defeasance  was  omitted  by  fraud 
or  mistake,  but  that  the  general  allegation, 
that  it  was  agreed  that  the  bill  of  sale  .should 
only  operate  as  a  mortgage  or  yiledge,  was 
sutticient  to  entitle  the  complainant  to  the 
benefit  of  evidence  showing  cither  fraud  or 
mistake. 

3.  Because,  even  if  the  bill  of  sale  was 
executed  upon  a  corrui»t  agreement  to  de- 
fraud creditors,  it  is  resiiectfully  submitted 
that  the  defendant  could  not  avail  himself 
liis  own  tort,  in  taking  possession  of  the  slaves 
after  IU)bert  Brownlee's  death,  who  died 
seized  of  them,  and  the  Court  should  not 
have  protected  him  in  such  tortious  ix)sses- 
sion. 

4.  Because  tiie  decree  is  in  other  respects 
contrary  to  the  evidence  and  equity  of  the 
case. 

.Sullivan,  for  appellant. 
I'errin  &  MeGowen,  contra. 

PER  criil.^M.  This  Court  concurs  In 
the  decree  of  the  Chancellor  ;   and  it  is  order- 


ed that  the  .same  be  affirmed.  an<l  the  appeal 
dismissed. 

JOIINSTOX,  DT'XKIN  and  l^AUC.V.N,  CC, 
concurring. 

Decree  allirmed. 


3   Rich.  Eq.  *I56 

♦JOHN   K.   BAII.EY   and   Otli.'is   v.   WY.MT 
I'ATrKRSOX    and   Others. 

(Colunii)ia.     Nov.  and  Dec.  Term,  ISoO.) 

[Willt   <S=3r»()f;.l 

Testator  beqiieutlied  as  follows:  "I  uive  and 
ijequeath  to  my  daimiiter  M.  li.,  one  dollar;  I 
also  fjive  and  bc<|iifatli  to  the  heirs  of  her  body, 
aiy  iie^To  iiirl  I'oll.  at  fom-  iiinidied  dollars:  1 
give  and  l)c(|iieatli  tu  the  said  heirs  of  her  body 
oue-twelt'tli  part  of  uiy  clear  estate,  to  be  equal- 
ly divided  auiong  them."  At  the  death  of  testa- 
tor. M.  B.,  who  was  theu  livin:;.  had  several 
children,  some  of  whom  were  in  esse  at  the 
date  of  the  will,  and  some  had  been  horn  after- 
wards ;  J/cld  that  the  l)ei]uest  of  Toll  was  not 
to  M.  B.,  but  to  her  children  livin.i:  at  the  death 
of  testator. 

[Ed.  Note. — For  other  cases,  see  Wills.  Cent. 
Dig.  §  10! t8:    Dec.  Dig.  <©=>;"( Mj.] 

IWiiis  c=.")0(;.i 

It  is  alw.ivs  open  to  inquiry  whether  a  tes- 
tator used  the  word  'heirs.'  according  to  its 
strict  and  proper  acceptation,  or  in  a  more 
inaccurate  sense,  to  denote  'children.'  'next  of 
kin,'  &c. 

lEd.  Note.— Cited  in  Cloud  v.  Calhoun,  10 
Rich.  Eq.  o02 ;  Duncan  v.  llari)er,  4  S.  C.  84; 
Mona?han  v.  Small,  (3  8.  C.  1N2 ;  McCown  v. 
King.  2:;  S.  C.  2:!S;  l>)tt  V.  ThonM)s<.n.  'M\  S. 
C.  44.  15  S.  E.  2TS:  Shaw  v.  Robinson.  42  S. 
C.  840.  20  S.  E.  101:  Duckett  v.  Butler,  07 
S.  C.  l.'!4,  45  S.  10.  i;57;  Reeves  v.  Cook,  71 
S.  C.  271),  51  S.  E.  Oo:  Renibert  v.  Evaus,  S6 
S.  C.  450.  «5S  S.  E.  001;  Church  v.  Moodv.  98 
S.  C.  2:!!>,  82  S.  E.  430. 

For  other  cases,  sec  Wills,  Cent.  Dig.  §  1000: 
Dec.   Dig.  <&=3.-jOG.] 

{Guardian   and    Ward  <^z=>A'^.^ 

Defendant,— though  claiming  as  a  purchas- 
er, without  notice,  from  the  guardian  <»f  plain- 
tiffs.— ordered  to  deliver  up  the  slaves  in  dispute 
to  iilaintilTs  and  account  for  the  hire. 

[Kd.  Note. — Cited  in  l.ong  v.  Cason.  4  Rich. 
Eq.  00;  Moore  v.  Hood.  <J  Rich.  E(i.  .'^25.  70 
Am.  Dec.  210:  McDullie  v.  Mclutvre,  11  S.  C. 
500.  501,  :?2  Am.  Rep.  500. 

For  other  cases,  see  (Juardian  and  Ward, 
Cent.  Dig.  §  53;    Dec.  Dig.  <S=34::.| 

liefore  Dunkin,  Ch.,  at  Kershaw,  June, 
1850. 

The  following  is  the  decree  of  his  Honor, 
the  Circuit  Chancellor: 

Dunkin,  Ch.  The  will  of  Jacob  Cluunpion, 
deceased,  liears  date  in  182(5,  and  a  codicil 
was  executed  in  18;!2.  About  this  time  tlie 
testator  died,  and  administration,  with  the 
will  annexed,  was  assumed  under  the  au- 
thority of  the  ordinary,  by  George  \V.  Cham- 
pion. 

The  testator  left  some  twelve  or  thirteen 
children ;  one  of  the  clauses  of  his  will  is 
as  follows :  "I  give  and  beiiueatli  to  my 
daughter.    Mary   Bailey,   one  dollar;    I  also 


@=3For  other  cases  see  same  topic  and  KEV-NUMBER  in  all  Key-Numbered  Digests  and  lude.xes 


63 


n56 


3  RICHARDSON'S  EQUITY  REPORTS 


give  and  bequeath  to  the  heirs  of  lier  body, 
my  negro  girl  Poll,  at  fonr  hundred  dollars : 
I  give  and  bequeath  to  the  said  heirs  of  her 
hody  one-twelfth  part  of  my  clear  estate,  to 
be  divided  equally  among  them." 

On  the  21st  November,  1834,  James  Bailey, 
the  husband  of  INIary  Bailey,  and  the  father 
of  the  complainants,  who  are  her  children, 
was  duly  appointed  their  guardian,  and  gave 
bond  as  such.  On  the  26th  November,  1834, 
James  Bailey,  as  guardian,  gave  to  the  ad- 
ministrator. Champion,  a  receipt  for  "Poll 
and  her  child  Sarah  Jane,  bequeathed  to  the 

*157 
children  of  Mary  Bailey  by  ^testator's  will." 
He  gave  him  a  receipt  as  guardian,  on  the 
same  day,  for  the  hire  of  Poll  up  to  that 
date ;  and  a  separate  receipt  for  $213.94,  in 
full  of  the  legacy  bequeathed  to  the  children 
of  INIary  Bailey,  by  said  will."  Mary  Bailey 
on  the  next  day  gave  a  receipt  to  the  admin- 
istrator for  '"one  dollar,"  the  sum  in  full 
bequeathed  to  her  in  her  father's  will  and 
testament. 

Poll  was  nearly  grown  when  the  testator 
dietl :  soon  after  she  came  into  the  posses- 
sion of  the  guardian,  she  was  regularly  hired 
out  by  him ;  she  was  hired  to  the  defendant 
for  several  years  prior  to  1841.  On  the  4th 
of  INlarch,  1841,  he  acknowledges,  on  a  note 
of  James  Bailey  to  him,  a  receipt  of  $65  by 
the  hire  of  Poll ;  sometime  after  this  period, 
James  Bailey  became  insolvent,  and  left  the 
State,  but  at  what  particular  time  was  not 
proved.  I'oll  remained  in  the  possession  of 
the  defendant,  and  she  had,  at  the  time  of  fil- 
ing his  answer,  six  children,  whose  names 
are  set  forth  in  an  exhibit  with  his  answer ; 
three  of  the  complainants  having  become  of 
age,  applied  to  the  defendant,  as  well  in  be- 
half of  themselves,  as  of  their  co-complain- 
ants, for  a  delivery  of  the  negroes,  and  an 
account  of  the  hire — this  being  declined,  the 
bill  was  filed  on  the  14th  January,  1846. 

Tlie  defendant,  by  his  answer,  admits 
that  he  is  in  possession  of  Poll  and  her  chil- 
dren whom  he  claims  under  an  alleged  pur- 
chase from  James  Bailey,  about  the  year 
1841.  He  insists  that,  by  the  true  construc- 
tion of  Jacob  Champion's  will,  an  absolute 
estate  in  Poll  vested  in  Mary  Bailey,  and 
consequently,  that  her  husband's  title  was 
perfect  and  indefeasible.  He  admits  that  he 
hired  Poll  from  James  Bailey  for  $65  per 
annum,  from  1837  to  1841,  but  he  denies  that 
he  hired  from  him  as  guardian,  or  that  he 
knew  that  he  held  the  negroes  as  guardian. 
It  may  be  premised  that  there  was  no  proof 
of  any  sale  by  James  Bailey,  or  of  any  pur- 
chase by  the  defendant ;  but  if  James  Bailey 
had  a  good  title  under  Champion's  will,  that 
enquiry  might  not  be  important  in  this  issue, 
as  he  could  hold  by  possession ;  and  if  the 
complainants  are  entitled  under  Champion's 
will,  whether  a  sale  was  or  was  not  made  by 
their  father,  is,  in  my  judgment,  unimpor- 
tant.   But  if  the  legal  title  had  been  in  James 

64 


*158 
Bailey,  and  *only  an  equity  in  his  children, 
I  do  not  think  the  circumstances  established, 
would  in  any  manner  entitle  the  defendant 
to  the  protection  of  a  purchaser  for  valuable 
consideration,  without  notice. 

But  in  whom  was,  and  is,  the  legal  title? 

It  is  quite  clear  that,  in  a  strict  sense,  no 
person  can  sustain  the  character  of  heir  in 
the  life  time  of  the  ancestor,  according  to  the 
familiar  maxim  nemo  est  hteres  viventis — 
but  it  is  always  open  to  inquiry  whether  the 
testator  used  the  word  according  to  its  strict 
and  pi'oper  acceptation,  or  in  a  more  inac- 
curate .sense,  to  denote  '•children,"  "next  of 
kin,"  &c.  2  Jarman,  18.  The  doctrine  was 
very  fully  discussed  in  Holeman  v.  Fort,  (3 
Strob.  Eq.  66  L51  Am.  Dec.  665]).  That  was 
a  gift  by  deed  of  certain  slaves  to  "the  joint 
heirs  of  Jas.  D.  Hoof  and  Ann  Hoof,"  (both 
of  whom  were  alive.)  The  deed  was  held  to 
pass  an  imuiediate  and  absolute  estate  to  the 
children  of  J.  D.  and  Ann  Hoof,  living  at 
the  date  of  the  deed ;  children  subsequently 
born  were  excluded.  It  will  be  remarked  in 
the  will  of  Champion,  that  immediately  pre- 
ceding the  bequest  in  question,  the  testator 
gives  one  dollar  to  his  daughter  Mary  Bailey  ; 
this  circumstance  is  relied  on  in  Darbison 
V.  Beaumont,  (1  P.  Wms.  2.30.)  as  indicating 
the  sense  in  which  he  uses  the  words  "heirs 
of  her  body,"  in  the  succeeding  clause.  In 
Sims  V.  Garrol,  (1  Dev.  and  Bat.  Eq.  R,.  393,) 
testator  had,  in  a  previous  clause,  made  a 
devise  and  bequest  to  Joel  Sims  and  he  after- 
wards bequeathed  the  residue  of  his  estate  to 
"Joel  Sims's  lawful  heirs."  Judge  Daniel 
says,  "The  testator  takes  notice  that  Joel  Sims 
was  alive  at  the  making  of  his  will ;  there 
can  be  no  doubt,  that  the  testator  did  not  in- 
tend that  the  words  'lawful  heirs'  should 
be  taken  in  their  technical  meaning,  but  he 
intended  to  designate  a  class  of  persons,  who 
should  take  immediately  on  his  (testatoi's) 
death."  I  think  the  words,  "to  be  divided 
equally  among  them,"  also  indicate  that  the 
words  were  used  in  their  ordinary  and  not 
technical  sense. 

Those  of  the  complainants  who  were  alive 
at  the  death  of  the  testator  in  1832,  are  en- 
titled to  Poll  and  her  issue;  three  of  the 
complainants  were  in  existence  in  1826,  the 

*159 
date  of  the  will,  and  *were  of  age  when  the 
bill  was  filed.  The  Court  infers  from  the 
evidence,  that  Jacob  (the  fourth  child)  was 
also  alive  in  1826,  though  he  was  not  of  age 
at  the  filing  of  the  bill,  and  as  the  succeed- 
ing children,  Polly  and  Nancy,  were  born  at 
intervals  of  t\\'o  years  from  the  birth  of  Ja- 
cob, they  w'ere  both  alive  at  the  death  of  the 
testator,  in  1832.  These  six  complainants  are 
therefore  entitled  to  the  slaves,  under  the 
will  of  their  grandfather. 

It  is,  therefore,  ordered  and  decreed,  that 
the  slaves  mentioned  and  named  in  the  ex- 
hibit of  defendant's  answer,   together   with 


fALIIolX    V.   l'rK(;K.SON 


*1G1 


any  issue  tlicn'of.  since  born,  he  tlelivcivil  up, 
and  tiiat  tin-  (U-fendant,  Wyntt  ratrt'ison,  ac- 
fount  fur  tlic  hire  sint-e  the  1st  <if  .lanuarv, 

1N41. 

Tile  ilefendant,  ratteison.  a|ii"'alt'<l.  <>n  the 
{irounds: 

1.  Jiecanse  tlie  dt'fendant.  Wyatt  raltersmi. 
laircliased  the  said  slaves  from  James  Haiiey. 
the  guardian,  without  notice  that  he  held 
tljem  as  fruaidiau,  and  llierefore  his  title  to 
the  siiid  slaves  is  i»roti'Oted  in   Kquity. 

1'.  That  by  the  true  t-onstruction  of  Jacob 
C'lHinipion's  will,  an  ahsohite  estate  in  Toll 
vested  in  Mary  I'ailey,  and  cons  M|uently  the 
title  of  her  liusliand,  James  I'.ailey.  to  tlie 
said   slaves   was  perfect   and   indefeasible. 

3.  Because  the  sale  of  tlie  saicl  shives  was 
neces.sary  for  the  support  ami  maintenance 
of  complainants,  and  the  proceeds  thereof 
were   applied    to   that    purpose. 

Smart,  for  th(>  motion. 

("Ihiton  &  Ilaiiiia.  contra. 

I'EU  CriMAM.     We  concur  in  the  decree 


it 


iim.ibic  in  tlie  ii.sp,  or  not  ci;nsuiu- 
lilf,   n-pr.Hhirtivf,   or   not  n-.truihictive.— is   Ha- 
bit' to  the  ri'iiiaiiKlt'i-niiiii.  cunsidrrcd. 

IKil.    Xnte.— For  utiicr  ciix'^.  «.'.>  Life  Estates. 
Ont.  I>iK.  §  41:    I  v.  I)iy;.  (S=>1>().1 

\<'liitritivs  <£r=3l<».l 

[A  l)c<nu'st  to  eort.iin  persons,  uained  in  the 
will,  and  styb'il.  "trustcs  of  tlio  Smith  ('Midlina 
Coiif.nMir..  S1I1....I.  C.K.'sbnry.  Al.lM'vill.-  Dis- 
trict, S.  ('.,"  f,ir  certain  s;M'cific  uses,  well  de- 
hni-d  ill  the  wiU.  is  valid,  tlionudi  it  do  not  ap- 
|»ear  that  the  inrsons  iiaiiicd  were  such  •trus- 
tees,"' as  in  a  court  cf  ecpiity  a  trust  will  never 
fail  for  want  of  a  trustee.) 

|Kd.  Note.— For  other  cases,  see  rharities. 
Cent.  IHk.  S  4-':  Dec.  ]».,'.  <S=Jl!t ;  Wills.  Cent 
Dig.  S  1077.J 

{('hariticK   C='47.1 

fE<|uity  will  not  allow  a  charitaiih-  trust  to 
fail  for  want  of  a  trustee,  but  will  appoint  .me.) 
[lOd.    Note.— For    other    cases,    see    Charities, 
Cent.  Di;,'.  §  .Sr» ;    Dec."  Dig.  C=»4T.] 

Before  Caldwell.  Cli..  at  Abbeville.  June. 
1.S4S. 

The  decree  of  bis  Honor,  the  Cbaiictdloi-,  is 
as  follows: 

Caldwell,  ch.     This  c-ase  comes  up  on  an 


» -^..   V,,  .V..I..J.      ,, ,-  tipocm    III   (lie  tiecMee         ■>_■<>. <i  .<»  n.    -  u.      i  m.-s  ca>e  coiiic^s   up   on   an 
of  the  Chancellor:    and  it  is  ordered  that  the  '  :"l»P<'iil    fioin   the   decree   of   Mr.    Lesley,   the 


of 


same  be  allirmed,  and  the  apjx'al  dismissed. 

JOHNSTON,  DUNKIN  and  DAlKiAX,  eon- 
currinj:. 
Appeal  dismissed. 


3   Rich.  Eq.  *I60 
•E.   R.  CALIIOIN   and    H.   .V.   C.    AVALKER 
Executors   of   (Jeor^e    Ilollowav.    Deceased 
THOMAS     FIRCESON.     Acin.inistrator 
Rebecca   Ilolloway,   Deceased. 

(Columbia.     Nov.  anj  Dec.  Term,  IS.'IO.) 
[Charities    C=>-1.1 

Reciuest  to  certain  persons,  naniintr  them, 
trustees  of  the  South  Carolin.i  Conference 
School,  Cokeslniry.  Abbc-vilje  distric-t,  S.  C 
and  their  successors  in  oHice,  as  a  fund'  in  trust 
for  the  followinjr  specific  use  or  uses,"  &v  laid 
that  the  betiuest  was  valid. 

[Ed.    Note. — For    other    c-ases,    see    Charities 
Cent.  Di?.  SS  44-;jO;    Dec.  Dip.  «®==-'l.] 
[Life  Estatrs  C=>n.l 

Testator  l)e(|ueathed  ti.e  whole  of  his  estate 
consistiui;  of  land,  slaves,  horses,  c-attle,  ho-'s 
provisions,  farniinj;  utensils,  furniture,  &c.,  t() 
his  wife  tor  life,  with  remainder  over:  he  died 
l-r  '^'"^^-  ^''^"'*'-  '''"'^  l''^  widow,  the  tenant  for 
life,  died  in  May.  1.S47:  the  y.Mieral  condition 
of  the  estate  was  improved,  while  in  the  hands 
ot  the  tenant  for  life,  nud  it  was,  when  deliver- 
ed over  to  the  reniaincler-nien,  in  as  good  plight 
as  when  she  received  it,  tln.u-h  there  was  an 
accidental  dehciency  of  piovishms;  /Irhl  that 
the  representative  of  the  tenant  for  life  was  not 
lialde  to  acccmnt  to  the  remainder-inen  for  that 
delicieiic.v. 

|i;d.    Note.-Cited    in    (Jlover    v.     Hearst      10 

luch.  L.|.  -.[:',-,.  :::;(;:  j'.n.oks  v.  I'.rooks  r>  s 
C.  44:!,  444.  44(;.  447.  4r,(».  4.-)l.  4.-.4,  4.j5:  Orr 
V.  Orr.  :\4  S.  C.  L'SO,  III  s.  E.  4<)7. 

For  other  cases,  see   Life  Estates.  Cent.  Dig. 
§  dO;    Dec-.   Dij:.   <S=»11.] 

[Life   Kstntes    <S=li(».| 

The  i)rinciples  upon  which  a  tenant  for  life 
ot  persoiialty.-whether  it  he  a  r.peci(ic  chattel 
or  an  entire  estate  Kiven  as  a  unity,  and  wheth- 


ordinary  of  Abbeville  district,  on  the  ad- 
justment of  the  estates  of  (Jeorse  Holloway. 
and  cd'  his  wife.  Rebecca  Hcdloway,  between 
their  lej,'al  representatives. 

Oeoiw  Holloway.  by  his  last  will  and  tes- 
tament, made  On  the  .*kl  of  August,  1840.  de- 
vised   and    be(iueathed   as    follows,   to  wit: 

•Item  2d.  I  will  and  betiueath  to  my  dear- 
ly beloved  wife.  Rebecc-a.  after  the  payment 
of  my  just  debts,  all  my  estatc\  both  real  and 
personal,  duriiii,'  her  natural  life,"  &c. 

"Item  4th.  It  is  my  will  and  desire,  that 
at  the  death  of  my  dearly  Ixdoved  wife,  Re- 
'becca,  all  my  estate,  both  real  and  personal, 
not  otherwise  disi»osed  of  by  the  provisions 
of  my  will  herein  before  made,  be  sold  in 
the  following  manner,  to-wit:  I  particularly 
enjoin  it  on  my  executors  to  sell  in  families, 
and  in  no  other,  the  nej,'roes  of  my  estate,  but 
the  balance  of  the  property  as  they  may 
think  best." 

*161 

*"ItiMii  .-.tb.  I  will  and  boqucatb.  .-it  the 
death  of  my  dearly  beloved  wife,  Rebecca, 
all  the  residue  and  remainder  of  my  estate, 
iKitli  real  and  per.sonal,  unto  the  Rev.  William 
M.  Wi-htman.  (and  others,  namiiifr  thefti.) 
trustees  of  the  South  Carolina  Conference 
School,  Cokesbury,  Abbeville  district,  S.  C, 
and  their  successors  in  otHce,  as  a  fund  in 
trust  for  the  followim;  spccilic  u.se  or  uses," 
&c.  (a) 

The  ordinary  held  the  beciuest  and  devise 
«oc)d  in  remainder:  but  that  the  estate  of 
Rebecca  Holloway,  the  tenant  for  life,  was 
not  accountable  to  the  remainder-man  for 
^750.00.  the  value  of  the  provis;iou  crop  made 
during  the  year  before  the  death  of  the  tes- 


(Ml  Ihe  Re|)orter  havint;  been  unable  to  pro- 
cure a  copy  of  the  will,  cannot  state  what  were 
the   uses  expressed  in  it. 


©=3Kur  other  cases  see  same  io..ic  auU  KEY-NLMBEK  iu  all  Key-Numbeied  Digests  aud  Indexes 
o  Ku  li.Ecj. — 5 


Uo 


461 


RICHARDSON'S  EQUITY  REPORTS 


tator,  who  died  the  last  day  of  August,  1846, 
and  that  her  life  estate  was  not  accountable 
for  .?527.00,  the  hire  of  the  slaves  and  the 
rent  of  the  land  from  the  death  of  Rebecca 
Holloway,  the  tenant  for  life,  who  died  in 
May,  1847,  to  the  first  of  January  following, 
when  the  property  was  taken  into  possession 
by  the  surviving  executors. 

The  administrator  of  Rebecca  Holloway 
appealed  from  the  decree  of  the  ordinary,  on 
the  grounds: 

1st.  "Because  the  bequest  in  remainder  to 
"William  M.  Wightman  and  others,  as  a  fund, 
in  trust,  is  illegal  and  void."  I  can  see  noth- 
ing in  the  terms  of  the  will  that  can  render 
it  void,  and  its  provisions  are  certainly  much 
more  definite  in  every  respect  than  Burnet's 
will,  (Attorney  General  v.  Jolly,  1  Rich.  Eq., 
99-109  [42  Am.  Dec.  349].)  by  which  he  devis- 
ed and  bequeathed  the  whole  of  his  estate, 
real  and  personal,  to  his  wife,  during  the 
term  of  her  natural  life,  and  after  her  death, 
"to  the  Methodist  Church,  of  which  she  may 
be  a  member  at  the  time  of  her  death,  to  be 
appropriated  to  the  uses  and  purposes  which 
the  Conference  may  deem  most  advantageous 
for  said  Church;  more  especially  for  the 
support  of  Sunday  Schools,  for  the  purchase 
of  Bibles,  religious  tracts,  and  the  distribu- 
tion of  the  same  among  the  destitute,  and  for 
the  support  of  Missionaries."  This  was  held 
a  valid  bequest  to  the  Methodist  Church,  of 

*162 
which   the  tenant   for   *life   was   a   member 
when  she  died,  and  that  this  Court  can  ex- 
ecute the  trusts. 

2d.  "Because  the  said  bequest  in  remain- 
der is  in  trust  to  a  supposed  corporation 
which  never  had  existence  by  such  name. 
The  School  at  Cokesbury,  Abbeville  district, 
was  incorporated,  but  the  gift  was  not  direct- 
ly to  the  School  as  a  corporation,  but  to  the 
Rev.  William  M.  Wightman,  Henry  Bass,  N. 
Tally,  H.  Spain,  James  Dannelly,  H.  A.  C. 
Walker,  James  H.  Wheeler,  Mat.  J.  Williams, 
C.  S.  Beard,  and  T.  R.  Gary,  trustees  of  the 
South  Carolina  Conference  School,  Abbe- 
ville district,  S.  C,  and  their  successors  in 
office,  as  a  fund  in  trust  for  the  following 
specific  use  or  uses,"  &c.  Whether  these  gen- 
tlemen were  trustees  or  not  of  the  School, 
cannot  change  the  trusts  of  the  will.  If 
they  were  to  decline  to  execute,  or  if  no 
successoi"s  were  appointed,  it  would  be  com- 
petent for  this  Court  to  appoint  trustees  to 
carry  out  the  will.  A  trust  never  fails  for 
want  of  a  trustee,  while  equity  exists.  But 
there  was  no  proof  that  they  were  not  trus- 
tees, and  the  fact  will  be  presumed,  unless 
disproved. 

3d.  "Trust  results  to  the  next  of  kin  of 
testator,  as  the  whole  bequest  is  void ;  and 
that  the  ordinary  should  have  decreed  to 
Thomas  Fergeson,  administrator,  one-half  of 
the  estate  of  George  Holloway,  as  representa- 
tive of  said  Rebecca." 

The  objects  of  the  trust  are  well  defined 

66 


by  the  terms  used  in  the  will,  and  the  mode 
of  administering  the  charity  is  prescribed 
with  sufficient  clearness  and  certainty.  Nei- 
ther our  common  or  statute  law  forbids  such 
charitable  donations.  These  grounds  are, 
therefore,  insufficient  to  invalidate  the  will. 

The  executors  of  George  Holloway  appeal- 
ed from  the  decree  of  the  ordinary,  on  the 
following  grounds: 

1st.  "That  the  ordinary  erred  in  not  liold- 
ing  the  estate  of  Rebecca  Holloway.  the  ten- 
ant for  life,  accountable  to  the  remainder- 
man for  $756.00,  the  value  of  the  provision 
crop  made  during  the  year  before  .the  death 
of  the  testator,  who  died  the  last  day  of  Au- 
gust, 1846,"  The  Act  of  1789,  (5  Stat.)  pro- 
vides that  "the  slaves  which  were  employed 
in  making  a  crop,  shall  be  continued  on  the 
lands  which  were  in  the  occupancy  of  the  de- 

*163 
cea.sed,  *until  the  crop  is  finished,  and  then 
be  delivered  to  those  who  have  the  right  to 
them ;  and  such  crop  shall  be  assets  in  the 
executors  or  administrators  hands,  subject  to 
debts,  legacies  and  distribution ;  the  taxes, 
ovei"seer's  wages,  expenses  of  physic,  food 
and  clothing,  being  first  paid,"  &c.  His  wife 
had  the  right  to  the  use  of  his  whole  estate 
during  her  life,  after  payment  of  the  debts ; 
and  the  testator  certainly  did  not  intend  that 
she  should  sell  off  the  provisions  raised  on 
the  phmtation,  and  convert  them  into  money 
to  increase  his  estate,  and  that  she  should 
incur  the  expenses  of  supporting  the  proper- 
ty. It  would  seem  that  the  testator  intended 
that  the  property  should  support  her  and  it- 
self, so  that  she  should  not  impair  it.  If  she 
had  made  merchandise  of  the  provisions  rais- 
ed in  1846,  instead  of  using  them,  as  con- 
templated by  the  testator,  then  it  would 
seem  there  might  be  some  claim  on  her  es- 
tate as  assets  of  the  testator,  in  her  hands 
as  executrix.  The  case  of  Robertson  v.  Col- 
lier, (1st  Hill  Ch.  370.)  distinctly  recognizes 
the  doctrine  laid  down  by  Justice  Nott,  in 
Patterson  v.  Devlin,  (1  M'M.  Eq.  459.)  He 
says,  "lands  are  sometimes  given  to  one  for 
life,  together  with  slaves,  stock  of  horses, 
cattle,  plantation  tools,  and  provisions,  with 
a  limitation  over.  In  such  a  case,  the  perish- 
able articles  cannot  be  considered  as  belong- 
ing absolutely  to  the  tenant  for  life,  neithe- 
can  they  be  sold,  because  they  are  necessary 
for  the  preservation  of  the  estate.  The  ten- 
ant for  life  must  therefore  be  considered  as 
a  trustee  for  the  remainder-man,  and  must 
preserve  the  estate,  with  all  its  appurt(nianc- 
es,  in  the  situation  in  which  he  received  it; 
he  may  therefore  be  required  to  give  an  in- 
ventory of  the  property,  or  security  for  its 
preservation,  according  to  circumstances. 
The  tenant  for  life  will  be  entitled  to  the  in- 
crease of  the  stock  and  the  rents  and  prof- 
its of  the  land;  but  he  must  keep  up  tlie 
.stock  of  cattle,  horses,  provisions,  and  imple- 
ments of  husbandry,  in  the  condition  in 
which  he  received  them;    for  although  some 


CALIIOUX  V.  FURGESON 


»166 


of  the  articles  may  be  consumed  In  their 
use,  and  others  ar»'  wearing'  «»ut  by  attri- 
tion of  time — yet,  wlu-n  taken  alt...:,'fth»'r, 
beinj,'  reproductive,  the  estate  must  lie  made 
to  keep  up  its  own  repairs." 

♦164 

♦The  words  of  the  will  IxMn;;  In  the  pres- 
ent ease  clearly  within  this  i)rineiple.  which 
I  think  nnist  govern,  the  decree  of  the  ordi- 
nary must   be  modified  accoidini:ly. 

I'd.  '•That  the  <»rdinary  erred  in  not  hold- 
ing said  life  estate  accountahTe  to  the  re- 
mainder-man for  the  sum  of  ."?."i:J7.()().  the  hire 
of  the  slav«'s  and  the  rent  of  the  land,  from 
the  death  of  the  tenant  for  11  f.'.  in  May,  1.S47. 
to  the  tir.st  of  January  ensuing',  when  they 
were  received  into  the  i.ossession  of  the  e.\- 
ecutors." 

This  frr.iund  in  inci>mpatii)le  with  the  prin- 
ciple heretofore  laid  down,  and  is  in  conflict 
with  the  decision  of  the  Court  of  Appeals  in 
l.SL'T.  in  Leverett  et  al.  v.  Leverett  et  al.,  (2 
McCord's  Ch.  S4.)  and  the  more  recent  case 
of  Herhemont.  adm  r.  v.  I'ercival.  in  the 
Court  of  Law  iu  IMO.  (1  Mc.Mul.  51).)  The.se 
two  cases  have  given.  I  think,  a  correct  con- 
struction to  the  Act  of  ITS!),  and  any  other 
view  would  be  not  only  inconsistent  with  the 
intention  of  the  statute,  but  would  be  unset- 
tling the  uniform  practice  that  has  been 
adopted  in  adjusting  estates  that  come  with- 
in its  provisions. 

It  is  therefore  ordered  and  decreed,  that 
the  ca>;e  be  remitted  to  the  ordinary,  and  that 
he  hear  testimony,  if  necessary,  and  that  the 
account  be  modified  agreeably  to  the  view  ex- 
pressed in  this  opinion. 

Thomas  I-'ergeson,  the  ndiiilnistrator  of 
Rebecca  Holloway,  appealed,  and  moved  for 
a  reversal  of  so  much  of  the  decree  as  de- 
clared, 

1st.  Tliat  Thomas  Ferge.son.  as  adndnistra- 
tor  of  Rebecca  Holloway,  decea.sed.  was  lia- 
ble to  account  strictly  for  the  value  of  all 
per.sonalty  of  the  estate  of  Cieorge  W.  Hol- 
loway, deceased,  which  came  into  her  posses- 
sion as  tenant  for  life. 

2d.  That  the  bequest  in  remainder  to  Wil- 
liam M.  Wightman  and  others,  was  certain 
and  valid. 


Thomson  .^i  Fair,  for  the  appellant. 
Wilson,  contra. 

JOHNSTON,  Ch.  delivered  the  (ipiiii,.n  of 
the  Court. 

♦165 

♦The  second  groun<l  (.f  appeal  was  not 
pressed  in  the  argument;  and  is  clearly  un- 
tenable, according  to  our  decisions. 

The  only  point  made  under  the  first 
ground,  was  that  the  decree  should  not  have 
declared  Mrs.  Holloway.  the  life-tenant,  lia- 
ble to  re-produce,  at  the  expir.-ition  of  her 
life-etjtate,  the  same  amount  of  corn  which 


she  received  with  the  estate,  or  account  for 
the  value  of  the  deficiency.! />i 

It  is  Important  in  the  first  place  to  deter- 
ndne  whether  the  testator  intended  to  give 
her  the  property  devistnl  to  her  for  life,  with 
a  view  to  her  enjoyment  of  it  in  kind,  or 
whether  the  gift  was  made  with  reference  to 
the  value  and  not  the  specific  j-njovment  of 
it. 

Where  the  iu^nefit  contemplated  by  the 
donor,  is  the  mere  value  of  the  property:  the 
long  settled  rule  Is  so  to  cfispose  of  the'iirop- 
erty.  that  the  interest  of  both  life-tenant  and 
remainderman  shall  be  protected,  and  neither 
be  in-omoted  at  the  expense  of  the  other. 
This  Is  accomplished  by  the  .sale  of  the  pro|i- 
erty,  giving  the  interest  of  the  proceeds  to 
the  life-tenant  during  life,  and  Jn-ning  over 
the  capital  to  the  remainder-man  upon  the 
life-tenant's  death. 

If  the  personal  enjoyment  of  the  property, 
itself,  was  intended:  a  sale  of  it  cannot  be 
ordered,  l>ecause  that  would  <lefeat  this  in- 
tention: but,  in  such  cases,  the  tenant  for 
life  is  to  hold  and  enjoy  the  property  given, 
under  a  liability,  however,  to  render  such  an 
account  for  whatever  part  of  it  may  not  be 
forthcoming  to  the  remainder-man.  as  the 
rules  of  law  impose,  respect  being  had  to  the 
nature  and  character  of  the  property  which 
has  been  lost. 

Where  the  l>equest  is  sjieclfic  in  term.s. 
there  can  of  course  be  no  doubt  as  to  the 
intention.  There  may  be  doubt  where  the 
btHjuest  is  residuary  in  form.  Where  that 
is  the  ca.se,  the  general  rule  is  to  regard  it 
as   evidence    that   the  intention    was   not    to 

*166 
♦confer  the  personal  enjoyment  of  the  prop- 
erty   in    kind,    but   the   mere   benefit    arising 
from  its  value.      I'.ut   this  rule  is  ancillary, 
only;  and  Is  employed  solely  for  the  i)urpose 
I  of  discovering  the  true  intention  of  the  tes- 
tator: and  if.  by  the  context  of  the  will,  or 
j  in  any  way  from  its  face,  the  mind  is  persuad- 
ed   (notwithstanding   the   resuluary    form   of 
the  iK'(piest)  that  a   i)ersonal  enjoyment   was 
i  intended,  such  will  be  the  construction,  and 
effect    will    be   given    to    if   with   all    its   inci- 
dents. 

The  will  of  (Jeorge  Holloway.  under  which 
the  questions,  made  in  this  case,  arise,  maiu- 
fests  an  intention  that  his  widow  shoidd  en- 
joy the  property.  Itself,  given  to  her  for  life; 
and  a  directly  diflerent  intention  as  respects 
the  remainder-man.  The  direction  that  it 
be  sold  at  her  death,  e.xcludes  the  idea  that 
it  was  to  be  converted  before,  or  that  it  was 
to  be  taken  from  her:  and  the  direction  that 


I      (h)   Sec.    f.ir    the    doetriiie    applicahle    in    such 
I  ciis.s.  I  orttr  v.  Toiiriiiiy.  C,  \es.  ;!l(»t;  How.-  v 

{*"'t "itli.  (7   Vi's.   i;;7):    IVarus  v.   Yoiui-    ('.) 

i  N  es.  ...lie     Randall   v.   Russell,   (li  Mrriv.   l!"M)r 

(.dlespie  V.  Miller.  (,-,  ,J„!,ns.  Ch.  21);  Westeott 
[  y.  Cady.  (Id.  ;rUi:  I'atter.son  v.  Devlin.  (.M.-.M 
'  Ivi.    4olt) ;     Robertsou    v.   Collier,    (1    Hill    Eq. 

I  OlOj. 

G7 


nee 


3  RICHARDSON'S  EQUITY  REPORTS 


the  proceeds  of  the  property,  and  not  the 
property  itself,  be  given  to  the  remainder- 
men, is  inconsistent  with  the  notion  tliat 
they  were  designed  to  liave  any  interest  in  it 
beyond  the  money  to  arise  from  the  sale. 

To  these  considerations  may  be  added  the 
relations  which  these  two  parties  bore  to  the 
testator,  and  the  consequent  interest  he  may 
be  supposed  to  have  felt  for  them  respect- 
ively. 

There  are  other  stray  expressions  through- 
out the  will,  not  taken  notice  of  in  the  de- 
cree; which,  separately,  may  not  have  much 
influence,  but  which,  taken  together  and  add- 
ed to  the  considerations  already  commented 
on,  serve  to  strengthen  the  conclusion  to 
which  I  have  come. 

This  being  the  construction,  then; — that 
the  property  was  specitically  given  to  Mrs. 
Holloway,  we  are  prepared  to  enquire  wheth- 
er her  estate  is  bound  to  account  for  the 
corn  which  she  received. 

This  was  but  a  part  of  the  body  of  the 
property  given  her  for  life.  That  property 
consisted  of  land,  slaves,  horses,  cattle,  hogs, 
farming  utensils,  household  furniture,  &c. 

The  personal  property  falls  under  two  gen- 
eral lieads:  (1)  such  as  was  consumable  in 
the  use  of  it,  and  (2)  such  as  was  not  so  con- 
sumable. 

*167 

*For  instance,  under  the  former  head 
among  other  things  must  be  reckoned,  pro- 
visions,— including  the  corn  which  is  the 
subject  of  litigation  in  this  case.  Under  the 
second  head  might  fall,  among  others,  plate, 
furniture,  &c. 

But  each  of  these  classes  may  be  further 
divided  into  two  descriptions,  according  to 
their  qualities,  and  distinguished  as  re-pro- 
ductive or  not  re-productive. 

Thus;  under  the  first  head,  of  articles  con- 
sumable in  the  use,  may  be  ranked  not  only, 
those  of  corn,  wine,  &c. — which  are  wholly 
consumable,  and  entirely  destitute  of  the 
quality  of  reproduction ;  but,  also,  flocks, 
which,  besides  sustaining  themselves  by  nat- 
ural increase,  yield  a  surplus  for  consump- 
tion. 

Again;  under  the  second  head,  of  property 
not  consumable  in  the  use,  we  have  not  only 
plate,  furniture,  &c. ;  which  are  perfectly 
incapable  of  increase;  but,  also,  slaves,  which 
while  strictly  inconsumable,  are  eminently 
reproductive  by  procreation. 

Now,  the  liability  of  a  life-tenant  for  these 
different  kinds  of  property,  separately  con- 
sidered, is  regulated  by  law.  according  to 
the  specific  qualities  of  tbe  property  itself. 

For  property  entirely  consumable  in  the 
use,  and  entirely  destitute  of  the  power  of 
reproduction,  the  life-tenant  is  not  account- 
able at  all.  It  is  incapable  of  being  limited 
in  remainder,  where  it  is  given  to  be  used  in 
kind.  The  use  of  it  necessarily  consumes  it, 
and  there  is  notliing  left  upon  which  the 
limitation  can  attach.  This  is  the  doctrine 
68 


of  all  the  cases:  and  necessarily  so,  because, 
upon  principle,  no  other  doctrine  can  be  pred- 
icated of  such  property. 

For  property  not  consumable,  but  at  the 
same  time  incapable  of  increase  or  reproduc- 
tion, such  as  plate,  &c.  the  liability  of  the 
life-tenant  is  restricted  to  the  mere  surrender 
of  it  to  the  remainder-man,  who  must  take 
it  with  such  deterioration  as  may  have  arisen 
from  the  reasonable  use  of  it: — for  any 
abuse,  or  for  the  wanton  destruction  of  the 
property,  the  life-tenant  is  responsible. 

For  flocks  and  herds,  consumable  but 
reproductive,  the  rule  is  still  different.     The 

*168 
life-tenant  is  entitled  to  all  the  increase  *be- 
yond  what  is  necessary  to  keep  up  the  stock; 
and,  therefore,  is  bound  to  the  exercise  of 
extraordinary  diligence  for  keeping  it  up  and 
delivering  it  over,  undiminished,  to  the  re- 
mainder-man. I  will  not  say  that  he  is  bound, 
at  all  hazards,  for  the  original  stock ;  for 
the  relation  he  bears  to  the  remainder-mau 
is  that  of  trustee, — a  relation  of  confidence — • 
and  though  he  is  prima  facie  bound  for  the 
property,  and  the  burden  must  be  upon  him 
to  show  diligence  and  integrity,  in  the  per- 
formance of  his  duties, — yet  it  is  not  clear, 
upon  principle,  that  he  is  liable  if  he  does 
shew  fidelity  to  his  trust,  and  that  the  flock 
has  perished,  not  by  his  fault,  but  by  the 
act  of  God,- — as  by  pestilence,  earthquake, 
or  other  unavoidable  providence. 

A  still  different  rule  exists  as  to  slaves: 
reproductive,  but  not  consumal)le.  The  in- 
crease of  these  do  not  belong  to  the  life-ten- 
ant, so  as  to  enable  him  to  appropriate  them 
beyond  the  term  of  his  life.  They  follow 
the  status  of  the  original  stock  slaves,  and 
are  his  as  long  as  the  stock  slaves  are  his: 
—during  his  life: — at  his  death  both  the 
stock  slaves  and  the  increase  go  over  to  the 
remainder-man,  as  they  stand:  and  the  life- 
tenant  is  only  accountable  for  such  as  re- 
main; unless  he  has  diminished  their  num- 
ber, or  the  value,  by  his  misconduct.  For 
loss  occasioned  by  the  act  of  God,  he  is  not 
responsible. 

Upon  these  principles  the  accountability  of 
a  life-tenant  is  governed,  where  these  arti- 
cles of  property  are  given  to  him,  as  separate 
things.  The  property  is  taken  up  in  detail, 
and  the  degree  of  his  accountability  is  suited 
to  the  character  of  each  article. 

It  must  be  observed,  liowever,  that  the 
ground  of  accountability  is  the  trust  charac- 
ter of  the  life-tenant ;  and  it  is  applied  as  the 
fundamental  principle  to  each  detached  arti- 
cle of  property,  though  it  leads  to  different 
results,  according  to  the  qualities  of  the 
property  itself. 

If  we  were  to  take  up  the  things  comprised 
in  the  bequest  to  Mrs.  Holloway,  and  con- 
sider them  separately,  it  follows  from  what 
I  have  said  that  she  must  be  excused  from 
liability  for  the  corn;  which  was  consumable 
in  the  use. 


r.\Lii(»rx  V.  i-L'iu;i:.so.v 


*171 


♦169 
•But  there  is  anotlicr  uiethod  of  (.cuisider- 
Ing  the  sulijecf:  in  which  tin-  entire  niiiss  of 
property  ^'iveii  to  her  may  |)e  regarded  as 
one  fiift ;  and  in  the  investigation  of  tlie 
subject  in  this  way.  also,  tiie  same  principle 
of  trusteeshijt  applies. 

This  method  ajipears  to  liave  been  first 
broaclied  by  Mr.  Justice  Nntt  in  Patterson  v. 
Devlin.  Mc.Mul.  i:.|.  4;".!).  and  subsequently 
apiilied  by  ("hancellor  Harper,  in  Robert.son 
V.  Collier.  1  Hill  Jv).  :]-{), 

Says  Judj,'e  Nott:— "There  is  another  view 
of  the  subject  wliich   deserves  consideration 
and   which   is  somewhat   peculiar  to  the  sit- 
uation of  this  country.     I^uids  are  .sometimes 
given  to  one  for  life,  together  with  the  slaves, 
stock  of  horses,  cattle,  plantation  tools,  and 
provisions;    with  a  limitation  over.     In  such 
a    ca.se.    the    perisliable    articles    cannot    be 
considered    as    belonging,    absolutely,    to    the 
tenant    for   life ;— neither   can    they    be  sold, 
because  they  are  necessary  for  tiie  pre.serva- 
tion  of  the  estate.     The  temint  for  life  nuist,' 
therefore,  be  considered  as  a  trustee  for  tlie! 
remainder-man;    and    must   preserve   the   es- 
tate with  all  its  appurtenances,  in  the  situa-i 
tion   in  wliich  he  received  it."     -The  tenant! 
for  life  will  be  entitled  to  the  increa.se  of  the 
stock  and  the  rents  and  profits  of  the  land:— 
but    he    must    keep    up'  the    stock    of   cattle, 
hor.ses.    provisions    and    implements    of    hus- 
bandry, in  the  condition  in  which  he  received 
them:— for    although    some    of    the    articles 
may  be  consumable  in  their  u.se,  and  others 
are  wearing  out.  yet,  when  taken  all  togeth- 
er,   being    reproductive,    the   estate    must    be 
made  to  keep  up  its  own  repairs." 

Chancellor  Hari)er,  after  (luoting  these  ob- 
servations, adds:— "The-se  views  are  so  full 
and  explicit,  that  little  need  be  added  to 
them.  The  principle  is  the  same,  though  ex- 
tended in  its  appli<-ation.  by  which  a  tenant 
for  life,  in  England,  is  forbidden  to  waste 
the  estate;  and  is  required  to  make  ordinary 
repairs,— or  any  other  tenant  is  re.pii red  to 
keep  up  the  original  stock.  The  tenant  for 
life  Is  entitled  to  the  u.se  of  the  estate;  but 
it  is  sudi  use  as  a  prudent  proprietor  would 
make  of  his  estate.  The  pr«.lit  of  an  e.state 
Is  the  nett  income,  after  defraying  all   nec- 

♦170 
es^.sary  expenses.  Thus  the  relative  rights 
of  tile  tenant  for  life  and  remainder-man, 
will  be  the  same  whether  the  estate  be  sold 
and  the  proceeds  vested,  or  retained  in  kind. 
If  at  the  termination  of  the  life  e.state,  all 
the  articles  of  the  sort  mentioned  are  not  in 
as  good  condition  as  when  he  received  it 
the  tenant  nuist  make  good  the  deficiency." 
I  fully  as.sent  to  .•^o  much  of  these  opinions 
as  place  the  responsibility  of  the  tenant  for 
life  upon  the  footing  of  a  (juasi  tru.stee.  who.se 
duty  it  is  to  preserve  the  estate  for  the  re-' 
mainder-inan;  and  makes  the  test  of  his' 
fidelity  tfie  care  and  attention  which  a  pru-j 
dent    owner    would    exercise    over    his    own 


property.     Tiiis  is   tlie   true  ground  :    and    it 
applies  not  <»nly  to  a    tenant   for  life  of  an 
estate,   as   an   entire   subje<t,   l»ut   to   one  to 
whom  detached  articles  of  itrojierty  are  given 
l»y  the  .same  tenure.     Kach  is  responsible  for 
prudent    and    judicious    management;     an<l 
neither  of  them   is   at    lil)erty   to  deferi<»rate 
the    proi.erty    !»y    managing    it    for    his    own 
benefit,  at  the  expense  of  the  remain<li'r-man. 
But    it   .seems   to  me,   that   the  distinction 
which  is  justly  taken  in  tiie  cases  of  Patter- 
son  v.   Devlin   and   Itobertson   v.  dllier  be- 
tween an   entire  estate,   given,   as  an   unity, 
I  for   life  and   limited   in   remainder,   and   tlie 
'  gift    and    limitation    of    specific    articles    of 
I  projierty.   in   the   same   way,— is   not   carried 
out   by   file  decisions  made  in  these  cases  :— 
by  which  the  account  is  directed  to  be  taken, 
not  of  the  whole  e.state,  as  one  subject,  but 
«if  its  component  parts,  in  detail.     Nor  does 
it  api)ear  to  me  entirely  consistent  with  the 
princiide   laid  down;    i.  e.— that  the   fidelity 
and  resi»onsibility  of  the  trustee  are  to  be  test- 
ed by  his  prudent  management  of  the  whole  es- 
tate;—to   make   him   responsible  for  particu- 
lar part.s.  which  may  happen  to  be  deficient 
notwithstanding     su<h     management:      and. 
indeed,  where  the  particular  deficiency  ina.v 
have  ari.sen   from    tiie   i»rudent    management 
of  the  whole  estate.     Nor  am  I  .satisfied  that 
either    reason    or  principle   refiuiiv   that    the 
trustee,  though  he  may  have,  ujxni  the  whole, 
improved    the  estate,    is   responsible   because 
he   does    not    deliver    it    over,    in    tlie    exact 
plight  or  condition,  in  which  he  received  it. 
♦171 
*There    are    I    think    subse(pient    decisions 
in   which   the  doctrines  of  these  cases  have 
been   modified:     but    they   have   not   been    re- 
ferred   to    in    argument,    and    I    cannot    find 
them. 

I  tiiink  the  inquiry  should  lie  made  into 
the  particulars  of  the  estate  and  their  value, 
at  the  time  the  remainder  takes  eflect,  for 
the  "puri)o.se  of  discovt-ring  wbother  that 
which  is  to  go  over  is  substantially  the  same 
estate  which  was  received  by  tiie  life-tenant, 
and  of  the  proper  value,  and  whether,  upon 
the  whole,  it  is  in  as  good  a  plight  (thouirh 
not  in  the  exact  i.light)  as  when  the  life-fen- 
ant  took  po.s.se.ssion.  If  these  conditions  be 
fiillilled:  where  is  the  ground  for  .barging 
the  life-tenant? 

One  species  of  stock  may  have  been  di- 
minished, while  another  has  been  increased: 
and  so  far  from  its  being  proof  of  ill  hus- 
bandry, it  may  be  evidence  of  real  judgment 
to  have  made  the  alteration.  Siiall  the  re- 
mainder-man take  the  l)enefit  of  the  imjirove- 
ment,  and  require  an  account  of  the  minor 
loss  which  it  occasioned? 

Snppo.se,  again,  the  implements  of  hus- 
bandry on  tlie  plantation,  when  the  life-ten- 
ant took  pos.session,  were  of  a  character 
utterly  unsuited  to  the  projjcr  culture  of 
the  land:  suppo.><e  there  was  a  superabun- 
dance of  plow-horses;     suppose   the   wagons 

6y 


^171 


.'!  RICHARDSON'S  EQUITY  REPORTS 


and  carts  were  cleficient,  and  manure  could 
not  be  collected  or  spread  in  reiiuisite  quan- 
tities ;  would  it  be  bad  husbandry. — or  would 
it  be  injurious  to  the  estate, — to  convert  the 
■iiurplus  horses  into  proper  instruments  for 
cultivating  and  keeping  up  the  land,  and  at 
the  same  time  diminisli  the  expenses  of  the 
plantation?  Will  no  other  rule  secure  the 
lidelity  of  the  trustee,  than  to  confine  him 
■,to  pre-existing  methods  of  culture,  and  ex- 
clude him  from  the  advantage  of  all  agricul- 
tural improvement,  by  requiring  him  to  re- 
l)roduce  the  plantation,  with  all  its  appurte- 
nances, (though  merely  ancillary)  iu  the  pre- 
tcise  shape  in  wiiich  he  received  it? 

In  a  series  of  years,  a  severe  drought  may 

'Occur,  and  reduce  the  quantity  of  provisions 

produced.     If   the   tenant   should   happen   to 

die    when    such    a   crop   has   been   produced: 

*172 

is  he  to  be  the  *exclusive  sufferer,  though 
at  the  same  time  the  whole  estate  goes  over 
in  an  improved  condition? 

If  the  tenant  is  guiltv  of  misconduct :  if 
lie  has  mis-managed  for  his  own  exclusive 
profit,  to  the  injury  of  tlie  estate,  or  the 
remainder-man:  if  he  has  sold  any  of  the 
negroes;  if  he  has  planted  nothing  but  cot- 
ton and  sold  that  for  his  own  benefit,  neither 
raising  nor  purchasing  provisions;  such 
conduct  is  not  faithful;  it  is  not  the  manage- 
ment which  a  prudent  owner  of  the  property 
would  have  adopted, — and  he  must  answer 
for  it. 

But  if  upon  the  whole,  he  has  been  faithful 
;and  diligent  and  judicious,  and  has  not  dete- 
i-iorated  the  substantial  parts  of  the  estate, 
•or  the  estate  as  a  whole ;  he  should  not  be 
anade  to  suffer. 

It  is  admitted  in  this  case,  that  tiie  general 
condition  of  the  estate  was  improved  while 
in  Mrs.  Holloway's  hands,  and  that  it  was, 
when  delivered  over,  in  as  good  plight  as 
"when  she  received  it,  though  there  was  an 
accidental  deficiency  of  corn ;  and  I  do  not 
think  her  representative  was  accountable  for 
that  deficiency. 

It  is  ordered  that  so  much  of  the  decree 
as  held  him  accountable  for  it  be  reversed. 
In  all  other  respects  it  is  aflirmed. 

DUNKIN  and  DARGAN,  CC.  concurred. 
Decree  modified. 


3   Rich.  Eq.    172 

W.  D.  LEWIS  v.  D.  B.  PRICE  and  Wife,  and 
Others. 

(Columbia.     Nov.  and  Dec.  Term,  1850.) 

IHusbarid  and   Wife  <®==>151.] 

Constructiou  given  to  a  marriage  settle- 
ment; husband  held  bouud,  by  tlie  terms  there- 
of,  to   support  out  of  the  settled  property,  the 


wife's  chihlren  by  a  previous  marriage,  in  ex- 
oneration of  their  own  property. 

[Ed.  Note. — Cited  in  Shumate  v.  Harvin,  35 
S.  C.  529.  15  S.  E.  270. 

For  other  cases,  see  Husliand  and  AVife,  Cent. 
Dig.  §  586;    Dec.  Dig.  <®=>151.] 

[Hvshaiid   and   Wife  (g=>5n.] 

An  administration  granted  to  husband  and 
wife  jointly,  is  the  administration  of  the  hus- 
band alone;  the  surety  on  the  bond  gives  credit 
to  him  exclusively. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  §  277;    Dec.  Dig.  <S==>59.] 

[Husband  and  Wife  <©p>ll.] 

The  husband's  marital  rights  will  not  attach 
upon  the  wife's  distributive  share,  before  it  is 
severed  from  the  bulk  of  the  estate. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  «?  49;    Dec.  Dig.  <£=:3ll.] 

*173 

[Husband  and   Wife  <S=:335.] 

*In  ordering  a  settlement  of  the  wife's 
equity,  the  Court  will  conform  to  a  previous 
settlement,  agreed  on  by  the  parties,  though  it 
may  have  proved  ineffectual. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  §  211;    Dec.  Dig.   <®=:^:35.] 

[Exeeutors   and   Administrators  <2xx3l77.] 

The  principles  upon  which  the  profits  of  a 
planting  establishment  are  to  be  accounted  for 
by  an  administrator,  stated. 

[Ed.  Note. — Cited  in  Johnson  v.  Pelot,  24  S. 
C.  258.  58  Am.  Rep.  258 ;  Bramlett  v.  Mathis. 
71  S.  C.  127,  50  S.  E.  644. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  2062;    Dec.  Dig.  «®=3477.] 

[Executors  and  Administrators  <©=>477.] 

The  accounts  of  an  administrator  directed, 
under  very  peculiar  circumstances,  to  be  taken 
with   great   liberality   towards  him. 

[VA.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  §  2002 ;  Dec. 
Dig.    <S=>477.] 

[Executors  and  Administrators  <©==>132.] 

An  administrator,  being  also,  as  distributee, 
a  tenant  in  common  of  the  land,  allowed  credit, 
not  for  the  cost  of  improvements  put  by  him 
on  the  laud,  but  for  the  value  they  imparted 
to    the    premises. 

[Ed.  Note. — Cited  in  Johnson  v.  Pelot,  24  S. 
C.  263,  58  Am.  Rep.  253  ;  Shumate  v.  Harbin, 
35  S.  C.  528,  15  S.  E.  270;  Neal  v.  Bleckley, 
51  S.  C.  533,  29  S.  E.  249. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  437;    Dec.  Dig.  <g==3l32.] 

[Executors  and  Administrators  <^=>513.] 

Where  an  administrator's  return  to  the 
ordinary  is  seventeen  years  old,  items  vouched 
before  the  ordinary  and  passed  by  him  as  charg- 
es against  the  estate,  may  be  regarded  as  prov- 
ed, prima  facie ;  of  items  not  vouched,  some 
evidence  should  be  given,  but  that  degree  of  ev- 
idence should  be  sufficient,  which  may  be  ex- 
pected after  such  a  lapse  of  time.(a) 

[Ed.  Note. — Cited  in  Buerhaus  v.  DeSaus- 
sure,  41  S.  C.  493,  19  S.  E.  926,  20  S.  E.  64. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  !J  2282;    Dec.  Dig.  <g=:3513.] 


(a)  The  28th  section  of  the  Act  of  1789,  (5 
Stat.  112.)  provides,  "that  executors,  or  admin- 
istrators shall,  aniuiaily,  '  "render  to  the"  "ordi- 
nary" "a  just  and  true  account,  upon  oath,  of 
the  receipts  and  expenditures  of  such  estate,  the 
preceding  year,  which,  when  examined  and 
approved,  shall  be  deposited  with  the  inventory 
and  appraisement,"  "in  the"  "ordinary's  ortice," 
"there  to  be  kept,  for  the  inspection  of  such  per- 


70 


<©;:ur>For  other  cases  see  same  topic  and  KE  if-flUiVIBER  iu  all  Key-Numbered  Digests  and  Indexes 


LEWIS  V.  PRICE 


n"j 


r>efor».  Duiikiii.  Ch.,  at   Itarlinnton,   IVltru- 
ary.  isM. 

This  cast'  tame  In* fore  tht*  Court  on  extvp- 
tions  to  the  foUowiiit;: 

Coiiimissioiicr's  Rj-port. 

The  CoinuiissioiKT.  t<t  wimm  it  was  referred 
to  take  testimony. iiiid  state  tlie  atrounts  of 

*174 
tile  several  administrators  of  Jesse  *lA'Wis, 
deeeased,  Ih{:s  leave  respectfully  to  report: 
Jesse  Lewis  died  on  .'JUth  of  October,  1n;{2. 
On  the  7th  Novenilier,  ls;il'.  athninist ration 
of  his  estate  was  j^ranteil  to  his  widow, 
Martha  Lewis,  and  one  Wni.  T.  Mason  ;  Init 
it  does  not  appear,  and  indeed  is  not  pre- 
tended, that  the  latter  ever  partieipated  in 
the  manaj,'ement  of  the  estate,  the  adminis- 
tration of  which  was  assumed  and  conducted 
solely  by  Mrs.  Lewis.  On  the  9th  of  .Janu- 
ary, 1834,  Mrs.  Lewis  inti'ruiarried  with  the 
defendant.  Daniel  li.  Price,  who,  on  the  l;jth 
February,  lSo4.  in  conjunction  with  his  wife, 
entered  into  a  new  bond  with  John  N.  Wil- 
liams and  John  D.  I'rice.  as  sureties,  and  re- 
ceived formal  letters  of  administration  of 
Je.sse  Lewis's  estate.  There  is  no  evidence  of 
a  formal  revocation  of  the  tirst  ^'rant :  and  it 
is  as  well  to  mention  here,  that  on  the  tirst 
reference  held  by  me,  on  proof  beinj;;  made 
of  the  grant  of  administration  to  Mrs.  Lewis 
and  to  Mason,  the  solicitor  for  the  defend- 
ants, Mr.  Ilaynsworth,  objected  to  proceed- 
ing further,  on  the  ground  that  .Mason  should 
be  made  a  party  to  the  bill.  He  had  been 
gone  for  many  years  beyond  the  jurisdiction 
of  the  Court,  and,  as  1  now  recollect  the  tes- 
timony, into  parts  unknown,  and  I  had  no 


.sous  as  may  be  iiitcrcsti'd  in  tlio  said  estate," 
&c.  In  Wri-ht  v.  Wiiulit.  (2  M.-C.  Im].  llMi.) 
Jud^e  Xott  says:  "It  is  incnnilx-nt  nn  liim' 
(the  personal  representativt)  "'to  sliew,  liy  satis- 
factory evidence  and  voucIuts.  in  w  li.-it  manner, 
it."  (the  fund  in  Ids  liand.)  "lias  l»i'cn  admin- 
istered. Tli(»je  vouchers  lie  <iiiL;lit  to  keep  as  liis 
security;  and  tiie  ordinary  ouiilit  not  to  allow 
his  accounts,  when  the  vouclicrs  are  not  pro- 
duced, nor  their  alisence  accounted  for.  And  it 
ought  to  a|)i)car  on  tlie  face  of  the  scttlcincnt. 
what  was  the  nature  of  tin-  f\  idtiicc  on  w  liicli 
the  return  was  accepted  and  allowed.  Anil  al- 
though tiie  evidence  with  the  t)rdinary  is  uot 
conclusive,  per  se,  in  favor  of  an  o.\(K'Utor.  it 
ought  to  ho  received  for  as  much  as  it  is  worth: 
— and  its  value  must  (k'lieiid  upon  a  variety  of 
circumstances:— the  regulaiity  of  the  accounts, 
the  death  of  witnesses,  loss  of  vouchers,  and 
the  lapse  of  time,  must  all  he  taken  into  con- 
sideration. In  this  ciise  sixtc^en  years  have 
elapsed  since  the  account  was  settle<l  and  al- 
loweil  by  the  ordinary.  It  is  not  to  lie  i)resum- 
ed  that  he  suffered  it  to  jiass.  witli<iut  satis- 
factory evidence  that  it  was  correct.  I  tliink, 
therefore,  that  it  ought  to  have  been  allowed  by 
the  commissioner.  Executors  are  not  less  liable 
to  loss  of  papers,  by  time  and  ac<'ident.  than 
other  persons  Tlie  settlement  with  the  ordinary 
is  intended  as  a  seciii-ity  for  the  execntdr.  as 
well  as  for  the  distributees;  and,  after  a  lapse 
of  Id  years,  ought  to  he  a  complete  i»rotection. 
It  will,  nevertlii^less,  be  subject  to  impeachment 
by  the  other  side.  If  the  defendants  can  shew 
any  error  or  fraial.  in  the  transaction,  they  are 
entitled  to  the  benetit  of  it ;  but  thu  burden  of 
proof  must  lie  on  them."  K. 


hesitation  in  ov»*rruling  the  objection,  hold- 
ing Martha  Lewis,  under  the  circumstances, 
liable  to  account.  The  admiidstration  of  I). 
B.  Price  and  wife  continued  until  the  24th 
of  Novendier,  1844,  on  which  day.  they  hav- 
ing failed  to  give  new  security,  on  the  re<|ul- 
sition  of  the  ordinary,  he  revoked  their  let- 
ters. E.  H.  Hrunson,  the  ordinary,  then  took 
the  adndnistration  as  of  a  derelict  estate, 
until  the  2d  July,  is4r),  when  it  was  granted 
to  Wil.son  C.  ISruce.  who  has  e.xenised  it  un- 
til the  present   time. 

Of  the  administration  of  .Martha  Lewis, 
aiul  of  D.  R.  Price  and  wife,  no  iirepared 
statements  of  accounts  liave  been  offered  to 
nie  by  the  parties;  indeed,  no  mi'morantluuis 
have  been  kept  by  them  with  a  view  to  it. 
From  the  confused  state  of  the  documentary 
testimony  which  has  been  offered  to  me.  and 
the  multiplicity  of  the  pcdnts  testified  to  by 
the  witnesses,  I  may  not  he  able  to  avoid  se- 
rious errors  and  inadvertencies;  and  though 
the  reference  was  kept  open  and  protracted 

*175 
for  a  great  length  of  time,  *and  ample  oppor- 
tunity of  in(|uiry  alTorded,  I  am  by  no  means 
persuaded  that  my  minutes  of  testimony  will 
atford  to  the  Court  the  means  of  doing  exact 
justice  between  the  parties. 

I  proceed  brielly  to  make  such  particular 
remarks  as  may  be  neces.sary  to  elucidate 
the  details  of  Mrs.  Lewis's  accounts. 

The  estate  of  Jesse  Lewis,  tleceased.  which 
came  into  her  hands  to  be  admini.stered.  con- 
sisted of  four  negroes,  to-wit:  I>oll.  .Margery, 
.Mary  and  Ix)uisa,  which  has  since  increased 
by  the  birth  of  three  children  to  Louisa ; 
choses  in  action,  consisting  of  notes  to  the 
amount  of  one  thousand  and  forty-two  11-100 
dollars,  of  which  twenty-tive  S2-K>0  dollars 
was  considered  by  the  appraisers  as  (hudit- 
ful ;  and  accounts  against  sundry  persons, 
amounting  to  four  hundred  and  twenty-nine 
dtdlars;  goods  and  chattels,  household  and 
plantation  furniture,  stock,  iVc,  amounting, 
appraisement,  seven  hundred  and  two  .'iT-lOO 
dollars,  inclusive  of  corn  and  fodder  on  the 
|ilaiitation,  valued  at  one  hundred  and  sixty- 
eight  dollars. 

During  the  year  1833,  innnediately  suc- 
ceeding her  husband's  death,  Mrs.  Lewis^ 
posses.sed  herself  of  the  real  estate,  being  the 
house  and  lot  at  Society  Hill,  and  the  jilau- 
tati(ui,  which  latter  .she  used  and  cultivated 
with  the  slaves,  retaining  the  whole  estate 
togetlu'r,  and  having  no  sale  of  any  part 
tln'reof.  In  the  Fall  of  that  year,  she  made, 
before  the  ordinary,  the  annual  return  re- 
(|uired  by  law;  but,  as  it  was  a  very  imper- 
fect one.  and  in  this  Court  is  uot  conclusive, 
eitlu-r  for  or  against  her,  I  have  thought  it 
best  not  toemliarrass  my  statement  by  assum- 
ing it  as  a  basis,  though  I  am  sensible  that 
to  reject  it  is  greatly  to  her  disiidvantage,  as 
she  has  not  l)een  able  to  establish  before  me 
payments  which  appear  to  have  been  satis- 
factorily vouched  before  the  ordinary.    After 

71 


*1T5 


3  RICHARDSON'S  EQUITY  Rp]PORTS 


the  best  consideration  of  tlie  whole  matter 
of  which  I  was  capable,  I  came  to  the  con- 
clusion that  I  should  approach  nearest  the 
justice  and  law  of  the  case,  by  charging 
Mrs.  Lewis  with  reasonable  rent  of  the  real 
estate,  and  hire  of  the  negroes,  and  allow- 
ing her  compensation  for  the  support  of  the 
children  during  the  .vear  1833,  and  rejecting 
all  payments,  except  such  as  clearly  appear- 

*176 
ed  to  be  for  the  debts  of  the  *intestate.  The 
propriety  of  this  will  be  the  more  manifest, 
when  it  is  stated  that  she  is  charged  on  the 
appraise-bill  with  the  whole  stock  of  provi- 
sions on  the  estate  at  the  time  of  the  ad- 
ministration, and  that  many  of  the  accounts 
passed  before  the  ordinary,  in  her  return  on 
the  30th  December,  1833,  were  for  plantation 
and  family  supplies,  purchased  during  the 
current  year.  I  have  given  to  Mrs.  Lewis  a 
credit  of  certain  notes  and  accounts,  which 
satisfactorily  appears  could  never  have  been 
realized.  Though  this  would  more  properly 
have  been  done  in  connection  with  the  testi- 
mony on  the  account  of  D.  B.  Price,  I  have 
preferred  to  credit  them  on  Mrs.  Lewis's  ac- 
count, as  it  does  not  affect  the  result,  because 
I  think  she  should  be  charged  with  interest 
on  the  amount  of  schedules,  to  the  extent 
that  they  were  good,  from  the  1st,  of  Janu- 
ary, 1834.  It  will  be  seen,  then,  that  on  the 
1st  of  January,  1834,  Mrs.  Lewis,  after  being 
allowed  all  proper  credits,  stands  charged 
with  a  balance  on  notes  and  accovmts, 
amounting  to  twelve  hundred  and  fift.y-eight 
19-100  dollars ;  a  balance  on  hire  of  negroes 
and  rent  of  real  estate  amounting  to  thirty 
dollars,  and  the  whole  amount  of  the  ap- 
praisement, being  seven  hundred  and  two 
37-100  dollars.  On  the  intermarriage  of  Mrs. 
Lewis  with  D.  B.  Price,  on  the  9th  January, 
1834,  these  liabilities  attached  to  her  hus- 
band, and  on  his  formal  assumption  of  the 
administration,  on  the  15th  February  ensu- 
ing, they  became,  by  the  operation  of  law, 
funds  in  his  hands.  I  proceed  now  to  speak 
more  particularly  of  the  administration  of 
D.  B.  Price:  If  on  being  appointed  adminis- 
trator, he  had  proceeded,  within  reasonable 
time,  to  sell  the  articles  scheduled  in  the  bill 
of  appraisements,  he  might,  liy  the  produc- 
tion of  the  sale-bill,  have  discharged  himself 
of  the  liability  on  the  face  of  the  appraise- 
bill.  But  it  can  hardly  be  pretended  that  the 
sale  of  the  miserable  remnant,  ten  years  aft- 
erwards, should  be  received  to  diminish  in 
any  way  his  liability.  It  is  true  there  was 
an  appraisement  soon  after  his  administra- 
tion, but  if  liable  on  this,  primarily,  he  is  al- 
so liable  as  the  husband  of  the  first  admin- 
istratrix, for  the  difference  between  the  two 
appraisements.  I  have  therefore  charged 
him  with  the  whole  amount  of  the  first  ap- 

*177 
praisement:     *but   as   he   had   a   right   to   a 
favorable    time    to    malce    sale,    I    have    not 
charged    interest    until    the    first    of    Jauu- 

72 


ary,  1835.  Besides  these  items,  the  subjects 
of  annual  charge  against  him  are  the  ne- 
groes, the  house  and  lot  at  Society  Hill,  and 
the  plantation.  As  to  the  negroes,  there  is 
no  great  diversity  in  the  testimony.  I  en- 
deavored, by  attentive  consideration  of  all 
the  evidence,  to  ascertain  a  fair  average  an- 
nual value  of  their  hire.  The  result  of  this 
inquiry  is,  that  the  woman  Margery  was 
worth  sixty-five  dollars  per  annum;  Mary 
forty  dollars  per  annum;  Louisa  forty  dol- 
lars per  annum ;  the  old  woman  Doll  not 
more  than  the  expenses  of  maintenance.  In 
thi.s  estimate  I  have  considered  the  facts  in 
evidence,  that  the  woman  Louisa  was,  dur- 
ing the  time,  encumliered  with  the  care  of 
young  children  and  the  disabilities  incident 
to  child-bearing.  The  average  annual  hire  of 
the  negroes,  then,  would  be  one  hundred  and 
forty-five  dollars.  The  house  and  lot  at  So- 
ciety Hill  was  rented  during  the  whole  peri- 
od of  Price's  administration,  by  the  same  in- 
dividual, and  from  his  testimony  I  have  as- 
certained the  average  annual  rent  of  the 
premises  at  forty-five  dollars,  and  in  this  es- 
timate I  have  made  some,  tliough  a  very 
small  allowance,  for  certain  alleged  repairs, 
put  on  the  house  by  D.  B.  Price,  which,  how- 
ever, were  very  imperfectly  substantiated. 
The  fact  of  work  having  been  dtMie,  there  is 
no  doubt  of,  but  the  proof  as  to  the  details 
and  value  was  inconclusive. 

The  plantation  was  cultivated  a  portion  of 
the  time  by  D.  B.  Price,  and  some  years  was 
rented  out. 

The  testimony  satisfied  me,  that  fifty  dol- 
lars per  annum  was  a  fair  average  rent  of 
the  land  for  agricultural  use,  and  for  the 
whole  premises,  with  the  enjoyment  of  the 
domicile,  \^]iich  was  erected  by  Mrs.  Price, 
after  her  first  husl;and's  death,  seventy  dol- 
lars. D.  B.  Price  claimed  to  be  allowed  on 
the  reference  a  credit  for  moneys  expended 
in  erecting  and  improving  the  buildings  on 
the  plantation.  But  as  the  testimony  induced 
me  to  think  that  at  this  period  they  do  not 
enhance  the  value  of  the  plantation,  I  have 
rejected  the  account.  I  have,  therefore, 
thought  it  fair  to  charge  him  only  with  what 

*178 

the  witnesses  testified  would  *be  the  value  of 
the  plantation  without  the  improvements. 

I  come  now  to  that  feature  in  the,  case 
which  has  most  embarrassed  me,  the  pre- 
vious adjudication  of  which,  seems  to  me 
indispensable  to  an  exact  stating  of  the  ac- 
counts and  ascertainment  of  the  liabilities 
and  rights  of  the  respective  parties. 

Before  the  marriage  of  D.  B.  Price  and 
Mrs.  Martha  Lewis,  a  deed  of  marriage  set- 
tlement was  executed  by  him,  by  which  the 
interest  of  Mrs.  Lewis  in  the  estate  of  her 
then  late  husband,  was  conveyed  to  a  trustee, 
John  D.  Price,  the  father  of  D.  B.  Price,  in 
trust,  that  he  should  permit  D.  B.  Price  to 
use  and  enjoy  the  said  ijroperty  or  interest 


LKWIS  V.  PRiCE 


^ISO 


of  -Martha  Lewis,  conveyed  for  flio  purpose 
of  luaiiiteiiance  and  edmation  of  lier  chil- 
dren, by  her  deceased  liushand,  heinj;  four  in 
nunilier ;  and  D.  H.  Price,  in  consideration 
thereof,  covenanted  tliat  he  wouhl  support 
and  educate  the  chihh-en  without  cliarjie.  It 
is  now  contended  hy  I).  H.  Price  and  hy  J. 
I).  Price,  tlie  trustee,  tliat  their  understand- 
ini:  of  tile  deed,  when  they  executed  it,  was, 
that  it  conveyed  the  whole  estate  of  .Jesse 
Lewis,  and  that  it  was  in  consideration  of 
the  use  and  enjoyment  of  the  whole,  that  I>. 
li.  Price  covenanted  to  niaintnin  and  educate 
the  children  without  further  charf^e.  The 
testimony  exhibited  is  wholly  insufficient, 
even  if  the  in(iuiry  beyond  the  clear  expres- 
sion of  the  deed  were  permitted,  to  show  that 
the  parties  entt'vtnincd  at  the  time  such  a 
construction. 

There  are  some  ol)vioiis  considerations 
which  would  seem  to  render  it  scarcely  c-red- 
il)le.  that  any  man  who  regarded  his  obliga- 
'tions  should  have  assmned  such  an  under- 
taliinii:  but  I  do  not  see  how  he  is  to  avoid 
it.  unless  it  should  appear  to  the  Court,  that 
the  children  of  Mrs.  Lewis,  not  beir.sr  ]iarties 
to  the  contract,  have  no  richt  to  insist  on 
its  fulfilment,  and  it  should  interpose  its 
authority  to  reform  the  contract,  and  save 
the  mother  from  the  destitution  wbicli  the 
nurture  of  the  children  will  cost  lier.  P.ut 
it  is  in  reference  to  the  liabilities  of  the 
sureties  on  I).  K.  Price's  administration  bond, 
that  this  niarriajie  contract  is  first  to  be  con- 
sidered. There  are  two  defects  in  the  regis- 
tration and  execution  of  the  deed. 

*179 

*lst.  The  aflidavit  to  entitle  its  registra- 
tion is  as  follows: 

State  of  South  Carolina,) 
Darlington  District,     j 

Personally  appeared  befcnv  me  Martin  De- 
witt,  one  of  the  Justices  of  the  Peace,  James 
E.  Brown,  and  made  oath,  that  he  did  see 
l)aniel  B.  Price  sign  and  seal  the  above  in- 
strument of  writing,  for  the  use,  purpose 
herein  mentioned,  and  further  he  did  see 
Abel  Candy  subscribe  with  himself  thereto. 
Sworn  to  before  me  this  1st  day  of  April, 
is:;-l. 

[Signed.!  Jas.   E.  Browu. 

Martin  Dewitt.  J.  P. 

2d.  Tlie  schedule  of  property  settled,  re- 
quired by  law  to  be  attached  to  the  di'cd,  is 
not  signed  by  the  parties.  J.  D.  I'rice,  one  of 
the  sureties,  is  a  party  to  the  deed,  and  can 
claim  no  benefit  from  tlu>  infornnilities  in  its 
execution  or  registration.  But  John  N.  Wil- 
liams, the  other  surety,  in  my  opiinon  has 
not  had  the  constructive  notice  which  is  pre- 
sumed from  a  proper  registration,  nor  is 
there  any  evidence  that  he  ever  knew  of  the 
marriage  settlement  jirevious  to  the  in.stitu- 
tiou  of  th(>se  proceedings.  It  seems  to  me  then, 
very  clear,  that  the  Court  will  protect  him 
not  only  by  subrogating  Mrs.  I'rice's  interest 


ip.  the  personalty  of  the  estate,  to  the  ex- 
tinguishment of  D.  B.  Price's  liability  as  ad- 
miiuslrator,  but  will  also  rtxiuire  the  ac- 
counts of  D.  B.  Price  to  be  so  stated  with 
reference  to  J.  N.  Williams's  lialdlity.  as  that 
he  shall  have  every  credit  to  which  he  would 
have  been  entitled,  if  the  marriage  settlement 
had  not  taken  place ;  under  this  impression, 
I  have  allowed  D.  B.  Price,  what  seenus  to 
me  a  very  rea.sonable  charge,  for  the  amiual 
supptn-t  of  the  children  ;  and  as  D.  B.  Price 
himself  is  utterly  insolvent,  as  he  always 
has  been ;  and,  as  I  am  satisfied  that  the 
other  surety  on  his  bond,  John  I).  Price,  is 
so  nearly  insolvent,  that  his  liability  is  not 
l)articularly  looked  to  by  any  of  the  parties. 
I  have  thought  it  necessary  to  state  the 
account  of  D.  B.  Price,  only  with  reference 
to  what  I  considered  the  liability  and  the 
rights  of  Jolm  D.  Williams.  In  establishing 
the  annual  allowance  for  board,  clothing, 
tuition  and  medical  attendance  of  Jesse  Lew- 

*180 

is'  children,  at  the  *sum  of  o]ie  hundred  and 
sixty  dollars.  I  have  fully  considered  all  the 
facts  which  appear  in  the  reported  testimony. 

The  accounts  of  D.  B.  Price,  stated  in  ref- 
erence to  these  views,  exhibit  a  balance 
against  Price  of  four  thousand  one  hundred 
and  sixty-nine  (!N-100  dollars;  of  this  amount., 
the  share  of  Price  and  wife  is  thirteen  nun- 
dred  and  eighty-nine  !SS-100  dollars,  leaving 
a  balance  of  two  tliousand  seven  hundred 
and  sevent.v-nine  NJS-lOO  dollars,  due  to  the 
children  of  Jes.se  Lewis,  for  which  John  N. 
Williams  is  liable.  1  reconnnend  that  the 
share  of  Mrs.  I'rice.  in  the  proceed.^  of  sale 
of  negroes  of  the  estate  of  Jesse  Lewis,  lately 
made  by  order  of  the  Court,  be  applied  fo> 
said  Williams's  lial  illty.  also  their  share  of 
the  jiortion  of  J.  F.  I^wis,  a  deceased  child. 

The  account  of  D.  B.  I'rice,  stated  with 
reference  to  his  own  liability,  ditlers  from 
the  alM)ve  in  the  exclusion  of  any  allowance 
for  the  maintenance  of  the  children  of  Jesse 
Lewis,  exhibiting  thereby  a  considerable  an- 
nual balance  against  him  for  rent  of  land, 
and  of  house  and  lot  at  Society  Hill,  and 
hire  of  negroes,  amounting  in  all,  with  in- 
terest on  each  balance,  to  the  1st  January, 
isr»(),  to  five  thousand  nine  hundred  and 
thirteen  CO-KH)  dollars.  For  this.  John  D. 
Prici"  is  liable  as  the  surety  of  D.  B.  Price, 
except  for  the  .sum  of  ten  hundred  and 
seventy-one  7.'>-l(H)  dollars,  accruing  from  the 
rent  of  the  plantation  and  house  ami  lot.  Of 
the  sum  above  stated  of  five  thousand  nine 
hundred  and  thirteen  OO-KM)  dollars,  as  due 
by  I).  B.  Price,  the  sum  of  six  hundred  and 
sixty-three  (ir>-U)0  dollars,  is  due  to  John  D. 
I'rice  as  trustee. 

The  Commissioner  begs  the  indulgent  con- 
sideration of  the  Court  for  the  im)»erf'ections 
of  this  report.  The  great  anxiety  of  the 
parties  to  bring  the  cause  to  a  final  hearing, 
has  determined  him  to  present  it  in  a  very 

7a 


-=^180 


RICHARDSON'S  EQUITY  REPORTS 


immature  condition,  witli  the  hope  that  it 
would  bring  before  the  Court,  all  the  litigated 
points  of  the  case,  and  that  under  the  orders 
of  the  Court  he  may  be  able  so  to  rectify  it, 
as  to  do  justice  between  the  parties. 
All  of  which  is  respectfully  submitted. 
Thos.  C.  Evans,  Commissioner. 

*181 
*Marriage  Settlement. 

State  of  South  Carolina,  [ 
Darlington  District.] 
This  Indenture  of  three  parts,  made  this 
9th  day  of  January,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty-four, 
and  in  the  fifty-eighth  year  of  the  Sovereignty 
and  Independence  o^  the  United  States  of 
America,  between  D.  B.  Price  of  the  tirst  part, 
Martha  Lewis  of  the  second  part,  and  John 
D.  Price  of  the  third  part,  witnesseth,  that 
whereas  a  marriage  is  intended  to  be  shortly 
liad  and  solemnized,  by  and  between  the  said 
D.  B.  Price  and  Martha  Lewis,  and  whereas 
the  said  Martha,  by  her  marriage  with  her 
late  husband,  Jesse  Lewis,  now  deceased, 
has  become  the  mother  of  the  following  four 
children,  viz.  William  David  Lewis,  Rachel 
Amelia  Lewis,  John  Fountain  Lewis  and  Eliz- 
abeth Catharine  Lewis,  all  whom  are  now 
living;  and  whereas  the  said  Martha  is  en- 
titled to  an  undivided  third  part  of  the  real 
and  personal  estate  and  choses  in  action,  of 
which  her  said  husband,  Jesse  Lewis,  at  the 
time  of  his  death,  was  seized  and  possessed, 
and  to  which  he  was  then  entitled,  as  well 
an  undivided  third  part  of  the  increase,  rents 
and  profits  thereof,  since  that  time.  And 
whereas,  it  hath  been  agreed,  that  the  said 
D.  B.  Price,  after  the  said  intended  marriage 
had,  should  receive  and  enjoy  the  said  prop- 
erty belonging  to  the  said  Martha,  during  the 
said  marriage,  he  appropriating  so  much 
thereof,  as  may  be  necessary  to  the  purpose 
of  boarding,  clothing  and  tuition  of  the  said 
children  of  the  said  Martha,  with  the  physi- 
cian's bills  and  other  expenses,  and  making 
no  charge  against  them  for  said  purposes. 
2s()w  this  Indenture  witnesseth,  that  in  pur- 
suance of  the  liefore  recited  agreement,  and 
in  consideration  of  the  sum  of  one  dollar  by 
the  said  J.  D.  Price,  trustee,  to  the  said 
Martha  paid,  the  receipt  of  which  is  hereby 
acknowledged,  the  said  Martha,  by  and  with 
the  consent  antl  agreement  of  the  said  D.  B. 
I'rice,  testified  byi  his  being  made  a  party 
to  and  signing  and  delivering  these  presents, 
bath  granted,  bargained,  sold  and  transfer- 
red, and  by  these  presents  doth  grant,  bar- 

*182 
gain,  sell  and  transfer  unto  *the  said  J.  D. 
Price,  trustee,  his  heirs,  executors  and  admin- 
isti'ators,  all  and  singular  her  right,  title 
and  interest,  of,  in  and  to  her  undivided 
third  part  of  the  real  and  personal  estate  and 
choses  in  action,  of  which  the  said  Jesse 
Lewis  at  the  time  of  his  death  was  seized, 
possessed  or  entitled,  and  of,  in  and  to  the 
rents,  increase,  interests  and  profits  thereof, 

■74 


since  that  time ;  consisting  of  one  tract  of 
land  situated  in  the  District  and  State, afore- 
said, on  the  north  side  of  Black  Creek,  bound- 
ed on  S.  E.  and  N.  E.  by  lands  belonging  to 
the  estate  of  Adam  Marshall,  S.  E.  by  Wil- 
liam Lewis's  land,  and  N.  W.  by  John  F. 
Wilson's  land.  One  other  tract  of  land  in 
the  district  and  State  aforesaid,  bounded  by 
lands  owned  in  1821!,  N.  by  David  Smoot,  E. 
by  S.  Adams,  S.  by  Lewis  Hill,  and  W.  by 
John  Lide ;  one  other  tract  of  land  in  the 
District  and  State  aforesaid,  east  side  of 
Horse  Branch,  bounded  by  lands  owned  in 
1S1!6.  N.  by  William  Lewis  and  Thomas 
Smith,  E.  by  S.  Adams,  and  S.  and  W.  by  said 
Horse  Branch ;  and  one  tract  of  land  of  one 
acre  on  Society  Hill,  and  bounded  in  1829  N. 
by  M.  Sparks's  land,  W.  by  Camden  road, 
S.  by  a  street,  and  E.  lands  late  of  the  estate 
of  George  Wilds;  also  negro  slaves  Western, 
Mary  and  Louisa,  with  other  articles  of  per- 
sonal property  described  in  the  appraisement 
of  the  estate  of  the  said  Jesse  Lewis,  hied  in 
the  Oruinary's  oftice  of  the  said  District,  a 
copy  of  which  is  hereunto  annexed,  with 
one-third  undivided  part  of  the  notes  and 
accounts  due  and  owing  to  the  said  estate; 
to  have  and  to  hold  the  same  in  trust  never- 
theless, and  for  such  purposes,  and  under 
such  provisions  and  agreements  as  are  here- 
inafter mentioned,  that  is  to  say,  in  trust 
for  the  said  Martha  and  her  assigns,  until 
the  solemnization  of  the  said  intended  mar- 
riage, (paying  from  time  to  time  one-third 
part  of  the  taxes  of  the  said  real  estate,  to 
be  by  him  collected  out  of  the  rents  and  prof- 
its thereof,)  then  in  trust,  that  the  said  J.  D. 
Price,  trustee,  his  executors  and  administra- 
tors, (still  paying  the  said  third  part  of  the 
taxes  as  aforesaid,)  shall  suffer  the  said  D. 
B.  Price  to  use,  have,  receive,  occupy  and  en- 
joy all  the  interest  and  profits  of  the  said 
property,  (allowing  the  property  itself  to  re- 
main undivided,)  so  long  as  the  said  marriage 

*183 
shall  continue  *and  the  said  D.  B.  Price 
shall  maintain  and  educate  the  said  chil- 
dren or  the  survivor  or  survivors  of  them, 
without  making  any  charge  against  them  or 
either  of  them ;  and  shall  also  permit  the 
said  D.  B.  Price  to  use  the  principal  of  the 
said  property,  if  the  same  shall  be  deemed 
necessary  by  the  said  trustee,  his  heirs,  ex- 
ecutors or  administrators,  for  the  jjurposes 
of  Maintain  and  ediication,  as  above  mention- 
ed, provided  the  use,  occupation,  enjoyment, 
&c.  of  the  said  property  shall  not  continue 
inito  the  said  D.  B.  I'rice  after  the  termina- 
tion of  the  said  marriage,  longer  than  the 
time  at  which  the  eldest  survivor  of  the  said 
children  shall  arrive  at  the  age  of  twenty- 
one  years  or  marry,  upon  the  happening  of 
which  event,  or  either  of  them,  after  the  ter- 
mination of  the  said  marriage  by  the  death 
of  the  said  Martha,  the  said  trustee,  his 
heirs,  executors  or  administrators  to  hold 
the   said   property,    or  the   balance  thereof, 


LEWIS  V.  PRICE 


^181 


wliitli  shall  miiaiii  uiiexiMMitU'd.  to  lie  iMjually 
<li\  itU'd  and  delivenHl  to  the  tiuivivor  or  sur- 
vivors of  the  said  children:  hut  if  the  said 
Martha  shall  survive  the  said  D.  H.  Price, 
tlu'ii  and  in  that  ease  the  said  J.  I).  Price, 
trustee,  liis  executors  or  adndnistrat<»rs.  shall 
re-convey  to  the  said  Martha,  her  heirs  or 
assij,'ns.  all  and  sin^idar  the  undivided  third 
part  of  the  property  hereinhefore  set  forth, 
or  so  much  thereof  as  shall  remain  unexpend- 
ed, according  to  the  true  intent  and  uieainn;; 
of  thi-se  pn'sents.  In  testimony  whereof,  we 
have  interchaufieahly  set  our  hands  and 
si'als.  the  day  and  year  ahove  written. 
Sifiiied.  sealed  and  d«'livered^ 
in  presence  of  \ 

James  G.  lirown,    l»aniel  I>.  I'rice,  [L.  S.) 
Ahel  Gandy.  Martha  Lewis,  |L.  S.l 

John  n.  Price,  IL.  S.] 

State  of  Soutii  ('arolina.| 

Darlington  Di.strict.         jj 

Personally     appeareil     1  efore     me     Martin 

Dewitt.     Justice     of    the     Peace.     James     G. 

lirown,  and  made  oath  that  he  did  see  Daniel 

H.  Price  sij-'n  and  seal  the  ahove  instrument 

*184 

of  writini;,  for  the  *use  and  purposes  herein 
mentioned,  and  further  he  did  see  Ahel  Gandy 
suhscriiie  witli  liimself  thereto. 

Sworn  to  before  me  this  1st  day  of  Ai)ril. 
1.S'.4. 

Martin  Dewitt,  J.  P.         James  G.  Hrown. 
Decree. 

Dunkin.  Ch.  Jesse  Lewis  died  intestate, 
aijout  October,  1S32.  He  left  a  widow  antl 
four  children,  the  youngest  of  whom  was  an 
infant  of  very  tender  years.  The  widow  ad- 
nnnistered  on  the  estate.  Suhseiiuently.  to 
wit: — lull  January.  IS'U — she  intermarried 
with  the  defendant,  D.  B.  I'rice.  On  the  IHth 
l-'ehrvniry.  l.s.'{4,  letters  of  administration 
were  granted  to  I'rite  and  wife,  they  having 
entered  into  bond  to  the  ordinary,  with  John 
D.  Price,  (father  of  D.  H.  Price)  and  John  N. 
>\  illiauKs.  as  sureties.  On  the  21th  Xovendier. 
1844,  these  letters  were  revoked,  in  conse- 
quence of  the  failure  of  Price  to  give  new- 
security  as  retiuired  by  the  ordinary.  Wilson 
C.  liruce  is  at  present  the  adnunistrator. 
This  bill  is  filed  by  »»ne  of  the  children  of 
Jesse  Lewis,  deceased,  for  an  account  of  his 
father's  estate. 

It  is  alleged  that  1 ».  P..  Price  is  insolvent. 
and  tliat  John  D.  Price,  one  of  the  smetles. 
is  nearly  so,  and  the  scf»pe  and  objwt  «>f 
the  bill  is,  to  tix  tlu'  liaiiility  on  John  N.  Wil- 
liams, the  other  surely. 

The  case  was  heard  on  exceptions  to  the 
commissioner's  report,  and  the  Court  is  very 
much  aided  by  the  cari-ful  investigation  and 
lucid  statement  which  is  there  exhibited.  If 
there  be  error  in  the  conclusions  of  the  olhcer. 
it  arises  from  the  want  of  a  previous  adjudi- 
cation of  the  principles  on  which  the  account 
should  be  adjusted. 

At  the  time  of  Jesse  Lewis's  death,  be  had 


a  house  at  Society  Hill,  and  a  farm  at  som<^ 
distance  from  it.  According  to  the  inventory 
and  api»raiseuient.  made  7th  November.  ls:V2,. 
tliere  were  two  negroes,  Mary  and  Ixtuisa^ 
at  Society  Hill,  and  furniture,  &c.  valued  at 
two  hundred  and  twenty-seven  dollars,  and 
at    the    plantation,    two    negroes.    Doll    an<l. 

♦185 
Margery,  and  crop  of  *corn.  stock.  &i-.  valued 
at  three  hundred  and  seventy-tive  dollars — 
making  the  persoiuilty.  exclusive  of  the  ne- 
grot's,  worth  six  hundred  and  two  dollars. 
In  addition  to  this,  tliere  were  more  than  one 
hundred  small  notes  and  open  accounts, 
from  thirty  cents  and  upwards,  but  amount- 
ing, altogether,  to  fourteen  hundred  and 
seventy  dollars,  or  thereabouts. 

In  ls:W,  the  administratrix  made  a  re- 
turn to  the  ordinary,  which,  as  the  Com- 
missioner reports,  "appears  to  have  lieen 
.v.itisfai-torily  vouche<l  to  the  ordinary,"'  and, 
acc(»rding  to  which,  .she  had  paid  debts  of 
the  intestate  to  the  amount  of  four  huiulred 
and  eiglity-six  dollars  ninety-eight  ceiits_ 
Suiiposing  these  to  have  lieen  paid  from  tlur 
debts  collected,  and  that  all  the  notes  and 
accounts  were  good,  and  that  she  was  charge- 
able with  them,  there  was  a  balance  due  by 
her.  January.  is.".4.  of  nine  hundred  and. 
eighty-three    dollars. 

At  this  time,  D.  H.  Price  became  adminis- 
trator, and  continued  in  possession  until 
1S44.  At  that  time  he  transferred  to  his  suc^ 
cessor  all  the  in'grtK's,  with  their  iiK-rea.sei, 
iuul  the  furniture,  &c.  in  the  condition  it 
then  was.  One  of  the  children  of  Jesse  I^ew- 
is  died  in  ls.'iO.  The  other  three,  so  far  as: 
the  Court  understands  from  the  evidence,, 
were  decently  brought  up  by  the  defendant,, 
in  relation  to  nurture,  clothing  and  educa- 
tion. 

When  it  is  borne  in  mind  that  neither  titt? 
mother  nor  the  .step-father  are  bound  Yty 
law  to  maintain  the  children  of  a  fornrer 
marriage,  it  would  seem  not  very  diflicult 
in  an  (udinary  case  tt>  adjn.st  the  extent  of 
the  liability  of  the  surety  on  Price's  boiuU 
to  the  children  of  the  intestate. 

Supposing  the  four  negroes  to  have  beeiK 
hired  out,  the  Commissioner,  on  sjitisfactorjr 
testimony,  has  e.stimatiHl  the  annual  hire  at 
one  hundred  and  forty-tive  dollars,  the  rent 
of  the  house  at  Society  Hill  at  forty-tive- 
dollars,  and  the  rent  of  the  plantation  at 
Hfty  dollars — making  the  entire  averag«'  in- 
come for  the  ten  years,  annually,  two  Iiaf«- 
dred  and  four  dollars.  The  Commissitujuer 
tixes  one  hundred  and  sixty  dollars  "a-s.  at 
very  reasonable  allowance,  annually,  for  tbe- 
board,  clothing,  tuition  and  nu'dical  atten- 
dance  of   Jes.se    Lewis's   children."      But.  iie 

*186 
ad<lition  *to  the  alxive  rent  and  hire,,  if  tlie 
administrator  be  charginl  with  the  annual 
interest  on  all  the  delits,  as  well  as  the  in- 
terest on  the  appraised  value  of  the  furni- 
ture and  other  personalty,  the  whole  annual 


*186 


3  RICHARDSON'S  EQUITY  REPORTS 


income  would  be  about  three  hundred  and 
twenty  dollars,  of  which  the  annual  share 
of  the  children  would  be  two  hundred  and 
fourteen  dollars,  leaving  them  an  annual 
surplus  of  fifty-four  dollars.  But,  as  has 
been  said,  if  it  were  au  ordinary  case  and  a 
stranger  had  been  the  administrator  for  ten 
years,  and  then  had  surrendered  his  trust, 
if  he  had,  at  that  time,  turned  over  to  the 
children  their  patrimony  undiminished  in 
capital  l)y  the  expenses  of  their  maintenance 
and  education,  it  would  exhibit  a  fidelity, 
frugality  and  success  which  would  be  wor- 
thy of  all  commendation.  On  that  principle, 
and  charging  the  administrator  with  the  full 
amount  of  the  appraisement,  as  well  as  with 
every  debt,  great  and  small,  he  should,  in 
1844,  have  delivered  to  the  children  their 
negroes,  with  their  increase,  and  have  paid 
them  about  one  thousand  dollars  in  money. 
The  severest  judgment  could  have  exacted 
no  more  from  him.  Assuming,  as  he  did,  the 
duties  both  of  guardian  and  administrator, 
he  was  bound  to  attend  to  the  decent  sup- 
port of  the  children,  and  to  do  so,  would 
fully  consume  any  interest  he  could  make  on 
their  share  of  the  property. 

At  the  expiration  of  liis  stewardship,  de- 
livering over  to  the  children  their  two-thirds, 
and  to  the  widow  one-third,  he  would  have 
accounted  faithfully.  It  is  difficult  to  con- 
ceive, in  such  case,  on  what  principle  the 
children  could  ask  more.  The  law  requires 
fidelity  and  diligence  in  every  one  assuming 
a  fiduciary  relation,  whether  it  be  guardian, 
administrator  or  other  trustee,  and  this  must 
be  exercised  according  to  the  circumstances 
of  the  case — and  no  two  cases  are  likely  to 
present   the   same   features. 

The  interests  of  minors  and  other  cestui 
que  trusts  must  be  protected,  but  at  the  same 
time,  good  and  prudent  men  must  not  be 
discouraged  from  acting  in  such  capacity. 
The  Court  had  occasion  to  consider  this  sub- 
ject in  the  recent  case  of  l\ve  v.  Carr,  (2 
Strob.  Eq.  105,)  and  will  not  repeat  what  is 

*187 
there  said.  *The  defendant,  D.  B.  Price, 
though  administrator,  was  not  a  stranger. 
He  had  married  the  widow  in  January,  1834. 
She,  with  her  four  children,  were  living  at 
the  place  in  the  country.  "The  house  was 
a  log  house,  old  and  leaky.  It  was  necessary 
to  build  a  new  house  for  the  comfort  of  the 
family."  (Brown's  evidence.)  "A  new  house, 
not  tine  but  plain,  ordinary,"  was  built,  at 
an  expense  of  two  hundred  and  tvi^enty-tive 
dollars. 

There  were  four  negroes:  Doll  was  old, 
and  not  worth  more  than  the  expense  of 
keeping  her;  the  successor  of  Price  paid  fif- 
teen dollars  a  year  for  keeping  her.  Mary 
was  kept  about  the  house,  and  so  was  Louisa, 
except  one  or  two  years ;  she  was  a  breed- 
ing woman.  Margery,  the  remaining  negro, 
was  hired  out  at  sixty  dollars,  and  the  house 
at  Society  Hill  was  rented  out  at  about  for- 

76 


ty-five  dollars  per  annum.  The  furniture 
about  the  house  in  which  they  lived,  seems 
to  have  been  of  a  plain  character.  In  this 
way,  the  family  lived  together  for  seven 
years  out  of  the  ten  during  which  Price  was 
administrator.  After  that  time  the  place 
was  rented  out.  As  has  been  stated,  when 
his  administration  was  revoked,  in  1844,  he 
gave  up  the  four  negroes,  now  become  six, 
and  he  gave  up  the  furniture,  cattle,  planta- 
tion, tools,  &c.  That  for  which  he  is  prop- 
erly accountable,  as  administrator,  in  ref- 
erence to  the  rights  of  the  children,  is  for 
the  judicious  and  faithful  discharge  of  his 
trust  in  the  situation  in  which  he  was  plac- 
ed. It  is  not  suggested  that  he  was  wanting 
in  any  thing  towards  them  personally.  They 
were  well  dressed  and  well  provided,  and 
received  such  etiucation  as  seems  to  be  cus- 
tomary. If  there  were  nothing  more  in  the 
case,  the  Court  would  think,  on  the  testi- 
mony, that  justice  woul'd  have  been  done,  if, 
in  1844,  the  children  of  Jesse  Lewis  had  re- 
ceived their  share  of  the  lands  and  ne- 
groes, and  their  proportion  of  nine  hundred 
and  eighty-three  dollars,  leaving  to  the 
defendants,  I'rice  and  wife,  the  residue  of 
the  land,  negroes  and  cash.  And  it  may  be 
as  well  here  to  remark,  that  in  ascertaining 
this  cash  balance,  due  by  Mrs.  Lewis,  Janu- 
ary, 1844.  the  Court  has  given  her  the  bene- 
fit of  the  retui-n  made  to  the  ordinary  30th 
December,    1833.      In    Wright    v.   Wright,    (2 

*188 
McC.  *Eq.  197,)  it  is  said,  that  in  passing  his 
accounts  with  the  ordinary,  the  executor  or 
administrator  should  produce  his  vouchers, 
and  that  after  a  long  lapse  of  time  it  is  not 
to  be  presumed  that  the  ordinary  suffered 
the  account  to  pass  without  satisfactory 
evidence  that  it  was  correct.  "Executors  are 
not  less  liable  to  loss  of  papers  by  time  and 
accident  than  other  persons ;  the  settlement 
with  the  ordinary  is  intended  as  a  security 
for  the  executor,  as  well  as  for  the  distribU' 
tees."  "The  regularity  of  the  accounts,  the 
death  of  witnesses,  loss  of  vouchers,  and  the 
lapse  of  time,  must  all  be  taken  into  consid- 
eration." In  that  case,  a  lapse  of  sixteen 
years  was  held  to  be  a  "complete  protection" 
to  the  executor. 

The  Commissioner,  in  reluctantly  declin- 
ing to  adopt  the  return  of  1833,  says  he  is 
"sensible  that  to  reject  it  is  greatly  to  her. 
(Mrs.  Lewis's)  disadvantage,  as  she  has  not 
been  able  to  establish  before  me  payments 
which  appear  to  have  been  satisfactorily 
vouched  before  the  ordinary." 

This  is  a  bill  to  subject  the  surety  to  lia- 
bility, and  there  are  circumstances  in  this 
case  which  seem  to  entitle  the  surety,  in  a 
peculiar  manner,  to  the  protection  of  the 
account  passed  with  the  ordinary  in  1833. 

The  Court  has  said  that  in  an  ordinary 
case,  justice  would  have  been  done  to  the 
cliildreu,  if  the  defendant  had,  in  1844,  trans- 
ferred or   surrendered   to  them  their   share 


I.KWIS   V.   riiUK 


4i)l 


of  the  capital  of  their  father's  estate,  lint 
it  remains  to  lie  imiuiied  what  law  the  par- 
ties liave  made  for  themselves — liow  far  wiiat 
would  seem  to  be  abstract  justice  has  been 
controlled  or  modified  by  tlie  acts  or  a{?i'ee- 
nifut  of  the  parties.  Mrs.  Lewis,  in  Janu- 
ary, is."!4,  beinjr  about  to  marry  a  young 
man  without  property,  deemed  it  prudent  to 
have  a  marriaj-'e  settlement.  An  instrument 
was  accordingly  prei)ared  and  executed.  The 
defendant,  I>.  B.  Price,  insists  that,  accord- 
ing to  the  previous  agreement,  as  also  accord- 
ing to  Ins  understanding  of  the  terms  of  the 
settlement,  lioth  then  and  now.  the  proper- 
ty of  Jesse  I.«wis  was  to  be  kept  togetlier, 
and  he  was  to  have  tlie  use  of  it,  and  main- 
tain and  educate  tlie  children  without  charge. 

*189 
The  subscribing  witness  to  *the  .settlement 
testiht'd  tliat  it  was  his  own  understanding 
of  the  instrument,  that  I>.  15.  Trice  was  to 
have  tlie  use  of  the  whole  property  of  Lew- 
is's estate,  and  was  to  support  the  children, 
and  that  the  parties  put  the  same  construc- 
tion on  it.  On  the  other  hand,  the  complain- 
ant submits,  that  by  the  true  construction  of 
the  settlement.  Price  was  only  to  have  the 
usufruct  of  Mrs.  Lewis's  interest  in  the  prop- 
erty, and  out  of  this  usufruct,  her  children, 
by  Lewis,  were  to  be  maintainetl  and  edu- 
cated by  him  (I'rice)  without  charge.  All 
agree  that,  by  the  terms  of  the  settlement, 
if  Price  survived  his  wife,  the  property  was 
to  i)ass  to  the  children  of  the  first  marriage, 
when  the  eldest  was  of  age. 

It  is  hardly  necessary  to  say  that  the  par- 
ties must  ordinarily  be  bound,  not  by  their 
understanding  of  an  instrument,  but  by  the 
construction  which  the  Court  affixes  to  the 
terms  which  they  at  the  time  u.sed.  But  with 
all  this,  it  is  no  more  than  is  due.  as  well 
to  the  intelligence  as  to  the  good  faith  of 
I).  li.  Price,  to  say  that  he  very  dearly  prov- 
ed what  was  his  understanding,  and  that  this 
would  have  been,  under  the  circumstances, 
the  only  reasdiiable  arrangement.  Is  the 
instrument  susceptible  of  this  construction"? 
It  is  lawful  to  look  at  the  conilition  of  things 
about  the  parties,  and  the  objects  to  which 
the  terms  relate.  Mrs.  Lewis  had  a  very 
young  family,  living  in  the  country,  wltli  an 
income  barely  suthcient  to  suitport  them. 
She  was  interested  in  a  third  of  her  hus- 
band's e.state :  but  it  would  have  impaired 
very  much  their  means  of  subsistence,  if 
the  property  was  not  kept  in  common — at 
least,  until  her  children  were  grown.  The 
property  was  entirely  too  small  to  be  sus- 
ceptible of  i)re.sent  division,  without  preju- 
dice to  her  children — at  least,  so  she  seems 
to  have  thought.  The  leading  piirpo.ses  of 
the  settlement  seem,  therefore,  to  have  been, 
that  the  proiterty  slu)uld  be  kept  undivided; 
that  the  children  should  be  supported,  and 
that  their  interest  in  their  father'^  estate 
should  not  be  impaired  for  this  purpose,  but 
that    if    any    encroachment    on    capital    was 


neiessary,  it  should  be  taken  from  her  share, 
and  that  what  was  left  of  this  share  should 
be  secured  to  her  children  in  the  event  of  her 
decea.se     during    the    coverture.      The    deed 

•190 
transfers  to  the  *trustee  Martha  Lewis's  intt'i- 
est  in  her  late  husband's  estate,  real  and  per- 
sonal, describing  it  as  one-third  part  thereof, 
in  trust,  after  the  marriage,  to  "suffer  I ».  B. 
Price  to  use,  have,  receive,  occupy  and  enjoy 
all  the  interests  and  profits  of  the  said  prop- 
erty, (allowing  the  property  itself  to  remain 
undivided)  so  long  as  the  said  marriage 
.shall  continue;  and  the  said  D.  B.  Price 
shall  maintain  and  educate  the  said  children, 
or  the  survivors  or  survivor  of  them,  without 
making  any  charge  against  them  or  eitlier 
of  them;  and  shall  also  pernut  the  said  I». 
B.  I'rice  to  use  the  principal  of  the  said  proii- 
erty,  if  the  same  shall  be  deemed  necessary 
by  the  said  trustee,  his  heirs,  executors  or 
administrators,  for  the  purpo.se  of  mainte- 
nance and  education  as  above  mentioned." 

It  is  then  provided,  that  in  the  event  of  the 
death  of  the  wife  during  the  coverture.  I).  P.. 
Price  .shall  enjoy  till  the  eldest  child  shall  bt- 
of  age  or  marry,  and  then  that  the  trustee 
shall  hold  the  said  property,  or  the  balance 
thereof,  which  shall  remain  unexiK'iided,  to^ 
be  e(iually  divided  among  the  children.  But 
if  the  wife  should  survive  the  husband,  then 
the  trustee  was  to  re-convey  to  her  "all  and 
singular  the  undivided  third  part  of  the 
proi)erty  hereinbefore  set  forth,  or  so  much 
thereof  as  shall   remain  unexpended." 

When  it  is  remembered  what  was  the  ac- 
tual condition  of  the  family — of  what  the 
property  of  Lewis  consisted,  and  then  the 
express  stii)ulatioii  "to  allow  the  property 
it.self  to  remain  undivided."  it  is  very  easy 
to  account  for  the  conclusion  of  Price,  that 
he  was  to  occupy  anil  enjoy,  subject  only  to 
the  burden  of  maintainiiig  and  educating  the 
children  without  charge. 

It  is  difficult  for  the  Court  to  determine 
what  was  precisely  meant  by  this  provision, 
that  "the  property  itself  was  to  remain  un- 
divided." 

If  it  was  meant  that  the  whole  property 
should  remain  undivided  until  the  law  might 
require  a  division,  to  wit : — when  the  eldest 
child  was  of  age  or  married,  and  the  chil- 
dren, in  the  mean  time,  be  maintained  and 
educated,  and  that  any  encroachment  on 
capital  for  that  purpose  should  be  out  of  the 

*191 
wife's  *share.  then  Price  luifilled  his  duty 
in  keeping  the  family  and  the  property  to- 
gether, as  the  period  for  the  division  had 
not  arrived,  when  he  surrendered  the  admin- 
istration. On  this  construction  Price  acted, 
as  is  shown  by  his  conduct.  In  the  first 
year  he  expended,  for  the  comfort  of  the  faui- 
ily  and  in  the  improvement  of  the  proi)erty. 
moro  than  three  times  the  am<nint  of  his 
wife's  interest  in  the  rent  and  hire  which 
came   to  his   hands.     By   the   stipulation   of 

Ti 


*191 


3  RICHARDSON'S  EQUITY  REPORTS 


the  contract,  he  was  bound  not  to  divide  off 
his  wife's  share. 

The  income  of  the  whole  was  barely  suffi- 
cient to  give  them  food  and  clothing  and  a 
very  humble  education.  He  managed  the 
property  well  and  judiciously,  so  far  as  the 
Court  is  able  to  judge  from  the  evidence. 

The  Court  is  of  opinion,  that  the  instru- 
ment is  susceptible  of  the  construction  which 
the  parties  seem  to  have  all  given  to  it.  If 
it  be  said  that  the  mother  had  no  right  to 
make  such  agreement,  that  may  be  true; 
but  if  the  children  insist  on  the  benefit  of 
the  settlement,  they  must  abide  by  the  moth- 
er's act.  Nor  have  they  any  just  cause  of 
complaint.  At  the  end  of  ten  years  they  re- 
ceived their  capital  unimpaired,  although 
they  have  been  maintained  and  educated ; 
and  they  have  also  the  capital  of  their  moth- 
er's share  secured  by  the  terms  of  the  settle- 
ment. On  the  other  hand,  the  Commissioner 
has  submitted  an  account  predicated  on  the 
construction  proposed  by  the  complainant. 
The  result  is  at  once  instructive  and  start- 
ling. It  has  been  already  stated  that  Lewis 
left  but  four  negroes,  one  of  whom  was 
worthless,  and  the  other  three  were  females. 
He  lived  in  the  country  with  his  family, 
where  he  had  the  usual  furniture  for  such  an 
establishment,  together  with  the  ordinary 
implements  of  husbandry  and  some  stock. 
Besides  this,  he  left  nothing  but  the  house  at 
Society  Hill,  and  the  notes  and  accounts 
which  have  been  mentioned.  For  the  ten 
years  that  the  defendant  held  the  prt)perty, 
the  children  were  properly  maintained  and 
educated.  At  tlie  expiration  of  that  time, 
every  thing  was  surrendered  in  about  as  good 
a  plight  as  it  was  received,  except,  perhaps 
that    the    furniture,    &c,    had    suffered    from 

*192 
*the  abrasions  of  time  and  service.  If  the 
administrator  had  collected  every  note  and 
account,  great  and  small,  good  and  bad,  the 
amount  would  not  much  exceed  fourteen 
hundred  dollars.  Yet  the  report  of  the  Com- 
missioner brings  the  administrator  in  debt, 
on  1st  January,  1850,  five  thousand  nine  hun- 
dred and  thirteen  dollars  sixty  cents. 

If  the  whole  personal  estate  of  Jesse  Lewis 
had  been  exposed  to  sale,  (including  the 
choses  in  action)  on  the  day  after  his  death, 
it  is  very  doubtful  if  it  would  liave  brought 
more  than  one-third  of  the  sum  thus  report- 
ed. But  Mrs.  Lewis  had  paid  nearly  five 
hundred  dollars  of  her  deceased  husband's 
debts. 

As  the  defendant.  Price,  failed  to  account 
satisfactorily  for  the  choses  in  action  of 
Jesse  Lewis's  estate,  the  Commissioner  was 
well  warranted  in  charging  him  with  the 
amount ;  but  he  is  entitled  to  credit  for  the 
sums  paid  by  Mrs.  Lewis,  while  administra- 
trix. This  reduces  the  cash  liability  on  1st 
January,  18.34,  to  nine  hundred  and  eighty- 
tliree  dollars.  On  this  sum  he  is  chargeable 
with  interest   since  he   surrendered  the   ad- 

78 


ministration,  in  November,  1844.  Tlie  extent 
of  his  liability  on  the  appraisement  bill  (as 
it  is  termed)  must  be  referred  back  to  the 
Commissioner.  According  to  tlie  construc- 
tion which  the  Court  gives  to  the  settlement. 
Price  was  entitled  to  use  the  property  as  it 
was  generally  used.  When  he  gave  up  the 
administration,  he  surrendered  also,  or  pur- 
ported to  surrender,  all  that  had  not  been 
consumed  in  the  use.  On  this  matter  the 
Commissioner  may  report  in  detail  what 
articles  included  in  the  appraisement  of  7th 
November,  1832,  were  not  turned  over  by 
the  defendant  in  November,  1844,  with  any 
special  remarks  which  he  may  think  proper 
to  offer. 

The  Court  is  of  opinion  that  the  interest 
which  accrued  to  the  wife  of  the  defendant, 
by  the  death  of  her  child,  in  1836,  is  not  af- 
fected by  or  included  in  the  terms  of  the  set- 
tlement, and  that  the  same  is  subject  to  the 
satisfaction  of  any  indebtedness  which  may 
be  found  to  exist  on  the  administration  of 
Jesse  Lewis's  estate,  by  either  of  the  parties. 

Any  further  or  final  order  is  reserved  until 
*193 
the  hearing  of  the   *Commissioner's   report, 
to  be  prepared  according  to  the  principles  of 
this  decree. 

The  comi)lainant  appealed,  on  the  following 
grounds. 

1.  Because  his  Honor  decreed  that,  in  mak- 
ing up  the  accounts  of  the  administrators  of 
the  estate  of  Jesse  Lewis,  the  account  cur- 
rent filed  by  Mrs.  Price  in  1833,  should  be 
assumed  as  correct ;  and,  whereas,  it  is  sub- 
mitted that  the  amounts  therein  charged  as 
paid,  were  not  vouched  by  sufficient  evidence, 
and  the  account,  as  a  whole,  was  discredited 
by  the  following  among  other  facts  establish- 
ed at  the  hearing:  1st.  The  items  do  not  ap- 
pear to  have  been  paid  on  account  of  the  es- 
tate, and  were  not,  so  far  as  we  are  inform- 
ed by  the  evidence,  vouched  to  the  satisfac- 
tion of  the  ordinary,  to  whom  the  accounts 
were  rendered.  2d.  Many  of  the  amounts 
charged,  were  proved  by  the  administrators 
themselves  to  have  been  paid  in  discharge  of 
the  debts  of  Mrs.  Price.  3d.  There  was  no 
evidence  of  loss  of  vouchers  or  death  of  wit- 
nesses. 4th.  Many  of  the  individuals  to 
whom  payments  were  alleged  to  have  been 
made,  were  within  the  call  of  the  defendant, 
and  were  not  examined  to  sustain  the  ac- 
count; and  one  who  was  examined  as  to  the 
sum  of  one  hundred  dollars  or  more,  charged 
as  paid  him,  proved  that  he  had  no  such  de- 
mand against  the  estate. 

2.  Because,  supposing  the  account  of  1833 
correct  as  to  the  amounts  paid  by  ^Nlrs.  Price, 
the  general  balance  decreed  to  be  due  the  es- 
tate is  incorrect,  as  the  rent  of  the  house 
and  lot  at  Society  Hill,  and  the  crops  for  18.32 
and  1833,  received  by  Mrs.  Price,  were  not 
included  in  the  estimate  by  the  Chancellor. 

3.  Because,  by  the  express  terms  of  the 
marriage  settlement,  D.  B.  Price  bound  him- 


LEWIS  V.  PRICE 


^:9G 


self  to  support,  maintain  and  eiliKiitf  the 
complainant  ami  otiicr  cliiltlreii  of  Jt'sst*  Lew- 
is, from  tho  rents  and  capital  of  the  luirtion 
of  the  estate  to  which  his  wife  was  entitled, 
and  it  is  suhniitted  that  the  Chancellor  erred 
In  allowing;  him  to  dnnw  them  in  thi'  afon*- 
said  particulars,  to  the  extent  of  the  annual 
income  of  tlie  whole  estate. 

4.  lU'cause,  if  it  be  conce<led  that  I'rice  was 
authorized  to  charge  the  whole  ex[>ense  of  the 

*194 
su|iport  and  education  of  the  *<hildren,  esti- 
mated at  one  hundred  and  sixty  dollars  nn- 
nually.  in  their  own  funds,  there  would  he  an 
annual  balance  a^'ainst  him  of  sixty  or  ei^dity 
dollars,  from  is;{4  to  1S44,  besides  inti'rest  ; 
and  it  is  submitted  his  Honor  erred  in  rulinj; 
that  his  liability  on  account  of  the  receipts 
of  the  annual  income  of  the  estate  should  be 
balanced  by  the  sui»port,  &c.  of  the  children. 

5.  Because  D.  B.  I'rice  was  not  entitled  to 
charge  for  board,  clothing  and  education  of 
tlie  children,  inasmuch  as  he  made  no  charge 
at  the  time;  made  no  returns  to  the  ordinary, 
and  liled  no  account  or  statement  of  his  re- 
ceipts and  disbursements  on  account  of  the 
estate  with  his  answer,  nor  did  any  other  of 
the   defendants. 

6.  Because  his  Honor  should  have  charged 
the  defendants  with  the  value  of  the  articles 
set  forth  in  the  appraisement,  with  interest 
from  1S"{4,  inasmuch  as  many  of  the  articles 
were  consumed  by  the  said  I'rice  in  the  use, 
or  made  away  with,  many  were  greatly  reduc- 
ed in  value  when  sold  by  the  said  I'rice  in 
1S44. 

7.  Bt'cause  his  Honor  erred  in  ruling  that 
1).  B.  I'rice  was  only  liable  in  the  balanc*' 
found  due  by  Mr.s.  I'rice  from  1S44,  instead 
of    l.s:54. 

8.  Because  the  said  decree  is.  in  otl^r  re- 
spects, contrary  to  evidence,  law  and  equity. 

Dargaii,  for  comitlainant. 
Moses  &   Haynsworth,  contra. 

.lollNSTOX,  t"h..  delivered  the  opinion  of 
the  Court. 

The  erroneous  results  of  tlie  accounts,  as 
taken,  are  forcibly  pointed  out  in  the  decree: 
and  lead  irresistibly  ti>  the  conclusion,  that 
error  exists  somewlu're  in  the  jiroceeding. 

But,  though  we  are  greatly  disposed  to  ex- 
onerate the  def«'ndant,  I'rice,  as  far  as  pos- 
sible, from  these  results;  we  cannot  con.sent 
to  do  so,  by  what  appears  to  us  to  be  a  mis- 
construction of  the  nnirriage  settlement. 

Our  opinion  is,  that,  by  a  sound  interpre- 
tation of  that  instrument,  it  can  oiierate  only 

*195 
upon  the  third  part  of  the  estate,  to  ♦which 
Mrs.  I'rice  was  entitled  :  and  that  the  chil- 
dren were  to  be  maintained  and  educated 
out  of  the  income,  (and,  if  necessary,  the 
capital)  of  that  portion,  only,  of  the  estate: 
leaving  the  other  two-thirds,  with  its  income. 


ta  l)e  accounted  for,  by  the  adndnistrator,  as 
the  iiroperty  of  the  children. 

Let  us  read  such  portions  of  the  settlement 
as  relate  to  this  pcdnt,  bearing  in  uund.  tit 
the  same  time,  that  .Mrs.  I'rice,  the  settler, 
had  no  |iowi'r  to  dispose  of  any  thing  beyond 
her  own  property.  After  reciting  the  mar- 
riage contemplated  between  herself  and  I'rice, 
and  that  she  had  four  children,  and  was  en- 
titled to  a  third  part  of  her  late  husband's 
estate,  with  a  proportiomite  share  of  the 
rents,  protits  and  increase  thereof, — the  set- 
tlement proceeds  to  state,  that  "it  hath  been 
agreed,  that  the  said  I).  B.  I'rice.  after  the 
sai.l  intended  marriage,  should  receive  and 
enjoy  the  sai<l  property  belonging  to  the  said 
.Martha,  during  the  said  marriage. — he  ap- 
propriating so  nnich  thereof  as  may  be  nec- 
essary to  the  pun>ose  of  boarding.  cl(»thing 
and  tuition  of  the  said  children.'" — "with  the 
physician's  bills  and  other  expi'uses — and 
maUing  no  charge  against  them,  for  said  pur- 
poses." Here  we  have  an  exact  descriiition  of 
the  i)roperty  to  be  settled,  and  an  annuncia- 
tion of  the  objects  and  terms  of  the  settle- 
ment. Then  follows  the  conveyance  of  the 
property  by  its  owner,  in  which  she  conveys, 
to  the  trustee,  "all  and  singular  her  right, 
title  and  interest"  in  'iier  undivided  third 
part  of  the  real  and  personal  estate  and 
choses''  of  her  late  husband,  and  of  "the 
rents,  increase,  interests  and  protits  thereof," 
since  his  death:  in  trust,  that  J.  D.  I'rice, 
the  trustee,  "shall  suiter  the  said  D.  B. 
I'rice,"  the  husband,  "to  u.se,  have,  rec-eive, 
occupy  and  enjoy  all  the  interests  and  profits 
i>f  the  said  pioperty."  Now,  what  property 
can  this  expression  refer  to,  other  than  that, 
before  described,  as  the  property,  or  share, 
of  Mrs.  I'rice,  which  she  had  ccuiveyed  to  the 
trustee,  and,  as  to  which  alone,  he,  as  legal 
owner  had  power  to  suffer,  or  allow,  the  use 
to  the  husband  ■)•  The  instrument  iunnediate- 
ly  lu'oceeds,  after  thus  speaking  of  the  use 
of  the  said  property,  in  a  parenthetical  form, 
to  throw  in  the  provision,  "(allowing  the  prop- 
MSB 
jcrty,  itself,  to  remain  vnidivided.)"  This  *evi- 
I  dently  refers  to  the  said  property:  i.  e.  to  the 
thirds  of  the  widow,  which  she  had  granted, 
iind  of  which  the  trustee  was  to  allow  the  use 
I  to  the  husband. 

But.  to  continue.  It  was  to  be  kejtt  to- 
gether and  the  u.se  of  it  allowed  to  the  hus- 
band, "so  long  as  the  said  marriage  shall 
(•(Uitinue,"  i.  e.  during  the  joint  lives  of  the 
married  parties.  But  it  "shall  not  continue 
unto  the  .said  D.  B.  I'rice  after  the  termi- 
nation of  the  said  nuirriage,"  1.  e.  if  be 
shall  become  the  survivor  by  the  death  of 
his  wife,  "longer  than  the  term  at  which 
the  elilest  of  the  said  children  shall  ar- 
rive at  the  age  of  twenty-one  years,  or  mar 
ry."  What  is  to  be  done  with  it  in  that 
event'/  The  in.»<trument  answers,  it  is  "to  be 
equally  divided,  and  delivered  to  the  sur- 
vivor,   or    survivors,    of    the    said    children." 

79 


*196 


3  RICHARDSON'S  EQUITY  REPORTS 


Until  that  time  it  is  "to  remain  iiiulivided." 
The  reference  is  constantly  to  the  same  prop- 
erty; and  that  is  the  widow's  share.  This 
the  husband  is  to  have  the  use  of:  and  the 
stipulation  is,  that,  having  this  use — "the  said 
D.  B.  Price  shall  maintain  and  educate  the 
said  children,"  "without  making  any  charge 
against  them,  or  either  of  them:''  and,  lest 
the  income  of  the  settled  property  might  not 
suffice,  for  accomplishing  this  purpose,  the 
trustee  is  to  "permit  the  said  D.  B.  Price  to 
use  the  principal  of  the  said  property."'  (This 
certainly  cannot  refer  to  the  general  estate, 
over  which  the  trustee  had  no  control.) 

And  the  deed  closes  by  a  provision  which 
shows  that,  throughout,  the  widow's  share 
alone  was  in  the  mind  of  the  parties.  The 
provision  is,  that,  if  Mrs.  Price  should  sur- 
vive her  husband,  the  trustee  should  re-con- 
vey her  third  to  her,  or  what  might  remain  of 
it,  unexpended. 

Thus  it  appears,  from  a  fair  reading  of  the 
deed,  that  the  husband,  so  far  from  being  en- 
titled to  charge  either  the  principal  or  income 
of  the  children's  own  shares,  was  bound 
to  exonerate  these  shares  from  all  charge,  by 
employing  the  income,  and,  if  necessary,  the 
principal  of  his  wife's  share,  which  was 
settled,  for  their  maintenance  and  education. 
We  think  this  settlement  was  good  as  be- 
tween the  parties  and  the  trustee.  The  in- 
formalities pointed  out  by  the  Commissioner 

*197 
*might  possibly  vitiate  it  as  against  John  N. 
Williams,  the  surety  to  the  joint  administra- 
tion of  D.  B.  Price  and  wife :  but  if  it  were 
set  aside,  it  could  not  benefit  this  surety.  A 
joint  administration  granted  to  husband  and 
wife,  according  to  the  case  of  Spann  v. 
Stewart,  (1  Hill  Eq.  :V2Q.)  is  a  grant  to  the 
husband  alone ;  though  according  to  Adair 
V.  Shaw,  (1  Sch.  &  Lef.  243,)  it  would  be  dif- 
ferent with  respect  to  an  administration  in 
the  wife  dum  sola,  and  conferred  by  opera- 
tion of  law  upon  the  husband,  by  her  mar- 
riage to  him. 

Where  administration  is  granted  to  hus- 
band and  wife  jointly,  the  administration  is 
that  of  the  husband  alone.  The  bond  given 
by  I'rice  and  wife,  to  which  Mr.  Williams 
became  surety,  was  the  bond  of  I'rice  alone, 
and  Williams  lent  credit  to  him  exclusively. 
Putting  the  settlement  out  of  the  question, 
Mr.  Williams  is  entitled  to  go  against  this 
property,  only  in  case  Price's  marital  right 
has  attached  upon  it.  But  the  Court  of  Ei-- 
rors  determined,  in  a  case  lately  decided  in 
Charleston,  that  where  the  wife's  share  was 
never  severed  from  the  bulk  of  the  estate  (as 
in  this  case)  the  marital  right  could  not  at- 
tach. The  Court  would  execute  the  equity 
of  the  wife — and,  I  suppose,  would,  in  so  do- 
ing, conform  to  intentions  expressed  in  a 
previous  settlement  agreed  on  by  the  par- 
ties, though  it  may  have  proved  ineffectual. 
The  Court  is  satisfied,  however,  with  the 
decree  that  the  interest  of  Mrs.  Price  in  the 

SO 


share    of    the    deceased    child,    or    children, 
should  be  subjected. 

We  come,  now,  to  consider  how  the  ac- 
count should  have  been  taken,  in  regard  to 
the  two-thirds  of  the  estate  belonging  to  the 
children. 

The  only  distinction  we  can  discover  be- 
tween this  case  and  those  which  generally 
occur,  is,  that  this  estate  was  a  planting  es- 
tate, and  that  the  account  filed  by  Mrs.  I'rice 
is  now  17  years  old. 

Undoubtedly  the  profits  of  a  planting  es- 
tablishment are  not  to  be  judged  of,  in  all 
cases,  by  estimates  in  detail  of  the  hire  of 
the  slaves  and  the  rents  of  the  land.     The 

*198 
hire  of  such  slaves  *as  are  actually  hired  out, 
and  the  rent  of  such  lands  as  are  actually 
let  out,  nuist  be  accounted  for  according  to 
the  proceeds  of  tlie  hiring  or  letting.  But 
when  the  property  is  kept  together,  (unless 
we  have  an  account  of  its  actual  profits.)  the 
profits  must  be  made  out  by  general  esti- 
mates. And,  as  in  Rainsford  v.  Rainsford, 
Rice  Eq.  343,  and  in  Pye  v.  Carr,  2  Strob. 
Eq.  105,  where  the  increase  of  the  property 
itself  is  the  result  of  its  not  having  been 
used  with  exclusive  reference  to  the  produc- 
tion of  profits,  we  must  allow  the  fncrease 
to  stand,  to  a  certain  extent,  in  the  place  of 
profits. 

In  the  account  before  us,  we  think  it  would 
be  allowable  for  the  Commissioner, — while 
he  may  receive  evidence  of  the  probable  hire 
and  rent  of  the  particular  parts  of  the  es- 
tate,— at  the  same  time  to  receive  general 
estimates  of  the  profits  of  the  estate,  as  a 
whole,  refei'ence  being  had  to  its  condition: 
and  that  credits  should  be  allowed  for  all 
probable  expenses  of  such  an  estate: — (ex- 
cluding, of  course,  in  this  case,  the  expenses 
of  the  family.) 

And  we  think,  that  in  such  a  case  as  this, 
where  such  liberality  was  extended  to  the 
children,  by  the  mother  and  step-father,  as 
to  exonerate  their  estates  from  the  expenses 
of  nurture  and  tuition,  the  account  should 
be  taken  with  great  liberality  towards  the 
parents.  Doubtful  charges  against  them 
should  be  excluded;  they  should  not  be  held 
to  a  strict  account;  and  the  lowest  liability 
of  which  the  evidence,  reasonably  interpret- 
ed, is  capable,  should  be  established  against 
them. 

If  I  understand,  aright,  that  part  of  the 
case  relating  to  the  building  and  rent  of  a 
dwelling  house:  there  should  be  some  reform 
of  the  report  in  that  subject.  I  understand 
the  administrators  have  been  charged  for  the 
rent  of  the  premises,  as  improved  by  them: 
while,  at  the  same  time,  they  are  denied 
credit  for  the  value  of  the  improvements. 
I  think  rent  is  not  allowable  for  premises 
which  the  tenant  has  rendered  capable  of 
yielding  rent,  if  they  did  not  yield  rent  be- 
fore: and  that,  by  parity  of  reasoning,  the 
tenant  is  not  chargeable,  for  so  much  of  the 


LEWIS  V.  PRICE 


►199 


rent  of  the  premises,   as   his  improvements 

*199 
have  contrihuted  ♦to  imuluce.  At  the  same 
time  I  am  content, — in  tliis  case, — that  the 
tenant  shonkl  have  credit,  not  for  the  cost  of 
the  imi»rovements,  hut  for  the  value  they 
imparted  to  the  premises. 

Upon  the  subject  of  the  return  to  tlie  ordi- 
nary, there  is  much  difhculty. 

Wliere  the  Commissioner  is  satisfied,  tliat 
the  items  were  vonclied  before  the  ordinary, 
and  pa.ssed  by  him,  as  cliar^res  ajjaiust  tlie 
general  estate,  in  the  nature  of  expenses 
thereof,  I  thinli  lie  may  venture,  at  the  end 
of  17  years,  to  ref,Mrd  these  charges  as  prov- 
ed prima  facie.  But  it  appears,  on  the  face 
of  the  return,  that  only  part  of  the  items 
were  vouched.  Of  those  not  vouched  the 
Commissioner  should  retpiire  evidence;  but 
that  degree  of  evidence  should  satisfy  him, 
which  may  be  expected  to  be  produced  after 
such  a  lapse  of  time. 

I   had  forgotten,   at   the   proper  place,   to 
make  an  observation  in  regard  to  the  furni- 
ture.   I  do  not  think  it  was  evidence  of  un- 
3  Ricii.Eq.— 6 


faithfulness.  In  these  administrators,  under 
the  circumstances  of  this  case,  that  they  did 
not  sell  this  proi)erty.  Yet.  if  they  thought 
proi)er  to  retain  it,  and  make  use  of  it.  tliey 
must  reproduce  it  in  as  good  condition  as 
they  received  it.  or  account  for  the  value  of 
such  of  it  as  was  lost,  (tr  for  the  injury  of 
it,  as  the  case  may  be.  But.  I  do  not  think 
they  should  be  made  liable,  in  such  case  as 
this,  for  interest  upon  it. 

Let  the  case  be  remanded  to  the  Circuit 
Court,  and  the  report  to  the  Commissioner,  to 
make  up  the  accounts  on  the  i)rinciples  of 
this  decree.  We  do  not  regard  the  points 
made  in  the  3rd  and  7th  grounds  of  appeal, 
con<'luded  in  the  decree. 

Decree  modified  accordingly. 

DT'XKIN  and  WARDLAW,  CC,  con- 
curred. 

DARGAX.  Ch..  having  been  of  counsel,  did 
not  sit  in  the  case. 
Decree  modified. 

81 


CASES  IN  EQUITY, 


ARGUED    AND    DETERMINED    IN   THE 


COURT  OF  APPEALS 


AT  CHARLESTON,  SOUTH  CAROLINA— JANUARY  TERM, 

185L 


Chancellors  Present. 

Hon.  job  JOHNSTON, 

"  B.  F.   DUNKIN, 

"  (J.  W.  DARCiAX, 

"  F.  H.  WARDLAW. 


3  Rich.  Eq.  *20l 

♦HUGH  R.  8WINTON  v.  GEO.  W.  EGLES- 

TON   et   al.,    Executors   of   Hannah 

JSwinton. 

(Charleston.     Jan.  Term,  1851.) 

[1.  Parties  <©=32!».] 

Testatrix,  who  died  in  184:^,  bequeathed 
"twelve  shares  of  the  dividends  of"  certain  stock 
to  her  executors  "in  trust  to  iiay  over  the  inter- 
est on  said  stock  to  my  slave  named  Minda,  for 
and  during  her  natural  life,"  with  remainder 
over;  by  another  clause  of  the  will,  she  be- 
queathed as  follows:  "I  desire  that  all  the  prop- 
erty, not  specified  in  this  my  will,  whatsoever, 
howsoever  and  wheresoever  it  may  be  found, 
which  I  now  hold,  or  hereafter  I  may  hold." 
"shall  go  to  my  infant  nephew,  H.  S.,  to  him 
and  his  heirs  forever."  \\.  S.  tiled  his  bill 
against  the  executors  and  i-emaiuder-man,  claim- 
ing that  the  legacy  to  Minda.  during  lifi',  was 
null  and  void,  and  tliat  it  fell  into  the  residue 
to  which  he  was  entitled:  Held. — That  the  leg- 
acy to  Minda  was  void  under  the  -ith  section 
of  the  Act  of  1841. 

I  Ed.  Note. — For  other  cases,  see  Parties,  Cent. 
Dig.  S  50;    Dec.  Dig.  C=j:^!».| 

l-J.   irj7/s   <®=3S.58.] 

That,  being  void,  it  fell  into  the  residue, 
and  that  H.  S.  was  entithd  to  it  under  the 
terms  of  the  residuary  clause  of  the  will. 

[Ed.   Note.— Gited  in  Logan   v.  Cassidy,  71   S. 
G.  -20'}.  .-)()  S.  E.  7'J4. 

Ftir    other    cases,    see    Wills,    Cent.    Dig.    5!§ 
L'173-218:{ ;    Dec.  Dig.  <©=>N")8.j 

13.   iri/7.«  <g=>-_'(;7.] 

That  the  next  of  kin  of  testatrix  had  no 
such  interest  as  required  them  to  be  made  par- 
tics  to  the  bill. 

[I'd.    Note. —  For  other  cases,  see  Wills.  Gent. 
Dig.   SS  <il5.  (il7,  ()18;    Dec.   Dig.   <©=M2U7.1 


14.   Wilis    <S=S5S.] 

[A  residuary  bequest  of  personal  proi)ert.v 
"not  specified  in  this  my  will"  includes  lapsed 
legacies.] 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  §  2173 ;    Dec.  Dig.  (@=>858.] 

*202 

♦Before  Dunkin,  Gh.,  at  Gbarlcston,  June. 
1850. 

This  case  will  be  sutticiently  understood 
from  the  oiiiuioii  delivered  in  the  Court  of 
Appeals. 

I'ope,  for  the  appellant. 
Simons,  contra. 

WAKDLAW,  Gh.,  delivered  the  opinion  of 
the  Court. 

Hannah  Swinton,  the  testatrix,  died  in 
isi:;.  Her  will,  dated  February  27.  18;52, 
contains  the  following  clauses:  "I  give  and 
bequeath  twelve  sfiares  of  the  divideiuLs  of 
my  five  per  cent,  stock  of  the  state  of  South 
Carolina,  unto  my  executors,  in  trust  al- 
ways nevertheless,  that  they  shall  pay  over 
the  interest  on  said  stock  to  my  slave  named 
-Miiula.  for  and  during  the  time  of  her  nat- 
ural life,  (|uarterly,  as  they  shall  receive  the 
same  in  e<iual  shares;  and  at  the  death  of 
my  said  slave  Minda,  the  said  tiv»'  per  cent. 
st(K-k  and  dividends  of  the  said  State,  shall 
go  to  the  Sabbath  School  of  the  Circular 
Church,  No.  one;  and  I  charge  my  executors 
to  fulfil  the  foregoing  bequest  in  favor  of  the 
said  Sabbath  School,  and  if  it  should  not  be 


®=»For  other  cases  see  same  topic  aud  KEY-NUMBEK  in  all  Key-Numbered  Digests  aud  lDUe.\e3 


83 


^-20: 


3  RICHARDSON'S  EQUITY  REPORTS 


incorporated  tlien,  I  do  hereby  make  them 
trustees,  if  necessary,  for  that  purpose ;  and 
if  tlie  said  Sabhath  School  should  not  exist 
at  the  time  when  the  said  legacy  shall  ac- 
crue, then,  the  said  stock  and  dividends 
shall  go  to  the  Circular  Church  in  Charles- 
ton, forever."  "I  desire  that  all  the  prop- 
erty, not  specified  in  this  my  will,  what- 
soever, howsoever,  and  wheresoever  it  may 
be  found,  which  I  now  hold,  or  hereafter  I 
may  hold,  shall  go  to  assist  in  educating 
the  children  of  my  deceased  brother,  James 
Swinton,  until  the  youngest  is  twenty  years 
old,  then  I  desire  that  it  shall  go  to  my  in- 
fant nephew.  Hugh  Ralph  Swinton,  to  him 
and  his  heirs  forever ;  but  in  the  case,"  &c. 
The  context  by  the  minute  specification  of 
her  estate,  and  the  careful  mention  of  all 
persons,  whom  she  supposed  to  have  any 
claim  upon  her  bounty,  manifests  the  pur- 
pose of  testatrix  to  dispose  of  her  whole  es- 
tate, and  not,  as  to  any  part  of  it,  to  die 
intestate. 

*203 

*It  is  clear,  too,  from  the  will,  that  the 
plaintiff  is  a  favorite  legatee,  for,  in  addi- 
tion to  several  immediate  bequests,  he  takes 
in  remainder,  in  several  instances,  property 
given  to  others  for  life.  There  is,  in  the 
will,  no  other  disposition  of  the  residue, 
except  that  contained  in  the  clause  above 
recited. 

The  plaintiff  states  in  his  bill,  that  he  is 
the  youngest  child  of  James  Swinton.  and  is 
over  the  age  when  the  residue  was  appoint- 
ed to  vest  in  him ;  and  he  claims,  that  the 
legacy  in  trust  for  the  slave  Minda,  is  null 
and  void  by  the  4th  section  of  the  Act  of 
1841  (11  Stat.  154.)  and  falls  into  the  resi- 
due, to  which  he  is  entitled.  The  sum  in 
controversy  is  small,  consisting  of  the  divi- 
dends of  .$1200.  in  the  5  per  cents,  of  State 
stock,  for  the  life-time  of  Minda,  from  the 
death  of  the  testatrix,  or  the  attainment  of 
twenty  years  by  the  plaintiff  whichever  was 
the  posterior  event. 

The  plaintiff  in  his  bill  made  no  parties 
defendants  except  the  executors,  and  they, 
in  tlieir  answer,  operating  to  this  extent  as 
a  demurrer,  objected,  that  all  the  parties 
in  interest  were  not  parties  to  the  suit.  At 
February  Term,  1S50.  Chancellor  Dargan 
made  the  following  order:  "On  liearing  the 
bill  and  answer  in  this  cause,  it  is  ordered, 
that  the  complainant  have  leave  to  amend 
his  bill,  by  adding  new  parties  thereto,  as 
follows,  to  wit:  the  corporation  of  the  Cir- 
cular Church,  the  next  of  kin  of  the  testa- 
trix, Hannah  Swinton,  and  Sabbath  School 
No.  1,  of  the  Circular  Church,  if  the  same 
should  be  incorporated  and  if  not  incorpo- 
rated, the  said  Sabbath  School  shall  be  rep- 
resented by  the  parties  defendants  before 
the  Court,  as  the  trustees  of  the  School,  be- 
ing declared  such  by  the  will,  in  the  event 
that  the  said  school  shall  not  be  incorporat- 
ed." The  plaintiff  finding  it  inconvenient  to 
84 


comply  with  this  order,  as  the  next  of  kin 
were  numerous  and  widely  dispersed, 
brought  the  matter  before  Chancellor  Dun- 
kin,  at  June  term,  1S50,  and  moved  to  rescind 
so  much  of  the  former  order  as  re<iuired 
the  next  of  kin  of  testatrix  to  be  made  par- 
ties: and  this  motion  was  refused  by  the 
Chancellor. 

The  appeal  is  from  this  order  and  this 
refusal  on  the  ground  that  the  next  of  kin 
of  testatrix  are  not  necessary  parties  in  this 

*204 
*suit.  The  Chancellor  on  circuit  at  the  last 
term,  pursued  the  course  required  by  prin- 
ciple and  comity,  in  dismissing  a  motion  to 
modify  the  order  of  his  predecessor,  where 
no  change  of  circumstances  demanded  a 
change  of  discretion.  The  motion  was  in 
the  nature  of  an  appeal,  from  one  to  anoth- 
er, of  co-ordinate  authoi'ity.  But  in  this 
Court,  we  may  deal  with  the  whole  matter, 
according  to  the  doctrines  and  practice  of 
equity.  The  general  rule,  as  to  parties  in 
equity,  is.  that  all  persons  having  an  In- 
terest in  the  object  of  the  suit,  ought  to  be 
made  parties.  The  reasons  of  the  rule  are, 
that  the  Court  may  completely  determine 
the  rights  of  all  persons  interested, — that 
future  litigation  may  be  prevented, — and 
that  the  orders  of  the  Court  may  be  safely 
executed  by  those  upon  whom  they  operate. 
Departures  from  the  general  rule  are  some- 
times allowed  by  the  discretion  of  the  Court. 
As  in  a  suit  which  affects  the  personal  es- 
tate, the  legatees  may  not  be  necessary  par- 
ties, although  having  interest  in  the  object 
of  suit,  inasmuch  as  they  are  represented  in 
the  person  of  the  executor  or  administrator, 
and  their  rights  thus  sufficiently  protected. 
So,  where  the  next  of  kin  are  proper  par- 
ties, it  is  not  indispensable  that  all  of  them 
should  be  expressly  brought  in.  for  if  one  or 
more  of  them  be  named  as  parties  all  may 
attend  the  accounting  before  the  master, 
and  be  heard  by  counsel  in  tlie  Court.  (Cal- 
vert, 11,  20,  51 ;    Sp.  Eq.  430.) 

Whether,  in  this  case,  the  next  of  kin  of 
testatrix  have  an  interest  in  the  object  of 
the  suit  depends  upon  the  subordinate  ques- 
tions, whether  the  plaintiff  is  constituted, 
by  the  terms  of  the  will,  general  legatee  of 
the  residue ;  and  whether  the  legacy  in  trust 
for  a  slave  falls  into  the  residue. 

That  a  gift  of  the  residue  may  have  a  lim- 
ited oiieration,  is  unquestionable,  where  the 
Avords  of  the  will  and  the  manifest  intention 
of  the  testator  require  such  construction. 
Even  general  words  sufficiently  broad  to 
cover  the  whole,  may  be  confined  in  their 
operation  l)y  connection  with  other  parts  of 
the  will.  In  Attorney  General  v.  Johnstone. 
(Ami).  577,)  Lord  Camden  held  that,  where 
testator  had  expressed  doubt  if  there  would 
be  any  residue,  and  then  mentioned  it  as  a 

*205 
small  remainder  of  about  £100,  *the  gift  of 
the  residue   did  not  include  lapsed  legacies 


SWINTOX  V.  EGLESTON 


•207 


aaiouiitlng  to  £20.000.  So,  in  Dnver.s  v. 
Dowos.  c;  r.  Wins..  40.)  testator  gave 
CluHnoly  IIou.si'  to  his  wife  for  life.  <lo(liir- 
Inj;  tliat  lie  would  (llsi»o.se  of  the  ^joods  and 
furniture,  in  Cheevel.v  House,  after  his 
wife'.s  deatli,  by  a  eodicil  to  his  will :  and 
then  bequeathed  to  his  wife  the  residue  of 
his  pers<tnal  estate,  whatsoever,  not  before 
disposed  of,  or  reserved  to  be  dis[>osed  of 
by  liis  codicil ;  and  afterwards  made  two 
codicils  without  disjiosinj;  of  his  said  ;;oods 
and  furniture:  Ix)rd  Kln«  held,  that  the  tes- 
tator had  not  given  to  his  wife  all  the  prop- 
erty which  he  had  not  dispo.sed  of  by  his 
will,  or  which  he  niiirbt  not  disjiose  of  by 
his  ctMlicil,  but  expressly  excepted,  out  of 
the  residuary  bequest,  the  property  reserved 
to  be  disposed  of  by  his  codicil  ;  tliat  the 
>;o<xls  and  furniture,  so  expressly  excepted 
and  reserved,  did  not  pass  to  the  wife.  In 
coninientiuK  upon  these  two  cases,  in  Bland 
V.  Lamb.  (2  Jac.  &  W.  405,)  Lord  Eldon 
speaks  of  them  as  decidinj;,  that  the  w(»rds 
emjiloyed  descrilied  only  the  actual  surplus 
of  what  the  testators  had  at  the  dates  of 
their  wills,  and,  while  adniittiii!;  that  such 
construction  may  he  adoi)ted  where  the  in- 
tention is  clear,  discredits  some  of  the  opin- 
ions expressed  in  these  cases.  In  our  own 
case  of  reay  &  Picket  v.  Barber.  (1  Hill  Eq. 
07.1  general  words  of  residuary  bequest  were 
restricted  to  particular  classes  of  property 
Tipon  the  construction  of  the  whole  instru- 
ment. Judge  .Tolinson  there  properly  insists 
on  the  fact,  tliat  our  law  distributes  un- 
d»'vised  residue  among  the  next  of  kin, 
whereas  in  England  it  goes  to  the  executor, 
as  justifying  Courts,  here,  in  following  more 
closely  the  intention  of  testators  to  restrict 
the  residue  than  the  policy  of  England  would 
warrant.  Still  in  that  case,  as  in  all  our 
cases  on  the  subject,  the  general  doctrine 
is  recognized,  that  the  words  of  a  residuary 
clause  operate  upon  all  the  property  of  the 
testator,  at  the  time  of  his  death,  within 
the  scope  of  the  words.  The  ambulatory 
character  of  a  testament  is  not  to  be  re- 
strained by  con.struction  in  doubtful  cases. 
See  Garrett  v.  Garrett,  (2  Strob.  Eq.  272.) 
correcting  some  expressions,  aiiparently  of 
contrary  tendency,  in  the  same  case,  as  re- 
ported 1  Strob.  70.     This  general  doctrine  is 

*206 
♦founded  ujion  such  artilifial  reasoning  as 
this:  when  one  bequeaths  all  his  jiroperty, 
he  shows  that  he  did  not  mean  to  die  in- 
testate as  to  any  i)art;  not  meaning  to  die 
intestate  as  to  what  he  had  at  the  time  of 
making  his  will,  he  does  not  mean  to  die 
intestate  as  to  what  he  should  have  at  the 
time  of  bis  death  ;  he  gives  property  away 
from  the  residuary  legatee,  only  for  the 
sake  of  the  particular  legatei',  and  as  against 
all  others,  the  residuary  legatee  is  presumed 
to  l)e  the  object  of  testator's  bounty.  The 
application  of  the  doctrine  does  not  deiieml 
upon  any  express  or  particular  intcniiuu  of 


tlie  testator,  for  it  may  be  well  argued  in 
all  cases,  that  a  testator,  having  no  pre- 
.science,  contemplates  only  the  state  of  his 
property  existing  at  the  date  of  liis  will: 
and  that,  l»y  a  gift  of  the  residue,  he  means 
only  a  gift  of  his  actual  jiroperty  left  out  of 
other  dispositions.  Still,  the  residuary  lega- 
tee takes  every  thing  not  effectually  given 
to  others,  of  the  whole  property  at  the  deatli 
of  the  testator,  however  great  may  be  the 
hardsbiji  of  particular  cases.  (Bland  v. 
Lamb,  5  Mad.  412;  2  .lac.  &  W.  40.".;  Cam- 
bridge V.  Rous.  8  Ves.  25;  I-eake  v.  Robin- 
son. 2  Mer.  .'{02.)  In  the  case  before  us.  it  is 
argued,  that  the  words,  "n<it  specitied  in  tliis, 
my  will,"  except  from  tiie  gift  of  "all  the  prop- 
erty, whatsoever,  howsoever,  and  wheresoever 
it  may  be  found,  which  I  now  hold,  or  h«>re- 
after  I  may  hold,"  all  the  property  in  any 
wise  mentioned  in  the  will.  But  these 
words,  "not  specified  in  this  my  will,"  mean 
no  more  than  not  bequeathed;  i.  e.  not  ef- 
fectually be<iueatlied.  They  add  no  limita- 
tion to  the  term,  rest  or  residue  wlii<li  stand- 
ing by  itself  strictly  means,  althouirb  very 
different  effect  is  given  to  it.  that  only  which 
is  not  otherwi.se  disposed  of,  or  mentioned. 
Clowes  v.  Clowes,  0  Sim.  40:i,  (l(i  P:ng.  Cli. 
R.  404.)  is  an  express  authority.  There  the 
testator  had"  given  to  two  nieces  for  life 
£20  and  £30  a  year  out  of  the  interest  of 
certain  stock,  and  the  question  was,  whether 
the  capital  of  the  sums  so  given  passed  to 
the  widow,  under  this  betpiest ;  "I  Itequeath 
all  my  household  furniture,  and  all  my  prop- 
erty of  every  kind  not  specitied  above  to 
my  dear  wife:"  V.  C.  Shadwell  held,  that 
testator  meant  by  "all  my  property  not  spec- 

*207 
ified  above,"  hiterest  not  *bequeathed  in 
property  which  lie  might  have  before  men- 
tioned, and  that  the  widow  was  entitled  to 
the  capital.  In  Roberts  v.  Cooke,  (Iti  Ves. 
451,)  a  residuary  bcnjuest  of  personal  prop- 
ert.v.  "not  hereinbefitre  specitically  disposed 
of,"  was  construed  to  i-omiirehend  la[».sed 
legacies.  The  plaintiff,  tlien,  niu.st  be  con- 
sidered general  legatee  of  the  residue. 

In  the  tirst  three  sections  of  the  Act  of 
1841.  gifts  and  trusts,  providing  or  intended 
for  the  emancipation  of  slaves,  are  declared 
not  only  to  be  void,  but  to  enure  to  the  ben- 
efit of  the  next  of  kin :  but  the  4th  section, 
wliit'h  is  the  only  one  that  speaks  of  gifts  to 
slaves,  says  nothing  alwiut  the  next  *>f  kin: 
and  while,  in  terms  too  plain  for  di.sputed 
construction.  It  declares  every  beiiuest  in 
trust  for  flu*  Ix'netit  of  any  slave  to  be  void, 
it  leaves  the  C(Mise(iuences  to  be  determined 
l»y  the  general  law.  If  it  be  true  that  void 
legacies  fall  into  the  residue,  the  plaintiff 
is  entitled  to  the  betpiest  in  trust  for  Min- 
da  ;  and  this  general  proposition  is  clearly 
settled  by  the  cases.  Lord  Hard  wick  says, 
in  Durour  v.  Motteaux,  (1  Ves.  sen.  .S21.)  turn- 
ing uiioii  the  nKtrtmain  Act;  "a  will  is  made 
in   which   several    legacies,    and   the   residue 

85 


*207 


3  RICHARDSON'S  EQUITY  REPORTS 


of  the  personal  estate,  are  given  away ;  one 
of  the  personal  legacies  is  void  by  law;  the 
Court  cannot  say  for  that  reason,  contrary  to 
the  express  will,  that  testator  intended  to  die 
intestate:  for  giving  the  residue  over  in- 
cludes every  thing,  let  it  fall  in  by  reason  of 
that  legacy's  being  void,  or  lapsing,  by  dying 
in  the  life  of  the  testator."  See  Shanley  v. 
Baker,  (4  Yes.  732.)  In  Keunell  v.  Abbott, 
(4  Yes.  802,)  a  legacy  given  by  a  woman  to 
her  supposed  husband,  who  was  not  her  hus- 
band, and  therefore  void,  was  decreed  to  the 
residuary  legatee.  In  Leake  v.  Robinson, 
where  the  legacy  was  void  for  the  remoteness 
of  the  limitation,  Sir  AVm.  Grant  says:  "It 
must  be  a  very  peculiar  case  in  which  there 
can  be  at  once  a  residuary  clause  and  a  par- 
tial intestacy,  unless  some  part  of  the  residue 
be  ill-given.  It  is  immaterial  how  it  happens, 
that  any  part  of  the  property  is  undisposed 
of,  whether  by  the  death  of  a  legatee,  or  by 
the  remoteness  and  consequent  illegality 
of  the  bequest.  Either  way  it  is  a  residue: 
i.  e.  something  upon  which  no  other  provi- 

*208 
sion  of  the  *will  effectually  operates.  It 
may  in  words  have  been  before  given ;  but 
if  not  effectually  given,  it  is,  legally  speaking, 
undisposed  of,  and  consequently  included  in 
the  denomination  of  residue."  In  Bauskett  v. 
Breithaupt,  (1  Rich.  Eq.  471.)  Chancellor 
Harper,  discussing  the  consequence  of  a  lega- 
cy void  under  the  Bastardy  Act  of  17S9,  says: 
"it  is  hardly  necessary  to  refer  to  authority 
for  a  doctrine  so  well  established,  as  that  a 
general  residuary  clause  will  pass  every- 
thing that  is  not  effectually  disposed:  if  a 
legacy  lapses,  or  is  void,  it  will  go  to  the 
residuary    legatee." 

It  does  not  seem  to  us,  that  the  next  of 
kin  of  Hannah  Swinton  have  any  such  inter- 
est, as  requires  them  to  be  parties  to  this 
suit;  and  it  is  ordered  and  decreed  that  so 
much  of  the  order  of  February,  1850,  as  re- 
quires them  to  be  made  parties,  be  rescinded. 

JOHNSTON,  DUNKIN  and  DARGAN,  CC, 
concurred. 

Motion  granted. 


3   Rich.  Eq.  208 
HASTIE   &  NICHOL  v.   R.   L.  BAKER   and 

Wife   and    Others. 
(Charleston.     Jan.  Term,  1851.) 
[Husband  and  Wife  (©=33151.] 

A  deed  of  marriage  settlement  provided, 
inter  alia,  that  the  trustees  should  permit  the 
husband  "to  receive  the  rents,  income  and  prof- 
its" of  the  settled  estate,  (which  was  large)  "for 
the  joint  maintenance  of  himself  and  wife  dur- 
ing their  joint  lives,  but  not  subject  to  his 
debts:"  during  the  coverture,  the  husband  con- 
tracted a  debt  for  supplies  furnished  him  for 
the  use  of  himself  and  family,  and  the  creditor 
filed  a  bill  against  the  husband,  wife  and  trus- 
tees for  payment  of  this  debt  out  of  tlie  settled 
estate,  and   the   husband  desired  that  it  should 


be  so  paid:  Held,  that  the  settled  estate  was 
not  liable;  that  the  husband,  having  ample 
means,  for  the  joint  support  of  himself  and 
wife,  from  the  rents,  income  and  profits  <if  the 
estate,  could  not,  by  contracting  a  debt  for  such 
support,  subject  the  estate,  (as  to  a  debt  due 
by  the  estate)  to  the  payment  thereof. (a) 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  §  586;    Dec.  Dig.  <©=:=151.] 

*209 

*Before  Dargan,  Ch.,  at  Charleston,  Feb- 
ruary, 1850. 

The  decree  of  his  Honor,  the  Circuit  Chan- 
cellor, is  as  follows. 

The  deed  of  marriage  settlement  between 
Robert  L.  Baker  and  Isabella,  his  wife,  con- 
tained a  provision,  by  which  the  trustees 
were  to  permit  the  said  R.  L.  Baker  to  re- 
ceive the  rents  and  i)r()fits  of  the  whole  estate 
for  the  joint  use  and  maintenance  of  himself 
and  the  said  Isabella,  during  their  joint  and 
natural  lives,  not  subject,  however,  to  the 
debts,  contracts,  or  engagements  of  the  said 
R.  L.  Baker.  The  deed  proceeded  to  provide, 
in  this  connection,  that  if  any  creditor  of  the 
said  R.  L.  Baker  should  attempt  to  charge 
the  said  income  or  profits  with  any  debt  of 
the  said  R.  L.  Baker,  then,  from  the  issuing 
of  any  process  so  to  charge  the  same,  the 
estate  was  to  be  held  in  trust,  for  the  sole 
and  separate  use  of  the  said  Isabella.  The 
interest  of  R.  L.  Baker  in  thtf  estate,  under 
the  operation  of  these  provisions,  was  a 
shifting  use.  If  any  creditor  has,  or  shall  at- 
tempt to  make  the  income  or  profits  liable 
for  the  debt  of  R.  L,  Baker,  the  use  has,  or 
will,  according  to  the  fact,  be  transferred, 
and  the  said  Baker  be  divested  of  all  right, 
thenceforward,  in  the  profits  and  income  of 
the  estate.  This  shifting  of  the  use  however^ 
would  be  prospective,  and  would  not  operate 
to  divest  the  rights  of  Baker  in  any  arrears 
of  profits  or  past  income,  that  might  be  in 
the  hands  of  the  trustees.  And  his  creditors 
would  be  entitled  to  be  subrogated  to  all  his 
rights,  (whatever  they  nught  be)  iu  the 
profits  and  income  of  the  trust  estate.  But 
it  was  intimated  on  the  trial,  that  such  an 
account  in  this  instance  would  be  fruitless, 
and,  therefore,  that  remedy  was  not  sought. 

The  complainants,  however,  deny  that  they 
have  sought  in  this  bill,  to  make  the  profits 

(a)  The  reporter  believes  that  he  has  stated 
the  only  point  which  was  adjudged  by  the  Court 
of  Appeals.  It  would  seem,  from  the  ground 
of  appeal,  that  the  only  question  taken  before 
that  Court  was,  as  to  the  liability  of  the  settled 
estate  for  the  demand  treated  of  in  the  decree 
as  No.  2; — from  the  fa 'ts  stated  in  the  circuit 

*209 
decree,  *tliat  no  question  eould  have  arisen, 
as  to  the  liability  of  the  estate  for  debts  con- 
tracted by  Mr.s.  Baker;  and,  as  the  decision  was 
that  the  estate  was  not  liable  at  all  for  that  de- 
maud  of  the  plaintiffs,  that  no  question  could 
have  been  considered,  as  to  the  validity  of 
Mrs.  Baker's  appointment  as  against  the  plain- 
tiffs. 

i^'or  a  full  understanding  of  the  case,  reference' 
must  be  had  to  the  case  of  Roux  v.  Chaplin,  (1 
Strob.   Eq.   129.) 


SO 


(g;:;:}For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


IIASTIE  A  NICIIOL  v.  BAKER 


and   incoiii,"  of  tlic  vstuto  of  Mrs.   I5:ik,.r  Ha- 
l)lc'  for  his  (|,.ht,  I. lit  conf.MKl  that  tlu«v  liavf 

♦210 
s«»u«lit  t(.  *iiiak.'  tliH  oorpu.s  of  tlio  estiit.>  sul)- 
ject  to  its  own  lial)iliti»>s ;    to  dchts  of  IJaktT. 
it    is    true,    l.ut.    ncvcrtholess.    acconlin;;    to 
their  shewing  and  position,  debts  wiiich.  by 
tlie  e<iuities  of  tlie  ease,  attaeh  upon  tlie  cor- 
pus   as    well    as   the    income   of   the    estate. 
This  is  the  ground  upon  which  the  conijilain- 
aiits  have  filed  their  hill  and  rest  their  claim 
lor  relief.     That  the  corpus  c.uld   never  he 
made  subject  to  the  i)a.vment  of  IJaker's  debts 
as    such,    none   will    deny.      And    it   is  quite 
clear,  that  an  attempt  by  a  creditor  to  make 
the  income  liable,  would  eo  instanti,  shift  the 
u-se,  so  as  to  deprive  Baker  and  his  cn-dltoi-s 
in  any  of  the  after  accruing  income  and  prof- 
its.    The  only  sround,   theref(u-e,   on   which 
the  complainants  could  lu-etend  to  ivst  their 
claim,  would  be  the  assumed  liai)ility  of  Mrs 
I?aker    hers(>lf.    or    some    e<iuity    attaching 
through  her  upon  her  separate'  estate 

There  are  three  debts  f(.r  the  recoverv  of 
which  the  complainants  have  filed  their  bill 
They  are  pai-ticularly  d,.scribed  in  the  re- 
port of  the  .Master,  and  referred  to  as  Xo  1 
No.  2,  and  Xo.  3.  Xo.  1  is  a  debt  contracted 
>y  Mrs.  Baker  with  the  complainants  before 
her  marriage,  for  goods,  wares,  and  merchan- 
(hse  from  their  store.  There  can  he  no  doubt 
but  that  the  trust  estate  is  liable  for  this 
debt  Xot  only  is  th,^  income  but  the  corpus 
Itself  is  liable.  ' 

The   defendants,   Thomas   B.   Chaplin    and 
Saxby  Chaplin,  contend,  that  so  much  of  the 
trust  estate  as  has  been  conveved   to  their 
use,  IS  not  liable  for  any  of  the  d.-bts  which 
the   complainants    set    up    in    their    bill     be- 
cau.se     they    say,    they    are    purchasers'    for 
valuable  consideration,  being  within  the  con- 
sideratnm  of  the  marriage  contract      I  dis- 
sent trom  this  as  a  legal  proposition.     Thev 
are,  it  is  true,  the  issue  of  the  wife  bv  a  for- 
mer marriage.    But  the  only  persons  who  are 
withm  the  marriage  consideration,  so  as  to 
Have  a  right  to  enforce  the  contract  as  pur- 
chasers  for  valuable  c.nsideration,   are   the 
lu.s-^.and.  the  wife,  and  their  issue.     Osgood 
V.   Strode,  (L'  V.  Wms.  Ho).     All  othe.v  pro- 
vided for.  either  directly  or  by  contingem-v 
=<'v    volunteers,    and    th.Mr   claims    are    void 
as  against   the  demands   of  the  pre-e.xi.stin- 
^•■vlitors  of  the  party  settling  the  propei';  ^ 
*211 
*Though    such    provisions    are    yohintarv 
they    are    not   frandulent    in    the    main,   aiw' 
where  they  are  made  bona  fide,   thev  would 
I'e   ent..rced    against    subsecpient    purcha.sers 

f-V'".r;i^''"^  i"  Jenkins  v.  Keymis,  (1  Levinz! 
l.)0.   LMi). 

The  conveyances  by  .Mrs.  Baker  in  favor  of 
the  Chaplins,  are  voluntary,  and  are  invalid 
against  the  claims  of  her  cre.litors,  that  ex- 
isted antecedently  to  the  execution  of  the 
'"arnage  contract.  Such  creditors  have  a 
general  lieu  upon  the  whole  estate,  and  there 


(IS  no  right   to  restrict  them  in  the  recovery 
I  of  satisfaction  to  any  particular  portion  of 
the  estate,  at  the  option  of  Mrs.   Baker,  or 
I  of  any  other  of  the  parties  interested.     But 
111   <.rder  not   to  disturb,   unnece.s.sarilv.   any 
of  the  family  arrangements,  and  with  tlie  view 
I  of  resi.ecting  the  i  igbts  of  all  parties,  .so  far 
as  it  can  l)e  done  con.sistentlv  with  the  para- 
uioiint  right  of  the  creditors,  I  shall  direct 
that  this  debt  of  the  complainants  shall   be 
satisfied  out  of  the  .sale  of  the  negroes  as- 
signed for  that  purpose,  by  the  deed  of  June, 
1N45,  which  it  seems  has  never  been  carried' 
into  effect. 

The  complainant's  remedy  as  to  this  del)t 
(Xo.  1)  is  not  to  be  limited  to  that  proiierty. 
if.  by  any  misadventure,  it  should  not  be 
forthcoming. 

The  next  claim  of  the  complainants  which 
I  will  consider,  is  that  which  is  described 
and  referral  to  in  the  Masters  report  as  Xo. 
3.  It  arose  in  this  way:— it  was  a  debt  of 
Thomas  B.  Chaplin,  and  was  secured  bv  a 
sealed  note,  and  Mrs.  Baker  was  the  surety. 
Suit  was  brought  upon  the  note  in  the  Court 
of  Common  Pleas  against  Thomas  B.  Chap- 
liu,  and  judgment  recovered  and  entered  uj) 
thereon.  In  th.>  estimate  of  the  amount  due 
upon  this  note,  a  mistake  occurred,  and  the 
judgment  was  entered  up  and  execution  was 
lodged  for  less  than  the  amount  actuallv  due 
upon  the  note.  The  property  owned  by 
Thomas  B.  Chaplin  was  sold  bv  the  .sheriff 
of  Beaufort  district,  to  satisfy  this  and  other 
executions  against  him.  The  amount  due  up- 
on the  face  of  the  execution  was  .satisfied 
by  the  .sale,  and  .some  portion  of  the  proceeds 
of  the  sale  was  applied  to  junior  executions 
and   the   whoh^  amount  of   this   debt   would 

*212 
*have  l>een  satisfie.l  by  the  sale  of  the  prop- 
(M-ty  of  the  principal,  but  for  the  mistake 
which  has  been  alluded  to.  The  amount  re- 
"laming  due  upon  the  note,  which  was  not 
carried  into  the  execution  is.  according  to 
the  M;ister's  n>port,  and  up  to  the  date  there- 
of. $100.32.  The  failure  to  collect  the  wh.)]e 
•lebt  from  the  principal,  has.  therefore,  evi- 
di'Utly  arisen  from  the  mistake  and  laches 
of  the  creditor,  and  I  think  that  this  would 
have  the  effect  of  disch.irging  the  surety 

There  is  another  objection  to  this  ciaim 
The  complainants  have  come  to  this  court  to 
correct  the  mistakes  of  the  court  of  law  in 
entering  up  its  judixments  and  issuing  its  exe- 
cutions. It  is  the  province  of  the  court  of 
law.  as  well  as  the  court  of  equity,  to  cor- 
rect its  own  errors.  And  the  jurisiliction  of 
the  court  of  law  is  most  ami)le  for  this  pur- 
pose. Tli(>  complainants  should  have  made 
application  to  the  Court  where  the  judgment 
was  rendered,  to  reform  its  errors,  and  to 
correct  the  execution. 

The  judgment  rendered  by  the  court  of 
law  is  fully  satisfied.  And  that,  as  the  case 
stands,  is  a  .satisfaction  of  the  claim  The 
complainant  has  uo  right  to  open  the  judg- 

87 


3  RICHARDSON'S  EQUITY  REPORTS 


nieut  of  the  court  of  law  for  a  re-hearing  he- 
fore  this  Court,  and  to  obtain  further  re- 
dress than  that  which  has  been  afforded  by 
the  tribunal  where  it  was  originally  heard. 

For  these  reasons,  my  judgment  would 
have  been  against  tlie  allowance  of  this 
claim.  But  Mrs.  Baker,  though  she  objected 
in  her  answer  to  the  payment  of  the  balance 
due  upon  this  debt,  on  this  trial  waived  all 
objections,  and  consented  that  it  should  be 
paid  out  of  the  trust  property,  provided  it 
was  paid  out  of  the  negroes  assigned  for  the 
payment  of  debts  by  the  deed  of  June,  1845. 
As  she  has  an  unlimited  power  of  disposing 
of  the  trust  property,  and  consents  that  a 
decree  shall  be  entered  against  her  for  the 
balance  of  this  debt,  on  the  condition  above 
named,  the  Court  is  indisposed  to  interpose 
an  objection  which  she  has  waived.  It  is  ac- 
cordingly so  ordered  and  decreed. 

I  come  now  to  the  consideration  of  the 
debt  or  claim  of  the  complainants,  which  is 

*213 
referred  to  and  described  as  Xo.  2,  in  *the 
Master's  report.  Its  present  form  is  a  judg- 
ment against  R.  L.  Baker.  The  cause  of  ac- 
tion is  a  store  account  against  R.  L.  Baker, 
due  the  complainants,  and  run  vip  against 
Baker  after  the  marriage.  It  does  not  seem 
that  any  credit  was  given  to  Mrs.  Baker  or 
the  trustees.  The  complainants  charge,  that 
the  account  was  for  supplies  furnished  Baker 
for  the  use  of  himself  and  family.  Mrs.  Bak- 
er, in  her  answer,  does  not  deny  this  allega- 
tion, and  Baker,  in  his  answer,  admits  its 
truth.  I  shall  consider  the  question  arising 
on  this  claim,  as  if  the  staiements  of  the 
bill  in  relation  thereto  were  true  and  estab- 
lished by  the  evidence. 

A  strong  objection  which  strikes  my  mind 
in  limine,  against  the  admission  of  the  claim, 
is  founded  upon  the  provisions  of  tlie  deed 
of  marriage  settlement.  By  these.  Baker 
was  to  be  permitted  to  receive  the  whole 
profits  and  income  of  the  estate  for  the  joint 
support  of  himself  and  wife  during  their 
joint  lives.  The  estate  was  very  large,  and 
the  income  was  certainly  sufficient  to  afford 
a  proper  maintenance  to  Mrs.  Baker.  And  if 
he,  misapplying  the  income  and  profits,  in- 
stead of  appropriating  them  for  her  support, 
chose  to  contract  debts  in  his  own  name,  and 
on  his  personal  liability,  for  her  support,  I 
do  not  perceive  any  imaginable  ground  of 
equity  by  which  to  charge  her  separate  estate 
with  such  debts.  If  A.  places  funds  in  the 
hands  of  B.  for  certain  specified  purposes, 
to  purchase  family  supplies  for  example,  and 
B.  appropriating  the  funds  to  his  own  use, 
buys  the  supplies  in  his  own  name  and  on  his 
qwn  credit,  there  is  no  legal  or  equitable 
obligation  on  A  to  pay  for  the  same.  This 
is  precisely  the  case  here ;  Mrs.  Baker  has 
supplied  her  liusband  with  the  most  ample 
means  of  furnishing  her  with  supplies  for 
her  support.  He,  or  the  trustees,  or  both 
together,  have  done  one  of  two  things;  they 

88 


have  either  furnished  supplies  in  an  extrava- 
gant manner,  and  beyond  what  the  income 
of  the  estate  would  warrant,  or  the  funds 
dedicated  to  this  purpose  have  been  misap- 
plied. In  neither  case  is  there  any  equity 
against  the  wife's  separate  estate,  to  pay 
a  debt  contracted  by  the  husband  in  his  own 
name  for  the  support  of  the  family. 
*214 

*If  it  was  the  trustees  who  misapplied  the 
income,  it  was  equallj'  the  husband's  laches 
and  misapplication,  for  lie  had  the  riglit  to 
receive  and  control  the  whole  income.  It 
does  not  appear  that  Mrs.  Baker  had  any 
knowledge  of  the  fact,  that  the  supplies  in 
question  were  furnishe.l  by  the  comjilainants 
on  a  credit.  For  all  that  appears,  she  may 
have  supposed  that  the  current  expenses  of 
the  family  were  defrayed  out  of  the  current 
income  of  the  estate. 

But  I  will  go  farther,  and  say,  that  supi)os- 
ing  this  debt  to  have  been  contracted  personal- 
ly by  Mrs.  Baker,  in  her  own  name,  on  her 
own  credit,  and  for  her  own  use,  still  I  tliink 
that  the  complainants  would  have  no  right  to 
enfcn-ce  it  against  her  separate  estate.  There 
is  an  essential  difference  between  the  law 
of  South  Carolina  and  that  of  England,  iu 
regard  to  the  power  which  a  married  woman 
possesses  over  property  secured  to  her  sepa- 
rate use.  The  general  rule  in  both  countries, 
is,  that  a  married  woman  is  incapable  of 
binding  herself  by  her  contracts.  In  a  Court 
of  common  law  jurisdiction,  her  legal  exist- 
ence is  considered  to  be  so  blended  with  that 
of  her  husband,  as  to  place  her  under  the 
most  perfect  disability  of  entering  into  con- 
tracts. Such  contracts  are  null  and  void, 
though  the  wife  be  living  apart  from  the  hus- 
band, and  in  the  enjoyment  of  a  separate  es- 
tate. This  is  the  doctrine  of  the  conunon 
law.  It  was  shaken  by  the  decision  in  Cor- 
bett  V.  Poelnitz,  (1  T.  R.  5) ;  but  it  was  re- 
affirmed and  re-established  in  all  its  pristine 
vigour  in  Marshall  v.  Rutton,  (8  T.  R.  545). 
Such  a  thing  as  a  judgment  or  decree  in  a 
court  of  law  or  equity,  against  a  married 
woman,  founded  upon  her  contracts  made 
during  coverture,  to  operate  against  her  in 
personam,  is  unknown  to  the  law  of  England 
and  of  South  Carolina.  There  has  been  some 
modification  of  the  strict  rule  of  the  common 
law,  so  far  as  to  make  valid  certain  acts 
of  the  wife,  in  reference  to  her  separate  es- 
tate. In  regard  to  her  power  of  disposing  of 
her  separate  property,  she  is,  in  England, 
considered  as  a  feme  sole,  and  she  is  .only 
restricted  in  the  exercise  of  the  jus  dis])0- 
nendi  by  the  limitations  expressed  or  implied 
in  the  deed  or  will  by  which  the  separate 

*215 
*estate  is  created.  She  may  sell  it  as  her 
interest  prompts,  or  her  affection  or  fancy 
dictate.  It  is  now  settled,  that  she  may  con- 
vey it  to  her  husband,  or  assign  it  for  the 
payment  of  his  debts.  She  may  encumber  it 
with  her  own  debts,  and,   by  her  contract. 


JiAsrih  A  M(  iioj.  V.  j;aki:r 


*2\: 


Rive  a  specific  lien  upon  it.  Such  a  contract, 
however,  creates  no  personal  oldi^ration  on 
the  wife,  but  only  affects  her  se|)arate  es- 
tate. It  cannot  strictly  be  considered  a  con- 
tract, hut  rather  the  execution  of  a  power, 
and  depends  for  its  validity  upon  the  source 
whence  the  power  is  derived.  Where  there 
is  no  restriction  upon  the  exercise  of  the 
power,  the  English  law  implies  all  these  pro- 
prietary rights  as  bel(»nging  to  a  married 
woman  in  reference  to  her  seiiarate  estate, 
from  the  mere  fact  of  its  having  b«'en  given 
to  her  sole  and  separate  use. 

Rut  the  law,  as  it  has  been  expounded  in 
South  Carolina,  is  essentially  different  in 
regard  to  her  power  of  disposing  of  her  sepa- 
rate estate.  Here  the  jus  dispoiiendi  is  not 
imiilied  from  the  fact  that  the  estate  has 
been  given  for  her  sole  and  separate  use. 
Her  power  of  alienation,  or  creating  encum- 
brances, rests  solely  on  the  reservations  to 
that  effect  in  the  deed  or  will,  and  they  are 
A'alid  or  invalid,  accordingly  as  the  instru- 
ment under  which  she  enjoys  the  estate  al- 
lows .such  an  exercise  of  power  and  control. 
Ewing  v.  Smith,  (3  Des.  417  \'j  Am.  Dec. 
5.">7|);  Frasier's  Trustees  v.  Hall  and  others. 
(1  McC.  Eq.  275);  Clark  v.  Makenna  and 
wife,  (Cheves  Eq.  ICC}).  To  borrow  an  il- 
lustration from  natural  science,  such  con- 
veyances by  a  feme  covert,  are  but  develoi)- 
uu'nts  (from  a  rudimentary  .state)  of  the  pro- 
visions of  the  original  deed ;  and  they  are  so 
far  identified  that  they  stand  or  fall  accord- 
ingly as  they  may  or  may  not  be  a  legiti- 
mate growth  fi-om  the  germinal  power.  And 
to  render  the  appointment  of  a  married  wo- 
man valid  in  South  Carolina,  not  only  must 
the  power  be  reserved,  but  the  form  which  is 
prescribed  must  be  pursued  in  its  execution. 
Hy  the  terms  of  the  marriage  .setthMuent, 
Mrs.  Baker  possessed  very  large,  though  not 
unlimited,  powers  of  disposing  of  the  whole 
tru.st  estate.  Her  powers  were  without  limit, 
as  to  the  objects  for  which  she  might  make 

*216 
the  disposition,  but  restricted  ♦as  to  the 
form.  Even  as  to  the  form,  her  powers  were 
very  large.  She  had  the  right  to  dispose  of 
it  by  will.  But  inter  vivos,  she  could  only 
dispose  of  it  by  a  deed  or  instrument  in  writ- 
ing, executed  in  the  presence  of  two  witness- 
es. By  an  instrument  executed  after  this 
form,  I  have  no  doubt  but  that  she  may  have 
given  a  specific  lien  by  way  of  mortgage,  or 
charged  the  trust  estate  in  favor  of  any  cred- 
itor she  miirht  owe.  The  deeds  of  Feliruary, 
1M4,  and  .lune,  1845,  were  obligatory  upon 
her,  and  would  be  enforced.  But  there  was 
no  i»rovision  in  the  deed  of  marriage  settle- 
ment, that  either  the  corpus  or  the  income 
should  be  subject  to  the  payment  of  her 
debts,  so  as  to  bring  the  case  wit  bin  the  i)rin- 
oii)lo  of  the  case  of  Clark  v.  Makenna,  (Chev 
Eq.  im). 

Even  in  England,  this  claim  would  not  be 
sustained,  though  the  debt  had  been  contract- 


ed by  Mrs.  Baker.  In  conformity  with  the 
doctrine  of  the  wife's  disability  to  bind  lier- 
.self  by  her  contracts,  the  Court  of  Chancery 
there  acts  upon  the  principle  that  tlie  gener- 
al personal  contracts  of  the  wife  do  not  affect 
her  separate  estate.  She  may  alien  and  en- 
cumber at  pleasure,  and  that  without  a  pow- 
er re.served  for  tlie.se  puiposes,  as  we  have 
seen.  But  the  intention  to  alien  and  encum- 
ber mu.st  be  manifest.  When  she  encumbers, 
or  gives  specific  liens,  it  must  be  by  con- 
tract expres.sed  or  implied.  If  she  contracts 
debts,  and  does  no  act  indicating  an  intention 
to  charge  the  sei)arate  estate  specifically 
with  the  payment  of  them,  the  Court  of 
Eiiuity  refuses  to  inforce  their  payment  out 
of  the  trust  estate ;  Duke  of  Bolton  v.  Wil- 
liams, (2  Ves.  Jr.  l.^S)  ;  Jones  v.  Harris,  (9 
Ves.  49S);  Stuart  v.  Kirkwall,  (3  Madd.  387; 
3  do.  94;    3  do.  418). 

In  ^lagwood  &  I'atter.son  v.  Johnston  and 
others,  (1  Hill  Eq.  2.32.)  it  is  said,  that  the 
equity  on  which  a  creditor  comes  into  this 
Court  to  render  a  trust  estate  liable  to  the 
payment  of  his  debt,  is  this,  that  he  has 
advanced  his  money  or  given  credit  to  effect 
the  objects  of  the  trust  at  his  own  expen.se, 
and  having  accomplished  the  objects  of  the 
trust  at  his  own  expense,  he  has  a  right  t<» 
be  put  in  the  place  of  the  cestui  que  tru.st, 
or  be  re-imbursed  out  of  the  trust  fund. 
*217 
*If,  by  any  misfortune  affecting  the  income 
of  the  estate,  Mrs.  Baker  had  been  deprived 
of  the  means  of  a  comfortable  supinnt,  and 
the  complainants  had  furnished  her  with 
nece.ssary  supi)lies  on  the  credit  of  the  trust 
estate,  the  case  of  the  complainants  might 
have  been  sustained,  on  the  doctrine  laid 
down  in  the  case  last  citied.  But  the  case 
is  entirely  different.  Tlie  exigency  did  not 
exi.st.  The  means  of  support  were  ample. — 
They  were  placed  at  the  disposal  of  the  hus- 
band for  the  support  of  his  wife.  And  he. 
misapplying  the  fund.s,  obtained  the  sup- 
plies on  his  personal  contract  and  credit. 
There  is  no  equity  in  favor  of  this  demand 
of  the  complainants,  and  as  to  it,  their  bill 
must  be  dismis.sed. 

It  is  ordered  and  decrei>d,  that  the  com- 
plainants recover  and  have  satisfaction  for 
their  debt  described  as  No.  1,  in  the  Master's 
re] tort.  It  is  also  ordered  and  decreed,  that 
this  debt  have  a  lien  on  the  whole  tru.st  estate 
not  already  alienated  for  the  payment  of 
debts,  or  for  valuable  consideration ;  that 
the  negroes  conveyed  in  the  deed  of  June, 
1S45,  be  primarily  liable  for  the  payment  of 
this  debt;  that  the  Master  sell  so  many  of 
.said  negroes  as  will  be  suHicient  to  pay  this 
debt,  as  also  that  described  as  No.  3  in  the 
Master's  report,  and  the  costs  of  this  suit. 
That  the  sale  be  for  cash,  and  that  the  Mas- 
ter pay  over  the  amount  due  to  the  complain- 
ants, and  the  cf)sts,  to  the  respective  parties 
entitled  to  the  .same. 

Defendant,   Baker,   appealed,   and   insisted 

89 


'-217 


3  RICHARDSON'S  EQUITY  REPORTS 


that  the  debts  contracted  by  Mrs.  Baker, 
particularly  during  the  time  that  she  was 
separated  from  him,  ought  to  be  paid  out  of 
the  settled  estate,  and  that  the  appointment 
of  Mrs.  Baker,  so  far  as  it  went  to  defeat 
the  rights  of  those  creditors,  should  be  set 
aside.  And  he  craved  relief  from  personal 
liability  for  those  debts  which  were  thus 
contracted  to  his  injury. 

Petigru  &  King,  for  Baker. 

Martin,  for  creditors. 

Treville,  for  Mrs.   Baker  and   family. 

PER  CURIAM.    This  Court  concurs  in  the 
*218 
decree  of  the  Chau*cellor:    and  it  is  ordered 
that  the  same  be  atfirmed,  and  the  appeal 
dismissed. 


JOiHiVSTON,     iDUNKIN,     DARGAN 
WARDLAW,  CC,  concurring. 
Appeal   dismissed. 


and 


3    Rich.  Eq.  218 

LOFTUS  C.  CLIFFORD  and  Wife  v.  J. 
HARLESTON  READ. 

(Charleston.     Jan.   Term,   1851.) 

[Execution  €=26.5.] 

Defendant  purchased  at  sheriff's  sale,  the 
estate  of  tenant  for  life  in  certain  slaves:  ten- 
ant for  life  died  in  July,  and  defendant  de- 
livered the  slaves  to  the  remainderman  in  De- 
cember: Held,  that  defendant  was  hable  to 
account  to  the  remainderman,  for  the  hire  of 
the  slaves,  from  the  death  of  tenant  for  life, 
untU  they  were  delivered  to  the  remainder-man. 
[Ed.  Note. — For  other  cases,  see  Life  Estates, 
Cent.  Dig.  §  53;    Execution.  Dec.  Dig.  (©=5265.] 

Dunkin  and  Dargan,  CC,  thought  the  case 
within  the  provision  of  the  last  clause  of  the 
2od  section  of  the  Act  of  1789 ;— Johnston  and 
Wardlaw,  CC,  that  it  stood  as  at  the  common 
law. 

Before  Dargan,  Ch.,  at  Charleston,  Febru- 
ary, 1850. 

Dargan,  Ch.  By  a  deed  of  marriage  settle- 
ment, bearing  date  15  April,  1818,  between 
Samuel  Colleton  Graves,  and  Susan  McPher- 
son,  the  latter  conveyed  to  trustees,  certain 
lands  and  negroes,  in  trust  for  the  use  of 
the  said  Samuel  Colleton  Graves,  and  Susan, 
his  intended  wife,  during  their  joint  lives ; 
remainder  to  the  use  of  the  survivor ;  re- 
mainder to  the  use  of  the  issue  of  the  mar- 
riage. The  marriage  was  duly  solemnized, 
and  the  complainant,  Caroline  M.  Clifford, 
was,  at  the  death  of  her  last  surviving  par- 
ent, the  only  surviving  issue  of  the  marriage. 
Susan  McPherson,  afterwards  Susan  Graves, 
survived  her  first  husband,  the  said  Samuel 
Colleton  Graves,  and  afterwards  intermar- 
ried with  Nathaniel  G.  Cleary.  The  life 
estate  of  Mrs.  Cleary,  in  the  settled  property, 
was  liable,  and  sold  for  the  debts  of  Cleary, 
and  the  defendant,  J.  Harleston  Read,  be- 
came the  purchaser  of  a  portion  of  the  ne- 


groes at  sheriff's  sale,  in  the  life-time  of  Mrs, 
Cleary.  He  exhibits  with  the  answer  a 
schedule  of  the  said  negroes,  (which  he  pur- 

*219 
chased  and  *became  possessed  of,  in  April, 
1840,)  and  also  of  those  that  remained  in 
December,  1848,  when  these  latter  were  de- 
livered up  to  the  complainants  as  remainder- 
men. 

Mrs.  Cleary  survived  her  husband,  and  on 
the  19th  day  of  July,  1848.  she  departed  this 
life,  when  the  right  of  :Mrs.  Clifford  to  the 
possession  accrued,  (as  the  only  person  enti- 
tled in  remainder,)  according  to  the  terms 
of  the  deed  of  marriage  settlement.  Mr.  and 
Mrs.  Clifford,  the  complainants,  have  also 
entered  into  a  marriage  contract,  by  which 
all  her  estate,  including  her  interest  in  the 
property  embraced  in  the  marriage  settlement 
of  her  parents,  was  conveyed  to  certain  trus- 
tees, in  tru.st,  inter  alia,  for  the  joint  use  of 
the  complainants  during  their  joint  lives, 
etc.  Why  the  trustees  have  not  been  made 
parties  to  a  bill  for  an  account  of  the  trust 
property,  I  am  unable  to  perceive.  Nor  do 
I  see  how  the  complainants  could  have  been 
allowed  to  proceed  with  their  case,  had  the 
defendant  taken  the  objection.  If,  however, 
the  trustees  would  be  entitled  to  recover  on 
the  demands  now  sought  to  be  enforced.  It 
would  have  been  only  for  the  purpose  of  pay- 
ing over  the  amount  recovered  to  the  com- 
plainants for  their  joint  use ;  and  as  the  de- 
fendant has  not  thought  proper  to  object, 
on  the  ground  that  the  trustees  have  not 
been  made  parties,  I  will  proceed  to  consider 
the  case  on  its  merits. 

The  negroes  that  were  in  the  possession 
of  the  defendant,  were  duly  delivered  up  by 
him  in  the  December  succeeding  the  death  of 
Mrs.  Cleary,  the  life  tenant,  who  died  on 
the  18th  day  of  July,  1848.  And  this  bill  is 
brought  for  an  account  of  the  hire  and  profits 
of  the  said  negroes,  during  the  time  that 
intervened  between  the  death  of  Mrs.  Cleary, 
and  the  time  when  they  were  surrendered  to 
the  persons  entitled  in  remainder.  The  de- 
fendant contends,  that  as  Mrs.  Cleai-y  died 
after  the  1st  of  March,  he,  as  the  owner  of 
the  life  estate,  is  exempt  irom  liability  for 
this  account,  by  virtue  of  the  provisions  of 
the  Act  of  1789.     (P.  L.  494  ;    5  Stat.  111.) 

At  common  law,  the  right  of  the  remainder- 
man to  the  possession  and  enjoyment  ac- 
crued, eo  instanti,  upon  the  death  of  the 
tenant  for  life;    and  such  still  is  the  rule 

*220 
which  must  prevail,  *except  so  far  as  this 
rule  is  modified  or  disturbed  by  the  provi- 
sions of  the  Act.  To  that  Act,  as  in  deroga- 
tion of  the  rights  of  property,  I  am  disposed 
to  give  a  rigid  construction,  and  not  to  ex- 
tend its  operation  beyond  the  cases  embraced 
within  its  provisions,  and  which  may  fairly 
be  supposed  to  have  been  contemplated  by  the 
Legislature. 


90 


®:5>For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


CLIFFORD  V.  READ 


Tlu'  first  class  of  casos  provided  for  by  the 
<hiusc'.  is  entirely  different  from  the  present. 
It  eonteniphites  a  case  where  the  owner  of 
the  life  estate  himself  dies,  and  not  where, 
as  in  this  case,  by  an  assignment  and  trans- 
fer of  the  life  estate,  the  owner  of  that  life 
interest  becomes  a  tenant  per  autre  vie. 
Where  a  person  shall  die  after  the  1st  day 
of  March,  the  slaves  of  which  he  or  she  was 
liusscss.'d,  whether  held  for  life  or  absolutely, 
and  who  were  employed  in  making  a  crop, 
shall  be  continued  on  the  lands  that  were  in 
the  occupation  of  the  deceased,  until  the  crop 
is  rinished,  and  then  delivered  to  those  who 
liave  a  right  to  them,  etc.  The  Act  proceeds 
to  declare  that  the  crops,  the  product  of  the 
lal)our  of  such  slaves,  shall  be  assets  in  the 
liands  of  the  executors,  or  administrators, 
subject  to  debts,  legacies,  and  distriltution. 
It  means,  by  a  necessary  imi)lication,  the 
debts,  legacies,  and  distribution  of  the  estate 
of  the  decedent,  the  tenant  for  life.  Here  is 
a  prolongation  of  the  life  estate  beyond  its 
natural  period,  and  a  substantial  value  added 
to  it  beyond  that  given  by  the  will  or  deed 
which  creates  it.  And  to  the  same  extent  it 
is  in  derogation  of  the  rights  of  the  remain- 
der-man. And  I  should  doubt  the  constitu- 
tiiinality  of  this  provision  of  the  Act.  in 
reference  to  estates  in  i-emainder  that  existed 
and  were  vested  interests  at  the  ratification 
of  the  Act.  In  regard  to  such  estates,  would 
it  not  have  been  a  violation  of  the  rights  of 
property,  and  a  taking  from  one  person  his 
estate,  and  giving  it  to  another;  and  that 
too  without  any  compensation'.'  But  in  re- 
gard to  estates  of  this  character,  created 
since  the  pas.sage  of  the  Act,  that  objection 
does  not  apply,  for  it  would  be  consistent 
even  for  the  Legislature  to  declare  that  there 
.shall  thereafter  be  no  estates  in  remainder, 
and  that  the  tenant  for  life  shall  in  all  cases 
be  entitled  to  the  fee.     The  Legislature  has 

*221 

not  so  declared,  and  *of  course  never  will; 
but  it  has  declared,  that  under  certain  cir- 
cumstances, an  estate  for  life  in  slaves  shall 
extend  beyond  the  duration  of  that  life,  upon 
which  it  was  made  to  depend  by  the  instru- 
ment which  creates  it.  The  object  of  the  Act 
was  to  promote  the  agricultural  interests, 
and  the  mischief  to  be  remedied  was  the 
withdrawal  of  slaves  engaged  in  agricultural 
labours,  from  the  possession  of  the  executors 
or  administrators  of  the  deceased  tenant  for 
life,  after  the  plans  of  the  year  had  l)een 
definitely  fonued,  and  the  crops  in  the  course 
of  cultivation.  It  is  easy  to  conceive  of  the 
injury  that  would  result  to  individuals,  and 
through  them  to  the  community  at  large,  by 
such  sudden  changes  in  the  possession  and 
iontrol  of  property,  situated  as  in  cases  con- 
templated by  the  Act.  The  purpose  might 
have  been  more  justly  effected,  by  giving  com- 
pensation to  the  remainder-men,  as  in  an- 
ocher  class  of  cases  provided  for  by  the  same 


Act.     But   in   the   case   of  a   deceased   life- 
tenant,  the  law  gives  no  compensation  to  the 
ren)ainder-man.     This  is  the  case  of  Leverett 
V.   Leverett,   (2  McCord  Kii.  84,)  and   Ilerbe- 
mont  V.  Percival.  (1  McM.  ~j9.)     The  first  of 
these  cases  has  btH'u  questioned.     If  one  of 
these  is  que.stionaiile,  the  other  is  equally  so; 
i  for   they   are  precisely  the  same.      Each    of 
I  them  is  a  case  where  the  tenant  for  life  died 
in   posseiision   of  the  slaves,  and  the  slaves 
j  were  enq)loyed   in   agricultural    labours.      It 
.seems  to  me  that  it  would  ite  difficult  to  adopt 
any   other  construction  of  this   part  of  the 
'  Act,  than  that  which  our  Courts  have  given 
in  the  cases  cited.    The  language  of  the  Act 
!  Is,  in  my  judgment,  une<|uivocal.      See   also 
j  the  case  of  Freeman  v.  Tomkins,  (1  Strob.  Eq. 
53.) 

I      The  case  of  the  defendant,  as  I  have  al- 

i  ready   remarked,   does   not  come   within   the 

I  provisions  of  that  part  of  the  clause  which 

I  have  been  discussing.     But,  if  it  comes  un- 

[  der  the  operation  of  the  Act  at  all,  it  comes 

under  the  following   member  of  the  clause: 

"And  if  any  person  shall  rent  or  hire  lands 

!  or  slaves  of  a  tenant  for  life,  and  such  ten- 

,  ant    for    life    dies;     the   person    hiring    .such 

I  lands    or    slaves    shall    not    be    dispossessed 

until  the  crop  of  that  year  is  fini-shed,  he  or 

,  she  securing  the  rent  or  hire  when  due." 

I  *222 

j      *It    perhaps    may    admit    of    considerable 
\  doubt,    whether   the   case   of  the   defendant 
'  comes  even  within  this  provision  of  the  Act. 
!  He  did  not  hire  the  slaves  from  the  tenant 
,  for  life;    nor  was  the  hire  due  and  outstand- 
ing, but  he  purchased  the  whole  liie  interest, 
in  the  year  1S40.   at  sheriff's  sale,  and  the 
consideration  was  paid  in  cash.    The  dispos- 
.session  of  the  tenant  for  life  was  involuntary. 
I  The  Act  seems  to  contemplate  a  hiring  by  the 
tenant  for  life,  and  a  case   where  the  hire 
is  still  unpaid.     The  possession  is  to  be  ex- 
tended on  the  condition,  that  tiie  hire  is  to  be 
secured  by  the  person  who  has  the   posses- 
sion.    Whereas,  if  the  hire  has  already  Ix^en 
paid   to  the  tenant  for  life,  or  he  has  had 
the  benefit  of  it,  his  estate  might  be  insolvent, 
and  be  unable  to  make   good    the   damages, 
which  the  inroad  of  the  Act  makes  upon  the 
rights  of  the  remainder-man.     The  case  cer- 
ptainly  does  not  fall  within  the  words  of  the 
Act,  according  to  their  ordinary  acceptation. 
;  It,   however,   comes   witliin   the  mischief  in- 
j  tended  to  Ik'  remedied  ;    and  a  sale  by  the 
sheriff  of  the  estate  of  the  life-tenant,  may 
be  considered  a  sale  by  the  life-tenant  him- 
.self:    and   an  assignment   of  the   whole   re- 
I  maining   term   may    be  considered   a   hiring. 
j  And  if  the  consideration  be  paid  in  advance 
i  for  a  term  beyond  the  duration  of  the  life 
I  estate,  the  party  in  possession  may  be  requir- 
ed to  secure  so  unich  of  the  hire  of  that  year, 
when  the  life  estate  determint>s.  as  may  be 
due  to  the  remainder-man.     I  shall  therefore 
consider  the   case  as  embraced  within   that 
provision  of  the  Act  last  quoted. 

91 


3  RICHARDSON'S  EQUITY  REPORTS 


Considering  the  case  in  this  point  of  view, 
I  think  it  clear,  that  the  defendant  is  liable 
to  account  for  the  hire  of  the  negroes,  from 
the  ISth  of  July,  1848,  when  the  tenant  for 
life,  Mrs.  Cleary,  died,  to  the  day  in  Decem- 
ber following,  when  they  were  delivered  up  to 
the  remainder-man.  I  shall  not  construe  the 
Act  as  abridging  the  legal  rights  of  the  re- 
mainder-man, further  than  I  am  bound  to  do 
by  the  clear  import  of  its  language.  I  shall 
not  presume  that  the  law  intended  to  deny 
him  the  possession  of  his  estate,  after  the 
accrual  of  his  rights,  without  just  compen- 
sation. More  particularly  am  I  constrained 
to  take  this  view,   when   I   reflect  that  the 

*223 

policy  intended  to  be  subserved  by  *the  Act, 
can  have  its  full  operation,  without  the  in- 
fliction of  this  glaring  injustice.  He  who 
holds  the  life  estate,  may  be  relieved  from 
the  injury  arising  fi-om  the  .sudden  and  un- 
foreseen termination  of  his  possession,  and 
the  consequent  loss  or  diminution  of  his 
crops,  while  in  the  course  of  cultivation  and 
gathering,  consistently  with  a  just  compensa- 
tion to  the  remainder-man  for  the  abridge- 
ment of  his  right  of  possession.  If  the  plain 
import  of  this  part  of  the  Act  was,  (as  it  is 
in  the  preceding,)  that  there  should  be  no 
compensation  to  the  remainder-man  for  the 
abridgement  of  his  rights,  as  a  judicial  mag- 
istrate I  would  of  course  have  no  alternative 
but  to  enforce  what  the  Legislature  had  en- 
acted. But  the  phraseology  of  these  provi- 
sions is  essentially  different.  In  the  latter, 
it  Is  declared  that  the  person  who  hires 
slaves  from  the  tenant  for  life,  "shall  not  be 
dispossessed  until  the  crop  of  that  year  be 
finished,  he  or  she  securing  the  rent  or  hire 
when  due." 

The  securing  the  hire  is  the  condition  on 
which  the  possession  is  to  be  prolonged  be- 
yond the  termination  of  the  life  estate.  To 
whom  is  the  hire  to  be  secured?  Not  to  the 
original  life  tenant,  upon  whose  life  the 
estate  depends ;  for  she  has  already  parted 
with  her  entire  interest  for  the  current  j-ear. 
Is  it  to  be  secured  to  the  person  who  is  in 
the  possession,  who  has  hired  or  purchased 
from  the  life  tenant,  and  who  is  still  living? 
He  is  the  very  party  who  is  to  give  the  se- 
curity for  the  hire,  and  therefore  the  provi- 
sions cannot  have  been  intended  for  his 
benefit.  The  ciuestion  is  between  him  and 
the  remainder-man.  For  whose  benefit  then 
is  the  hire  to  be  secured?  As  it  cannot  pos- 
sibly be  for  the  benefit  of  the  party  who  is 
required  to  secure  the  hire,  it  follows  neces- 
sarily, that  he  must  owe  it  to  some  other 
person ;  either  to  the  original  tenant  for  life, 
under  whom  he  holds,  or  to  the  remainder- 
man. It  cannot  be  to  the  original  tenant  for 
life,  (Mrs.  Cleary  in  this  instance,)  for  she 
had  long  before  disposed  of  all  her  estate  in 
the  slaves,  and  at  the  time  of  her  death  did 
not  have  the  possession.  Besides  all  this; 
92 


considering  her  as  having  hired  the  slaves 
to  the  defendant  during  the  current  year, 
(in  which  she   died,)   and  the  hire  to  have 

*224 
been  outstanding  and  *due,  when  she  hirefl 
them,  it  was  by  a  contract  which  would  still 
be  of  force  after  her  death,  and  her  execu- 
tors or  administrators  would  have  no  right 
to  modify  that  contract,  or  to  call  upon  the 
hirer  to  give  securit.v,  when  the  original  con- 
tract of  hiring  did  not  impose  that  condition. 
The  law  would  not,  and  could  not,  interpose 
for  the  purpose  of  giving  to  the  contracts  of 
deceased  persons,  a  greater  efficiency  in  the 
way  of  securing  their  fulfilment  or  payment, 
than  they  had  stipulated  for  in  their  lives. 
The  onlj^  alternative  construction  of  this  part 
of  the  Act  is,  to  suppose  that  it  means  to 
.secure  to  the  remainder-man  his  fair  propor- 
tion of  the  hire,  during  the  year  in  which 
the  tenant  for  life  dies,  and  the  remainder 
falls  in.  This,  I  think,  is  the  plain,  and  in- 
deed I  may  say  necessary,  implication  of  the 
words  of  the  Act.  And  such  is  the  judgment 
of  the  Court. 

It  is  ordered  and  decreed,  that  the  defend- 
ant do  account  to  the  complainants  for  the 
hire  of  the  negroes,  embraced  in  the  marriage 
settlement  deed  of  Samuel  C.  Graves,  and 
Susan,  his  wife,  and  described  in  the  sched- 
ule, from  the  death  of  the  said  Susan,  on 
the  18th  July,  1848,  to  the  time  when  he 
delivered  them  to  the  complainants  or  their 
trustees.  It  is  ordered  that  it  be  referred 
to  one  of  the  Masters,  to  take  the  account. 

The  defendant  appealed,  on  the  following 
grounds,  viz: 

1.  That  his  Honor,  the  Chancellor,  erred 
in  ordering  an  account  to  be  taken  of  the 
hix'e  of  the  negro  slaves  purchased  by  defend- 
ant, at  the  sheriff's  sale,  as  the  life  estate 
of  Mrs.  Cleary,  from  her  death,  on  ISth  .July, 
1S48,  until  delivered  up  by  defendant. 

2.  That  the  Chancellor  erred  in  decreeing 
that  the  said  negro  slaves  did  not  come  un- 
der the  provisions  of  the  Act  of  1789,  in  such 
manner  as  to  entitle  the  purchaser  of  the 
life  estate  to  hold  them  free  from  wages 
until  the  end  of  the  year. 

3.  That  the  Chancellor  erred  in  decreeing 
the  complainants  to  be  entitled  to  wages  for 
the  said  negroes,  from  the  death  of  the  ten- 
ant for  life,  until  delivered  up  by  defendant, 
inasmuch  as  the  said  negro  slaves  were  field 
negroes,  engaged  in  the  cultivation  of  the 
crop,  at  the  time  of  the  death  of  the  tenant 

*225 
for  life,  *and  as  such  should  have  been  de- 
creed to  the  purchaser  of  the  life  tenanfs 
interest  until  the  growing   crop   was   made, 
without  wages. 

4.  Because  the  decree  was,  in  other  re- 
spects, contrary  to  the  correct  construction 
of  the  Act  of  1789,  and  to  equity. 

DeSaussure  &  Son,  for  appellant. 
Munro,  Brewster  &  Dunkin,  contra. 


SACKETT.S  JIAKBuLll  liAXK  v.  BLAKE 


DARGAN,  Ch.,  delivon-d  the  opiniou  of  the 
Court. 

The  duty  of  anuouncini;  the  judjiuient  of 
the  Court,  in  this  case,  has  been  devolved 
upon  lue.  I  have  fully  dist-ussed  the  ques- 
tions, made  in  this  apjieal,  in  the  circuit  de- 
cree, and  deem  it  unnecessary  to  add  any- 
thing to  the  views  which  I  have  therein  ex- 
pressed. 

It  is  ordered  and  decreed  that  the  circuit 
decree  be  affirmed  and  that  the  appeal  be 
dismissed. 

DUNKIN,  Ch.,  concurred. 

JOHNSTON    and    WAKHLAW,    CC.      We 


Caldwell,  Ch.  The  bill  states  that  the 
Sackett's  Harbour  Rank  was  incorporated  by 
an  Act  of  the  State  of  New  York,  and  was 
doint,'  business  in  its  corporate  *ii]»acity  be- 
fore tlie  year  1841'.  That  in  XovemU'r,  l.s;!(.i, 
a  charter  of  incorporation  was  f;ranted  by  the 
same  State  to  certain  persons,  const  it  utinf; 
them  a  corporation,  by  the  name  of  the  .lef- 
fer.son  AVoollen  ('omi»any,  which  became  a 
body  corporate  in  law  and  fact,  and  com- 
menced business  as  a  coriM)ration  in  the  vil- 
lage of  De.\ter,  in  Jefferson  county,  in  the 
.said  State;  that  Ann  Stead  Izard  (who  aft- 
erwards intermarried  with  Walter  Blakei  be- 
came a  member  of  said  corporation,  which 
afterwards  made  two  promissorv  notes  for 
concur  in  the  result.  Our  opinion  is,  that  1  value  received,  one  for  four  thousand  dollars 
the  case  at  bar  does  not  fall  within  the  Act  l  payable  to  E.   Kirby.  or  order,  four  months 


of  17S9,   or  either   clause   of  it ;    but   is   a 
casus  omissus;    and   that   the  rights  of  the 
remainder-man  stand  as  at  connnon  law. 
Appeal  dismissed. 


3   Rich.  Eq.  225 

THE    SACKE^TS    IIAKBOTR    BANK    v. 

WALTER  KLAKE  and  Wife  et  al. 

(Charleston.     Jan.  Term.  ISol.) 

[1.  VorporatUiiis  <©=>U;{5.] 

By  the  fjeneial  Act  of  New  York,  aiitiioriz- 
ing  manufacturing  incoriiorations.  "for  all  debts 
due  and  owins  by  auy  such  Company,  at  the 
time  of  its  dissolution,  the  persons  then  compos- 
iul;-  sucli  Company,  shall  be  individually  re- 
sponsible to  the  extent  of  their  resiiective  shares 
of  stoek  in  the  said  Company,  and  no  furtlier;" 
the  defendant  luul  been  a  stockliolder  in  sueli  a 
C  ompany,  in  New  York,  at  the  time  of  its  dis- 
solution, and  the  Company  was  then  indebted 
to  the  plaintiffs;  the  Company  l)einu-  insolvent, 
and  all  other  stockholders  havinir  ]);iid  deiits  of 
the  Company  to  the  extent  of  their  lial)ilities 
the  plaintiffs  filed  a  l)ill  ajrainst  defendant,  .seek- 
ing payment  of  their  debt:  J/eld, 
*226 
*1.  That  by  the  Act  of  New  York,  the  de- 
fendant was  liable,  over  and  above  the  stock 
held  by  her,  to  a  sum  equal  to  the  amount  of 
the  stock. 

[Va].  Note.— Cited  in  I'arker  v.  Carolina  Sav- 
inus  Bank.  5:}  S.  C.  501.  .-{l  S.  E.  673,  69  Am. 
St.   Kep.  .S88. 

Rs^'co/'^l^t^  ^^A*"^'  ^■^•^  Corporations,  Cent.  Dig. 
§S  804.  805;    Dec.  Dig.  <@=>235.] 

[2.   CorpQ^rations  <g=3205.] 

That,  under  the  circumstances,  plaintiffs 
could  maintain  their  bill  without  joining  tiie 
other  stockiiohh-rs  as  defendants. 

o'l'wli.  ^"^^-"^'^^^^  ^^  Terry  v.   Martin,   10   S. 

K  TiTo^^Jl^''  ^i'^.'^^-  ^^^  Corporations,  Cent.  Dig. 
§  1110;  Dec.  Dij,'.  <S=32(;.".] 

[."J.   Coriiordiiont   <S=^2.';."i.J 

That  defend.-int    was   not   liable   to  creditors 
tor  interest   on   tiie  anxMint   f(.r  whi.h   she   was 
liable  over  and  above  the  .stock  held  by  her. 
^ J ''!''•, ^'"t^'-~^''f"'  <»tlicr  cases,  see  Cor|)orations. 
Cent.  Dig.  ii§  8!>4.  805;    Dec.  Dig.  <S=>235.J 

Bef.ue  Caldwell.  Ch.,  at  Charleston,  June, 
1840. 

The  decree  of  his  Honor,  the  Circuit  Chan- 
cellor, is  as  follows: 


after  date,  at  the  Sacketfs  Harbour  Bank, 
dated  Dexter,  May  26th,  1842  and  signed  by 
E.  Kirby,  agent,  and  endorsed  by  E.  Kirby. 
\Vni.  Lord  &  Sons.  Keyes  &  llungerford;  tlie 
other  for  one  thousand  dollars,  payable  to  E. 
Kirby,  or  order,  sixty-three  days  after  date, 
dated  Dexter,  July  24th,  1S42,  signed  by  E. 
Kirby,  agent,  and  endor.sed  by  the  same  per- 
sons as  the  former.  These  notes  were  dis- 
counted at  the  Banking  house  of  the  plain- 
tiffs, and  endorsed  by  E.  Kirby,  and  the 
amount  thereof  paid  and  advanced,  less  the 
legal  discount,  and  afterwards  when  they 
severally  became  due.  they  were  i»reseuted 
for  payment  and  protested  for  non-payment. 
That  in  184."^.  tho  real  an<l  personal  estate 
and  effects  belonging  to  the  Jefferson  Wtwlleii 
Company,  were  sold  under  executicui  against 
it,  by  the  sheriff"  of  Jetlcrson  county,  and  the 
Company  then  and  there  become  legally  dis- 

*227 

solved.  Several  of  the  executions  *agaiust 
the  company  have  been  returneil  by  the  Sher- 
iff nulla  bona,  and  the  Company  was  then, 
and  is  now,  altogether  insolvent. 

The  general  Act  of  New  York,  authorizing 
manufacturing  incorporations,  was  passeil 
22d  March,  1811,  and  provides,  "that  the 
stock  of  such  Company  shall  be  deemed  per- 
sonal estate,  and  be  transferable  in  such 
manner  as  shall  be  prescribed  by  the  laws  of 
the  Company;  and  that  for  all  debts  that 
shall  be  due  and  owing  I)y  the  Company,  at 
the  time  of  its  dissolution,  the  persons  then 
composing  such  Company  shall  be  individual- 
ly responsible  to  the  extent  of  their  respective 
shares  of  stoek  in  the  said  Company,  and 
no  further;  and  that  it  shall  not  be  lawful 
for  such  Company  to  use  their  funds,  or  any 
part  thereof,  in  any  Banking  transaction, 
or  in  the  purchase  of  any  stock  of  any  Bank, 
or  in  the  purchase  of  any  public  stock  what- 
ever, or  for  any  other  purposes  than  those 
specified  in  such  instrument  as  aforesaid." 

That  the  .said  Ann  Stead  Izard  became  a 
member  of  said  corporation,  in  1-ebruary, 
18.'{7.  and  sul)scribe(l  for  .seventy  sh.ires.  and 


<^=^Fo^  other  cases  see  same  topic  and  KEY-NUMBER  In  all  Key-Numbered  Digests  and  lude 


93 


■3fo27 


3  RICHARDSON'S  EQUITY  REPORTS 


became  a  stockholder  to  that  extent,  (or 
seventy  shares  of  the  capital  stock,)  each 
share  being  then  valued  at  one  hundred  dol- 
lars, and  that  she  remained  owner  of  the 
said  shares,  and  a  member  of  said  Company, 
till  the  8th  of  June  following,  when,  in  con- 
templation of  a  marriage  with  Walter  Blake, 
she  assigned  and  transferred  the  said  seventy 
shares  in  the  capital  stock  of  said  Company, 
amongst  other  property  to  John  Julius 
Izard  Fringle,  and  Benjamin  Huger,  In  trust, 
to  apply  the  income  thereof  to  the  joint  use 
of  Walter  Blake  and  herself  forever,  and 
after  the  solemnization  of  said  marriage,  dur- 
ing their  joint  lives,  with  certain  other  limi- 
tations, «&c.  The  said  deed  contains  a  pro- 
viso, that  the  trustees  shall  not  be  answer- 
able for  any  losses  or  damages  which  may 
happen  in  the  execution  of  any  of  the  trusts, 
or  in  anywise  relating  thereto,  unless  the 
same  shall  happen  by  or  through  their  wilfnl 
default  respectively.  That  the  contemplated 
marriage  took  place  after  the  8th  of  June, 
18oT,  and  the  seventy  shares  were  transferred 

*228 
to  the  trustees,  who  *therefore  became,  and 
were,  members  of  the  said  coriwration,  and 
so  remained  until  after  the  legal  dissolution 
of  the  same. 

The  bill  charges,  that  the  trustees,  or  the 
said  Walter  Blake,  and  Ann  Stead  Blake, 
became  and  were  liable  to  the  plaintiffs  for 
the  amount  of  the  said  several  notes,  with 
the  legal  interest  thereon.  That  the  said 
Jefferson  Woollen  Manufacturing  Company 
has  no  assets  to  pay  plaintiffs'  demands, 
and  is  hopelessly  insolvent,  and  the  plain- 
tiffs have  no  means  of  procuring  payment 
of  the  debt,  but  by  seeking  a  remedy  against 
the  individual  stockholders  under  the  law 
of  1811 ;  that  plaintiffs  have  applied  to  the 
other  stockholders  of  the  Company  for  pay- 
ment, and  have  been  informed,  that  they 
have  already  paid  to  the  other  creditors  of 
the  Company  the  full  amount  for  which  they 
were  liable ;  and  the  bill  charges,  that  there 
is  no  other  member  of  the  corporation  known 
to  them  from  whom  a  recovery  or  contribu- 
tion for  their  demand  can  be  had,  and  that 
neither  the  said  trustees,  or  Walter  Blake, 
or  Ann  Stead  Blake,  have  paid  any  demand 
of  any  creditor  of  the  Jefferson  Woollen  Com- 
pany, or  have  made  contribution  towards  the 
same.  The  bill  prays  for  a  discovery  as  to 
the  facts  alleged,  and  for  an  account  of  the 
assets,  and  of  the  debts  of  the  Company,  and 
that  the  assets  may,  if  any,  be  applied  to 
pay  the  plaintiffs,  and  tlaat  plaintiffs'  de- 
mand, or  such  part  as  may  remain  unpaid, 
may  be  paid  by  defendants  according  to  their 
legal  liability,  and  general  relief,  &e.  The 
bill  was  filed  3d  June,  1S47.  The  answer  of 
Walter  Blake  and  Ann  Stead  Blake,  his  wife, 
states  that  they  are  strangers  to  the  mat- 
ters stated  in  the  bill  concerning  the  incor- 
lK)ration  of  the  Sackett's  Harbour  Bank ; 
that   they   are   informed   that   the   Jefferson 

94 


Woollen  Company  was  incorporated  under 
the  provisions  of  the  Act  of  the  Legislature 
of  New  York,  relative  to  incorporations  for 
Manufacturing  purposes,  passed  in  1811. 
That  the  seventy  shares  were  taken  in  Mrs. 
Blake's  name,  and  that  she  was  governed  by 
the  advice  of  the  late  Gen.  Eustis,  who  had 
intermarried  with  her  aunt,  in  whose  family 
she  lived ;  that  she  had  no  information  as 
to  the  condition  of  the  Company,  uor  the 
liabilities  attending  the  acquisition  of  stock 

*229 
therein,  except  it  was  *  understood  that  the 
Company  was  duly  organized  by  respectable 
persons,  and  that  by  the  true  construction 
of  the  Act,  the  members  were  liable  for  the 
payment  of  their  several  subscriptions,  and 
no  more.  The  defendants  knew  nothing  of 
the  relation  between  these  corporations  as 
debtor  and  creditor,  except  what  they  have 
learned  from  the  statement  of  plaintiffs'  bill. 
The  defendants  admit  they  intermarried  on 
16th  June,  1837,  and  the  fortune  of  Mrs. 
Blake  was  settled  by  being  conveyed  to  the 
trustees  for  the  uses  of  the  marriage,  and 
her  interest  in  the  Company  was  transferred 
to  the  trustees,  but  whether  any  certificate 
for  her  shares  in  the  Jefferson  Woollen  Com- 
pany, which  were  paid  for  out  of  her  funds, 
partly  before  and  partly  after  her  marriage, 
were  ever  issued,  they  do  not  know ;  they 
do  not  know  whether  all  the  subscribers  paid 
up  their  subscriptions;  the  dividends  or  in- 
terest have  been  received  by  defendants,  or 
as  they  believe,  by  the  trustees,  on  account 
of  said  shares.  They  have  heard  that  the 
Jefferson  Woollen  Company  has  ceased  after 
becoming  insolvent,  but  they  do  not  know 
what  has  become  of  the  assets,  nor  what 
debts  are  owing  by  the  Company,  nor  to 
what  amount  the  members  of  the  Company 
should  contribute  in  order  to  pay  off  such 
debts.  Neither  do  they  know  how  much  the 
several  members  of  the  Company  have  con- 
tributed, nor  whether  they  have  contributed 
equally  or  in  proportion  to  their  shai'es,  in 
paying  off  the  debts  of  the  Company,  though 
they  ai'e  informed  and  believe,  that  one  mem- 
ber of  the  Company,  Mrs.  Patience  Izard, 
has  paid  a  certain  sum  towards  the  debts  of 
the  Company,  over  and  above  her  subscrip- 
tion ;  they  do  not  know  whether  the  plain- 
tiffs have  resorted  to  any  other  member  of 
the  Company  for  contribution,  or  received 
satisfaction  from  any  member  of  the  Company 
for  their  supposed  liability  to  the  debts  of  the 
corporation ;  nor  the  measure  of  such  satis- 
faction ;  and  if  the  plaintiffs  have  chosen 
to  pass  by  the  members  of  the  Company,  who 
are  in  their  neighborhood,  and  single  out 
these  defendants  to  bear  the  whole  burden  of 
their  claim,  these  defendants  hope  their 
rights  may  not  be  prejudiced  by  the  election 
of  the  plaintiffs.     Defendants  do  not  admit, 

*230 
but   deny,  that  the   *members  of  the  incor- 
poration, called  the  Jefferson  Woollen  Com- 


SACKETT'S  HARBOUR  BANK  v.  BLAKE 


paiiy.  by  roasori  of  any  l<i<al  or  other  law, 
or  liy  c-haii},'i's  niatle  in  tin-  New  York  judi- 
ciary, are  lialile  in  tlieir  private  characters 
for  tile  (lei»ts  of  tlie  Company,  hut  if  liaMe  at 
all.  they  insist  that  the  liahllity,  accordini: 
to  the  rules  of  e<|uity  and  justice,  is  contined 
to  the  measure  of  a  ju.st  contribution.  They 
deny  that  tiie  plaint  ills  have  sliown  any  rif;ht 
to  sue  in  this  Court. 

The  material  allegations  of  the  hill  have 
been  established  by  the  testimony  of  witness- 
es taken  by  commission,  and  the  principal 
nuestion  is,  is  .Mrs.  Blake's  estate,  in  the 
liands  of  the  trustees,  liable  for  the  plaintirt's 
debt .'  At  common  law,  it  is  a  well  settled 
principle,  that  the  debts  of  a  corporation 
must  be  jiaid  out  of  the  coriKirate  fund,  and 
tliat  the  individual  members  are  irresponsible 
beyond  the  amount  of  their  respective  inter- 
e.sts  therein;  this  extraordinary  privilej^e 
and  protection  to  the  memliers  of  a  corpora- 
ti<tn,  constitutes  the  distinj,'uishiiijr  character- 
istic between  them  and  the  individuals  com- 
prising,' a  i)artnership.  but  it  is  constitutional 
and  comi)etent  for  the  I.ejrislature.  in  grant- 
in?:  a  charter  of  incorporation,  to  prohibit 
and  withhold  this  protection,  and  to  make 
those  who  become  members  of  the  corpora- 
tion liable  for  the  debts  of  the  body  corporate. 

The  State  of  New  York,  in  ISll,  adopted  a 
general  law  on  the  subject  of  incorporations 
for  manufacturing  purposes,  and  the  Jeffer- 
son Woollen  Company  was  incorporated 
under  its  provisions.  The  introduction  of 
this  new  rule  of  responsibility,  removed,  in  a 
great  degree,  the  distrust  of  the  connminity 
in  such  corporations,  and  gave  additional  se- 
curity to  their  creditors,  who,  at  common  law, 
were  left  unpaid  when  the  corporate  funils 
were  inadiMiuate  to  discharge  the  debts.  It 
would  .seem,  that  before  the  creditors  can 
imrsue  their  remedy  under  the  Act,  the  cor- 
poration must  be  dissolved,  as  the  individual 
members  are  only  made  liable  "for  all  the 
debts  that  shall  be  due  and  owing  by  the 
Conijiany  at  the  time  of  its  dissolution." 
The  first  inquiry  is,  has  the  corporation  been 
dissolved?  The  question,  an  to  what  con- 
stitutes a  dissolution,  has  often  been  con- 
sidered and  adjudged ;  when  a  corporation 
ceases  to  act,  and  indicates  no  intention  to 

*231 
♦resume  their  functions  in  a  corjiorate  capac- 
ity, when  it  becomes  indebted  for  more  than 
it  is  worth,  and  permits  all  Its  corporate 
assets  to  be  sold,  and  executions  against  it 
are  returned  nulla  bona,  and  becomes  utterly 
in.solvent,  such  acts  wtmld  be  sutficlent  to 
frustrate  the  object  of  its  institution,  and  is 
equivalent  to  a  surrender  of  its  ttirporate 
rights.  Although  there  be  no  formal  judg- 
ment of  ouster  or  dissolution  jironounced. 
yet  the  acts  of  the  Conii>any  have  produced 
a  practical  dissolution,  so  that  a  creditor  may 
maintain  a  suit  against  the  individual  stock- 
holders, under  the  Act  of  1811.  All  these 
questions  have  been  repeatedly  discussed  and 


decide<l,  by  the  judicial  triliuiials  of  New 
York,  and  the  construction  which  has  there 
been  given  to  the  Act  nuist  govern  us,  uidess 
it  be  iial|iably  absurd  or  unconstitutional. 
The  general  ciunlty  that  exists  between 
States,  to  regard  the  construction  that  each 
State  gives  to  its  statutes,  is  founded  upon 
both  reason  and  policy ;  but  we  are  bound 
to  adopt  that  construction  by  a  higlier  au- 
thority than  mere  courtesy ;  the  Supreme 
Court  of  the  Cnited  States  has  long  since  es- 
tablished the  itrinciple,  that  the  decisions  of 
the  State  tribunals  respectively,  in  tlie  <-<in- 
struction  of  their  statutes,  shall  \iniforndy 
be  adopted  ;  the  propriety  and  expediency  of 
this,  is  uumifest  in  cases  where  the  decisions 
of  the  State  Courts  become  rules  of  iiroi>erty. 
The  only  remaining  intiuiry  is,  what  Court 
is  entitled  to  exercise  jurisdiction.  This 
(luestion  has  also  been  decided  in  New  Y'ork, 
and  the  Court  of  Chancery  has  been  held  to 
be  the  proper  tribunal.  Independently  of 
the  more  ample  and  ade(iuate  powers  with 
which  this  Court  is  armed  in  ca.ses  of  ac- 
count, partnership  contribution,  and  discov- 
ery, there  is  a  i>eculiarity  in  this  ca.se  that 
demonstrates  that  this  Court  ought  to  ex- 
ercise jurisdiction;  the  individual  mendier 
of  the  corporation  against  whom  the  reme- 
dy is  sought,  is  a  married  woman,  and  her 
estate  is  in  the  hand.s  of  trustees  mider  a 
marriage  settlement,  and  can  only  be  reach- 
ed by  proceedings  in  eiiuity.  From  the  evi- 
dence, it  appears  the  ilefendants  are  liable 
to  the  creditors  for  the  sum  of  seven  tiiou- 
sand   dollars,   against   which   they   are  enti- 

*232 

tied  to  set  otT  *the  sum  of  twenty-three  hini- 
dred  and  fifty  dollars.  (-Si.': !.">())  to  which  must 
be  added  interest  to  the  time  of  the  disso- 
lution of  the  Jefferson  Woolen  Conqtany.  on 
the  20th  April,  1843.  The  defendants  were 
creditors  for  this  aggregate  of  princii»al  and 
interest  at  the  dissolutitin.  and  they  are, 
therefore,  only  liable  for  the  balance  after 
deducting  that  amount  from  the  seven  thou- 
.sand  dollars,  with  Interest  from  the  l.".tth 
day  of  April.  1843.  It  is,  therefore,  ordered 
and  decreed,  that  it  be  referred  to  the  Mas- 
ter to  ast-ertain  and  report  the  lialance  of 
principal  and  interest  due  to  tlie  plaintitTs. 
and  that  the  said  balance  be  paid  by  the  said 
defendants  out  of  the  trust  proi>erty  of  the 
marriage  settlement  aforesaid,  to  the  said 
plaintiffs,  in  satisfaction  of  thetr  demand, 
and  that  the  defendants  do  pa.t  the  costs  of 
this  suit;  the  said  costs  to  be  allowed  and 
paid  out  of  the  trust  property  aforesaid. 

The  defendants  appealed,  on  the  follow- 
ing grounds. 

1st.  That  under  the  seventh  section  of  the 
general  manufacturing  law  of  1811,  the 
members  of  the  Jefferson  Woolen  Company 
were  only  liable  to  the  extent  of  stoek  sub- 
scribed. 

2d.  That    the    plaintiffs    hud   uo    right    to 

93 


*232 


3  RICHARDSON'S  EQUITY  REPORTS 


sue  the  defendants  without  joining  all  the 
stockholders. 

3d.  That  the  plaintiffs  had  no  right  to  a 
decree  against  the  defendants  for  any  thing 
more  than  contribution,  after  the  accounts 
necessary  for  the  purpose  had  been  stated. 

4th.  That  the  decree  is  erroneous  in  charg- 
ing the  defendants  with  interest  on  the  sum 
of  $4,272,  from  29th  April,  1843,  because  nei- 
ther the  sum  of  $7000  dollars,  nor  the  bal- 
ance of  that  sum,  carry  interest. 

Petigru,    for   appellants. 
Northrop,    contra. 

DUNKIN,  Ch.,  delivered  the  opinion  of 
the  Court. 

The  Court  concurs  with  the  Chancellor 
that  in  giving  construction  to  the  Statute 
of  1811,  the  decisions  of  New  I'ork  should 
be  followed.  It  has  been  ruled  by  the  Court 
of  Errors   in  that  State   that   "every   stock- 

*233 
holder  in  a  company  of  this  de*scription  in- 
curs the  risk,  under  the  Statute  of  1811,  of 
not  only  losing  the  amount  of  stock  sub- 
scribed, but  is  also  liable  for  an. equal  sum, 
provided  the  debts  due  and  owing  at  the  time 
of  dissolution  are  of  such  magnitude  as  to 
require  it ;"  and,  again,  "the  statute  de- 
clares their  liability  without  reference  to  the 
amount  they  have  paid  in  on  their  stock." 
Briggs  V.  Penniman,  (8  Cowen,  387). 

We  think,  too,  that  the  state  of  facts  dis- 
closed by  the  evidence,  authorised  the  com- 
plainants to  maintain  their  bill,  without 
joining  the  other  stock-holders  as  defend- 
ants. 

The  question  of  interest  presents  more  diffi- 
culty. Strictly  speaking,  no  contract  ex- 
isted between  the  complainants  and  the  de- 
fendants. The  defendants  are  no  parties  to 
the  notes,  nor  is  their  liability  measured  by 
the  amount  of  those  notes.  The  contract  is 
with  the  corporation,  which  has  an  exist- 
ence as  separate  from  the  individuals  who 
compose  it,  as  those  individuals  have  from 
each  other.  The  defendants  might  not  have 
been  members  of  the  corporation  when  the 
debt  was  contracted,  or  when  the  notes  were 
dishonored.  They  are  rendered  liable  by  the 
stringent  provisions  of  the  statute,  and  by 
nothing  else.  This  fixes  their  liability,  and 
measures  the  extent  of  it.  "For  all  debts  due 
by  the  company  at  the  time  of  its  dissolution, 
the  persons  then  composing  such  company 
shall  be  individually  responsible  to  the  ex- 
tent of  their  respective  shares  of  stock  in 
the  said  company,  and  no  further."  Accord- 
ing to  the  construction  given  to  this  clause 
by  the  New  York  adjudications,  this  amounts, 
substantially,  to  a  forfeiture  of  so  much  be- 
yond the  original  subscription — so  much  be- 
yond the  contract  of  the  parties,  which  was 
only  to  pay  a  stipulated  sum  according  to  the 
number  of  shares  subscribed.  But  this  ex- 
traordinary liability  cannot  be  enforced,  un- 


less required  for  the  satisfaction  of  the 
debts  of  the  corporation.  It  cannot  be  ex- 
ceeded, although  ninety  cents  in  the  dollar 
of  those  debts  remain  unsatisfied.  If  the 
defendants  had  entered  into  a  bond  in  the 
penalty  of  seven  thousand  dollars,  condi- 
tioned to  pay  the  debts  of  the  corporation, 
or  to  do  any  other  act,  the  recovery  is  never 

*234 
permitted  to  exceed  the  peu*alty.  Bonsall 
V.  Taylor,  (1  McC.  503,)  was  the  case  of  a 
common  money  bond,  where  this  principle 
was  recognized.  And  in  Strobel  v.  Large, 
(3  McC.  112,)  in  an  action  on  a  bond  for  the 
performance  of  covenants,  the  verdict  of  the 
jury  assessing  damages  beyond  the  penalty 
was  set  aside  nisi.  In  both  these  cases,  the 
penalty  was  to  secure  the  performance  of 
the  party's  own  contract.  The  Statute  of 
1811  imposes  a  liability  for  the  default  of 
another,  and  expressly  provides  that  it  shall 
extend  "no  further."  No  recovery  could  be 
had  against  these  defendants  alone  until  it 
had  been  established  that  the  corporation 
was  dissolved, — that  the  debts  were  unpaid, 
and  that  the  other  stock-holders  had  paid  in 
full  to  the  extent  of  their  liability.  Those 
facts  having  been  established,  the  complain- 
ants were  entitled  to  a  decree  "to  the  extent 
of  the  shares  of  the  stock  held  by  the  defend- 
ants, and  no  further."  This  was  seven  thou- 
sand dollars.  But  if  they  had  been  compell- 
ed to  pay  to  other  creditors,  or  had  made  ad- 
vances to  the  company  (according  to  Briggs 
V.  Penniman)  to  the  amount  of  five  thou- 
sand dollars,  only  two  thousand  dollars  could 
be  recovered.  The  Master  has  fixed  the 
amount  already  paid  by  the  defendants,  at 
twenty-seven  hundred  and  twenty-eight  dol- 
lars, leaving  the  sum  of  four  thousand  two 
hundred  and  seventy-two  dollars  as  still  due, 
in  order  to  make  up  the  sum  of  seven  thou- 
sand dollars. 

It  is  ordered  and  decreed,  that  the  defend- 
ants pay  to  the  plaintiffs,  out  of  the  trust 
estate,  the  sum  of  four  thousand  two  hun- 
dred and  seventy-two  dollars,  together  with 
the  costs  of  these  proceedings;  and  that  the 
decree  of  the  circuit  Court  be  modified  ac- 
cordingly. In  all  other  respects  the  decree 
is  aflirmed. 

JOHNSTON,   DARGAN  and  WARDLAW, 
CO.,  concurred. 
Decree  modified. 


3   Rich.  Eq.  *235 

*ISAAC  TELFAIR,  Executor  of  Ann  Timothy, 
Deceased,   v.   M.   L.   HOWE  et  al. 

(Charleston.     Jan.  Term,  1851.) 

[Wills  (©==>863.] 

Testatrix  bequeathed  as  follows: — "I  direct 
my   executors    to    pay    over    the    residue    of    my       ^ 
estate,"    &c.    "to    the    American    Bible    Society 
of  New  York,  and  to  the  American  Missionary 


96 


«g=5For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


TELFAIR  V.  HOWE 


•237 


Society  of  New  Yoik,  to  wlioiii  I  Ifiivc  .ii-  ln'- 
queath  it:"  the  Ainericnii  ISihlc  Sutiity  of  New- 
fork  was  a  hixly  corpKriitf ;  and  no  such  So- 
ciety as  the  American  Missionary  Society  was 
in  existence  or  ever  iiatl  an  existence:  Held, 
that  the  American  Rilile  Society  was  not  enti- 
tled to  the  whole  of  the  residue:  and  that,  as 
to  the  moiety  intendeil  to  lie  het|iieatlied  to  tlie 
American  Missionary  Society,  tiie  testatrix  had 
died  intestate,  and  the  same  was  distributaliie 
amou?  her  next  of  kin. 

[Ed.  Note.— For  otlier  cases,  see  Wills,  Cent. 
Dii.'.  S  I'lsT:    Dec.  Dig.  <s=>.s(j:5.| 

[Wills  C=f'iiT.l 

If  the  American  Bible  Society  of  New  York 
and  the  American  Missionary  Society  of  New 
York  were  both  in  existence,  and  were  capable 
of  takinir  an  estate  in  joint-tenancy,  by  a  prop- 
er construction  of  the  terms  of  the  bequest. — 
regard  being  had  to  the  dilTerent  objects  of  the 
two  societies, — no  such  estate  was  intended  to 
be  created. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  S§  l-ir)l'-14r)!);    Dec.  Dig.  <5=:»()-J7.] 

[Corporations  <©=4.*i4.] 

A  corporatitin  cannot  take  an  estate  in  joint 
tenancy,  either  jointly  with  another  corporation, 
or  with  a  natural  person. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent.  Dig.  §  1770;    Dec.  Dig.  <g=>434.1 

Before  Duukin,  Ch.,  at  Charleston.  June, 
1S50. 

Dunkin,  Ch.  By  the  2oth  clause  of  Mrs. 
Ann  Timothy's  will,  it  is  provided  as  follows, 
viz.: — "I  direct  my  executors  to  pay  over  the 
residue  of  my  estate,  or  bonds,  or  money,  to 
the  American  Bible  Society  of  New  Y'ork, 
and  to  the  Missionary  Society  of  New  Yoi'k, 
to  whom  I  leave  or  beciueath  it." 

The  Master  has  reported  that  no  such  so- 
ciety is  in  existence,  as  the  Missionary  So- 
ciety of  New  York. 

TTie  question  is  presented,  wlu'ther  the 
American  Bible  Society  of  New  York  are  en- 
titled to  the  whole  of  the  be(iuest,  or  whether 
a  moiety  is  not  distributable  anioni;  the  next 
kin  of  the  testatrix. 

The  testatrix  seems,  in  former  clauses  of 
her  will,  to  have  dispo.sed  of  the  whole  of 
her  real  estate,  and  from  this  circumstance, 
as  well  as  from  the  terms  of  the  jiift.  it  is 
very  clear  that  the  beciuest  was  intended  to 
apply  only  to  personalty. 

In  cases  of  joint  teinuicy,  the  jj;eneral  rule 
is,  that  if  the  devise  fail  as  to  one  of  the 
devisees,  from  its  being  orij^iiuUly  void,  or 
subsequently    revoked,   or   by    reason   of   the 

*236 
decease  of  the  *devisee  in  the  testator's  life- 
time, the  other,  or  others,  will  take  the  whole. 
But  the  rule  is  different  as  to  tenants  in 
common,  whose  .shares,  in  ca.se  of  the  failure 
or  revocation  of  the  devise  to  any  of  them, 
descend  to  the  heir  at  law.  (2  Jarnian  on 
Wills,  1()7).  The  rule  is  equally  ai)plicable  to 
bequests  of  chattels,  to  money  legacies,  and 
residuary  betpiests,  as  to  a  devise  of  real 
estate,  (Id.  151b.  But  even  in  case  of  devises 
to  individuals,  the  Courts  have  maiufested  a 
strong  (lispt)sitiou  to  give  such  construction 
to  the  devise  as  would  create  a  tenancv  in 


coMiniun;  and  "this  anxiety  (say  the  au- 
thorities) has  been  dictated  by  the  conviction 
that  this  .species  of  interest  is  l)etter  a<lai)tiHl 
to  answer  the  exigencies  of  families  than  a 
joint  tenancy."  Any  expressions  importing 
divisio!!  oi  referring  to  dovisei's  as  owners 
of  distinct  interests,  or  simply  denoting  i*qual- 
ity,  will  have  this  cffeit.  In  Marryat  v. 
Townly,  (1  Ves.  sen.  10:5.)  Lord  Ilanlwicke 
says:  "It  happens  luckily  to  assist  the  ('..urt. 
that  the  drawer  of  the  will  has  inserted  di- 
rections for  the  trustees  to  convey,  and 
wherever  there  are  such  directions  for  the 
trustees  in  whom  the  legal  estate  is  vested, 
the  Court  has  held  it  in  its  power  to  mould 
it  .so  as  best  to  answer  the  intent  of  the 
testator."  If  there  were  no  more  in  the 
case  under  consideration,  the  Court  might  be 
well  warranted  in  the  conclusion  from  the 
character  of  the  donees,  that  when  the  tes- 
tatrix directed  her  executors  to  l»ay  over  the 
residue  of  her  estate,  or  bonds,  or  money,  to 
the  American  Bible  Society,  and  the  New 
York  Missionary  Society,  she  intended  the 
amount  to  be  paid  to  them  in  equal  propor- 
tions, for  the  purposes  of  their  respective  in- 
stitutions, and  that  it  was,  therefore,  a  ten- 
ancy in  common. 

But  I  do  not  find  that  this  doctrine  has 
ever  been  applied  to  corporations.  Littleton 
says  "if  lands  be  given  to  two  men.  and  to 
the  heirs  of  their  two  bodies  begotten,  the 
donees  have  a  joint  estate,  &c. ;  but  if  lands 
be  given  to  two  Abbots,  as  to  the  Abbot  of 
NVestminster,  and  to  the  Abbot  of  St.  Al- 
bans, to  have  and  to  hold,  to  them  and  their 
successors,  in  this  case  they  have  presently 
at  the  beginning,  an  estate  in  connuon,  and 
not  a  joint  estate.     And  the  reason  is,  that 

♦237 

every  Abbot,  before  that  *he  was  made  Abbot, 
was  but  as  a  dead  person  in  law,  and  when  he 
is  made  Abbot,  he  is  as  a  man  personable 
in  law  only  to  purchase  and  have  lands,  or 
tenements,  or  other  things,  to  the  use  of  his 
house,  and  not  to  his  own  proper  use.  as  an- 
other secular  man  nuiy,  and,  therefore,  at 
the  begiiming  of  their  purchase,  they  are 
tenants  in  connnon :  and  if  one  of  them  die, 
the  Abbot  which  .surviveth  shall  not  have  the 
whole  by  survivor,  but  the  successor  of  the 
Abbot  which  is  dead  shall  hold  the  moiety  in 
common  with  the  Abbot  that  surviveth,"  &c. 
Co.  Lit.  Lib.  ;j,  cap.  4,  sect.  L'9G. 

In  the  Commentary,  Lord  Coke  says, — "In 
this  case  of  the  two  Abbots,  in  respect  to 
their  several  capacities,  albeit  the  words  be 
joint,  yet  the  law  ditth  adjudge  them  to  be 
.severally  seized."  And  the  &c.  of  Littleton 
implies  (he  says)  that  the  doctrine  is  equally 
applicable  to  every  body,  politic  or  corporate, 
whether  regular  or  secular.  They  take  in 
their  politic  capacity,  and  are  tenants  in  com- 
mon, because  they  are  seized  in  several 
rights,  &c.     And  so  is  the  rule,  if  lands  are 


®=)For  other  cases  see  same  topic  and  KEY-NUMUEK  In  all  Key-Numbered  Digests  and  Indexes 
3  Bicu.Eq.-7  W 


*237 


3  RICHARDSON'S  EQUITY  REPORTS 


given  to  an  Abbot  and  a  secular  man,  they 
have  an  estate  in  common  causa  qua  supra. 

In  Mr.  Hargrave's  note  on  these  sections, 
he  remarlis,  "Here  joint  words  are  construed 
to  make  several  estates  in  respect  of  the 
several  capacities  of  the  donees.  In  a  for- 
mer part,  vesting  at  several  times,  makes 
joint  VFords  to  operate  severally." 

It  was  suggested  in  the  argument,  that 
these  rules  were  only  applicable  to  devises  of 
real  estate,  and  that  such  was  the  dictum  of 
Lord  Coke.  It  is  true.  Lord  Coke  says,  if 
goods  be  granted  to  a  bishop,  or  to  an  abbot 
and  a  secular  man,  they  are  joint  tenants, 
because  they  take  not  in  their  politic  capac- 
ity. But,  says  Mr.  Hargrave,  "in  a  former 
part,  Lord  Coke  explains  the  reason  of  this 
to  be,  that  no  chattel  can  go  in  succession  in 
the  case  of  a  sole  corporation,  no  more  than 
a  lease  for  years  to  one  and  his  heirs  can  go 
to  heirs,  but  there  are  exceptions  to  this 
rule,"  &c.  However  this  may  be,  it  is  very 
certain  that  the  legatees  in  this  case  can  take 
only  in  their  coi'porate  capacity,  and  fall 
directly  within  the  reasoning  of  Littleton's 
text. 

*23b 

*The  joint  words  used  in  this  bequest  must, 
therefore,  be  construed  to  make  several  es- 
tates, in  respect  of  the  several  capacities  of 
the  donees.  Generally,  a  lapsed  legacy  falls 
into  the  residuum,  but  here,  a  part  of  the 
residuum  itself  is  the  lapsed  legacy ;  in  such 
case,  as  was  held  in  Page  v.  Page,  (2  Stra. 
820,)  it  is  regarded  as  undisposed  of,  and 
must  go  to  the  next  of  kin  of  the  testatrix. 

It  is  declared  that  the  parties  who  are 
next  of  kin  of  the  testati'ix,  as  set  forth  and 
admitted  in  the  pleadings,  are  entitled  to  the 
moiety  of  the  residue  of  her  estate,  ineffect- 
ually bequeathed  to  the  New  York  Mission- 
ary Society. 

The  defendant,  the  American  Bible  Society 
of  New  York,  appealed  from  the  decree,  be- 
cause, it  is  respectfully  insisted,  the  Chan- 
cellor erred  in  so  construing  the  will  of  Mrs. 
Timothy,  as  to  declare  that  the  parties  who 
are  next  of  kin  of  the  said  testatrix,  are  en- 
titled to  the  moiety  of  the  residue  of  her  es- 
tate ineffectually  bequeathed  to  the  New 
York  Missionary  Society. 

[For  subsequent  opinion,  see  4  Rich.  Eq. 
254.] 

Memminger,  for  appellant. 
Porter,  contra. 

DARGAN,  Ch.,  delivered  the  opinion  of  the 
Court. 

The  question  made  in  this  appeal  arises 
under  the  25th  clause  of  Ann  Timothy's  will; 
which  is  in  these  words: — "I  direct  my  ex- 
ecutors to  pay  over  the  residue  of  my  estate, 
or  bonds,  or  money,  to  the  American  Bible 
Society  of  New  York,  and  to  the  American 
Missionary  Society  of  New  York,  to  whom  I 
leave  or  bequeath  it."  From  the  Master's 
report  it  appears,  that  no  such  society  exists, 

98 


as  the  American  Missionary  Society  of  New 
York:  and  it  has  not  been  shewn,  indeed  it 
is  admitted  that  no  such  society  ever  had  an 
existence.  On  the  part  of  the  Bible  Society 
it  is  contended,  that  the  clause  in  question 
creates  an  estate  in  joint  tenancy ;  and  that 
there  being  no  such  society  in  existence  as 
the  American  Missionary  Society  of  New 
York,  the  said  Bible  Society  is  entitled  to 
the  whole  legacy  given  in  that  clause  by 
virtue  of  the  jus  accrescendi.  The  circuit 
decree  negatives  the  construction,  which 
would   make    the    estate    given   in   the   25th 

*239 
*clause,  a  joint  tenancy,  and  from  the  cir- 
cuit decree  on  this  point,  an  appeal  has  been 
taken. 

The  estate  in  joint  tenancy  presents  some 
of  the  most  artificial  rules  of  subtle  distinc- 
tions of  the  ancient  common  law.  It  was 
once  highly  favored  in  England,  (Master  of 
the  Rolls  in  Morely  v.  Bird,  3  Ves.  630)  doubt- 
less for  reasons  that  were  feudal  in  their 
character,  and  influential  in  their  day ;  but 
which  have  long  since  ceased  to  operate. 
For  whatever  may  have  been  the  causes 
which  led  to  the  origin  of  this  estate,  or 
which  recommended  it  to  our  rude  and  war- 
like ancestors  of  the  feudal  period,  it  is  un- 
deniable that,  at  this  day,  it  has  grown  into 
disfavor  in  English  and  American  Courts : 
more  especially  in  Courts  of  Equity. 

The  learned  Judge  in  the  case  already  cit- 
ed, says  that  "the  ancient  law  on  this  sub- 
ject still  prevails.  And  unless  there  are 
words  to  sever  the  interest  taken,  it  is  at 
this  moment  a  joint  tenancy,  notwithstand- 
ing the  leaning  of  the  Courts  lately  in  favor 
of  a  tenancy  in  common.  A  legacy  of  a 
specific  chattel,  a  grant  of  an  estate,  is  a 
joint  tenancy.  It  is  true,  the  Courts,  seeing 
the  inconvenience  of  that,  have  been  desirous, 
wherever  they  could  find  any  intention  of 
severance,  to  avail  themselves  of  it :  and 
their  successive  determinations  have  laid 
hold  of  any  words  for  that  purpose." 

Many  distinctions  prevail  in  the  Court  of 
Equity,  in  reference  to  this  estate,  that  are 
not  recognized  at  law.  Thus,  where  two 
or  more  persons  are  engaged  jointly  in  trade, 
and  have  debts  due  to  them  as  partners, 
though  at  law  they  are  joint  tenants,  and, 
on  the  death  of  one  of  them,  the  legal  estate, 
at  law,  vests  in  the  survivors — in  equity  the 
right  of  survivorship  is  not  allowed,  and  the 
survivors  are  obliged  to  account  to  the  repre- 
sentatives of  the  deceased  partner :  or,  if 
two  persons  purchase  real  estate  jointly  with 
the  view  of  carrying  on  trade,  it  is  in  equity 
a  case,  not  of  joint  tenancy,  but  of  tenancy 
in  common.  Lake  v.  Craddock,  (3  P.  Wms. 
158).  And,  if  money  is  laid  out  jointly  upon 
an  estate  held  in  joint  tenancy,  with  a  view 

*240 
to  *its  improvement,  that,  in  this  Court,  is  a 
severance,  Lyster  v.  Dolland,  (1  Ves.  Jr.  434). 

The  common  law  institutions  of  property 


TEMWIR  V.  HOWE 


liavf  undergone  many  mutations  in  tlie  |>ri)g- 
jvss  of  jijres.     Some  of  its  liaislu'i-  ami  most 
iiicoiivi'nieiit    rules    have   been    aiiolislu'd    l»y 
tilt'  Lt'inslative  power:    and  others  liave  been 
;:radually    and    insensiidy    niodilied    by    the 
<<iurs.'  of  judicial  deeisi<iiis,  and  moulde«l  so 
as  h»'tter  to  confonn  to  the  convenience  and 
sentiments    of    modern    society.     The    most 
prondncnt.  and  I   may  say  tlie  most  odious 
feature  or  incident  of  this  estate  (the  riglit 
of  survivorslupl   which    in   almost   every    in- 
stance defeats  the  intentit)n  of  the  testator, 
was   abolislied   by   our    Act   of   Assemidy   of 
171H.     The  Act  did  not  aliolish  joint  tenancy 
itself,  but  only  this  feature  of  the  estate.     It 
laovided,  in  sulistance.  that  wliere  two  or  more 
liersons  are  .seized  or  possessed  of  real  or  per- 
sonal estate  in  joint  tenancy,  and  one  of  tliem 
dies,  the  right  of  survivorsliip  should  nc^t  l)e 
allowed,  but  the  sliare  or  interest  of  the  de- 
ceased joint  tenant  should  go  to  liis  heirs  at 
law  or  legal   reiu-esentatives.     This  left   tiie 
rules  of  the  common  law  in  force  where  the 
deceased  tenant  for  life  had  not  iu-en  seized 
(»r  po.^sessed  in  his  lifetime.    In  llerbemont  v. 
Thomas.  (Cliev.  Eq.  21,)  the  question  turned 
upon   the  construction  of  the  words  "seized 
or  posses.sed,"  which  occur  in  the  Act.     The 
testatrix  had  given  a  legacy  to  six  i)ersons 
(lier  lueces)  in  words  which,  at  conunon  law, 
would   have  constituted   them   joint   tenants. 
It    liappened  that  some  of  the  legatees  had 
died    in   the   lifetime  of  the   testatrix:    and 
tlie  question  was,  whether  the  survivors  toolc 
tile  whole  legacy  by  virtue  of  tlie  jus  accres- 
<»'ndi,  or  whether  the  shares  of  the  decea.sed 
joint    legatees    lapsed    under    the    provisions 
of  the  Act  of  1791  into  the  residuary  estate. 
It  was  clear,  that  at  common  law,  where  a 
devise   or  bequest   is  given   to   two   in  joint 
tenancy,  and  the  devise  or  beipiest  fail  as  to 
one,  from  its  ijeing  originally  void,  or  from 
its   being   revoked   by   the   testator,   or  from 
t  lie  death  of  one  of  the  devisees  or  legatees 
in  the  testator's  life,  the  right  of  survivor- 1 
ship  exists,  and  the  survivor  takes  the  whole  j 
♦241  I 

as  joint  tenant.     *The  decision  of  the  Court  I 
was  that,  as  the  will  was  ambulatory  until  i 
the  testatrix's  deatli,  and   no   riglit   or  title 
could   vest    in   the  legatees  until   that   event 
had  occurred,   they  could   not   l)e  considered 
as  having  been  "po.ssessed"  of  any  estate  un- 
der the^will,  and  the  ca.se  liy  a  fair  interpre- 
tation of  tlie  Act,  could  not  lie  regarded  as 
embraced    witliin    its    provisions.     This    de- 
cision has  recently  been   followed  by  that  in 
Ball  V.   Deas.   (L'  Strob.  Eq.  i'4   140  Am.   De.-.  ! 
6511),  where  the  same  construction  itri'vailed.  | 
Tlie    Act    may,    therefore,    be    considered    as 
having   received   a   settled    interpretation    in 
this  particular.     The  Act  of  17!tl.  therefore, 
does  not  conflict  with  the  claims  advanced  l)y 
the  appellants. 

I  have  before  adverted  to  the  tendency,  or 
leaning,  (as  the  phrase  is)  of  courts  in  mod- 
ern times,— particularly  Courts  of  Equity,— 


to  avail  themselve.*?  of  any  strong  equitable 
circumstances,  or  of  any  words  employed  by 
the  testator  in  his  will,  that  wouhl  imply  a 
.severance,  to  give  such  a  construction,  as 
would  make  the  estate  a  tenancy  in  common, 
and  not  a  joint  tenancy.  It  is  always  a 
(piestion  of  construction,  and  the  oltject  is  to 
get  at  tile  intention  of  tlie  testator;  whicli 
must,  liowever,  l)e  done  in  conformity  witli 
established  rules  of  interpretation.  The 
riglit  of  survivorsliip.  as  I  have  said,  in  al- 
most every  instance  defeats  the  intention, 
and  if  the  Court  can  i)erceive.  either  in  the 
words  or  implication  of  tlie  will,  an  inten- 
tion not  to  create  a  joint  tenancy,  it  will 
carry  that  intention  into  etfect.  Thus,  in 
Marryat  v.  Townly,  (1  ^'es.  .sen.  10:J,  cited  in 
the  circuit  decreet.  Lord  Hardwicke.  in  con- 
struing an  estate  a  tenancy  in  common,  and 
not  a  joint  tenancy,  laid  great  stress  upon 
the  directions  of  the  testator,  that  the  trus- 
tees, in  whom  the  legal  estate  was  vested, 
should  convey  it  to  the  devisees. — "Wher- 
ever," says  his  Lordship,  "there  are  sucli  di- 
rections for  the  trustees,  in  whom  tlie  legal 
estate  is  vested,  the  Court  has  held  it  in  its 
power,  to  mould  it  .so  as  i>est  to  answer  that 
intent  of  the  testator." 

We  will  suppose  tlie  American  .Missionary 
Society  of  New  York  to  have  had  an  exist- 

*242 
enee.  This  testatrix  lielieved  so,  *when  she 
executed  her  will.  When  she,  by  the  25th 
clause,  directed  her  executors  to  pay  over 
the  residue  of  her  estate.  &c.  to  the  American 
Bible  Society  of  New  York,  and  to  the  Amer- 
ican Missionary  Society  of  New  York,  did 
she  mean  that  they  should  pay  it  over  to  the 
two  societies  on  their  joint  receipt  and  dis- 
charge':^ Or  would  the  receii»t  of  one,  liave 
been  a  discharge  as  against  the  claims  of  the 
other?  I  do  not  think  the  testatrix  could 
have  .so  intended.  In  what  resi)ect  are  di- 
rections for  the  executors  to  pay  over,  dilfer- 
ent,  in  their  effect,  upon  the  construction, 
from  directions  for  trustees  to  convey'.'  In 
the  latter  ease,  we  have  seen  Ixird  Hardwicke 
holding,  that  such  instructions  entitle  the 
Court  to  mould  the  construction  "so  as  best 
to  answer  the  intent  of  the  testator." 

Tlie  objects  of  tlie  American  I5ii)le  Society 
of  New  York,  and  of  tlie  American  Mission^ 
ary  Society  of  New  York,  (suiqiosing  the  lat- 
ter to  have  existed.)  were  entirely  diflerent. 
The  purpose  of  one  was  the  disfribufioii  of 
Bibles:  that  of  the  other  was  the  promotion 
of  Missions.  They  could  not  co-operate  in 
file  same  field  of  lal>or,  and  the  .same  work 
of  Christian  and  benevolent  enteri»rize  by 
the  pos.session  of  a  joint  fund  without  a  sev- 
erance or  division:  or  without  departing 
from  file  objects  of  their  organization.  The 
testatrix  must  be  considered  as  imidying  in 
her  donation,  that  which  would  have  been 
the  immediate  and  inevital)le  result,  if  the 
fund  could  or  had  come  into  the  joint  pos- 
session of  the  two  societies:   namely,  a  divi- 

89 


*242 


3  RICHARDSON'S  EQUITY  REPORTS 


sion  or  separation  of  their  interests.  In  no 
otlier  way  could  the  fund  have  been  dedicated 
to  the  use  which  the  testatrix  designated: 
and  she  ought  to  he  considered  as  having 
intended  a  division  in  the  first  instance. 
Such  would  be  my  conclusion,  if  the  two  so- 
cieties to  whom  the  testatrix  bequeathed  the 
residuum  of  her  estate,  had  been,  by  the  com- 
mon law,  entitled  to  take,  as  natural  persons 
are  entitled  to  take  in  joint  tenancy. 

But  there  is  another  insuperable  impedi- 
ment in  the  way  of  law  and  authority  to  the 
success  of  this  appeal.  The  Bible  Society  of 
New  York  is  a  corporate  body.     It  is  clear 

*243 

that,  by  the  *principles  of  the  common  law, 
none  but  natural  persons  can  take  in  joint 
tenancy.  A  corporation  cannot  take  this  es- 
tate, either  jointly  with  another  corporation, 
or  with  a  natural  person.  The  reason  as- 
signed in  the  early  writers  is,  that  they  hold 
in  different  capacities  and  in  different  rights. 
Lord  Coke,  in  his  commentary  upon  the  pas- 
sage quoted  in  the  circuit  decree  from  Little- 
ton, gives,  very  clearly,  his  views  as  to  the 
reasons  which  gave  rise  to  the  distinction 
between  natural  persons  and  corixtrate  bodies 
in  this  particular.  He  says — "The  &c.  in  the 
end  of  this  section  implieth,  that  so  it  is,  if 
any  body  politic  or  corporate,  be  they  regular 
as  dead  persons  in  law  (whereof  our  author 
here  speaketh)  or  secular:  as  if  lands  be 
given  to  two  bishops,  to  have  and  to  hold 
to  them  two  and  their  successors :  albeit 
the  bishops  were  never  any  dead  persons  in 
law,  but  always  of  capacity  to  take,  yet  see- 
ing that  they  take  this  purchase  in  their 
politic  capacity,  as  bishops,  they  are  present- 
ly tenants  in  common,  because  they  are  seized 
in  several  rights :  for  the  one  bishop  is  seized 
in  the  right  of  his  bishoprick  of  the  one  moie- 
ty, and  the  other  is  seized  in  the  right  of  his 
bishoprick  of  the  other  moiety,  and  so  by 
several  titles  and  in  several  capacities : 
whereas  joint  tenants  ought  to  have  it  in 
one  and  the  same  right  and  capacitj',  and 
by  one  and  the  same  joint  title."  (Co.  Litt. 
Lib.  3,  cap.  4,  sect.  296).  Authorities  to  this 
effect  might  be  multiplied  to  a  great  extent; 
I  cite  some  of  them.  2  Saund.  319;  Justice 
Windham's  Case,  5  Co.  8a ;  2  Cru.  Dig.  491 ; 
Finch,  83;  Willion  v.  Berkeley,  Plow.  239. 
A  modern  writer  (2  Crabb  on  Real  Prop.  § 
2311,  m.  p.  945)  says,  the  Queen  cannot  hold 
an  estate  in  joint  tenancy.  She  is  not  seized 
in  her  natural  capacity,  but  in  her  royal  and 
politic  capacity,  in  jure  coronte,  which  can- 
not stand  in  jointure  with  the  seizen  of  the 
subject  in  his  natural  capacity.  He  asserts 
the  same  doctrine  in  regard  to  all  corporate 
bodies.  I  doubt  very  much,  if  a  single  case, 
either  English  or  American,  can  be  adduced, 
where  a  corporation  or  body  politic  has  been 
held  to  be  seized  or  possessed  of  an  estate 
in  joint  tenancy. 


*244 
*lt  is  ordered  and  decreed  that  the  appeal 
be  dismissed,  and  the  circuit  decree  rendered 
on  the  hearing  at  June  Term,  IsSO,  be  af- 
firmed. 

JOHNSTON,    DUNIvIN    and   WARDLAW, 

CC.  concurred. 
Appeal  dismissed. 


3    Rich.  Eq.  244 

F.  CROSSBY  and  Others  v.  ABRAM  SMITH 

and   Others. 

(Charleston.     Jan.  Term,  1851.) 

[Descent  and  Distribution  <S==>4S.] 

Testator  bequeathed  the  whole  of  his  per- 
sonal estate  to  his  wife  for  life,  the  same  "to 
be  equally  divided,  at  my  wife's  decease,  among 
all  my  children:"  "one  reserve  I  wish  my  ex- 
ecutors to  enforce ;  that  is,  if  either  of  my  law- 
ful heirs  should  die,  leaving  issue  behind  them, 
before  a  distribution  should  take  place,  as  I 
have  before  mentioned,  for  their  issue  or  heirs 
not  to  come  in  for  their  parent's  share  of  my 
property:"  testator  left  eight  children,  three  of 
whom  died  before  the  tenant  for  life,  leaving 
issue.  Held,  that  the  issue  of  the  three  deceas- 
ed children  were  not  excluded  by  the  terms  of 
the  will,  but  that  they  were  entitled  to  the 
shares  their  parents  would  have  taken  had  they 
survived   the   tenant  for  life. 

[Ed.  Note.— Cited  in  Tindal  v.  Neal,  59  S.  C. 
14,  36  8.  E.  1004. 

For  other  cases,  see  Descent  and  Distribution, 
Cent.  Dig.   §  131;    Dec.  Dig.   <©=^4S.] 

[Descent  and  Distribution  <®=:348.] 

A  man  may  dispose  of  his  property  by  will 
as  he  pleases ;  but  if  he  makes  no  disposition  of 
the  property,  he  cannot  exclude  those,  whom 
the  law  appoints  to  the  succession,  by  a  mere 
declaration  that  they  shall  not  take. 

[Ed.  Note.— Cited  in  Seabrook  v.  SeabrooK,  10 
Rich.  Eq.  505,  513;  Beaty  v.  Richardson,  56 
S.  C.  188,  34  S.  E.  73,  46  L.  R.  A.  517. 

For  other  cases,  see  Descent  and  Distribution, 
Cent.  Dig.  §  131 ;    Dec.  Dig.  <S=::548.] 

Before  Johnston,  Ch.,  at  Beaufort,  Febru- 
ary, 1850. 

The  decree  of  his  Honor,  the  circuit  Chan- 
cellor, is  as  follows. 

Johnston,  Ch.  This  is  a  very  perplexing 
case,  and  arises  out  of  circumstances,  whose 
original  obscurity  has  been  greatly  increased 
by  the  lapse  of  time. 

Samuel  Smith,  the  common  ancestor  of 
the  litigating  parties,  died  in  the  latter  part 
of  1815,  leaving  a  will,  executed  by  him  the 
15th  of  September  of  that  year,  to  which  I 
shall  hereafter  advert,  and  leaving  a  widow, 
Sarah,  and  eight  children,  to  wit:  five  sons, 
Abram,  James,  Charles,  William  and  Ben- 
jamin ;  and  three  daughters,  Nancy  Mew, 
(a  widow)  Elizabeth,  who  intermarried  with 
one  Buler,  and  Mary,  now  wife  of  Dr.  Du- 
pont. 

*245 

*The  testator  was,  at  his  death,  possessed 
of  a  tract  of  land,  containing  about  one  thou- 
sand acres,  and  of  about  sixteen  slaves,  be- 
sides cattle  and  other  personalty. 


100 


@=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


CROSSBY  V.  SMITH 


*-24- 


His  will,  whidi  was  attested  by  only  two 
witnesses,  and  was,  therefore,  insiiHicient 
as  to  the  land,  was  in  the  sinj^ular  terms 
foUowin.!^: 

"First.  I  give  and  bequeath  unto  my  bo- 
loved  wife,  Sarah  Smith,  all  my  property, 
both  real  and  personal,  and  stock  of  every 
description,  which  I  was  possessed  of  at  my 
decease,  during  her  natural  life. 

"Secdudly.  I  give  and  bequeath  unto  my 
two  youngest  sons,  Charles  and  .Tames,  one 
negro  girl,  by  the  name  of  Clarista,  her  and 
her  increase. 

•'Tliirdly.  I  give  and  beiiueath  unto  my 
three  sons,  Benjamin,  Charles  and  James,  the 
plantation  and  tract  of  land,  whereon  I  did 
reside,  for  to  be  e<iually  divided  among  the 
three;  and  the  remaining  part  of  my  proper- 
ty to  be  equally  divided,  at  my  wife's  decease, 
among  all  my  children:  ex<epting  that  I  do 
reserve  out  of  the  last  mentioned  property, 
fifty  dollars  to  my  daughter,  Klizabeth,  and 
fifty  dollars  unto  my  daughter,  Mary,  as 
an  equivalent  for  their  not  having  had  any 
land  given  them,  over  and  above  the  others ; 
on  account  of  the  others  having  land  given 
to  them,  as  William,  Nancy,  and  Abram  had. 

"It  is  my  will  and  desire,  that  all  the  prop- 
erty be  kept  together,  during  my  wife's  life- 
time ;  (if  her  death  take  place  before  my 
youngest  son,  James,  should  arrive  at  the  age 
of  eighteen  years,  it  is  my  will,  that  it  should 
be  kept  together,  until  he  arrives  at  that 
age) ;  and  then,  the  distribution  to  take  place, 
as  before  mentioned. 

"One  reserve  I  wish  my  executors  to  en- 
force: that  is,  if  either  of  my  lawful  heirs 
siiould  die,  leaving  issue  behind  them,  before 
a  distribution  should  take  place,  as  I  have 
before  mentioned,  for  their  issue  or  heirs 
not  to  come  in  for  their  parent's  share  of 
my  property. 

"I  do  appoint  my  wife,  my  son,   William, 
Abram  Smith's  my  true  and  lawful  executors 
to  carry  my  said  will  into  full  execution,  ac- 
cording to  my  will  and  desire." 
♦246 

♦The  will  was  admitted  to  probate  the  2d 
of  October,  1815,  and  William  Smith  iiualitied 
as  executor.  Sarah  Smith  qualified  as  ex- 
ecutrix, the  27th  of  November  following,  and 
took  iiossession  of  the  property,  and  continu- 
ed in  the  possession  of  it  until  sometime  in 
1831,  In  that  year,  all  the  children  of  the 
testator  being  alive  and  of  full  age,  a  divi- 
sion was  made  of  the  negroes;  thougli  Sarah 
Smith,  the  widow,  who  was  entitled  to  a 
life  estate  in  them,  was  still  alive.  It  was 
made  by  consent  of  all  parties,  though  the 
terms  of  it  are,  as  might  very  well  be  ex- 
pected from  the  lapse  of  time,  and  the  death 
of  witnesses,  quite  obscure.  It  ajipears, 
however,  that  Clarista  and  her  children  were 
first  set  aside,  and  dividiMl  by  the  two  sons, 
Charles  and  James,  lift  ween  themselves, 
Then  the  grown  slaves,  Stephen,  Hose,  and 
Nelly,   were  set   aside,  and  retained  by  the 


widow.  The  rest  were  appraised  by  three 
persons,  chosen  for  that  purpose,  and  divided, 
with  reference  to  their  value,  among  the  eiglit 
children  of  the  testator. 

The  widow  remained  in  the  possession  of 
the  land,  and  the  three  negroes:  who  In- 
creased l»efore  her  death  to  thirteen.  On  the 
11th  of  Septend)er,  1.S44.  she  executed  a  vol- 
untary deed,  by  which  she  conveyed  Rachel, 
one  of  this  stock,  with  her  future  increase,  to 
(ieorge  H.  Smith,  a  sou  of  her  son,  William, 
in  trust,  to  perndt  her  to  have  the  use  and 
protits  of  the  property  during  her  life,  with 
an  absolute  reversion  of  it  t<j  himself  uptm 
her  death.  With  this  exception,  she  remain- 
ed in  pt)ssession  of  the  slaves,  retainetl  by  her 
in  the  division  of  18.'J1,  with  their  increase, 
until  the  2d  of  Augu.st,  184S.  when  she  died 
intestate. 

At  the  time  of  her  death,  all  her  children, 
who  were  also  the  children  of  the  te.-<tator, 
were  alive,  except  three  of  her  sons.  Charles. 
Benjamin  and  William,  who  predeceased 
her: — the  first  leaving  five,  and  each  of  the 
other  two,  leaving  six  children. 

Immediately  before  the  death  of  the  widow. 
Abram  Snnth,  who  had  hitherto  neglected  to 
qualify  under  his  ai)pointment.  as  one  of 
his  father's -executors,  came  from  Alabama, 
where  he  resided,  ancl  on  tiie  10th  of  July, 
1848,  (the  mouth  preceding  his  mother's 
death)   qualified,  and  obtained  letters  te«<ta- 

*247 
inentary:  *and,  upon  his  mother's  death  as- 
sumed control  of  the  thirteen  negroes  in  her 
possession  at  her  decease,  claiming  them  as 
parcel  of  his  father's  estate,  and  divisible 
under  his  will  among  his  then  surviving 
children,  in  exclusion  of  the  issue  of  Charles. 
William  and  Benjamin,  the  three  sons  who 
died  during  the  life  of  the  widow  and  life- 
tenant. 

James  Smith,  the  other  surviving  son  of 
the  testator,  took  out  letters  of  administra- 
tion on  his  mother's  estate,  but  represented 
the  negroes  as  no  part  of  it;  and  gave  bond 
corresponding  only  to  some  inconsiderable 
articles  of  property,  which  he  regarded  as 
constituting  the  whole  estate. 

In  this  state  of  affairs,  the  children  of  the 
deceased  sons,  Ciiarles,  William  and  Benja- 
nun,  filed  this  bill  against  the  surviving  chil- 
dren of  the  testator. 

The  object  is,  to  be  let  into  a  share  of  the 
ttdrteeu  slaves,  with  their  increase,  and  also 
to  a  rateable  share  of  their  hire,  since  Abram 
Smith  interfered  witii  them;  and  to  have 
partition  of  the  lands. 

There  is  no  doubt  about  the  latter.  The 
will  was  not  sullicient  to  extend  to  it,  being 
attestetl  by  only  two  witne.sses.  The  land 
is,  therefore,  intestate  property,  and  the  par- 
ties may.  upon  application,  liave  a  writ  for 
the  partition  of  it.  Such  I  understood  to  be 
their  iniiiressiou  at  the  hearing,  and,  there- 
fore, nothing  was  said  in  argument  upon  the 
subject  of  the  realty. 

101 


*247 


3  RICHARDSON'S  EQUITY  REPORTS 


The  contest  related  exclusively  to  the  ne- 
groes. 

The  plamtiffs  in  this  bill  represent,  that 
the  division  of  1831  was  made  under  an  agi'eo- 
luent  of  the  following  character: — that  the 
children  were  to  take,  and  did  take,  the 
slaves  allotted  to  them,  absolutely,  and  in 
advance  of,  and  by  way  of  substitution  for, 
the  division  which  the  will  directed  to  be 
made  at  their  mother's  death ;  and  that,  in 
consideration  of  being  allowed  by  her  to  have 
this  anticipated  enjoyment  of  their  rights, 
they  agreed,  that  she  should  retain  the  three 
negroes,  left  in  her  hands,  as  her  absolute 
property  in  perpetuity.  If  this  was  so,  there 
is  no  doubt,  in  my  judgment,  that  the  chil- 
dren being  all  of  age  at  the  time,  were  com- 
petent to  make  such  a  stipulation:    and  the 

*248 
^consequence  must  be,  that  the  slave,  convey- 
ed to  George  H.  Smith,  was  well  conveyed,  and 
that  those,  remaining  in  Mrs.  Smith's  posses- 
sion, must  be  distributed  among  all  the  par- 
ties, as  part  of  her  intestate  estate. 

The  plaintiffs  further  contended  at  the 
hearing,  that,  even  if  the  slaves  retained 
by  Mrs.  Smith  did  not  become  her  absolute 
property,  but  remained  as  parcel  of  the  tes- 
tator's estate,  they,  as  issue  of  the  three  de- 
ceased sons,  were  not  effectually  excluded 
from  an  interest  in  them. 

All  of  the  defendants,  except  Dupont  and 
wife,  insist,  that  by  the  partition  of  1S;51,  the 
slaves  allotted  to  the  children  were  intended 
to  be,  and  were,  vested  in  them  absolutely ; 
but  that  those  retained  by  the  widow  were 
retained  by  her  for  life  only,  being  merely 
reserved  from  the  partition,  and  subject  to 
be  partitioned  at  her  death  under  the  will; 
which,  tiiey  further  contended,  excluded  the 
issue  of  pre-deceased  children  from  partici- 
pating in  them. 

Dupont  and  wife,  while  they  agree  that 
the  children  of  AYilliam,  Charles  and  Benja- 
min are  excluded  by  the  will,  and  the  interest 
in  the  property  confined  to  the  surviving 
children  of  the  testator,  deny  that  any  part 
of  the  property  divided  in  18.31,  was  intended 
to  vest  absolutely  in  any  of  the  parties,  (wid- 
ow or  children)  who  received  it ;  and  con- 
tend, that  all  the  property  was  to  be  brought 
back,  and  fully  and  effectually  divided  under 
the  will  upon  the  widow's  deatii. 

It  is  reasonable  to  suppose,  indeed  It  is 
stated  in  some  of  the  pleadings,  that,  in  con- 
sequence of  the  unequal  increase,  and  im- 
provement in  value,  of  the  slaves  received  by 
the  children,  it  may  now  be  to  the  advantage 
of  some  of  the  parties  to  have  a  re-partition 
of  them;  and,  hence  the  different  grounds 
assumed  by  the  defendants. 

I  shall  tlrst  dispose  of  the  construction  of 
the  testator's  will. 

Do  the  words  of  the  will  intend  to  exclude, 
and  do  they  effectually  exclude,  the  issue  of 
such  of  the  testator's  children  as  died  before 
the  expiration  of  his  wife's  life  estate? 
102 


I  was,  at  the  hearing,  possessed  of  some 
*249 
such  notion  as  this: — *that,  by  the  words  of 
the  will  preceding  this  very  extraordinai'y 
clause,  under  which  the  issue  are  supposed  to 
be  excluded,  a  life  estate  is  given  to  the  wid- 
ow, followed  by  a  plain  remainder  to  all  the 
children,  without  any  condition  or  contin- 
gency, and,  therefore,  importing  to  be  a  vest- 
ed remainder  in  all  of  them.  If  such  a  re- 
mainder had  been  created,  without  more,  the 
interest  in  it  must  have  attached,  upon  the 
death  of  the  testator,  in  all  the  children,  all  of 
whom  were  then  alive ;  and  upon  their  subse- 
quent death,  their  shares  would  have  passed 
by  operation  of  law  to  their  children,  as  an 
incident  of  the  property  given.  This  would 
certainly  have  been  the  result,  if  the  extraor- 
dinary clause  referred  to  had  not  been  subse- 
quently inserted  in  the  will.  The  question, 
then,  was  upon  the  effect  of  that  clause.  It 
does  not  (in  express  terms  at  least)  revoke 
the  shares  previously  given  to  the  children, 
or  any  of  them.  Nor  does  it  limit  the  shares 
of  any  of  them,  who  might  happen  to  die 
before  the  period  of  division  among  them,  to 
the  survivors.  But  leaving  their  interest."* 
precisely  in  the  condition  in  which  they 
were  placed  by  the  words  whicii  created 
them, — it  simply  declares  that  their  issue, 
whom  the  law  declares  entitled  to  their  prop- 
erty, upon  their  death,  shall  not  take  it. 

A  man  may  give  his  property  to  whom  he 
pleases ;  but  when  he  does  give  it,  he  has  no 
right  to  arrest  the  operation  of  the  la\\'  upon 
the  property  as  given.  A  man  may  dispose 
of  his  property  as  he  pleases ;  but  he  has  no 
right  to  say,  that  the  law  shall  not  operate, 
where,  and  so  far  as,  he  makes  no  disposi- 
tion. A  man  may  make  a  will,  if  he  pleases, 
or  let  it  alone ;  but  if  he  makes  one,  it  is  ac- 
tive, only  as  far  as  it  disposes  of  his  proper- 
ty: it  is  inoperative  where  it  attempts  a  re- 
peal of  the  law,  applicable  to  the  dispositions 
actually  made. 

If  a  testator  should  content  himself  with 
a  single  clause,  cutting  oft"  his  heirs,  (as  the 
phrase  is,)  and  declaring  that  none  of  his 
kin  should  have  any  of  the  property, — with- 
out declaring  to  whom  it  should  go — his  will 
would  be  simply  nugatory,  and  no  will.  Be- 
ing no  legislator,  his  attempt  to  repeal  the 
law  would  be  a  mere  usurpation,  and  only 
innocent,  because  ineft'ectual. 
*250 

*There  are  many  authorities  upon  this  sub- 
ject, if  authority  were  needed.  Some  of 
them  are  referred  to,  I  think,  in  Hall  v. 
Hall.  The  subject  is  also  slightly  considered 
in  the  first  report  of  Gordon  v.  Backman, 
where  the  testator,  to  fortify  an  attempted 
emancipation,  and  to  take  away  the  right  of 
the  next  of  kin  to  defeat  it,  cut  them  off  by 
his  will.  The  emancipation  was  judged  of 
by  the  direct  dispositions  relating  to  it ;  and 
the  next  of  kin,  notwithstanding  the  attempt 
to  exclude  them,  took  the  property. 


CRO.SSBY  V.  SMITH 


I!ut.  th<ni_'Ii  I  have  stniff^'ltMl  to  Mistiiin 
tlu'  idaiiititrss  claim,  I  am  afraid  I  slioultl 
lu'  ixn'iun  tun  far,  if  I  wt'iv  to  atnily  this  priii- 
••Iplc  to  this  will.  It  Is  iiiipossiiile  tn  say, 
that  the  testator  did  not  intend  to  exclude 
tlie  issue.  His  words,  thouiih  ohseure  and 
siniruiar  in  many  respeets,  are  eh-ar  enough 
upon  this  point.  The  intention  must  prevail, 
if  tlie  law  will  alhnv  it:  and  the  eonstrue- 
tion  must  be  upon  the  wh<»Ie  will,  taken  in 
at  one  view  ;  and  n(»t  upon  its  parts  eonsider- 
ed  separately.  Taking;  the  clause  referred  to, 
in  connexion  with  the  preccdin;;  dispositions, 
I  am  reluctantly  comiieiled  to  admit  (hut  not 
witliout  some  hesitation)  that  the  better  con- 
struction of  the  whole  is,  that  the  cliildren, 
intended  in  the  prior  clauses,  were  children 
who  should  survive  the  wife. 

Then,  it  becomes  necessjiry  to  consider  tlie 
•  haracter  of  the  division  made  in  1>S.'51. 

What  was  the  intention  of  the  parties? 
Was  it  their  intention  to  take  any  portion  of 
the  slaves  divided  on  that  ocaision— either 
that  allotted  to  tlie  children,  or  that  retain- 
ed by  the  widow;  and  if  so,  which  of  tliese 
portions, — out  of  the  oi)eration  tif  the  testa- 
mentary clause,  by  which  it  was  subject  to 
division   at   the  widow's  death? 

In  the  obscurity  of  the  testimony,  as  to 
what  was  expressly  ajji-eed  upon,  it  may  be 
useful  to  look,  in  the  first  place,  to  the  condi- 
tion of  the  parties  and  of  the  i)ropcrty  at  the 
time,  as  represented  by  the  witnesses. 

It  is  said  that  the  widow  was  ninety  years 
old,  or  upwards,  in  IMS.  when  she  died.'  She 

*251 
must,  therefore,  have  lieen  over  *seventy, 
when  this  division  of  IS'Al  was  made.  It  ap- 
pears that  most  of  the  nej;roes  were  youufr, 
many  of  them  incapable  of  laboring,  and  that 
liie  few,  who  by  age  were  capable,  eitlier 
•  •ould  not,  or  for  want  of  a  l)etter  control 
than  their  aged  mistress  was  aide  to  exert, 
would  not,  make  crops  adequate  to  the  sup- 
port of  themselves  and  the  young  n«\groes. 

It  Is  natural  to  suppose  that,  under  these 
circumstances,  she  should  desire  to  1h>  reliev- 
ed of  the  supernumerary  and  unproductive 
slaves,  and  to  retain  the  others— thus  in- 
<  reasing  their  efficiency  towards  her  own  sup- 
port. 

Her  children  are  represejited  to  have  been 
in  circumstances,  which,  though  perhaps  not 
strictly  needy,  were  far  from  warranting 
them  In  taking  the  young  negroes,  and  as- 
smuing  the  expense  of  rearing  them,  unless 
they  received  them  as  their  own  property. 

The  division  was  effected  (except  as  to 
Clari.sta— wlio,  by-the-bye,  had  two  children, 
at  least,  as  clogs  upon  her,)  by  leaving  the 
uiost  efficient,  and  probaI>ly  most  reliable,  ne- 
groes, in  the  lumds  of  their  aged  unstress — 
:is  was  .said  by  some  of  the  parties,  "for  her 
support:"— while  the  young  and  inefficient 
and  expensive  class  were  appraised,  and  di- 
vided among  the  children. 
Not  a  witness  is  able  to  recollect  any  ex- 


1  ftress  agreement  among  the  parties:  and  this 
observation  applies  as  well  to  the  only  one 
of  the  tliree  appraisers  now  living,  as  to  the 
rest  of  the  witnesses  examined. 

At  this  distance  of  time,  what  are  we  to 
make  of  this? 

Are  we  to  suppose  that  the  children  took, 
or  would  have  taken,  the  \oung  negroes,  and 
incurred  the  expense  and  trouble,  represented 
with  .so  nmch  i>robability  of  truth  in  some  of 
the  answers,  of  raising  them — to  be  br<iught 
iiack  at  any  uncertain  time  to  be  re-i)artition- 
ed?  If  the  negroes,  whicli  they  got,  were  not 
to  be  charged  t(»  them  as  their  own.  why  were 
they  appraised? 

In  a  transjictlon  of  this  age,  and  where 
there  is  so  little  exiiress  testimony,  and  the 
parties  have  chosen  to  leave  it  in  ob.scurity, 
when  they  might  have  made  it  clear,  I  think 

*262 
the  ♦.safest  course  is  to  hold  them  to  have 
done,  what  it  was  prudent  and  natural  for 
them  to  have  done  under  the  circumstances: 
—and  I  shall  conclude,  that  the  children  took 
the  negroes  as  their  absolute  property. 

Were  those  retained  by  the  widow,  intend- 
tHl  to  be  relea.sed  to  her.  as  her  alisolute 
Itroperty? 

If  her  delivery  of  those  whicli  she  gave  up 
to  the  children,  could,  under  the  circumstanc- 
es, be  considered  as  a  purchase  of  those 
which  she  retained— if  she  lost  any  thing  by 
the  transaction— we  might  be  led  to  answer 
this  question  athrmatively.  But  it  was  a  re- 
lief to  her.  Slie  made  every  way  by  the 
transaction,  though  slie  retaininl  the  three  ne- 
groes under  the  tenure,  tor  life  onl.v. 

These  three  were  not  valued.  They  were 
not  brought  into  the  division.  Tliey  were 
simi>ly  retained.  If  none  (»f  them  had  been 
given  uj)  by  her.  all  would  have  remained  in 
her  hands,  sub.ject  to  the  will.  I'art  were 
given  up.  In  the  absence  of  any  stipulation, 
and  in  the  absence  of  circumstances  to  ren- 
der any  change  of  tenure  probable,  what  are 
we  to  concUule,  but  that  those  retained,  were 
retained  subject  to  the  will? 

My  conclusion  is.  that  Mrs.  Smith  never 
obtained  any  addition  to  her  interest  for  life 
In  the  slaves  left  in  her  hands  in  l,s;{l. 

That  her  alienation  of  those,  covered  by 
the  deed  of  1S44  to  George  II.  Smith,  was 
unauthorized  and  should  be  set  aside:  and 
that  tho.se  slaves,  together  with  those  remain- 
ing in  her  hands  at  her  death,  are  sulijoct  to 
partition  among  the  children  of  the  testator, 
who  survived  her:  and  it  is  so  decreiMl ;  and 
let  a  writ  go  for  the  partition  of  them. 

It  Is  further  ordered,  that  the  writs  of  ne 
exeat  and  Injunction  mentioned  in  the  plead- 
ings, (if  any  were  granted)  be  dissolved. 

And  that  the  parties  have  leave  to  apply 
for  a  writ  for  the  partition  of  the  land,  as 
intestate  property  (.f  the  testator,  among  all 
his  distributees. 

Each  party  to  pay  his  own  costs. 

103 


*252 


3  RICHARDSON'S  EQUITY  REPORTS 


The  complainants'  appealed,  on  the  follow- 
ing grounds. 

*253 

*lst.  Because  his  Honor  decreed  that,  by 
the  partition  of  the  negroes  of  the  estate  of 
Samuel  Smith  between  his  widow  and  chil- 
dren, the  widow  took  only  a  life  estate  in  the 
portion  allotted  to  her,  and  that  the  same 
was  distributable  at  her  death  amongst 
the  surviving  children  of  the  said  Samuel 
Smith,  according  to  the  provisions  of  his 
will:  whereas,  it  is  respectfully  submitted, 
that  by  the  said  partition,  the  children  sur- 
rendered whatever  right  they  may  have  had, 
under  said  will,  to  the  negroes  allotted  to 
the  widow,  Sarah  Smith ;  that  the  same  be- 
came her  absolute  property,  and  were  dis- 
tributable at  her  death,  as  her  estate,  of 
which  she  died  intestate. 

2d=  Because  his  Honor  decreed,  that  by 
the  following  clause  of  testator's  will,  "if 
either  of  my  lawful  heirs  should  die,  leaving 
issue  behind  them,  before  a  distribution 
should  take  place,  as  I  have  before  mentioned 
for  their  issue  or  heirs  not  to  come  in  for 
their  parent's  share  of  my  property,"  the  is- 
sue of  such  testator's  children  as  died  in  the 
lifetime  of  the  widow,  were  effectually  ex- 
cluded, and  that  the  shares  to  which  such 
children  would  have  been  entitled,  were  be- 
queathed to  the  surviving  children. 

Whereas,  it  is  respectfully  submitted,  that 
there  is  no  limitation  to  survivors  in  said 
will,  and  that  said  clause  is  simply  nugatory 
and  inoperative;  and  the  issue  of  deceased 
children  not  theu'eby  excluded. 

3d.  Because,  it  is  respectfully  submitted, 
that  said  clause  of  exclusion  is  void  for 
vagueness,  uncertainty  and  remoteness;  and 
is  contrary  to  the  policy  of  the  law. 

4th.  Because  a  distribution  of  testator's 
estate  had  taken  place  before  the  death  of 
any  of  his  children,  with  their  consent,  when 
they  were  of  full  age  and  free  to  contract; 
and  the  period  limited  in  the  said  will,  at 
which  the  said  clause  of  exclusion  was  to 
take  effect,  had  passed  by  before  the  death 
of  any  of  testator's  children. 

5th.  Because  the  decree  of  his  Honor  is, 
in  other  respects,  contrary  to  law  and  the 
evidence. 

F.  W.  Fickling,  for  appellants, 
Treville,  Martin,  contra. 

*254 

*WARDLAW,  Ch.,  delivered  the  opinion  of 
the   Court. 

This  Court  is  satisfied  with  the  reasoning 
and  conclusion  of  the  circuit  decree,  as  to  the 
character  of  the  partition  made  in  18.31. 

The  remaining  question  in  the  case  is, 
whether  the  will  of  Samuel  Smith  gives  the 
residue  of  the  estate  to  his  surviving  chil- 
dren, in  exclusion  of  the  children  of  his 
three  sons  who  died  after  the  death  of  the 
104 


testator  and  before  the  death  of  the  widow, 
when  the  estate  was  to  be  distributed.  The 
negroes  retained  by  the  widow  in  1831,  with 
their  increase,  constitute  the  subject  of  dis- 
pute: and  the  decision  turns  on  the  construc- 
tion of  the  following  clauses  of  the  will: — 
"the  remaining  part  of  my  property"  (after 
the  life  estate  in  the  wife,  and  some  small 
legacies,)  "to  be  equally  divided,  at  my  wife's 
decease,  among  all  my  children:"  "one  re- 
serve I  wish  my  executors  to  enforce,  that  is, 
if  either  of  my  lawful  heirs  should  die,  leav- 
ing issue  behind  them,  before  a  distribution 
should  take  place,  as  I  have  before  mention- 
ed, for  their  issue  or  heirs  not  to  come  in 
for  their  parent's  share  of  my  property." 
The  former  clause,  considered  separately, 
plainly  gives  to  all  of  the  children  living  at 
the  death  of  the  testator,  as  tenants  in  com- 
mon, a  vested  remainder,  which,  upon  the 
subsequent  death  of  any  of  the  children 
would  pass,  not  to  the  surviving  children,  but 
to  the  legal  representatives  of  the  children  so 
dying.  The  latter  clause,  palpably  mani- 
fests the  intention  of  testator  to  exclude 
from  all  share  the  descendants  of  such  of 
his  children  as  should  die  before  the  period 
appointed  for  the  distribution  of  his  estate; 
— but  it  stops  there.  It  contains  no  revoca- 
tion of  the  shares  previously  given  to  the 
children  dying  before  distribution,  but  rather 
recognizes  their  title  by  the  use  of  the  terms 
"their  parents's  shares."  It  does  not  give 
such  shares  to  the  surviving  children,  nor 
to  any  other  person  whatsoever.  The  lan- 
guage is  simply  that  of  negation  and  excla- 
sion,  and  not  of  disposition.  The  expression 
of  the  purpose  not  to  give  to  one  person,  im- 
ports no  purpose  to  give  to  another.  It  is 
true,  that  the  construction  must  be  upon  the 
whole  will,  and  not  upon  the  clauses  consider- 

*255 

ed  separately,  but  *the  addition  of  a  cipher 
makes  no  increase  of  the  sum;  and  a  clause, 
containing  no  gift,  cannot  transport  a  gift 
to  another  clause.  According  to  this,  the 
clauses,  construed  in  connection,  leave  the 
objects  of  testator's  bounty  precisely  as  they 
were  described  in  the  former  clause,  unless 
the  naked  declaration  in  the  latter  clause, 
that  those  whom  the  law  appoints  to  the  suc- 
cession shall  not  take,  be  effectual  to  exclude 
them.  On  that  point  the  principle  is  well 
stated  in  the  circuit  decree:  "A  man  may 
dispose  of  his  property  as  he  pleases,  but 
he  has  no  right  to  say,  that  the  law  shall  not 
operate,  where,  and  so  far  as.  he  makes  no 
disposition."  "Being  no  legislator,  his  at- 
tempt to  repeal  the  law  would  be  a  mere 
usurpation,  and  only  innocent  because  inef- 
fectual." If  a  deed  of  settlement  gave  one  a 
general  power  of  appointment  as  to  the  es- 
tate settled,  and  provided  that,  in  the  absence 
of  appointment,  the  estate  should  go  to  per- 
sons therein  named :  the  title  of  these  per- 
sons would  not  be  defeated,  if  the  only  thing 


EX   PARTE  KLIIT.MAX 


In  the  shape  of  aiiiMiintiiifiit,  weiv  the  ex- 
prt'ssioii.  l).v  him  haviiij;  th«'  power,  of  his 
ilissatisCactioii,  liowever  strong,  that  they 
siiould  enjoy  the  estate.  So  tlie  law  autiior- 
izrs  a  itroprietor  to  re^'ulate  tiie  disposition 
of  liis  estate,  after  liis  death,  l)y  positive 
donations,  hut  itself  appoints  to  the  siieees- 
sion,  if  he  does  not  declare  the  objects  of  his 
hounty:  and  his  disapi)roval,  l)y  Itst'If,  sliall 
not  defeat  the  operation  of  the  law.  Negative 
words  do  not  amount  to  a  .i;ift. 

In  (JoiMltitle  V.  Pugh.  Hi  P.ro.  P.  C.  4n4,)  the 
will  contained  words  (if  exclusion  in  reference 
to  the  son  and  heir,  and  others  which  were 
construed  by  the  Court  of  Kin^c's  Pench  to  be 
a  disposition  in  favor  of  the  piMsons  who 
were  next  to  the  son  in  the  line  of  descent, — 
yet  tile  House  of  Lords  determined  that  the 
son  was  not  excluded. 

In  Sibley  v.  Cook,  (:5  Atk.  oT.S,)  Lord  Ilard- 
widie  says;  "If  a  man  devises  a  real  estate 
to  J.  S.  and  his  heirs,  and  signifies  or  indi- 
cates his  intention  that  if  .1.  S.  die  before 
him  it  should  not  be  a  lapsed  legacy,  yet  mi- 
less  he  has  nominat(>(l  another  legatee,  the 
heir  at  law  is  not  excluded,  notwithstanding 
the  testator's  declaration.     So  in  the  beipiest 

*256 

of  a  personal  *legacy  to  A.  though  the  testa- 
tor should  show  an  intention  that  the  legacy 
should  not  lapse  in  case  A.  die  before  him, 
yet  this  is  not  sutHcient  to  exclude  the  next 
of  kin."    See  Elliot  v.  l>avenport,  (1  I'.  Wms. 

In  Gordon  v.  Plackman,  (1  Rich.  Eq.  G.'},) 
the  testator,  in  pursuance  of  his  purpose  to 
emancipate  his  slaves,  had  expressly  exclud- 
ed his  next  of  kin,  and  the  Court  said:  "It 
is  not  in  the  power  of  a  testator  to  oust  his 
next  of  kin  of  their  rights  under  the  law  of 
the  land,  but  by  giving  anoth(>r  direction  to 
his  property  by  legal  and  valid  provisions  ; 
as,  for  instance,  by  giving  the  proi)erty  to 
.some  othi'r  person,  or  directing  that  it  shall 
be  employed  for  some  lawful  purpose  incon- 
sistent with  the  rights  of  his  kinsman."  The 
same  doctrine  was  asserted  in  Lanham  v. 
Meacham,  (MS.  Col.  May,  1850)  4  Strob.  Eq. 
203. 

We  are  led  to  the  conclusion,  that  the  Chan- 
cellor was  right  in  the  opinion  entertained  at 
the  hearing:  which  he  afterwards  abandoned 
with  reluctance  and  hesitation. 

It  is  ordered  and  decreed,  that  a  writ  of 
partition  be  issued,  to  divide  the  land  describ- 
ed in  the  pleadings,  and  the  negroes  retained 
by  the  widow,  Sarah  Smith,  at  the  partition 
in  1831,  with  their  increase,  among  the  par- 
ties; so  that  the  five  children  of  Charles 
Smith  shall  take  among  them  one-eighth 
part;  the  six  children  of  Benjamin  Snnth 
among  them  one-eighth  part;  the  six  children 
of  William  Smith  among  tht'in  one-eighth 
part;  and  each  of  the  five  children  of  the 
testator  one-eighth  part:  that  the  matters  of 


account  be  referred  to  the  Commissioner: 
that  the  costs  be  paid  out  of  the  estate  to 
be  divided  according  to  the  interest  of  the 
parties:  and  that  tlu'  circuit  decree  be  so 
modilied.  and  in  all  other  respects  be  affirmed. 

.jolIX.STo.V  and  l»r.\KI\,  CV.  concurred. 

I>AR<;AN,  Ch..  ab-sent  at  the  hearing. 
Decree  modified. 


3   Rich.  Eq.  ♦257 

•Ex  parte  II.  W.  Kliri'MA.X,  A.lin'r.  of  L.  C. 

A.    Sclicplcr. 

(Chark'ston.     Jan.  Term,  1851.) 

[Puhlir  Jjmds  €==>l(;i».l 

A  grant  takes  elTcct  fnini  its  «lute,  and  not 
from  the  time  it  is  actually  delivered  to  the 
grantee. 

IKd.  Note. — For  other  cases,  see  I'nblic  Lands, 
Cent.  I)i^'.  S  5(M:    Dec.  Dig.  <g;=>l(;S>.l 

[I'uhlic   Lnnds  <S=>1G9.] 

In  17!(3,  grants  of  certain  lands  were  issued 
to  A.  and  H.  jointly,  but  were  not  delivered:  A 
transferred  his  int<'i('st  to  P..  and.  in  1S17,  after 
P's  death,  the  Legislature,  by  Act.  directed  the 
Secretary  of  State  to  deliver  the  grants  to  the 
reiiresentatives  of  P,  which  was  accordingly 
done:  //(///,.  that  the  grants  took  effect  from 
their  date  in  1703. 

[Ed.  Note. — For  other  cases,  see  Public  Lauds, 
Cent.  Dig.  S  504:    Dec.  Dig.   <g=>lG!».] 

Before  Johnston,  Ch.,  at  Colleton,  Febru- 
ary,  1850. 

In  September,  1703,  grants  of  tlie  Walter- 
borough,  or  Island  Creek  Lands,  were  made 
out  in  the  names  of  Robert  (ioodloe  Harper 
and  James  Pooth  Thompson,  but  were  never 
delivered  to  them.  On  the  13th  June.  1797, 
R.  (J.  Harper  transferred  his  interest  in 
these  lands  to  J.  R.  Thompson,  who,  in 
March,  17t)0,  died  intestate  and  without  is- 
sue, leaving  his  widow,  Elizabeth,  who  some- 
time thereafter  intermarried  with  Hugh  Mc- 
Pnrney,  and  his  father,  James  Thonipson, 
his  heirs  at  law.  In  December,  17',»:>.  James 
Thompson  died  intestate  and  witlumt  issue, 
leaving  his  widow.  Ann  Thonipson.  as  one 
of  his  heirs,  and  his  next  of  kin  unknown. 
In  December,  1817,  the  Ix'gislature  passed 
an  Act,  entitled  "An  Act  to  authorize  and  re- 
quire the  Secretary  of  State  to  deliver  up 
certain  grants  in  his  office,"  in  these  words: 
"whereas,  Hugh  McPurney  and  Elizabeth 
^IcPnrney,  representatives  of  James  Pooth 
Thompson,  deceased,  have  i^etitioned  the 
Legislature,  setting  forth  that  the  said  James 
Pooth  Thompson  and  Robert  (i.  Harper,  Es- 
quire, did,  in  the  year  1703,  obtain  grants  of 
certain  tracts  of  land,  lying  and  being  on 
the  waters  of  Island  Creek,  in  the  parish  of 
St.  Partholomew's,  which  grants  are  yet  re- 
maining in  the  ofiice  of  the  Secretary  of 
State,  who  does  not  conceive  himself  author- 
ized to  give  them  out: 

"Pe  it  enacted  by  the  Senate  and  House 
of  Representatives,  now  met  aud  sitting  in 


<g=»For  other  cases  see  same  topic  aud  KliY- NUMBER  iu  all  Key-Numbeied  Digests  and  Indexes 


105 


*257 


3  RICHARDSON'S  EQUITY  RErORTS 


General  Assembly,  and  by  and  with  the  au- 
thority of  the  same.  That  the  Secretary  of 

*258 
State  be,  and  he  *is  hereby  authorized  and 
required,  to  give  out  and  deliver  the  said 
grants  to  the  representatives  of  the  said 
James  Booth  Thompson— provided,  never- 
theless, that  nothing  in  this  Act  contained, 
shall  be  taken  to  deprive  any  other  person 
or  persons,  of  any  legal  right  or  title  what- 
soever: And,  provided,  also,  that  the  said 
representatives  of  James  Booth  Thompson, 
shall,  on  the  payment  of  fifty  dollars  for 
every  acre  lot,  or  a  greater  or  less  sum  in 
proportion  to  the  quantity  of  land  held  by 
any  person  or  persons,  now  residing  in  the 
Village  of  Walterborough,  convey  to  the  per- 
son or  persons  so  possessed  of  a  lot  or  lots, 
a  fee-simple  estate  to  the  same."  (6  Stat. 
78.) 

The  grants  were  delivered  under  this  Act 
to  Hugh  McBuruey  and  Elizabeth  McBur- 
ney,  both  since  dead.  Extensive  sales  of 
the  Walterborough  or  Island  Creek  lands 
were  made  some  years  since,  by  order  of  the 
Court  of  Chancery,  and  funds  to  a  large 
amount,  arising  from  such  sales,  were  in  the 
hands  of  the  Commissioner.  The  petition 
in  this  case,  prayed  the  appropriation  of  one- 
half  of  these  funds  as  assets  of  the  estate  of 
James  Thompson,  tow'ards  the  payment  of  a 
judgment  of  L.  C.  A.  Schepler  against  James 
Thompson,  established  by  a  decree  in  "D. 
W.  Johnson,  et  ux.  et  al.  v.  Charles  H.  Le- 
jnacks,  administrator  of  James  Thompson," 
filed  with  the  petition. 

On  the  coming  in  of  the  Commissioner's 
report,  establishing  the  facts  above  stated, 
and  after  argument  of  counsel  in  behalf  of 
the  known  representatives  of  James  B. 
Thompson,  who  came  in  under  an  order  of 
Court,  directing  proper  parties  to  be  report- 
ed, the  Court  made  the  following  order. 

Johnston,  Ch.  On  hearing  the  report  of 
the  Commissioner  In  this  case,  and  argu- 
ment of  counsel,  on  motion  of  Mr.  Carn, 
solicitor  for  the  petitioner,  it  is  ordered  and 
decreed,  that  one-half  or  moiety  of  the  funds, 
in  the  hands  of  the  Commissioner,  reported 
as  derived  from  the  sale  of  the  Walterbor- 
ough lands,  originally  granted  to  James 
Booth  Thompson  and  Robert  Goodloe  Harper, 
belongs  to  the  estate  of  James  Thompson, 
and  is  applicable  to  the  payment  of  the 
judgment  of  L.  C.  A.  Schepler,  set  up  in  the 
decree  made  in  the  case  of  D.  W.  Johnson 

*259 
*and  wife  et  al.  v.  Charles  H.  Lemacks,  ad- 
ministrator of  James  Thompson,  referred  to 
and  filed  with  the  pleadings  in  this  case. 

And  it  is  further  ordered,  that  the  Commis- 
sioner do  pay  to  the  petitioner,  H.  W.  Kuht- 
man,  as  administrator  of  L.  C.  A.  Schepler, 
the  said  half  or  moiety  of  said  funds  belong- 
ing to  the  estate  of  James  Thompson,  as 
aforesaid,  as  well  as  one-half  or  moiety  of 


any  other  funds  which  may  come  into  his 
hands,  derived  from  the  sale  of  the  lands 
aforesaid,  until  said  judgment,  together  with 
the  interest  which  has  accrued,  or  may  ac- 
crue thereon,  has  been  fully  paid  and  sat- 
isfied, and  that  he  pay  the  costs  and  ex- 
penses of  this  suit  out  of  the  fund. 

And  it  is  further  ordered,  that  the  Commis- 
sioner do  receive  from  George  Warren,  late 
sheriff  of  Colleton  district,  any  funds  in  his 
hands  derived  from  sales  of  said  lauds,  and 
apply  the  same  as  above  directed;  and  that 
he  is  authorized  and  directed  to  commence 
suit  on  any  bonds  in  his  hands,  given  for 
any  portion  of  said  fund.  That,  applying 
one  moiety  of  said  fund  to  the  judgment  of 
L.  C.  A.  Schepler,  as  aforesaid,  he  do  invest 
the  other  moiety  in  bonds  bearing  interest 
from  date,  with  good  personal  security,  to 
await  the  further  order  of  this  Court.  And 
it  is  further  ordered,  that  an  account  be 
taken  of  all  sums  of  money  received  by  Eliza 
McBurney  in  her  lifetime,  for  or  on  account 
of  sales  of  any  portion  of  the  said  lands  made 
by  her,  and  that  the  Commissioner  report 
the  state  of  the  fund  at  the  next  term  of 
this  Court,  together  with  any  special  matter. 

The   defendant   appealed,   on  the  grounds, 

1st.  Because  the  funds  in  dispute,  form  no 
portion  of  the  estate  of  James  Thompson. 

2d.  Because  the  decree  of  his  Honor  is  oth- 
erwise contrary  to  law  and  equity. 

Tracy,   for  appellant. 
Carn,  contra. 

DUNKIN,  Ch.,  delivered  the  opinion  of 
the  Court. 

The  only  question  presented  by  this  appeal 
is,    whether   the   grants    to    Robert   Goodloe 

*260 
Harper  and  James  Booth  Thompson,  *took 
effect  from  their  date  in  1793,  or  from  their 
delivery  to  Hugh  McBurney  and  wife,  under 
the  Act  of  1817.  This  precise  question  was 
determined  by  the  Constitutional  Court  in 
1821,  at  Charleston,  in  the  case  of  Hugh  Mc- 
Burney V.  Alfred  Walter. (aj     It   was   there 

(a)  Hugh  McBurney  v.  Alfred  Walter. 

IPublic  Lands  <g=::>169.] 

[Where  a  grant  of  land  by  the  state  is  signed, 
sealed,  and  delivered  to  the  secretary  of  state,  to 
be  delivered  to  the  grantee,  as  provided  by  act  of 
1785  (2  Brev.  Dig.  p.  3),  such  a  delivery  is  as  valid 
in  law  as  if  made  to  the  grantee  himself.] 

[Ed.  Note. — For  other  cases,  see  Public  Lands, 
Cent.   Dig.   §   504;     Dec.   Dig,   <S=5l69.1 

This  was  an  action  of  trespass  to  try  title. 
The  plaintiff  derived  title  under  a  grant  to 
Robert  Goodloe  Harper  and  James  Booth 
Thompson,  dated  in  1793  ;  and  which  had  been 
delivered  to  the  plaintiff  and  his  wife,  under  the 
Act  of  1817.  The  defendant  claimed  by  adverse 
possession  anterior  to  1817.  Verdict  for  plain- 
tiff and  appeal  by  defendant. 

January,  1821.  Colcock,  J.  A  motion  for  a 
new  trial  is  moved  for  on  seven  grounds:  but 
as  the  Court  have  determined  the  case  on  a 
single  point,  it  is  unnecessary  to  state  them 
all.  The  Judge,  in  his  -charge  to  the  jury,  gave 
it  as   his  opinion  that  the  grant  did  not   take 


106 


<S=>For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


VERDTER  V.  McBURXEY 


261 


ruled,  that  tlu-  ^'raiits  took  .'(Tt'ct  from  the 
<hite — that  Miuler  the  hiw.  the  (Jovonior,  aft- 
er till"  irn'ut  seal  was  atlixitl,  "was  eiupow- 
t-red  and  diroctcd  to  siiin  the  same,  and  there- 
u|ioii  deliver  them  to  the  Secretary  of  State 

*261 
to  *lie  delivered  to  the  resiieetive  grantees,  or 
tlit'ir  order."  'The  yraut  then,"  (eoncludes 
the  (\inrt)  "after  havinj;  been  siKn»'d  and 
sealed,  was  delivered  to  the  Secretary  to  he 
ih'livered  to  the  rubpective  j;rant»'es,  and  such 
delivt'ry  is  as  valid  in  law  as  if  made  to  the 
jirantee   himself." 


elTcct  until  the  ytar,  1S17.  when  it  was  dcliv- 
rrcd  to  tin-  plaintitT  hy  virt\i<'  of  the  -Vet  <>f  tlio 
lA';;i,slaturc,  and  this,  it  is  coiiteiKlcd,  prcchidt'd 
the  jury  from  considi-rintr  the  evidence  of  pos- 
session (offered  by  defendantl  anterior  to  that 
time: — whereas,  the  arrant  (niudit  to  ho  consider- 
ed as  taking  effect  from  the  year  IT'.*".. 

It  was  contended,  on  the  part  of  the  defend- 
ant, that  the  jirant  could  not  enure  to  the 
hencfit  of  the  grantees  in  ITJt.'S,  heeausc  there 
was  a  cunditiou  precedent  to  he  ijcrfonncd  hy 
them,  viz: — iiayiuj;  ten  dollars  per  lumdied  into 
the  Treasury  and  the  fees  of  otlice.  That  the 
grant  had  been  withheld  by  the  Secretary  of 
State  on  the.se  grounds,  and  that,  therefore, 
there  was  no  delivery  until  the  year  1S17.  when 
the  Legislature  directed  the  Secretary  to  deliver 
it.  In  point  of  fact,  there  is  no  foundation  for 
such  argument,  for  there  was  no  evidence  that 
the  grant  was  withheld  trom  the  grantees,  con- 
sc(|U('iitly.  no  evidence  of  any  reasons  for  with- 
holding it:  nor  are  any  stated  in  the  Act  of 
ISIT,  and  upon  a  reference  to  the  Acts  of  the 
Legislature  on  the  subject  of  granting  lands,  it 
will  apjtcar,  that  in  the  year  IT'.l."  there  was  no 
l?ounty  ni(/ney  (as  it  has  b<'en  called  eommouly) 
re(|uired  by  the  Legislature ;  nor  do  they  make 
the  payment  of  the  fees  a  condition  jirecedent  to 
the  completion  of  the  grant.  The  first  clause  of 
the  Act  of  IT'.H,  repeals  the  Acts  or  clauses  of 
Acts  recpiiring  money  to  be  paid  hy  the  gran- 
tees, and  declares  that  all  vacant  land  shall  be 
granted  to  any  citizens  applying  for  the  same,^ 
on    i)aviug   the   fees  of   ollice.      2    lirev.    Dig.   8' 

This  grant  was  made  in  170.3,  more  than  two 
years  after  the  passing  of  the  Act;  hut  it  is 
.said  the  clause  speaks  of  vacant  land,  and 
this  laud  had  been  surveyed  in  the  year  17 — . 
for  James  Thompson,  the  elder,  and  is  calle<l 
approi)riated  land:  but  there  is  no  such  distinc- 
tion recognized  in  any  of  the  Acts  upon  the 
subject  of  granting  lands,  except  for  the  jjcriod 
of  six  months,  after  the  expiration  of  that  time 
from  the  time  of  the  survey. 

The  land  is  considcMed  as  vacant  land  bv  the 
T2i\  section  of  the  Act  of  17^5,  2  Hrev.  IMg.  t>. 
The  first  Act  directing  the  mode  of  granting 
land  in  this  State,  i)asse(l  in  17sr»,  enacted 
"that  any  person  making  a  survey  of  land,  shall 
be  allowed  six  months  fi'om  the  time  of  survey 
to  obtain  a  grant,  and.  in  default  of  obtaining 
the  grant  within  that  time,  any  person  may,  at 
the  exi>iration  thereof,  apply  for  and  obtain  the 
grant  for  the  said  land  on  itaying  for  it,  and 
any  grant  obtained  for  land  within  six  months 
from  the  time  vi  its  being  snrveyed,  (except  by 
the  person  f(U-  whom  it  is  surveyed)  shall  be 
ipso  facto  null  and  void."  Here  the  period  of 
six  months  from  the  time  of  survey  had  elajised. 
Any  person,  then,  according  to  the  provision  of 
the  Act,  might  either  oiitain  a  grant  on  the  first 

*261 
survey,  or  again  run  the  *land  and  take  ont  a 
grant.     This  land,  then,  in  17'.l.'i,  was,  to  all  in- 
tents   and    iturposes.    vacant    land.      As    to    the 
delivery   of  the   grant,   that    was   also  c(implete. 


This  decision  was  recofjmized  and  re-af- 
firnu'd  by  the  Court  of  Appeals  at  Charles- 
ton, in  April,  ls2s,  in  the  ca.se  of  Simon 
Verdier  v.  HukIi  McHurney.(^) 

for  by  the  seventh  section  of  the  same  Act.  (2 
l?rev.  I  >ig.  ,"{1  the  mofle  of  preparing  and  com- 
pleting the  grant  is  pointed  out.  The  Survey- 
or (ieneral  is  rtMpiired.  on  the  return  of  entry 
and  plat  from  the  ollice  of  the  Conmiissioner  of 
Locations,  to  make  out  a  plat,  record  and  cer- 
tify it  :  and  then  transnut  it  to  the  Secretary 
of  State,  who  is  retpiired  to  make  out  the  grant, 
alllx  the  great  seal  to  it,  and  within  a  given 
time,  and  on  particular  rhiys,  lay  before  his 
Excellency,  the  (Jovernor  for  the  time  being,  all 
su<-h  grants  by  him  prepared  as  aforesaitl.  who 
is  empowered  and  directed  to  sign  the  s.-inu'.  and 
therenpon  d»-liver  tluMii  to  the  Secretary  of 
State  to  be  delivered  to  the  respective  grantees 
or   their  order. 

The  grant  then,  after  having  been  signed  and 
sealeil,  was  delivered  to  tlie  Secretary  of  State, 
to  be  delivered  to  the  grantees;  and  such  a  de- 
livery is  as  valid  in  law  as  if  made  to  the 
grantee  himself. 

The  Court,  then,  being  of  oiiinion  that  the 
grant  must  be  considered  as  taking  effect  from 
its  date;  and  conceiving,  that  the  expression 
of  a  contrary  opinion,  by  the  presiding  Judge, 
nuiy  have  induced  the  jury  not  to  consider  the 
evideni'C  offered  by  the  defendant  of  his  posses- 
sion anteritir  to  1.S17; — grant  the  motion  for  a 
new  trial. 

Bay.  Nott  and  Johnson,  JJ.  concurred. 
Cantt,    J.  dis.sented. 


(b)  Simon  Verdier  et  al.  v.  Hx'gu  McBub- 
NEY   and   Wife. 

[Public  Lauds  <g=>lG9.] 

[Wtiere  grants  to  pubHc  lands  were  regularly 
laid  out  in  17&:!.  and  signed  by  the  proper  officers, 
but  were  not  taken  out  of  the  office  by  the  grantee 
in  his  lifetime,  and  for  some  reason  not  appearing 
were  withheld  from  his  administrator  until  1817, 
when  an  act  was  passed  directing  their  delivery  to 
him  in  trust  for  the  heirs  of  the  grantee,  the  title 
nevertheless  vested  In  the  grantee  from  the  date 
of  the  grant.] 

[Ed.  Note.— For  other  cases,  see  Public  Lands, 
Cent.   Dig.  §  504;    Dee.  Dig.  ©=3l69.] 

In  the  Court  of  Ai)peals.  2d  April,  1.S2S, 
Johnson.  J.  It  is  conceded  on  all  sides,  that 
on  the  death  of  James  Hooth  Thompson,  with- 
out issue,  his  estate,  in  whatever  it  nmy  have 
consisted,  was.  after  the  paynu'nt  of  his  debts, 
distributable  e(iually  between  his  widow  (the 
defendant,  Mrs.  .NicHurney)  and  his  father, 
James  Thompson;  and  that  the  complainants 
representing  the  heirs  of  the  father,  since  de- 
ceased, are  entitled  to  distribution  of  what- 
ever nmy  remain,  aiul  the  object  of  the  bill 
is  f<u-  an  account  and  <iistribution.  so  that  the 
princii)al  difficulty  in  the  case  consists  in  as- 
certaining what  remains  for  distribution. 

One  entpiiry  is  as  to  what  real  estate  James 
Hooth  Thompson  was  possessed  of  at  the  time 
of  his  death. 

The  complainants  claim  title  for  him  to  the 
several  tracts  of  land  granted  to  him  and  H. 
Ci.  Ilari)er,  jointly,  in  17!);i.  and  in  which  Har- 
per had  released  to  him  all  his  interest.  The 
grants  to  these  lands,  it  seems,  were  regularly 
nuide  out  and  signed  by  the  proper  officers,  but 
were  not  taken  out  of  the  office  by  J.  li.  Thomp- 
.son  in  his  lifetime,  and,  for  some  reason  that 
does  not  now  ap|)ear,  they  were  withheld  from 
Dr.  McKurney,  who  married  his  widow,  and  in 
her  right  became  administratcu-  of  the  estate,  un- 
til 1S17,  when  an  Act  was  ])assed  dire<tin^' their 
delivery  to  him  in  trust  fur  the  heirs  of  Jame^ 
li.  Thompson. 

The  present  village  of  Walterborough  is  sit- 
\iate<l  (Ml  one  of  these  tracts,   which,  it  is  said. 


®spFor  other  cases  see  same  topic  aud  KKY-NUMBEH  in  all  Key-Numbered  Digests  and  Indexes 


107 


*2G2 


3  RICHARDSON'S  EQUITY  REPORTS 


*262 

♦Neither  of  these  decisions  lias  been  re- 
ported; and  the  want  of  acquaintance  with 
them  has  probably  occasioned  subsequent 
misapprehension,  and  given  rise  to  this  ap- 
peal. 

The  motion  to  reverse  the  order  of  the 
Chancellor  is  dismissed. 

JOHNSTON,    DARGAN    and    WxiRDLAW, 
CC,  concurred. 
Appeal  dismissed. 

contained  one  thousand  acres,  and  in  this  the 
defendants  deny  the  complainant's  right  to  par- 
tition, and  claim  title  in  the  defendant.  Dr. 
Burney,  under  a  purchase  made  at  sheriff's  sale 
for  twelve  hundred  dollars,  under  fi.  fa.  issued 

*262 
against   the   de*fendants   as   administrator   and 
administratrix  of  James  B.  Thompson,   at  the 
suit  of  William  Robertson,  for  the  sum  of  forty- 
nine  dollars. 

The  complainants  resist  this  claim,  on  the 
grounds, 

First.  That  the  grants  having  remained  in  the 
office,  nothing  passed  under  them  until  they 
were  ordered  to  be  delivered  by  the  Act  of  1817, 
and  that  McBurney  could  hold  only  upon  the 
terms  of  that  Act,  viz:  for  the  benefit  of  the 
heirs  of  James  B.  Thompson ;  and,  consequent- 
ly, that  they  were  not  liable  to  be  talien  in  ex- 
ecution for  debts  due  by  him. 

This  question  was  solemnly  settled  by  the 
Constitutional  Court  (Judge  Gantt  dissenting)  in 
the  case  of  McBtirney  v.  Walter,  decided  at 
January  Sittings,  1821,  but  which,  by  some  ac- 
cident, appears  not  to  have  been  published. 
[See  ante,  p.  260,  note].  That  was  an  action 
to  try  the  title  to  the  tract  on  which  Walter- 
borough  is  situated,  and  the  question  arose 
whether  James  B.  Thompson  took  under  the 
grant  and  from  the  date,  or  his  heirs  under  the 
Act  of  1817,  and  it  was  ruled  that  James  B. 
Thompson  had  title  from  the  date  of  th^  grant, 
and  must  be  regarded  as  decisive  of  this  ques- 
tion. 

(Other  questions  were  considered,  and  it  was 
ruled  that  the  sheriff's  sale  to  Dr.  Burney  was 
void  for  actual  fraud.) 

NoTT  and  Colcock,  JJ.  concurred. 


3   Rich.  Eq.  262 
T.  C.   SKRINE  V.  H.  &  W.  WALKER. 

(Charleston.     Jan,   Term,   1851.) 

[Wills  <©=>639.] 

Testatrix  bequeathed  as  follows: — "I  give, 
devise  and  bequeath  unto  my  friend,  M.  H.  my 
negro  woman,  Phillis,  together  with  her  future 
issue  and  increase,  trusting  that  the  said  M.  H. 
will  fully  comply  with  my  wishes,  respecting  the 
said  negro  woman  Phillis,  and  her  children 
which  may  hereafter  be  born ;  and  it  is  fur- 
ther my  will  and  desire,  that  the  said  Phillis 
should  be  allowed  to  keep  with  her,  and  have 
the  services  of  her  child,  Martha,  during  the 
lifetime  of  the  said  Phillis ;  and  at  her  death,  I 
give,  devise  and  bequeath  unto  C.  W.  the  said 
negro  girl,  Martha:"  and  the  will  contained  a 
residuary  clause:  Held,  that  there  was  no  such 
gift  of  the  beneficial  interest  in  Phillis  to  M.  H. 
and  of  Martha  to  Phillis,  as  vested  the  legal 
title  of  Martha,  during  the  life  of  Phillis,  in 
M.  H; — that  the  effect  of  the  will  was  to  vest 
the  legal  title  to  Martha,  during  the  life  of 
Phillis,  in  the  residuary  legatee ; — and  that  the 
recommendation,  that  Martha  be  allowed  to  at- 


*263 

tend  and  serve  *Phillis,  amounted  only  to  an 
address  to  the  benevolence  and  good  faith  of  the 
residuary  legatee. 

[Ed.  Note.— Cited  in  Ford  v.  Daniierfii'ld,  8 
Rich.  Eq.  lOS. 

For  other  cases,  see  Wills,  Cent.  Dig.  §  1522 ; 
Dec.  Dig.  (S=r>(J39.] 

The  decisions  in  Carmille  v.  Carmille,  (2 
AIcM.  154.)  and  McLeish  v.  Burch,  (3  Strob. 
Eq.  237,)  will  not  be  extended  to  cases  where  it 
was  not  the  intention  of  the  donor  to  bestow 
the  beneficial  interest,  subject  to  a  particular 
charge,  upon  the  donee  of  the  legal  interest: 
Semble. 
[Slarcs  <®=:>13.1 

A  slave,  although  a  chattel,  is  also  a  person, 
and,  to  some  extent,  capable  of  the  acquisition 
of  property  for  the  benefit  of  the  master.  But' 
a  privilege  attending  the  person  of  a  slave,  or 
a  trust  for  him,  or  an  executory  contract  made 
with  him,  cannot  be  .judicially  established,  ei- 
ther for  the  slave  or  his  master. 

[Ed.  Note. — For  other  cases,  see  Slaves,  Cent. 
Dig.  §  59 ;    Dec.  Dig.  <S=>13.] 

[Specific  Performance  <g=369.] 

A  bill  will  not  lie,  it  seems,  for  the  specific 
delivery  of  slaves,  where  the  plaintiff  seeks  the 
delivery,  not  from  the  peculiar  value  of  the 
slaves  to  himself  which  damages  would  not 
compensate,  nor,  indeed,  for  his  own  use,  but 
for  the  accommodation  of  an  old  negro  woman, 
herself  a  slave. 

[Ed.  Note. — For  other  cases,  see  Specific  Per- 
formance, Cent.  Dig.  §  201 ;    Dec.  Dig.  <g=:>69.] 

Before  Caldwell,  Cli.,  at  Georgetown,  Feb- 
ruary, 1848. 

This  case  will  be  sufficiently  understood 
from  the  opinion  delivered  in  the  Court  of 
Appeals. 

Mitchell,  for  appellants. 
Wilkinson,  contra. 

WARDLAW,  Cli.,  delivered  the  opinion  of 
the  Court. 

The  plaintiff,  in  this  suit,  seeks  to  com- 
pel the  defendants  to  deliver  to  him  two 
slaves,  Martha,  and  her  child,  William. 

The  following  statement  will  exhibit  the 
facts  upon  which  the  questions  in  the  case 
depend.  Mary  Vereen  died  in  1833,  leaving 
of  force  her  will,  bearing  date  July  17,  1832, 
which  was  admitted  to  probate,  November 
1,  1833.  This  will  contained  the  following 
clauses. — "I  give,  devise  and  bequeath  unto 
my  friend,  Mary  S.  M.  Hardwicke,  my  negro 
woman,  Phillis  together  with  her  future  is- 
sue and  increase  trusting  that  the  said 
Mary  S.  M.  Hardwicke  will  fully  comply 
with  my  wishes,  respecting  the  said  negro 
woman,  Phillis,  and  her  children  which  may 
hereafter  be  born ;  and  it  is  further  my 
will  and  desire,  that  the  said  Phillis  should 
be  allowed  to  keep  with  her,  and  have  the 
services  of  her  child,  Martha,  during  the 
lifetime  of  the  said  Phillis :  and  at  her 
death,  I  give,  devise  and  bequeath  unto 
my  great-grand-daughter,  Catherine  LaBruce 
Walker,  the  said  negro  girl,  Martha,  togeth- 

*264 
er  with  her  future  issue  and  in*crease,  un- 


108 


®:^For  other  cases  &ec  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexea 


SKRIXK  V.  WALKER 


«266 


der  the  same  conditions,"  Ac:  and  the  will 
contiiiiK'd  otiior  clausi's,  by  which  it  was 
provided,  that  if  oithor  of  the  gi-eat->;rand- 
childrcn  of  the  testatrix  (of  whom  the  said 
Catherine,  and  the  two  defendants  were 
alive  at  her  death)  should  die  before  beinp 
married,  and  before  attaining  the  age  of 
twenty-one  years,  the  property  bequeathed 
to  such  legatee  should  go  to  the  survivors: 
and  the  said  three  great-grandchildren  were 
made  residuary  legatees.  The  said  Cath- 
erine died  about  the  year  is:!!),  then  aged 
about  ten  years,  and  unmarri(>d.  The  ex- 
ecutor of  Mary  Vereen  included  Phillis  and 
Martha  in  his  inventory  of  the  estate,  but 
does  not  mention  them  in  his  subsequent  re- 
turns ;  nor  does  it  appear  that  he  further 
intermeddled  with  them.  Martha  was  from 
two  to  six  years  of  age  at  the  death  of  Mary 
Vereen,  and  she  has  since  had  issue,  the 
slave,  William. 

Mary  S.  M.  Hardwicke  died  about  the  be- 
giiuiing  of  the  year   1S;J7.   leaving  of  force 
her  will,  bearing  date  before  Mrs.   Vereen's 
viz, — .January,  2.'>,  IS.'Jl.  but,  apparently,  not 
offered   for  probate   until   April.   1847,   after 
the  seizure  of  the  slaves   by  defendants  as 
hereafter   mentioned:     and    this    will    makes 
the  plaintiff  executor  and  residuary  legatee. 
It  appears,  by  the  testimony  of  four  witness- 
es,  that   Phillis   lived,    for   some   time   after 
Mrs.  Vereen's  death,  with  Mrs.   Hardwicke; 
but   after  her   death,   if   not    sooner,    Phillis 
live<l  in  a  house  in  Georgetown,  which  was 
conveyed  to  her  husband,  tien,  a  negro  who 
had  also  formerly  belonged  to  Mrs.  Vereen, 
and  had  passed  into  the  ownership  of  Ben- 
jandn   King,   who  paid   taxes   for  him   as  a 
slave,  but   permitted   him,  in   most   respects, 
to  exercise   the   privileges  of   a    free  negro. 
The    plaintiff   lived    at    Cape    Romaine,    and 
Kleazer  Waterman  was  his  agent  at  George- 
town,   but    neither    plaintiff    nor    his    agent 
exacted  any  wages  from  Phillis  or  Martha, 
nor  exerted  any  act  of  ownershij)  over  them. 
Their    taxes,    as    slaves,    were    iiaid    by    the 
owner  of  Ben.     The  wishes  of  Mary  Vereen 
respecting   Phillis.    with    which    she    trusted 
her    friend.    Mrs.    Hardwicke.    would    fidly 
conijdy,    appear   pretty   plainly    by    the    will 
Itself  to  be,   that   Phillis  should  be  held   in 
nondnal    .servitude    only :     And    the    acts    of 
the  parties  jilace  this  beyond  doubt. 
*265 
♦The  plaintiff,  in  his  bill,  which  I  suppose 
was  sworn  to.  as  an  injunction  was  prayed 
for,  states,  "that  the  said  Phillis  having  been 
a    favorite  servant   of   her   former   unstress, 
and  being  now  aged  antl  infirm,  and  standing 
In  ne«Ml  of  the  aid  ami  services  of  some  young- 
er person,   the  plaintiff   bad  permitt«^l   her, 
from  the  death  of  his  sister.  >rrs.  Hardwicke, 
her    last    owner,    after    the    example    of    his 
said  sister,  and  in  compliance  with  the  testa- 
mentary  wishes   of  Mrs.   Mary   Vereen,   her 
former  mistress,  to  jiass  her  life  in  exemp- 
tion from  labor,  with  the  attendance  of  her 


daughter  upon  her  person,  which  he  conceiv- 
ed himself  bouml  in  con.science  and  good 
faith  to  do,  though  a  departure  from  his 
legal  rights;  and  to  this  end  he  permitted 
them  to  live  in  Georgetown,  without  any 
n^iuisition  upon  the  labor  of  Martha,  further 
than  necessary  to  the  support  of  the  mother 
and  infant  child,  also  the  subject  of  this 
suit."  On  31st  March,  1.S47,  the  defendants 
took  possession  of  the  slaves,  Martha  aud 
William,  and  now  claim  them  either  as  be- 
queathed to  them  by  Mary  Vereen,  or  under 
their  seizure,  as  set  free  by  the  tenant  for 
lite  of  Pliillis,  in  violation  of  the  Act  of 
1800. 

From  this  state  of  facts  arise  the  ques- 
tions, whether  the  plaintiff  has  shown  good 
title  to  Martha  and  William:  and,  if  this 
has  been  done,  whether  he  has  forfeitetl  his 
title  by  any  illegal  attempt,  on  the  part  of 
himself  or  tho.se  under  whom  he  claims,  to 
emancipate  the  slaves:  and,  on  the  whole, 
whether  this  be  a  itroper  case  for  the  ex- 
traordinary jurisdiction  of  this  Court. 

The  process  by  which  the  plaintiff  deduces 
title  to  the  slaves  is,  that  the  will  of  Mary 
Vereen  bequeathed  the  services  of  Martha  to 
Phillis,  for  the  life  of  Phillis,— that  a  gift 
of  the  services  of  a  slave  is  a  gift  of  the 
slave, — that  a  gift  to  a  slave  amounts  to  a 
gift  to  the  owner  of  the  slave, — that  Phillis 
is  given  to  Mrs.  Ilaiilwicke,  subject  only  to 
an  ineffectual  trust  or  reconnnendation, 
which  the  legatee  may  or  may  not  execute, — 
that  the  gift  of  Phillis  carries  to  the  legatee 
Martha,  as  an  incident,  for  the  life  of  Phillis  ; 
and  that  plaintiff  has  all  the  title  of  Mrs. 
Hardwicke.  If  one  trusting  to  common  sense 
could  detect  no  Haw  in  this  reasoning,  he 
would  still  be  reluctant  to  admit  a  conclu- 

*266 
*sion.  attained  by  adding  deduction  to  deduc- 
tion, and  in  utter  conflict  with  the  intention 
of  the  testatrix,  and  the  policy  of  our  law 
as  to  slaves.  It  is  obvious  that  Mrs.  Vereen 
in  her  will,  makes  no  direct  gift  of  Martha, 
for  the  life  of  Phillis.  unless  it  be  to  the 
residuary  legatees,  the  defendants ;  and  that 
she  was  expressing  a  desire,  likely  to  be 
onerous  and  not  beneficial  to  the  legatee,  when 
she  recpiested  that  Phillis  might  be  allowed 
to  keep  her  child  Martha  with  her.  It  is 
equally  obvious,  whatever  in  this  matter  may 
be  the  decisions  of  .Judges,  the  province  of 
whom  is  to  declare  the  law  as  it  exists,  and 
not  to  deternune  upon  the  policy  of  the 
State;  that  it  is  against  the  course  of  legis- 
lation amongst  us,  that  slaves  should  be 
practically  released  from  the  dominion  and 
oversight  of  their  masters,  and  be  permitted 
to  exercise  the  privileges  of  free  persons.  Of 
tills,  the  Acts  of  1800,  1820  and  1841,  afford 
conclusive  evidence.  Nevertheless,  if  the 
reasoning  of  plaintiff  be  legitimate,  we  must 
adopt  this  conclusion,  whatsoever  may  be  our 
regret.  As  to  the  be<iuest  of  Phillis  to  Mrs. 
Hardwicke,    the   decisions    of   our    Court    of 

109 


*266 


3  RICHARDSON'S  EQUITY  REPORTS 


Errors  in  Carmille  v,  CarmiUe,  (2  McM. 
454,)  and  McLeish  v.  Burch,  (3  Strob.  Eq. 
237,)  establish  the  title  of  the  legatee,  if  we 
may  presume  here,  as  in  those  cases  was  pre- 
sumed, that  it  was  the  intention  of  the  donor 
to  bestow  the  beneticial  interest,  subject  to  a 
particular  charge,  upon  the  donee  of  the  legal 
interest.  These  decisions,  however,  are  not  to 
be  extended  without  grave  consideration  to 
other  cases,  not  strictly  within  their  doc- 
trines. Our  attention  should  always  be  di- 
rected to  the  inquiry,  whether  it  was  the 
purpose  of  the  testator  to  give  to  the  legatee 
the  beneficial  as  well  as  the  legal  interest. 
The  distinction  pointed  out  by  Lord  Eldon  in 
King  V.  Denison,  (1  V.  &  B.  272),  although 
nice  is  satisfactory.  "If  I  give  to  A.  and 
his  heirs  all  my  real  estate  charged  with  my 
debts,  that  is  a  devise  to  him  for  a  particular 
purpose,  but  not  for  that  purpose  only.  If 
the  devise  is  upon  trust  to  pay  my  debts,  that 
is  a  devise  for  a  particular  purpose  and 
nothing  more;  the  effect  of  these  two  modes 
admits  just  this  difference  ;  the  former  is  a  de- 
vise of  an  estate  of  inheritance  for  the  pur- 

*267 
pose  of  giving  *the  devisee  the  beneficial  inter- 
est subject  to  a  particular  purpose ;  the  latter 
is  a  devise  for  a  particular  purpose,  with  no 
intention  to  give  him  any  beneficial  interest. 
Where,  therefore,  the  whole  legal  interest  is 
given  for  the  purpose  of  satisfying  trusts  ex- 
pressed, and  those  trusts  do  not  in  their 
execution  exhaust  the  whole,  so  much  of  the 
beneficial  interest  as  is  not  exhausted  belongs 
to  the  heir ;  but  where  the  whole  legal  in- 
terest is  given  for  a  particular  purpose,  with 
an  intention  to  give  to  the  devisee  of  the  le- 
gal estate  the  beneficial  interest,  if  the  whole 
is  not  exhausted  by  that  particular  purpose, 
the  surplus  goes  to  the  devisee,  as  it  is  in- 
tended to  be  given  to  him."  This  distinction 
is  recognized  by  our  cases.  In  Carmille  v. 
Carmille,  the  distinction  did  not  come  under 
discussion,  nor,  I  may  remark  in  passing, 
could  the  doctrine  of  resulting  trusts  to  the 
heir  or  next  of  kin,  as  to  indefinite,  inopera- 
tive or  failing  trusts,  declared  in  Morice  v. 
Bishop  of  Durham,  (10  Ves.  521,)  be  applied 
in  that  case,  which  turned  upon  a  deed  inter 
vivos.  Judge  O'Neall,  in  delivering  the  judg- 
ment, properly  sajs,  "the  case  before  us 
stands  upon  deeds  executed,  and  taking  ef- 
fect, in  the  lifetime  of  the  intestate,  and  the 
case  must  be  considered  as  if  the  intestate 
was  himself  the  complainant,  asking  that  the 
deeds  should  be  set  aside ;  and  a  bill  by  one 
claiming  to  be  relieved  from  his  own  act 
done  in  fraud  of  the  law,  could  not  be  sus- 
tained." 

In  McLeish  v.  Burch,  Ch.  Caldwell,  in 
the  circuit  decree,  which,  as  is  said  in  the 
ultimate  decree,  is  not  controverted  on  this 
point,  remarks,  "whenever  the  expressions 
manifest  an  intention  that  the  donee  is  not 
to  have  the  beneficial  enjoyment  of  the  sub- 
ject of  gift,   they   will   bind  the   conscience 

110 


of  the  trustee,  and  will,  in  equity,  effectually 
exclude  his  claim  to  any  beneficial  interest." 
"When  a  gift  is  conclusively  and  absolutely 
impressed  with  the  character  of  a  trust,  the 
trustee  will  not,  in  any  event,  be  entitled  to 
the  beneficial  enjoyment,  although  the  par- 
ticular object  of  the  donor's  bounty  becomes 
unable  to  take  it."  Again,  in  the  final  decree, 
he  says:    "If  the  testatrix  had  not  bequeath- 

*268 
ed  the  slaves  to  any  *one,  but  required  her 
executors  to  perform  the  trusts  by  paying 
them  their  legacies,  and  permitting  them  to 
live  free  of  service  or  wages,  except  what 
might  be  sufficient  to  pay  their  taxes,  it 
would  have  constituted  a  very  different 
case ;"  but,  as  the  facts  were,  "there  was 
nothing  upon  which  the  doctrine  of  indefinite 
and  void  trusts,  when  no  personal  benefit  is 
bestowed  on  the  executor,  can  operate,  so  as 
to  create  a  resulting  trust  in  favor  of  the 
next  of  kin." 

In  Fable  v.  Brown,  (2  Hill  Eq.  .398.)  where 
the  estate  was  given  to  slaves,  without  any 
direct  bequest  to  the  executor,  Cb.  Harper 
states  the  question,  "whether  this  can  be 
regarded  as  a  personal  beciuest  to  the  execu- 
tor, giving  the  property  beneficially  to  him, 
and  only  depending  on  his  friendship  and 
good  faith  to  deal  with  it  as  the  testator 
recommends,"  and  comes  to  the  conclusion, 
that  the  estate  was  not  given  to  the  execu- 
tor, and  that  neither  master  nor  slave  could 
maintain  an  action  against  the  executor  for 
the  legacy  given  in  the  case.  All  of  these 
cases,  as  the  one  before  us,  are  without  the 
operation  of  the  Act  of  1841. 

The  application  of  these  doctrines  to  this 
case,  is  fatal  to  the  plaintiff's  pretension, 
that  the  gift  of  the  services  of  Martha  to 
Phillis,  for  the  life  of  Phillis,  amounts  to  a 
gift  of  Martha  for  the  same  term  to  the 
legatee  of  Phillis.  The  testatrix  has  not 
given,  directly  at  least,  any  legal  interest  in 
Martha  to  Mrs.  Hardwicke,  and  she  intend- 
ed for  this  legatee  no  beneficial  interest  in 
Phillis,  much  less  in  Martha.  When  Mrs. 
Vereen  expressed  the  desire,  "that  Phillis 
should  be  allowed  to  keep  with  her,  and 
have  the  services  of  her  child,  Martha,"  it  was 
surely  not  her  purpose  to  constitute  Phillis 
proprietor  of  Martha,  and  a  proprietor  who 
could  transmit  title.  The  words  of  the  will 
imply  that  some  accommodation  or  indul- 
gence, from  Martha's  company  and  attend- 
ance, was  designed  for  Phillis,  as  a  personal 
privilege  to  a  favorite  servant ;  but  first  to 
convert  this  privilege  into  full  title,  and  then 
to  transfer  it  to  IMrs.  Hardwicke,  is  to  change 
the  whole  substance  of  the  bequest,  both  as 
to  subject  and   object.     If  the  wife  of  my 

*269 
coachman,  both  slaves,  should  *become  sick,, 
during  the  casual  absence  of  my  neighbor, 
her  owner,  and  I  should  write  a  note  to  his 
overseer,  that  the  coachman  might  remain 
with  his   wife,   and  yield  her  any  service; 


BARKSDALE  v.  GAMAGE 


*2-.l 


could  it  be  proteiuletl  that  my  iu'ij;hli<>r  hart 
thereby  received  my  bill  of  sale  of  thi'  cuach- 
man?  Yet  that  case  tloes  not  differ  from  the 
one  before  us  in  priuf-iple.  It  is  not  contro- 
verted, tliat  a  gift  of  the  use  of  an  inanimate 
chattel,  or  of  the  services  of  an  intelligent 
i)r  sentient  chattel,  is  generally  a  gift  of  the 
chattel :  for  the  use  and  services  of  the 
chattel  included  all  benefit  that  property  in 
it  can  atford,  and  imply  the  intention  of  the 
donor  to  convey  the  property.  lie  is  the 
owner,  who  is  entitled  to  all  the  advantages 
and  attributes  of  owner.  But  unless  the 
donee  be  sui  juris,  and  capable  of  exerting 
dominion  and  enjoyment,  as  he  cannot  be  en- 
titled to  the  use  and  services,  he  cannot  take 
the  chattel  Itself,  to  which  these  cohere.  A 
bequest  of  $50  to  the  horse  of  another,  that 
the  horse  might  be  suppliwl  with  wholesome 
provender,  would  be  barren  to  the  horse  and 
his  owner,  although  a  bequest  to  the  owner 
for  the  use  of  the  horse,  might  be  good. 

A  slave,  although  a  chattel,  is  also  a  per- 
son, and,  to  some  extent,  capable  of  the  ac- 
quisition of  property,  for  the  benefit  of  the 
master.  But  a  privilege  attending  the  per- 
son of  the  slave,  or  a  trust  for  him,  or  an 
executory  contract  made  with  him,  caimot  be 
judicially  established,  either  for  the  slave  or 
his  master.  Chancellor  Ilarper,  in  Fable 
V.  Brown,  presents  the  just  view  of  this 
jnatter:  "whatsoever  chattels  the  slave  ac- 
quires, he  acquires  for  his  master,  and  the 
ma.ster  might  maintain  an  action  for  them 
in  the  hands  of  a  stranger.  But  an  execu- 
tory contract  made  with  a  .slave  cannot  be 
enforced.  No  action  could  be  maintained  on 
a  bond  or  note  given  to  a  slave."  The  be- 
quest to  Phillis  here,  is  a  voluntary  and  ex- 
ecutory contract  that  she  may  have  the  so- 
ciety and  service  of  her  child,  and  is  not  an 
assignable  interest.  In  fact,  the  legal  inter- 
est in  Martha  is  given  to  the  defendants  as 
residuary  legatees,  and  the  recommendation 
that  she  might  be  allowed  to  attend  and 
serve  riiillis,   is  addressed   to  their  benevo- 

♦270 
lence  anij  good  faith.     We  con*clude  that  the 
plaintiff  has   not   shown   title  to  the  slaves 
claimed  in  his  bill. 

This  view  supersedes  the  necessity  of  a 
full  consideration  of  the  question,  whether, 
if  the  plaintilT  had  title  to  the  shivt's.  his 
practi<al  emancipation  of  them  did  not  sub- 
ject them  to  seizure  under  the  Act  of  ISOO. 
If  these  slaves,  when  seized  by  defendants, 
were  not  in  that  condition  of  dereliction  by 
their  proprietors,  and  irregular  emancii)a- 
tion,  intended  to  be  prevented  by  the  Acts  of 
]S()0  and  ISiiO,  it  would  l)e  difflcult  to  specify 
any  case  distinctly  within  the  mischiefs  and 
scope  of  the  Acts;  but  we  are  restrained 
from  any  absolute  determination  on  this 
point,  which  depends  on  the  facts,  by  defer- 
ence to  the  judgment  of  the  Chancellor  who 
heard  the  case  on  the  circuit.     The  judgment 


of  a  Chancellor,  when  exercising  the  func- 
ti(»ns  of  a  jury,  and  settling  the  weight  of 
testimony,  from  the  manner  and  character 
of  the  witnesses,  is  entitled  to  the  same  re- 
spect from  an  ai)pellate  tribumil,  as  the  ver- 
dict of  a  jury.  The  Chancellor  in  this  case 
decides,  that  the  slaves  were  not  in  the  pre- 
dicament exposing  them  to  seizure,  and  we 
will  not  reject,  however  we  may  distrust,  his 
conclusion  from  the  evidence. 

If  both  of  the  ((uestions  discussed,  as  to 
the  title  and  seizure,  had  lieen  decided  in 
favor  of  plaintiff,  we  should  still  have  re- 
fused to  him  the  .specific  delivery  of  the 
slaves.  This  remedy  is  peculiar  to  this 
Court,  and  is  to  be  exercised  with  sound,  ju- 
dicial di.scretion.  The  plaintiff  here  seeks 
delivery  of  the  slaves,  not  from  their  pecul- 
iar value  to  him  which  damages  would  not 
compen.sate,  mu',  indeed,  for  his  own  service, 
but  for  the  acconuuodation  of  an  old  negro 
w'oman ;  and  we  should  have  left  him  to  his 
redress  at  law. 

It  is  ordered  and  decreed  that  the  circuit 
decree  be  reversed  and  the  bill  dismissed. 

JOHX,STON  and  DlMvIX,  CC,  concur- 
red. 

DARGAX,  Ch.  I  concur  in  the  judgment 
of  the  Court  in  this  case,  but  not  in  all  the 
reasoning  by  which  it  is  sustained.  The 
gift  of  the  use  or  services  of  a  slave  is  equiv- 

*271 
alent  to  giving  an  ^estate  in  such  slave, 
whether  for  life  or  in  fee.  Phillis  was  well 
beiiueathed  to  Mrs.  Ilardwicke,  as  the  be- 
quest took  effect  before  the  Act  of  1S41  wa.s 
passed.  The  gift  of  the  services  of  Martha 
to  riiillls  for  her  life  was  a  becpie.st  of  an 
estate  in  Martha  to  I'hillis  for  her  life.  A 
gift  to  a  slave  operates  as  a  gift  to  the  mas- 
ter and  vests  the  title  in  him.  Mrs.  Ilard- 
wicke was,  therefore,  entitled  to  both  I'hillis 
and  Martha,  under  the  bequests  of  the  will. 
I  concur  in  this  decree,  on  the  ground  that 
there  was  a  d«'reli(tion  of  these  slaves  on  the 
part  of  Mrs.  Ilardwicke,  their  legal  owner, 
and  that  the  title  was  in  the  defendants  as 
their  captors  under  the  provisions  of  the  Act 
of  ISOO. 

Decree  reversed. 


3    Rich.  Eq.  271 

THOMAS   BAUKSDALE  pt  al.  v.  EDWARD 

GAMAGE  ct  al. 

(Charleston.      Jan.   Term,   IS.'il.) 

\PcriH'tiiilirs  <S=>4  :     Wills  <g=560:?.| 

Testator  devised  as  follows:  'I  Kive,  devise 
and  l)('inii-atli  to  my  daimhters.  M.  and  S.  two 
lots  <if  land,'  v^c.  'to  be  e(|iially  divided  hctween 
tlieiu.  and  the  heirs  of  tlieir  body.  Should  ei- 
ther of  tliein  die  without  an  heir  of  their  Ixuly. 
then  to  my  surviviu;:  children  and  their  issue:' 
Held,  (ll  that  M.  took  a  fee  conditional  iu  the 
nioietv  of  the  lots  devised  to  her:    and  (2)  that 


^=>For  other  cases  see  same  topic  and  KEV-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


111 


»271 


3  RICHARDSON'S  EQUITY  REPORTS 


the  limitation  over  to  the  'surviving  children 
and  their  issue,'  was  void  for  remoteness. 

[Ed.  Note.— Cited  in  Relman  v.  Robertson,  46 
S.  C.  268,  269,  24  S.  E.  187;  Dillard  v.  Yar- 
boro,  77  S.  C.  231,  57  S.  E.  841;  IloUey  v. 
Still,  91  S.  C.  495,  74  S.  E.  1065. 

For  other  cases,  see  Perpetuities.  Cent.  Dig. 
§  26;  Dec.  Dig.  <©=>4;  Wills.  Cent.  Dig.  §  1354; 
Dec.  Dig.  <©=:3603.] 

[Estates  <©=37.] 

An  alienation,  by  tenant  in  fee  conditional, 
before  the  birth  of  issue,  does  not  prevent  the 
reverter  to  the  donor,  if  the  issue,  afterwards 
born,  die  in  the  life  time  of  the  tenant  in  fee 
conditional. 

[Ed.  Note.— Cited  in  Dillard  v.  Yarboro,  77 
S.  C.  231,  57  S.  E.  841. 

For  other  cases,  see  Estates,  Cent.  Dig.  §  7 ; 
Dec.  Dig.   <S=»7.] 

[Estates  €=»7.] 

An  alienation  after  the  birth  and  death  of 
issue  bars  the  right  of  the  donor  in  the  rever- 
sion. 

[Ed.  Note.— Cited  in  Graham  v.  IVIoore.  13  S. 
C.  119;  Powers  v.  Bollwinkle,  33  S.  C.  303,  11 
S.  E.  971 ;  HoUey  v.  Still,  91  S.  C.  495,  74  S. 
E.  106.5. 

For  other  cases,  see  Estates,  Cent.  Dig.  §  7; 
Dec.  Dig.  <©=>7.] 

[This  case  is  also  cited  in  Du  Pont  v.  Du  Bos, 
52  S.  C.  261,  29  S.  E.  665,  as  an  example 
of  partition  as  the  proper  procedure  in  es- 
tates in  fee  conditioned,  and  cited  and  af- 
firmed in  Holley  v.  Still,  91  S.  C.  487,  74 
S.  E.  1065.] 

Before  Dargau,  Cli.,  at  Charleston,  Febru- 
ary, 1850. 

The  decree  of  his  Honor  the  circuit  Chan- 
cellor, is  as  follows. 

Dargan,  Ch.  Thomas  Bai'ksdale,  by  his 
will,  dated  the  22d  day  of  May,  A.  D.  1800, 
inter  alia,  devised  as  follows: — "I  give,  de- 
vise and  bequeath  to  my  daughters,  Mary 
and  Sarah  Barksdale,  two  lots  of  land,  front- 
ing East  Bay  and  corner  of  Tradd  street,  to 
be  equally  divided  between  them  and  the 
heirs  of  their  body ;  shduld  either  of  them 
die  without  an  heir  of  their  body,  then  to 
my  surviving  children  and  their  issue." 
*272 

*The  property  was  subsequently  divided 
between  the  two  devisees,  and  that  portion 
of  it  which  fell  to  the  share  of  Sarah  Barks- 
dale  is  the  subject  of  this  litigation.  She 
intermarried  with  Charles  Dewar  Simons,  (a) 
and  there  was  an  antenuptial  marriage  set- 
tlement between  them,  executed  on  the  25th 
September,  1807,  by  which  she  conveyed  to 
George  Edwards  and  Thomas  Barksdale  all 
her  estate,  including  her  undivided  moiety  in 
the  two  lots  devised  to  her  and  Mary  Barks- 
dale, by  the  will  of  Tltomas  Barksdale,  in 
trust,  for  the  use  and  benefit  of  the  said 
Charles  Dewar  Simons  and  Sarah  Barksdale, 


(o)  Charles  Dewar  (or  DeWar)  Simons,  M. 
D.  was  an  eminent  professor  of  Chemistry  at 
the  time  of  his  death,  in  the  South  Carolina 
College,  at  Columbia.  He  was  drowned  on  the 
21st  January,  A.  D.  1812,  in  passing  through 
the  Hougabook  Swamp,  below  Graiiby,  when 
the  waters  were  unusually  high,  and  was  pro- 
foundly regretted  by  the  whole   State. 


during  their  joint  lives ;  remainder  to  the 
survivor  for  life,  remainder  to  such  child  or 
children  of  the  marriage  as  should  be  living 
at  the  death  of  the  survivor,  and  on  failure 
of  issue  living  at  the  death  of  the  survivor 
then  to  the  survivor  in  fee.  Charles  Dewar 
Simons  and  Sarah,  his  wife,  had  issue,  (a 
female  child,  born  alive,)  which  lived  but  a 
few  days,  or  hours ;  and  afterwards,  to  wit, 
on  the  21st  January,  1812,  Charles  Dewar 
Simons  died,  leaving  Sarah,  his  wife,  surviv- 
ing him.  and  without  any  issue  then  living. 

On  the  24th  September,  1811,  there  was  a 
partition  of  the  two  lots,  between  Sarah 
Simons  and  Mary  Barksdale.  On  the  18th 
day  of  March,  1S17,  Sarah  Simons  contract- 
ed marriage  with  the  defendant,  Edward 
Gamage,  and,  previous  to  the  solemnization 
thereof,  conveyed,  by  a  deed  of  marriage  set- 
tlement, to  George  Edwards  and  Thomas 
Barksdale,  in  fee,  all  that  lot,  etc.  being  the 
property  devised  to  her  by  her  father's  will^ 
and  the  subject  of  this  litigation,  in  trust, 
for  the  joint  use  of  the  said  Edward  Gam- 
age  and  Sarah  Simons,  during  their  joint 
lives ;  remainder  to  the  survivor  for  life,  re- 
mainder to  the  child  or  children  of  the  mar- 
riage, in  fee ;  and  in  default  of  such  child- 
dren,  to  the  survivor  in  fee.    The  said  Sarah. 

*273 
departed  this  life  on  *the  30th  June,  1841, 
leaving  the  said  Edward  Gamage  surviving 
her ;  but  without  leaving,  or  ever  having 
had,  any  issue  of  the  marriage  between  her 
and  the  said  Edward  Gamage. 

The  complainant,  Tlaomas  Barksdale,  is 
the  brother,  and  the  complainants,  Sabina 
Payne  and  Mary  Barksdale,  are  the  sisters  of 
the  deceased  Sarah  Gamage,  and  are  the  sur- 
viving children  of  the  testator.  The  defend- 
ant, George  B.  Edwards,  is  the  son  of  a  de- 
ceased sister,  Elizabeth  Edwards,  who  was  a 
daughter  of  the  te^rtator,  and  Elizabeth  Ham- 
mond and  Charles  O.  Hammond  are  the  child- 
ren of  Mary  Hammond,  and  grandchildren  of 
Elizabeth  Edwards,  and,  therefore,  gfeat- 
grandchildi-en  of  the  testator,  Thomas  Barks* 
dale. 

The  foregoing  is  a  statement  of  the  ma- 
terial facts,  and  the  relationship  and  posi- 
tion of  the  parties.  And  the  question  for  the 
judgment  of  the  Court  is,  which  of  these 
parties  are  entitled  to  the  estate,  and  in 
what  proportions?  This  involves  the  inquiry, 
as  to  what  estate  Sarah  Gamage  took  in 
this  property,  under'  Thomas  Barksdale's 
will?  The  first  question  which  appears  to 
me  to  be  proper  for  discussion  is,  as  to  the 
effect  of  the  words,  "and  their  issue,"  super- 
added to  the  intended  limitation,  in  favor  of 
the  testator's  surviving  chilren.  In  personal 
property,  a  limitation  to  the  survivors  of 
living  persons  has  the  effect  of  qualifying 
the  generality  of  a  gift  to  the  first  taker, 
and  his  issue,  or  the  heirs  of  his  body ;  so  as 
to  make  the  first  taker  have  a  life  estate,  and 


112 


<g=;»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


BARKSDALE  v.  GAMAGE 


*27G 


the  issue,  or  heirs  of  the  IkmI.v.  take  as  pur- 
chasers, by  way  of  reniaiuder.  Rut  where 
words  of  inheritance  or  succession  are  super- 
added to  the  limitation  in  favor  of  siirvivors, 
who  are  to  take  after  a  sjeneral  failure  ef  tlie 
issue  of  the  first  taker,  such  issue  cainiot 
take  as  purclia-sers.  The  ulterior  limitation 
(tver,  in  such  a  case,  would,  itself,  fail  for 
remoteness,  and,  tlu'ri'fore.  cainiot  impart 
such  a  restrictive  modilication  to  the  words, 
heirs  of  the  btKly,  or  issue,  as  to  make  them 
mean  heirs  of  the  liody,  or  issue,  livinj:  at 
the  death  of  the  first  taker.  2  Fearne  Con. 
Kem.  (Smith's*  m.  p.  JSSo.  Massey  v.  Hud- 
son, 2  Mer.  irts.  Postell  v.  Tosteli,  Bail.  E<|. 
390.     Wliere  the  linntation  to  survivors  has 

*274 
the  effect  of  reducing  the  estate  ♦of  the  first 
taker  to  a  life  estate,  and  of  makiiii;  his 
issue  purchasers,  it  must  he  to  the  survivors 
simi)ly ;  as  in  Stevens  v.  I'atterson.  (I>ail. 
Eq.  42.)  De  Treville  v.  Ellis,  (Bail.  E»i.  40). 
It  mu.st  appear  that  the  testator  contem- 
plated that  the  survivor  should  succeed  per- 
sonally to  the  estate,  and  not  take  a  trans- 
missible interest. 

The  limitation  in  Thomas  Barksdale's  will 
can,  then,  have  no  effect  upon  the  estate  giv- 
en to  his  daughter,  Sarah.  And  the  tpiestion 
recurs,  what  estate  did  .-^he  takeV  My  t>pin- 
ion  is,  that  she  took  a  fee  conditional,  and  I 
so  adjudge.  If  the  limitation  intended  by  the 
testator  to  liave  l)een  created  in  favor  of  his 
surviving  children  had  been  such  as  would 
have  been  valid  as  an  executory  devise,  graft- 
ed upon  a  fee  simi>le,  then  the  (piestion  would 
have  arisen,  wliether  such  an  executory  de- 
vise would  be  operative,  when  grafted  upon  a 
fee  conditional.  And  I  should  have  held  that 
it  would  not.  in  conformity  with  my  decision 
in  Buist  v.  Dawes  [4  Strob.  Eij.  :>7|.  now  be- 
fore the  Court  of  Errors.  If  the  estate  he 
once  admitted  to  be  a  fee  conditional,  it  nuist 
have  the  effect  of  cutting  off'  all  remainders 
and  executory  devises.  Such  an  estate  must 
expire  upon  its  own  natural  etllux.  It  has 
certain  characteristics  inseparable  from  it,  to 
destroy  which  would  be  to  destroy  the  estate. 
Upon  its  natural  ternnnation,  there  nuist  be 
a  reverter  to  the  donor,  or  his  heirs.  If  there 
be  issue  born  alive,  capable  of  inheriting  tlie 
estate,  the  tenant  in  fee  conditional  has  the 
right  of  alienation.  And  if  he  does  not  alien, 
tlie  estate  must  descend  per  forniam  »loni. 
The  two  first  of  the.><e  attributes  would  neces- 
sarily be.  and  the  third  might  be,  destroyed 
by  allowing  a  remainder  or  an  executory  de- 
vi.se  to  be  limited  upon  a  fee  conditional. 
And  this  would  be  to  destroy  the  only  distin- 
guishing marks  which  tlie  estate  possesses. 
But  this  (luestion  does  not  necessarily  arise, 
and  I  pass  on. 

Mrs.  Sarah  Ganiage  took  a  fee  conditional, 
under  the  will,  and  by  lier  first  marriage  she 
had  issue,  l)orn  alive,  capablo  of  inheriting 
tlie  estate.  This  event  entitled  her  to  alien- 
ate the  estate.     There  were  two  alienations 

3Ricu.Eq.-8 


by    her,    for    valuable    consideration— for    I 
regard    Iioth    the   deeds   of    marriage    settle- 

*275 
♦ment  in  that  light.  One  of  these  was  be- 
fore, and  tlie  other  afti-r  the  birth  of  i.ssue. 
The  latter  was  after  the  issue  had  died.  An 
alienation,  either  before  or  after  the  bii-th  of 
the  issue,  is  sufficient  to  bar  the  rights  of 
tho.se  are  to  take  iter  formam  doni.  and  tt» 
make  the  title  of  the  purchaser  valid.  But 
if  the  alienation  is  before  the  birth  of  issue, 
and  then  the  issue  die  before  the  tenant  in 
fee  conditional,  who  has  alienatt'd.  or  if  the 
alienation  be  after  the  birth  and  death  of  the 
issue,  this  does  not  prevent  the  reverter  t<» 
the  donor.  Bac.  Abr.  Tit.  Estate  in  Tail: 
Plow.  241;  1  Cruise  Dig.  s;', ;  1  Coke,  (iiy 
Thomas)  .')!(). 

The  only  rjuestion  which  I  am  to  consider 
is,  whether  the  nusband,  Edwanl  damage, 
is  entitled  to  hold  and  enjoy,  as  tenant  by  the 
courtesy,  rhis  <'state,  of  which  his  wife  was 
seized  during  their  marriage,  as  a  tenant  In 
fee  conditional.  This  last  is  an  estate  of  in- 
heritance, and  courtesy  will  attach  upon  it 
where  the  necessary  conditions  exi.st.  "When 
a  man  marries  a  woman  seized  at  any  time 
during  the  coverture,  of  an  estate  of  inherit- 
ance in  .severalty,  in  copanenary.  or  in 
common,  and  hath  issue  by  her  born  alive, 
and  whidi  might,  by  possibility,  inherit  the 
same  estate  as  heir  to  the  wife,  and  the  wife 
dies  in  the  lifetime  of  the  husband,  he  holds 
the  lands  during  his  life,  l)y  ciairtesy."  4 
Kent's  Com.  27;  Paine's  Case.  S  Coke.  G7. 
Charles  Dewar  Simons  might,  if  he  had  sur- 
vived his  wife,  have  held  this  estate  by  the 
courtesy;  but  the  defendant.  Edward  (Jam- 
age,  not  having  had  is.sue  by  his  wife,  is  not' 
entitled  to  set  up  any  such  claim. 

The  decree  of  the  Court  is.  that  the  real 
estate  described  in  the  pleadings  reverts  to 
the  right  heirs  of  the  testator.  Thomas  P.arks- 
dale,  to  be  divided  among  them,  jure  lepre- 
sentationis.  It  is  further  ordered  antl  de- 
creed, that  the  said  estate  be  divided  into 
four  equal  parts,  and  that  the  complain- 
ants do  each  take  one  of  the  .said  four  e<iual 
parts;  that  the  remaining  fourth  part  be 
again  divided  into  two  equal  parts,  one  of 
which  is  to  lie  assigneil  to  (Jeorge  B.  Ed- 
wards, and  the  other  to  Elizabeth  llanunond 
and  Charles  ().  llanunond,  eiiually  to  be  di- 
vided betwiHMi  them. 

*276 

*It  is  further  ordered  and  decreed  that  the 
defendant,  Edward  (Jamage.  account  for  the 
rents  and  profits  of  the  saiil  real  estate,  from 
the  death  of  the  said  Sarah  (ianiage,  to  wit, 
the  3(»th  June,  A.  I).  1841,  and  that  it  be  re- 
ferred to  one  of  the  masters  to  state  the  ac- 
count. 

It  is  further  ordered  and  decre»'d.  that  the 
rents  and  profits  be  divided  among  the  heirs 
of  the  testator,  in  the  same  manner  and  pro- 
liortions  as  the  corpus  of  the  estate  is  herein 
directed  to  be  di%ided. 

113 


*276 


3  RICHARDSON'S  EQUITY  REPORTS 


The  defendant,  Edward  Gamage,  api>ealed, 
upon  the  followuig  grounds,  viz: 

1.  That  his  Honor,  tlie  Chancellor,  erred 
in  ordering  an  account  of  the  rents  and  prof- 
its, received  hy  Edward  Gamage  since  the 
death  of  Sarah  Gamage,  and  in  ordering  a 
partition  of  the  premises  among  the  right 
heirs  of  Thomas  Barksdale,  the  testator. 

2.  That  the  Chancellor  erred  in  decreeing 
that  Mrs.  Sarah  Gamage  did  not  take  a  fee 
simple  in  the  said  premises,  upon  the  birth 
and  death  of  an  heir  of  her  body. 

3.  That  the  decree  was,  in  other  respects, 
contrary  to  the  correct  construction  of  the 
testator's  will,  and  to  equity. 

DeSaussure  &  Son,  for  appellant. 
Yeadon  &  Macbeth,  contra. 

DARGAN,  Ch.,  delivered  the  opinion  of  the 
Court. 

From  the  view  which  the  Court  has  taken 
of  this  case,  it  is  unnecessary  to  discuss  some 
of  the  questions  which  have  been  elaborately 
argued  at  the  bar.  The  construction  given 
to  the  will  of  Thomas  Barksdale,  is  believed 
to  be  correct.  The  limitation  over  to  the  tes- 
tator's surviving  children,  in  the  event  of 
Mrs.  Gamage  dying  without  issue,  is  void 
for  remoteness.  The  words,  "and  their 
issue,"  superadded  to  the  devise  in  favor 
of  the  surviving  children,  indicates  an 
intention,  on  the  part  of  the  testator,  not 
to  confer  a  personal  benetit  on  the  surviv- 
ors as  such:  but  that  if  they  should  be 
dead  on  the  failure  of  the  issue  of  Mrs. 
Gamage,    the    issae    of    liis    surviving    chil- 

*277 
dren  should  *represent  them  and  take  the  es- 
tate in  that  event.  This  is  an  attempt  to 
create  an  estate  in  remainder,  to  take  effect 
after  an  indefinite  failure  of  issue,  and  after 
the  natural  eftlux  of  the  precedent  estate  of 
inheritance  devised  to  Mrs.  Gamage.  The 
limitation  to  the  surviving  children  of  the 
testator  is  void  for  remoteness,  and  the  de- 
vise to  Mrs.  Gamage  (Sarah  Barksdale) 
stands  unaffected  by  it.  The  devise,  then,  is 
to  her,  and  the  heirs  of  her  body:  the  techni- 
cal import  of  which  words  is  to  create  a  fee 
conditional.  No  more  appropriate  and  sig- 
niflcant  Vvords  could  have  been  employed  for 
that  purpose.  For  a  fee  conditional  is  de- 
fined to  be  "a  fee  restrained  to  some  particu- 
lar heirs,  exclusive  of  others:  donatio  stricta 
et  coarctata ;  sicut  certis  han-edibus,  quibus- 
dam  a  successione  exclusis:  as  to  the  heirs 
of  a  man's  body,  by  which  ouly  his  lineal  de- 
scendants were  admitted :  or  to  the  heirs 
male  of  his  body,  in  exclusion  both  of  collat- 
erals and  lineal  females  also.''  2  Bl.  Com. 
110. 

There  is  no  objection,  whatever,  in  point 
of  policy,  to  the  estate  in  fee  conditional. 
I  think  it  subserves  a  useful  purpose.  At 
all  events,  it  is  in  no  disfavor.  It  is  only 
within  a  recent  period,  however,  that  it  has 
been  recognized  by  judicial  authority  to  ex- 

114 


ist  in  South  Carolina.  No  earlier  case  ex- 
ists in  which  such  estates  were  so  recognized 
than  Jones  ads.  Postell  &  Potter,  (Harp.  92, 
A.  D.  1S24).  Beyond  this  period,  we  may  ap- 
peal in  vain  to  our  Reports  and  judicial  rec- 
ords for  any  decision  or  discussion  illustra- 
tive of  the  rules  and  principles  which  govern 
these  estates.  In  the  mother  country,  they 
were  abolished,  or  so  modified,  by  the  statute 
de  donis  conditionalibus,  as  to  deprive  them 
of  all  those  distinctive  attributes  which  they 
possessed  at  common  law.  This  celebrated 
statute,  so  important  in  its  bearing  upon  the 
institutions  of  landed  property  in  England, 
and,  I  niay  say,  upon  the  form  of  Govern- 
ment and  the  political  destiny  of  that  great 
country,  was  passed  576  years  ago.  The 
great  body  of  the  common  law,  in  all  its 
ponderous  and  majestic  propoi-tions,  has 
been  built  up  by  judicial  decisions  and  the 
commentaries  of  eminent  jurists  since  that 
period.     Subsequent  to  that  time,  there  has 

*278 
been  but  little  discussion  in  English  *courts, 
and  in  the  works  of  English  writers  upon 
law,  on  the  subject  of  estates  in  fee  con- 
ditional: because,  with  the  exception  of  es- 
tates by  copyhold  tenure,  (to  which  the  stat- 
ute de  donis  did  not  apply,)  no  such  estates 
exist  in  their  system  of  jurisprudence.  For 
this  reason,  we  have  only  the  scanty  ma- 
terials afforded  by  the  early  common  law 
writers,  to  throw  light  upon  this  subject, 
whenever  a  question  like  the  present  arises 
in  our  courts.  The  information,  however, 
which  we  derive  from  this  source,  slight  as 
it  is,  is  sufficient  to  enable  the  Court  under- 
standingly  to  decide  the  question  now  be- 
fore it. 

Mrs.  Gamage,  (then  Sarah  Barksdale)  by 
the  will  of  her  father,  Thomas  Barksdale. 
being  seized  of  an  estate  in  fee  conditional, 
and  lieing  about  to  contract  matrimony  with 
Charles  Dewar  Simons,  on  the  25th  day  of 
Seiitember,  A.  D.  1807,  conveyed  the  said 
estate  in  fee  to  trustees,  to  the  uses  of  her 
marriage  settlement,  which  she  entered  into 
with  the  said  Charles  Dewar  Simons.  The 
marriage  was  shortly  afterwards  duly  sol- 
emnized ;  and  tiiere  was  issue  of  this  mar- 
riage, namely,  Mary  Moncrief  Simons,  who 
was  born  about  the  20th  July,  1S08,  and  liv- 
ed only  a  day  or  so  after  birth.  On  21st 
January,  1812,  Charles  Dewar  Simons  died, 
without  leaving  issue,  and  leaving  his  wife, 
Sarah,  (afterwards  Mrs.  Gamage)  surviving 
him.  On  this  event  (it  was  jirovided  by  the 
terms  of  the  deed  of  marriage  settlement,) 
the  trustees  were  to  stand  seized  of  the  es- 
tate, for  the  use  of  Mrs.  Simons  in  fee.  The 
statute  of  uses  having  executed  the  use  in 
her,  she  was  again  vested  with  the  legal  ti- 
tle in  the  estate. 

On  the  eve  of  her  second  marriage  (with 
the  defendant,  Edward  Gamage)  she,  by  a 
deed  of  marriage  contract,  again  conveyed 
the  estate  to  trustees  to  be  held  for  the  joint 


BARKSDALE  v.  GAMAGE 


»-;8i 


use  of  the  said  Etlwnnl  Giuiia«o  and  Sarah 
Simons,  his  intendi'd  wife,  duilii;,'  tlioir  jdiiit 
lives:  remainder  to  tlif  survivor:  n-maiiider 
to  tlie  (liildren  of  tlie  marriayt-  in  fee:  and, 
In  default  of  such  rliiid  ,,r  cliiidrcn.  to  tlie 
survivor  of  the  principal  i.artics  to  thf  ((mi- 
tract  in  fee.  On  the  ::()th  June.  1S41,  Mrs. 
Gamafi:e  died,   witiiout   having  had   issuf   by 

♦279 
her  second  marriaw,  and  *leaviii-  tiie  said 
Kdward  (;amai:e  surviving'  lu-r.  And  the 
said  Kdward  (iama-e.  who  is  one  of  the  de- 
fendants, claims  tile  whole  of  the  estate  in 
fee,  by  virtue  of  his  survivorship  according 
to  the  terms  of  the  deed  of  marriaf;e  settle- 
ment. 

The  conveyances  of  Mrs.   (;ama^'e.   in   the 
way   of   marriajre  settleiiie;>t.    were,   each   of 
them,  to  all  intents  and  iiurposes.  an  aliena- 
tion,   in   a    manner   and    form    which    would 
not    only    cut    off    the    descent    per    forniani 
doni  to  her  own  issue,  hut  would  defeat  the 
reverter  to  the  testator  and  his  heirs:    Pro- 
vided that,   under  the  circumstances  of  the 
case,    she   had   the   riirht  to  convey   the   fee. 
In  the  circuit  decree.   I   held  this  lan.u'ua^'e: 
"An    alienation,    either    before    or    after   the 
birth  of  issue,  is  sufticient  to  liar  the  rijrlits 
of  those  who  are  to  take  per  forinam  doni, 
and  to  make  the  title  of  the  i»urchaser  valid! 
But  if  the  alienation  is  liefore  the  liirth  of 
issue,  and  then  the  issue  die  before  the  ten- 
ant   in    fee    conditional    wlio    has    alienated: 
or  if  the  alienation  be  after  the  birth  and 
death  of  issue,  this  does  not  prevent  the  re- 
verter to  the  donor."     The  first  proiiosition 
in  the  preceding  sentence  is  true,  and  is  well 
sustained   liy   the   authorities:     namely,   that 
where   the   alienation   is   before   the   birth   of 
issue,    and    issue    is    subsequently    horn    and 
dies  durinj:  the  life  of  the  tenant  in  fee  con- 
ditionid.    the    reverter   of   the    dr»nor    is    not 
tlicieb.N      prevented.        But     the     jiropo.sition 
which  a.ssert.s.  that  the  same  result  follows, 
ill  a   case  where  tlu-re  is   issue   born    which 
<lies,    and    there   is   an    alienation    after   the 
birth  and  death  of  such  issue,  is  not  .so  sus- 
tained,  and   was  founded   upon  ji   misconcep- 
tion of  the  state  of  the  autlKuities  ui)oti  this 
subject.      Tlie    distinction    is    nice.    and.    ap- 
parently.  Mil)itrary:    but   yet   is   found   to  be 
in    iiarniony   with    the   j,'eneral    rules   of   hiw 
in  re;:ard  to  estates  ujioii  condition.     On  ref- 
erence  to   these    rules,    and    upon    .1    <;ireful 
examination    of   the    authorities    the    conclu- 
sion is,  that  where  there  is  an  .-ilieiiation  iie- 
fore  the  birtli  of  issue,  the  sulise.pient   birth 
and  death  of  issue,  does  not  defeat  the  ri;.'lit 
<|f   the    donor   in   tlie    reversion.      IIeii<-e    the  I 
first   deed   of  niarria.i.'e  sett  lenient   was   inoji- 
erative    for    this    purpose.      I'.ut    where    the 
alienation    is    sul  seipieiil    to    the    birth    and 

*280 
death  of  issue,  as  in  the  case  of  the   *last 


deed    (.f    marriase    .settlement,    the    ipiestion 
I>resents  it.self  in  a  different  aspect. 

I'mler  the  jmrely  military  .system   of  ten- 
ures,  that    existed    under   the   earlier   Kiufis 
of    the    Xornian    dynasty,    all    feuds     were 
Rranted    for   the  life  of  the   feudatory   ..nly 
(2    Bl.    Com.   5.")).      In    process    of   time   they 
were    ext«'nded     beyond     his     life:      ami     at 
len^'th  to  the  heirs  of  his  body:   and.  in  .some 
Instances,  to  his  lieirs  general.     The  fee  con- 
ditional   is   a    remnant   of   tlie.se   earlier   ten- 
ures.     "It   was   called   a    fee   conditional,    by 
reason  of  the  condition  expre.s.st.,!  or  implied 
in  the  donation  of  it.  that  if  the  donee  died 
witiiout  su<h  particular  la-irs."  (of  his  IxMlyi 
"the  land  should   revert  to  the  donor."     But 
if  he   had   su«h   heirs   "it   sluaild   remain   to 
the    donee."    (2    Bl.    Com.    IKM.      "Now    we 
must   ob.serve"  says  Sir  William   lilackstone. 
(-'   Com.    110)    "tliat    when    any    condition    is 
performed,    it    is   thenceforth    entir«'ly    j:one ; 
and  the  thin;;  to  which  it  was  before  annex- 
ed, becomes  thenceforth  absolutely  and  whol- 
ly  unconditional."     So  that,   as  .soon  as  the 
^'rantee   had   issue  born,  his  estate  was  sup- 
posed   to    become   absidute.    by   the   iierform- 
ance    of    the    condition;     at    least    for    these 
three  puriio.ses:— 1.  To  enable  the  tenant   to 
alien  the  land,  and  thereby  to  liar  not  only 
his  own  issue,  but  also  the  donor  of  his  in- 
terest  in   the   reversion :     2.  To   subject    him 
10  forfeit  it  for  treas(»n  ;    which  he  could  not 
do.  till  issue  born,  longer  than  his  own  life: 
:{.  To  empower  him  to  char^'e  the  l.-ual  with 
rents.    &c.      The    fee    conditional,    it    would 
thus  appear,  (to  the  extent  laid  down  in  the 
passage  cited)  is  not  different  from  other  es- 
tates  on    condition;     in    regard   to  which,    a 
fundamental  rule  is.  that  when  the  condition 
is  once  performed,   it   is  thenc,-f,.r\v;ird   gone 
forever. 

Mrs.  Carnage  having  had  issue  by  her  first 
marriage  with  Charles  Dewar  Simons,  had 
thus  performed  the  condition  annexed  to  her 
estate,  before  her  alienation  of  it  by  her 
deed  of  marriage  c(»ntract  with  Kdward 
Gainage.  By  this  deed,  the  land  was  con- 
veyed to  trustees,  to  be  held  for  the  ti>^e  of 
Kdward  (ianiage  in  fee.  uiion  the  condition 
of  his  being  the  survivor,  and  tlien-  being  no 

issue  of  the  rriage.     This  contingency  has 

lia|.iieiie<l.     The  statute  has  executed  the  use 

*281 
in  him.  jind  he  is  *tlie  sole  projirietor  of  the 
land,    tile    partition    (.f    which    is    soii"bt    in 
the  bill. 

It  is  ordered  mid  decreed  tluit  the  circuit 
decree  be  rever.^e.l.  and  that  the  bill  be  dis- 
missed. 


.TOILV.STOX.    DIXKLN    and    WAKI  d-.V  \V, 
Vi\  coiiciirreil. 
I  )ecree  reversed. 

115 


*281 


3  RICHARDSON'S  EQUITY  REPORTS 


3    Rich.  Eq.  281 

GEORGE  BUIST,  Adm'r  James  D.   Sommers, 
V.  HUGH  P.  DAWES  and  J.  I.  WARING, 

Ex'ors  John  W.  Sommers,  and  Others. 

(Charleston.      Jan.    Term,    1851.) 

[Wills  €=5S7.] 

Testator,  after  disposing  specifically  of  some 
few  articles  of  iiisisnificaut  value,  gave  several 
small  pecuniary  legacies,  concluding  as  follows: 
"and  all  the  rest  of  monies  coming  to  me  from 
the  estate  of  my  father,  or  from  any  other 
quarter,  I  give  and  bequeath  to"  J.  S.;  there 
was  money,  and  nothing  else,  coming  to  testator 
from  the  estate  of  his  father;  Held,  that  the 
above  residuary  clause  embraced  only  monies 
due  to  testator,  and  did  not  embrace  a  contin- 
gent interest  in  lands  and  negroes. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.   §  1282 ;    Dec.  Dig.  <©=587.] 

[Appeal  and  Error  <@r::3llS0.] 

Defendant,  in  whose  favor  a  circuit  decree 
had  been  pronounced,  and  from  which  an  ap- 
peal was  pending,  consented  that  the  bill 
should  be  amended,  so  tliat  an  objection  to  the 
decree,  not  taken  on  the  circuit,  might  be  con- 
sidered in  the  Court  of  Appeals;  the  Court 
of  Appeals  remanded  the  case  to  the  Circuit 
Court,  that  the  matter  might  first  be  consider- 
ed there ;  Held,  that  the  order  remanding  the 
case,  virtually  opened  the  circuit  decree,  and 
that  defendant,  on  an  appeal  from  the  next  cir- 
cuit decree,  could  not  claim  the  benefit  of  it  as 
a  subsisting  decree. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  §  4658 ;    Dec.  Dig.  <®=3ll80.] 

[Election  of  Remedies   <©=>1.] 

Wherever  two  rights  are  alternatively  creat- 
ed, or  given,  either  in  express  terms,  or  by  con- 
struction, the  party  to  whom  they  are  given  is 
entitled  to  only  one  of  the  two,  and  must  elect 
between  them  ;  but  after  he  has  made  his  elec- 
tion he  is  bound,  and  will  not  be  allowed  to 
elect  again,  unless  he  can  shew  some  equitable 
circumstances  entitling  him  to  retract  the  choice 
he  has  made. 

[Ed.  Note.— Cited  in  Powers  v.  McEachern,  7 
S.  C.  300. 

For  other  cases,  see  Election  of  Remedies, 
Cent.  Dig.  §  1;    Dec.  Dig.  <©==>1.] 

[Election  of  Remedies   <%-z:=>\A.^ 

If  the  two  rights  are  legal  rights,  after  an 
election  has  been  made,  (and  it  is  sulticient  to 
constitute  such  an  election  at  law  that  one  has 
been  taken,  though  it  was  not  taken  as  an  alter- 
native, or  by  way  of  choice  between  the  two,)  it 
operates  as  a  complete  legal  bar  by  way  of  es- 
toppel against  the  claim  of  the  alternative. 

[Ed.  Note. — Cited  in  Glover  v.  Glover,  45  S. 
C.  55,  22  S.  E.  789. 

For  other  cases,  see  Election  of  Remedies, 
Cent.  Dig.  §  10;    Dec.  Dig.  <©==>14.] 

[Descent  and  Distrihution  <©=^67.] 

The  right  to  dower  and  tliirds  are  both 
legal  rights,  and  the  acceptance  of  one  (whether 
intended  as  a  waiver  of  the  other  or  not,)  is  a 
bar,  at  law  and  in  equity,  to  the  claim  of  the 
other. 

I  Ed.  Note. — Cited  in  Evans  v.  Piersou,  i)  Rich. 
12;  Glover  v.  Glover,  45  S.  C.  54,  22  S.  E. 
7oJ);  Lavender  v.  Daniel  &  Harmon,  58  S.  C. 
137,  36  S.  E.  546  ;  Kennedv  v.  Kennedy,  74  S. 
C.  545,  54  S.  E.  773. 

For  other  cases,  see  Descent  and  Distribution, 
Cent.  Dig.  §  202;    Dec.  Dig.  (S=>67.] 

[Descent  and  Distribution  <£;=>(;7.] 

A  party  will  iidt  be  allowed  to  retract  an 
electi.on    once    made,    unless    upon    grounds    of 


equity  shown  to  exist,  by  evidence  inheient  in 
the  circumstances  or  extrinsic. 

[Ed.  Note. — For  other  cases,  see  Descent  and 
Distribution,  Cent.  Dig.  8  205;  Dec.  Dig.  <S=> 
67.] 

*282 

[Descent  and  Distribution  (q^^^GI.I 

*lu  1819  J.  S.  died  intestate,  leaving  a 
widow;  at  his  death  he  was  in  possession  of 
an  inconsiderable  estate,  and  was  considered  in- 
solvent, but  had  a  contingent  interest  in  a 
large  estate;  in  1820,  the  widow  recovered  a 
sum  of  money  in  lieu  of  dower  in  a  plantation, 
of  which  J.  S.  had  been  seized;  the  widow 
afterwards  died,  and,  in  1848,  the  contingent 
interests  of  J.  S.  became  vested,— and,  on  bill 
for  settlement  of  his  estate,  the  representatives 
of  the  widow  claimed  her  distributive  share 
thereof: — Held,  tliat  the  acceptance  of  dower  by 
the  widow  in  18i;0,  was  a  bar  ty  the  claim. 

[Ed.  Note. — For  other  cases,  s?^e  Descent  and 
Distribution,  Cent.  Dig.  §  205;  Dec.  Dig.  <§;=> 
67.] 

[Descent   and   Distribution   <&=367.] 

Held  further,  that  the  representatives  of  the 
widow  were  not  entitled  to  retract  the  election 
made  in  1820,  and  take  her  distributive  share, — 
making  compensation  for  the  dower  received. 

[Ed.  Note. — For  other  cases,  see  Descent  and 
Distribution,  Cent.  Dig.  §  205;  Dec.  Dig.  <©=» 
67.] 

Before  Diinkin,  Cli.,  at  Charleston,  June, 
1850. 

For  a  full  understanding  of  this  case,  as 
now  reported,  reference  must  be  had  to  the 
first  decision  in  the  ease,  as  reported  4 
Strob.  Eq.  37. 

Dunkin,  Cli.  It  has  been  heretofore  ad- 
judged, that  on  the  demise  of  John  W.  Som- 
mers in  January,  1848,  without  issue  living 
at  his  death,  the  complainant,  as  tlie  legal 
representative  of  James  D.  Sommers,  de- 
ceased, was  entitled  to  the  personal  proper- 
ty which  passed  under  Edward  Tonge's  will. 
It  was  also  in  proof,  that  at  the  death  of 
James  D.  Sommers,  in  1817,  intestate,  his  es- 
tate, under  the  Act  of  1791,  was  distributa- 
l)le  as  follows,  viz.:  one  moiety  to  his  Avidow, 
Susan  B.  Sommers,  and  the  other  moiety 
equally  between  his  brother,  John  W.  Som- 
mers, and  his  sisters,  Henrietta  Rowand 
and  Mary  Buist. 

Thomas  R.  Waring,  one  of  the  defendants, 
is  the  administrator  of  Susan  B.  Sommers, 
afterwards  Susan  B.  McDow,  deceased.  The 
circuit  decree  had  directed  a  distribution  of 
the  personal  estate  among  such  persons  as 
answered  the  description  of  distributees  of 
James  D.  Sommers,  at  the  time  of  his  death, 
or  their  legal  representatives.  This  estab- 
lished or  declared  the  right  of  Thomas  R. 
Waring,  as  administrator,  to  one  moiety  of 
the  estate. 

Subse(iuently  an  amended  bill  was  filed, 
by  consent,  in  which  it  was  suggested,  that 
the  legal  representative  of  Mrs.  McDow, 
formerly  the  widow  of  James  D.  Sommers, 
was  not  entitled  to  any  portion  of  this  prop- 

*283 
erty,  inasmuch  as  she  had  claimed  and  *had 
been   allowed  her  dower  in  his  real  estate. 


116 


@=^For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


BUIST  V,  DAWES 


*1>Sb 


Upon  the  flonth  of  Iht  liusbniid,  a  widnw  is 
oiititlftl  oitlipr  to  cliiim  Iht  <(muiiioii  law 
riiiht  of  (lowiT.  or  to  tak«'  tlic  imtvisioii 
made  for  lu'r  in  lien  of  dower,  by  liis  will, 
if  lie  died  testate,  or  the  share  allotted  to 
her  hy  the  Act  of  1701.  if  he  died  Intestate. 
In  either  case,  the  widow  lias  lier  elect  ion. 
She  is  entitled  to  a  full  knowled^;e  of  the 
condition  of  the  estate  before  she  shall  be 
reipiired  to  ele.t.  And  so  liberal  has  been 
the  construction  of  the  Court,  tliat,  in  a 
case  of  i>eculiar  circumstances  arisinj;  on 
the  Duke  of  Monta^'ue's  will,  the  House  of 
Lords  decided  that  this  ri;;ht  of  election 
lasted  tifty  years.  IJeaulieu  v.  ('ardi;:an, 
O;  r.ro.  P.  C.  2:'>2.)  Alth.ai^'h  a  i>arty  lias 
actually  made  an  eli'ction.  yet  if  the  choice 
lias  been  made  in  iirnoranoe  of  tlie  real  es- 
tate of  the  funds  or  under  a  misconception 
of  the  extent  of  the  fund  elect«'d  by  liim, 
such  elec-tion  shall  not  be  conclusive  »ui  him. 
(L'  Storey's  E(|.  §  lOOs.i 

Tlie  Act  of  1701  expressly  declares,  that  the 
provision  therein  made  for  the  widow,  shall, 
if  accepted  by  her.  be  considered  as  in  lieu 
of.  and  in  bar  of.  dower.  (5  Stat.  163.)  So 
this  Court,  acting  on  its  own  principles, 
would  not  permit  a  widow  to  recover  both 
dower  and  thirds  in  the  same  estate.  She 
is  in  the  same  situation  as  if  her  husband 
had  executed  a  will  making  provision  for 
her,  but  expressly  in  lieu  and  bar  of  dower. 
She  is,  in  botli  cases,  put  to  her  election. 
Nor  is  a  widow  in  a  different  situation  from 
any  other  person  jtreferring  inconsistent 
claims.  Any  party,  deriving  title  under  a 
deed  or  will,  must  conform  to  its  provisions, 
and  renounce  every  right  inconsistent  with  it. 
Tlie  (piestion  lias  been  sometimes  discussed, 
whether  this  doctrine  of  election  Implied 
forfeiture,  or  only  compensation.  In  the  lan- 
guage of  Mr.  Justice  Story.  ••Whether  a  dev- 
isee, electing  against  the  will,  thereby  for- 
feits the  wliole  of  tlie  benetit  jn'oiiosed  to  liim, 
<M-  so  much  only  as  is  re(inisite  to  compensate, 
by  an  equivalent,  those  claimants  whom  he 
had  disapiiointvd."  The  learned  comnuMitator 
concludes  the  better  autliority.  and  more  in 
conformity  with  the  gtMi<>ral  principles  of 
eipiity,  to  lie  that  "there  is  not  in  such  case 

♦284 
an  absolute  forfeiture;    but  there  *is  a  duty 
of  compensation,  (at  least  where  the  case  ad- 
mits of  compensation.)  or  its  etjuivalent."     (2 
Story's  i:(i.,  §   losn.) 

It  is  not  doulited  that  an  election  may  be 
fletermined  by  matter  in  i»ais.  as  well  as  hy 
matter  of  record.  Hut  it  is  not  always  enough 
to  conclude  a  party,  that  he  has  heretofore^ 
established  a  right  inconsistent  witli  the  prin- 
(iples  on  which  he  now  claims.  It  must  ap- 
pear that  the  act  was  done  eo  intuitu.  "An 
election  can  only  lie  determined  by  jilain  and 
une<|uivocal  acts,  under  a  full  knowledge  of 
all  the  circumstances,  and  of  the  party's 
rights."  White's  Lead.  Cases  in  Chancery. 
2sy.      In    O'Driscoll    v.    Koger,    (2   Des.    200.) 


Chancellor  Rutledge  declared,  in  relation  to 
this  doctrine  of  election,  that  tlie  Court  was 
not  inclined  to  deprive  a  woman  of  lier  legal 
rights,  unless  it  should  be  made  to  appear, 
that  the  acts  done  by  her  were  done  "with  a 
perfect  cognizance  of  all  her  rights." 

The  leading  case  on  the  (piestion  of  election 
is  Dillon  V.  I'aiker.  (1  Swaiist.  ."."tO.)  heard  by 
Sir  Thomas  I'lumer,  -Master  of  the  Rolls. 
In  that  case  it  was  urged  for  the  ]iIaintifT. 
that  Sir  Henry  John  I'arker  was  in  Ids  life- 
time bound  to  elect,  and  that  having  accepted 
property  under  liis  son's  will,  this  determined 
his  eIe<'tion.  an<l  that  the  defendant  <laiiniiig 
under  Sir  Henry,  was  bound  to  conform  to  all 
the  provisions  of  his  .son's  will.  It  had  been 
submitted  by  Sir  Samuel  Komilly.  in  behalf 
of  the  defendant,  "that  the  Court  must  be 
satisfied  that  Sir  Henry  was  apprised  of  the 
obligation  to  elect,  and  of  the  value  of  his 
different  rights."  The  Court  say,  "The  pcunt 
made  by  the  plaintiff  is.  that  ac<-eptance 
binds  and  operates  forfeiture  without  ref- 
erence to  intent.  It  is  said  that  Sir  Henry 
accepting  his  son's  gift,  by  that  act  renounc- 
ed his  own  estate;  that  is  not  election,  but 
forfeiture.  If  such  is  the  effect  of  acceptance, 
even  though  in  ignorance  that  it  was  not 
competent  to  the  party  to  retain  both  benefits, 
but  that,  on"  taking  <ine,  the  conse(iuence  of 
law  was  that  he  renounced  the  other,  then,  by 
inadvertence,  without  choice,  an  estate  may 
be  lo.st.  But,  in  all  cases  of  election,  the 
Court  is  anxious,  while  it  enforces  the  rule 
of  equity,  that  the  party  shall  not  avail  liim- 

*285 

self  of  both  his  claims,  still  to  *secure  to  him 
the  option  of  either;  not  to  hold  him  con- 
cluded by  e<iuivocal  acts,  performed  perhaps 
in  ignorance  of  the  value  of  the  funds  ;  a  prin- 
ciple strongly  illu.strated  by  the  decision  in 
Wake  V.  Wake.  The  rule  of  the  Court  Is  not 
fiirfelture,  but  election;    utrum  horum." 

Wake  V.  AVake  is  reportt>d  1  \'es.  Jr.  ."..'jri. 
and  was  heard  by  Air.  Justice  Huller.  sitting 
for  tlie  Lord  Chancellor.  A  widow  had.  un- 
<ler  her  husband's  will,  a  legacy  of  £1"2(),  and 
an  annuity  of  £.■?."».  She  had  been  paid  her 
legacy,  and  had  received  also  tlu>  annuity  for 
three  years.  At  the  ex|ti ration  of  that  time, 
she  filed  a  bill  praying  f<u'  dower  out  of  her 
husband's  real  estate,  as  well  as  the  jirovision 
made  for  lu'r  by  the  will.  The  devisi>e  of  the 
real  estate  was  a  son  by  a  former  marriage, 
and  was  in  possession  under  the  will.  It  was 
held  to  constitute  a  case  of  election.  And 
it  was  then  insisted  on  the  part  of  the  de- 
fendant, that  the  widow  had  determined  her 
election,  by  acceptance  of  the  jirovisions 
made  by  the  will.  Hut  Mr.  Justi<'e  Huller 
overruled  the  objection.  "The  point  is," 
says  he.  "whether  she  had  full  knowledge 
of  the  circumstances,  and  of  her  own  rights. 
If  she  acted  with  full  knowledge,  she  should 
not  afterwards  deny  it."  The  claim  of  dow- 
er was  sustained,  but  the  widow  was  held  ac- 


«285 


3  RICHARDSON'S  EQUITY  REPORTS 


countable  for  the  legacy,  and  wliat  she  had 
received  on  the  annuity.  A  note  to  this  case 
refers  to  Butricke  v.  Broadhurst,  (id  171.) 
That  was  very  analogous,  in  some  of  its  cir- 
cumstances, to  our  own  case  of  Wilson  v. 
Hayne,  (Cheves  Eq.  37.)  A  widow  had  en- 
joyed the  provisions  made  by  her  husband's 
will  for  five  years,  and  then  brought  a  suit, 
praying  to  be  permitted  to  take  an  interest  in 
a  trust  fund  of  £2000  under  her  marriage  set- 
tlement, instead  of  the  estate  under  the  will. 
Lord  Thurlow  dismissed  the  bill,  but  he  de- 
sired it  to  be  understood,  that  it  was  under 
the  particular  circumstance  that  the  plain- 
tiff had  stated  no  ground,  no  ignorance  of 
the  state  of  the  proi)erty,  &c.,  but  on  the  con- 
trary, it  appeared  that  the  fund  was  a  free 
fund  from  the  beginning ;  and  that  there  was 
no  suggestion  that  the  estate  was  in  such  a 
situation  as  to  render  it  doubtful  what  the 
result  would  be. 

*286 

*A  careful  review  of  all  the  cases  makes 
manifest  what  Sir  Thomas  Plumer  terms, 
"the  anxious  desire  of  the  Court,  while  it 
enforces  the  rule  of  e(iuity,  that  the  party 
shall  not  avail  himself  of  both  his  claims, 
still  to  secure  to  him  the  option  of  either.'' 

Although  the  statute  declares,  that  the  pro- 
vision therein  made  for  the  widow,  shall,  if 
accepted,  be  in  lieu  and  bar  of  dower,  yet  the 
correlative  proposition  is  not  put.  Nor  was  j 
it  necessary.  It  stands  upon  the  acknowledg- 
ed principles  of  this  Court.  A  party  claiming 
dower  would  thereby  disturb  the  arrange- 
ment of  the  statute,  and  quoad  hoc,  frustrate 
its  provisions.  Equity  will  not  permit  this, 
but  will  put  the  party  to  her  election.  But 
the  Court  favors  the  right  to  make  an  elec- 
tion, and  will  not  permit  acts  done  in  igno- 
rance of  a  party's  rights,  to  preclude  him 
from  this  privilege.  In  this  Court,  neither 
the  doctrine  of  estoppels,  nor  that  of  for- 
feiture, is  encouraged.  Originally  the  widow 
of  J.  D.  Sommers  had  the  legal  right  to  one- 
half  of  his  personalty.  It  has  been  so  declar- 
ed by  the  decree  of  the  circuit  Court.  The 
plaintiff  seeks  to  deprive  her  administrator 
of  this  legal  right,  or  to  shew  that  it  does 
not  exist  in  him.  Then,  says  the  authority  of 
Dillon  v.  Parker,  p.  38.5.  he  is  bound  to  make 
out  his  case,  to  establish  that  the  alterna- 
tive was  fairly  and  fully  presented  to  her, 
and  that  she  made  her  election.  "The  argu- 
ment," says  the  Master  of  the  Rolls,  "which 
represents  lai)se  of  time  and  acts  performed 
as  conclusive,  without  regard  to  intent,  is 
subject  to  great  ditHculties." 

James  D.  Sommers  died  in  1S17.  Sometime 
afterwards  his  widow  intermarried  with  Wil- 
liam McDow.  Joseph  Clarke  was  a  witness, 
and  his  testimony  is  in  writing.  He  states 
that  he  was  the  confidential  adviser  of  Mr. 
McDow,  and  had  always  been  so ;  that  he 
advised  him  to  institute  proceedings  for  his 
wife's  dower,  simply  because  the  late  James 

118 


D.  Sommers  was  considered  to  be  insolvent, 
that  he  knew  of  no  real  estate  which  he  left, 
except  a  place  on  the  Jacksonborough  road; 
that  he  received  his  instructions  from  Mr. 
McDow,  and  does  not  now  remember  to  have 
had  any  conversation  with  Mrs.  McDdw  on 
the  subject.     Proceedings   were  made  up  in 

*287 
1820,  in  the  name  of  *McDow  and  wife, 
against  the  lieirs  of  James  D.  Sommers,  de- 
ceased. The  dower  was  assessed  at  four  hun- 
dred and  sixty  dollars,  and  the  land  sold  to 
pay  the  assessment.  The  witness  says  that 
he  advised  the  i^roceedings,  because,  all  hough 
the  value  and  amount  of  the  dower  was  small, 
still  "it  was  something  to  persons  in  the  situ- 
ation of  iMcDow  and  wife.  The  claim  was 
made  and  established  ujion  his  advice  to  Mr. 
McDow,  for  the  above  reason.  Witness  had 
no  knowledge  of  any  rights  or  contingent 
claims,  which  they,  or  either  of  them.  had,, 
or  could  have,  under  the  will  of  Edward 
Tonge,  and  he  does  not  believe  that  either 
the  said  William  McDow,  or  Susan  B.,  his 
wife,  had  any  knowledge  or  imagination  even 
of  any  rights  under  Edward  Tunge's  will.  It 
seemed  to  be  a  set  down  matter."  adds  the 
witness,  "not  only  in  the  family,  but  general- 
ly, that,  after  the  death  of  the  late  Mrs. 
Tonge,  the  estate  covered  by  said  will,  would 
go  to  and  vest  in  the  late  John  W.  Sonuuers 
absolutely."  In  a  previous  answer,  this  wit- 
ness says  he  did  not  personally  know  wlieth- 
er  the  late  William  McDow,  or  his  wife,  the 
late  Susan  B.,  were  familiar  with,  or  appriz- 
ed of,  the  will  of  the  late  Edward  Tonge.  "I 
was  quite  intimate  with  them,"  continues  the 
witness,  "and  can  say  that  neither  of  them, 
to  my  recollection,  ever  spoke  to  me  of  their 
rights  under  said  will,  as  representatives  of 
James  D.  Sommers.  It  is  evident  to  my. 
mind,  that  they  were  not  aware  of  any  rights 
under  Tonge's  will,  as  representatives  of 
James  D.  Sonnners,  for,  if  so,  Mr.  McDow 
would  doubtless  have  consulted  me  as  to 
those  rights,  it  having  been  his  uniform  habit 
to  consult  me  upon  whatever  was  of  material 
interest  to  him." 

The  proceedings  in  dower,  to  which  Mr. 
Clarke  refers,  were  also  put  in  evidence. 
Some  objections  were  urged  to  the  irregular- 
ity of  these  proceedings:  but  this  Court  is  of 
oi)inion,  that  none  of  these  objections  are  suf- 
ficient to  invalidate  the  judgment,  or  impair 
its  legal  efficacy.  Assuming  Mrs.  McDow  tO' 
have  been  a  party,  the  regularity  of  the  judg- 
ment cannot  be  impeached  here  and  in  this 
form,  and  although  the  inference  from  the 
testimony  is  very   strong,  that  she.  in  fact, 

*288 
knew  nothing  what*ever  of  the  proc-eedings,. 
yet,  such  has  been  the  practice  of  the  Court,, 
that  for  the  security  of  titles,  this  Court 
must  conclude  that  she  was  sufficiently  made 
a  party. 

The  decree  of  the  circuit  Court  has  settled, 
that  James  D.  Sommers  had,  at  his  death,  a 


BUIST  V.  DAWES 


^•:no 


•oontiniErent  titlo  to  nbonf  mip  hiinilrod  mikI 
thirty  iK'^rot's.  uikUm-  Tonne's  will.  \Vlietli«>r 
he  liad.  or  had  not.  an  e(iual  interest  in  the 
real  fstate.  is  a  question  yet  to  l)e  adjudicat- 
ed by  tlu'  f'ourt  of  Errors.  In  rcAMiMKc  to 
tlie  itersonalty,  the  ChanceUor  lu'kl.  tliat 
"James  I).  Souiniers.  if  now  livinj;,  would  bo 
the  person  who  would  be  entitled  to  take." 
and  decreed,  that  "distril)ntion  be  made  of 
the  personal  property,  which  is  hereby  ad- 
judged to  be  the  estate  of  the  said  James  D. 
Sonuuers,  aniouir  those  pei-sons  iiarties  to  this 
bill,  who  represent  the  oharaeter  of  distribu- 
tees, at  the  time  of  his  death,  or  his.  or  her, 
lefxal  representatives."  James  I).  Sonuners's 
widow  represented  the  character  of  a  distrib- 
utee at  the  time  of  his  death,  and  her  kwil 
representative  was  a  party  to  the  proceed- 
ings before  the  Court.  The  amended  bill 
S(iuj,'ht  to  displace  the  lesal  representative  of 
this  distributee,  from  any  ri;;ht  under  the  de- 
cree, or  any  share  in  the  distribution,  on  the 
ground  that  the  proceedintrs  of  iSi'O  consti- 
tuted an  election,  which  was  irrevocable,  and 
which  "forever  barred  and  precluded  the 
said  Susan  H.  Sommers.  afterwards  McDow, 
from  all  claim  to  any  further  distriitution.  or 
other  share  or  interest  in  the  e.state  of 
which  James  I).  Sonuiieis  died  intestate,  and. 
C(inse(ni»'ntly.  in  the  .said  James  D.  Sommers's 
cnntin^'eiit  interests  in  the  real  and  personal 
estate  under  the  will  of  the  said  Edward 
TouL'e." 

The  doctrine  seems  to  be  well  condensed  by 
Jndi.'e  Johnson,  in  rinckney  v.  I'inckney.  (2 
Ivich.  i:(|.  L':!T.)  "The  term  election,  imports, 
of  itself,  a  rifiht  to  choose  between  one  and 
another,  or  more  thing's;  and  it  is  impossible 
to  exercise  tliat  right  understandingly.  unless 
tli«'  party  is  fully  informed  of  their  relative 
value,  for  without  it.  his  judgment,  or  will, 
or  even  his  caprice,  could  not  enter  into  the 
act  of  choosing.  Hence  the  well  settled  rule, 
that  he  is  not  bound  to  elect,  until  all  the 
circumstances    necessary    to    enaiile    him    to 

*289 
make  a  deliberate  and  iliscrimiiiating  *clioice. 
are  ascertained;  and  if  he  cxcii  make  an 
election  without  it.  lie  is  not  iinuud  by  it." 
The  authority  to  which  he  refei's.  fully  sus- 
tains the  position;   and  it  is  in  entire  accord- 

■<■  "illi  the  general  principles  of  this  Court 

in  adnunistciing  ecpiity.  If  the  act  insisted 
on,  was  not  done  under  circumstances  which 
enabled  the  party  to  exercise  the  right  of 
election  understandiiiiily.  if  lu>  was  not  so 
informed  of  the  relative  value,  as  to  enable 
him  to  deternnne  utrinn  lioriiiii.  to  choose 
letween  one  or  the  other,  the  party  is  not 
concluded  by  such  act.  It  is  not  to  be  sup- 
p"ist>d  that  the  widow  of  James  I).  Sonuuers 
should  be  informed  of  the  exact  value  of  the 
Tonge  estate.  Rut  had  she  any  knowledge 
wh.itever  of  the  rights  of  her  deceased  hus- 
band, wliatever  they  might  be.  under  Edward 
Tonge's  will?  Now  if  sh(>  was  informed  of 
those  rights,  and  weighing  the  relative  value 


of  what  was  before  her,  it  might  with  justice 
Ite  .said,  that  she  had  made  her  election.  The 
«'vidence  is  as  direct  and  positive  as  can  well 
be  achluced,  that  she  had  not  "even  an  imagi- 
nation" of  any  rights  of  her  husband  untler 
Tonge's  will.  There  is  no  pnnif  whatever, 
that  she  knew  of  the  existence  of  that  in- 
strument. And  Mr.  Clarke  distinctly  testl- 
lies,  that  tlie  exi)ediency  of  instituting  the 
l)roceedings  in  dower,  was  deterndned  with- 
out any  reference  to  any  supposed  rights  of 
James  I).  Sonuuers  under  Tonges  will.  They 
were  instituted  on  his  advice,  and  "I  had." 
says  he.  "no  knowletlge  of  any  rights,  or 
contingent  claims,  which  they,  or  either  of 
them,  had,  or  could  have,  under  the  will  of 
Edward  Tonge."  If  the  widow  of  Jas.  I). 
Sonuuers  were  now  alive,  might  she  not  say, 
and  has  she  not  proved,  "I  took  my  tlower  in 
total  ignorance  of  any  rights  of  my  deceaseii 
husband  under  Tonge"s  will.  I  made  no 
election  in  reference  to  that  of  which  I  ha<l 
no  knowknlge.  and  I  ask  now  to  be  pernutted 
to  do  what  I  have  never  yet  done." 

Hut  there  is  nuich  latitude  permitted  on 
this  subject;  and  it  arises  not  only  from  the 
unwillingness  of  this  Court  to  enforce  any 
thing  like  a  forfeiture,  but  also  to  protect  a 
party  from  the  consequences  of  a  premature 
or  injudicious  choice,  or  acts  which  might 
be  construed  an  election.     "The  cases  have 

♦290 
gone  so  far,"  *says  the  Chancellor,  in  Ilall  v. 
Hall.  (2  McC.  E(i.  2(J!),  liso.)  "that  after  the 
wife  has  made  her  election,  and  has  received 
benefits  under  the  will,  she  has  been  allowed 
to  retract  and  resort  to  her  legal  riglits,  when 
the  estate  has  turned  out  dift\'rently  from 
what  it  was  believed  and  stated  to  he  at  the 
time  of  the  election  i)rematurely  made." 
Kidney  v.  Coussmaker,  (1L>  Ves.  i:{.^.)  was  a 
very  strong  case.  It  was  decided  by  Sir  Wil- 
liam (Jrant,  in  180(5.  The  will  had  been 
twice  before  the  Court  for  adjudication. — 
in  17!H'.  before  Lord  Thurlow,  and  in  IT!):?, 
bef(U'e  Lord  Kosselyn.  In  the  original  caus- 
es, an  arrangement  had  been  made,  and  the 
widow  had  deliberately  elected  to  take  the 
estate  devi.sed  by  the  will,  in  .satisfaction  of 
her  dower.  Sub.se(|ueut  events  caused  the 
creditors  of  the  husband  to  prefer  a  claim  to 
a  portion  of  the  estate  .so  devised,  and,  in 
his  decree  of  1,S()({.  this  claim  was  sustained 
by  Sir  William  Grant.  "The  consequence  is 
only."  says  he,  "that  the  widow  will  not  Jh> 
bound  by  any  election  she  then  made;  she 
mu.-^t  he  let  in  now  to  any  of  her  legal  rights: 
and  an  enquiry  in  what  estates  she  was  en- 
titled in  dower  and  free  bench:  her  elec- 
tion as  being  made  under  a  mistaken  imiu-es- 
sion,  that  the  creditors  were  not  to  make 
any  claim  upon  those  estates,  not  binding 
her."  So  in  Adsit  v.  Adsit.  (2  John.s.  Ch. 
451,)  Chancellor  Kent  refers  to  the  princi- 
ple familiarly.  "If  the  legacy  is  to  l>e  taken 
in  lieu  of  dower,  I  should  think  that  the 
defendant   is   entitled    to   her   election,    not- 

iiy 


*290 


3  RICHARDSON'S  EQUITY  REPORTS 


withstanding  her  acceptance  of  the  legacy, 
for  it  is  evident  that  she  did  not,  in  that 
case,  act  with  a  proper  nnderstanding  of  the 
consequence  of  that  acceptance,  but  was  un- 
der mistaken  impressions."  Tliis  indulgence 
of  tlie  Court,  (If  it  may  be  so  termed,)  con- 
fers no  new  rights.  It  only  remits  the  party 
to  an  election  between  two  acknowledged 
rights.  In  some  cases,  the  Court  has  dis- 
turbed a  possession  in  order  to  aid  a  suitor 
claiming  the  right  of  election.  But  in  the 
case  before  tlie  Court,  no  possession  is  sought 
to  be  disturbed.  No  one  is  required  to  sur- 
render property  which  they  have  held  under 
the  impression  or  confidence,  that  the  wid- 
ow's claim  was  barred  by  the  proceedings  of 
1820.    So  soon  as  the  right  of  James  D.  Soui- 

*291 

mers,  or  his  representatives,  *became  vesteu 
by  the  death  of  .John  W.  Sommers,  in  1848, 
the  interests  of  the  parties  were  submitted 
to  the  adjudication  of  the  proper  tribunal, 
and  the  representative  of  the  widow  James 
D.  Sommers  was  declared  entitled  to  a  moie- 
ty of  the  estate.  It  is  objected,  that  the  oth- 
er distributees  of  James  D.  Sommers  were 
parties  to  tlie  proceedings  in  dower,  and  con- 
sented to  the  admeasurement  of  dower.  It  is 
not  apparent  to  the  Court  that  they  were  in 
any  manner  prejudiced  by  that  consent.  But 
in  any  view,  the  language  of  Lord  Kedesdale. 
in  Moore  v.  Butler,  (2  Sch.  and  Lef.  268,) 
breathes  the  spirit  by  which  this  Court  is 
governed.  "It  is  contended,"  says  he.  "that 
James  Butler,  (under  whom  the  parties  claim- 
ed,) did  elect  to  take  under  the  settlement  of 
1720.  But  the  facts  on  which  this  is  con- 
tended are  so  extremely  various,  that  it 
would  have  been  impossible  to  hold  him 
bound,  if  he  could  have  put  the  parties  af- 
fected by  that  claim  into  the  condition  in 
which  they  would  have  been,  if  he  liad  not 
done  those  acts."  And  so  in  Dillon  v.  Park- 
er, (P.85,)  the  Master  of  the  Rolls  states  the 
disposition  of  the  Court,  even  in  a  case 
where  the  party  himself  had  accepted  bene- 
fits under  the  instrument  which  imposes  the 
obligation  of  election,  if  the  representatives 
of  the  party,  who  has  accepted  these  lienefits, 
without  explicitly  electing,  "can  offer  com- 
pensation, and  place  the  other  party  in  the 
same  condition  as  if  those  benefits  had  not 
been  accepted,  they  may  renounce  them  and 
elect  for  themselves."  In  Wake  v.  Wake,  the 
widow  was  required  to  account  for  the  legacy 
which  she  had  received.  In  this  <'ase,  the 
Court  is  of  opinion,  that  the  representative 
of  James  D.  Sommers.  deceased,  is  entitled 
to  the  share  of  the  personal  estate  to  which 
his  intestate  was  declared  entitled  by  the  cir- 
cuit decree  of  Chancellor  Dargan,  but  that 
he  must  account  for  the  sum  assessed  in  lieu 
of  dower,  with  interest  thereon,  as  part  of  the 
estate  of  James  I).  Sonuners,  decea.sed. 

The  other  question,  which  it  becomes  nec- 
essary to  consider  arises  under  the  will  of 
120 


Charles  Elliott  Rowand,  the  younger.  His 
mother,  Mrs.  Henrietta  Rowand,  was  a  sister 
of  James  D.  Sommers,  and  died  intestate,  and 

*292 
a  widow,  in  April,  1838.  *Charles  E.  Row- 
and, Jr.,  her  son,  died  in  Jaiuuary,  is;',9.  The 
residuary  clause  of  ids  will  is  as  follows, 
viz:  "All  the  rest  of  moneys  coming  to  me 
from  the  estate  of  my  father,  or  from  any 
quarter,  I  give  and  betiueath  to  my  brother 
Robert  Rowand's  family,  for  their  use  and 
support." 

It  is  a  familiar  rule,  that  a  will  of  per- 
sonalty speaks  at  the  death  of  the  testator. 
And  it  is  well  settled,  that  the  Court  is  per- 
mitted to  resort  to  extrinsic  evidence  for  the 
purpose  of  ascertaining  whether  there  is 
anything,  and  wliat,  to  which  the  terms  of 
the  will  apply.  At  the  death  of  Charles  E. 
Rowand,  Jr.,  his  uncle,  John  W.  Sommers, 
(was  alive,  and  survived  for  nine  years  after- 
wards. Do  the  terms,  "all  the  rest  of  the 
moneys  coming  to  me  from  any  quarter,"' 
embrace  the  contingent  interest  of  the  testa- 
tor, as  one  of  the  distributees  of  his  mother, 
who  had  been  a  distributee  of  James  D. 
Sonuners,  deceased?  The  term  "moneys"'  is 
generally  applicable  to  particular  species  of 
personalty.  But  there  are  cases  in  which, 
by  force  of  the  context,  a  more  extended 
signification  has  been  given  to  it.  It  has  been 
held  to  embrace  stocks,  promissory  notes,  «fcc. 
But  without  some  explanatory  context,  the 
term  must  be  confined  to  its  proper  significa- 
tion. (1  Jarman,  702;  Gosden  v.  Dotterel!, 
0  Cond.  E.  C.  R.  496.)  In  Man  v.  Man,  (1 
Johns.  Ch.,  235,)  Chancellor  Kent  .says,  "if 
the  testator  uses  the  word  (moneys)  absolute- 
ly, without  any  accompanying  (lualification, 
it  cannot  be  construed  beyond  its  usual  and 
legal  signification,  without  destroying  all  cer- 
tainty and  precision  in  language,  and  in- 
volving the  meaning  of  the  will  in  great  un- 
cei'tainty.  The  difficulty  would  be  to  know 
what  precise  check  to  give  to  the  force  of  the 
term,  after  we  have  once  moved  it  from  its 
seat ;  vires  acquirit  eundo."  But  in  this 
will  the  testator  has  used  a  qualification,  the 
effect  of  which  is  rather  to  restrict  the  term 
to  its  original  and  proper  signification.  The 
expression  is,  "moneys  conung  to  me  from 
the  estate  of  my  father,  or  from  any  quar- 
ter." Moneys  coming  to  me,  means  money 
due  and  owing  to  me,  "money  to  which  I 
have  a  right  and  ought  to  receive."  At  the 
death  of  the  testator  in  January,  1S39,  could 

*293 
these  terms  be  applied  to  the  interest,  *what- 
ever  it  might  be,  in  the  lands  and  negroes  at 
Tongeville?  In  Gosden  v.  Dotterell,  the  vice 
Chancellor  refused  to  enlarge  the  meaning  of 
the  term,  although  by  so  doing,  he  w^as  satis- 
fied he  would  effectuate  the  intention  of  the 
testator.  But  in  this  case  the  Court  is  con- 
vinced, from  the  terms  used,  that  the  testa- 
tor here  intended  only  what  the  law  implies ; 


lUIST  V.  DAWES 


*295 


and  that,  as  to  this  interest,  fhas.  K.  Row- 
iiiul,  Jr.,  diet!  intestate. 

It  is  ordered  and  decreed,  that  distribution 
be  made  of  the  personal  e.state,  adjud;:ed  to 
l>e  tlie  estate  of  James  D.  Sommers,  deceased, 
upon  the  i)rinciples  declared  in  tliis  decree. 
Parties  bciiiK  at  liliertj'  to  apply  fur  such 
further  orders  as  may  be  necessary. 

From  this  decree  an  appeal  was  taken,  on 
the  fjrounds: 

1.  That  M<I)o\v  and  wile  liavini,'  elected 
to  take,  and  havinir  actually  taki'U  in  money, 
Mrs.  McDow's  dower  in  the  estate  of  her 
tirst  hu.sband,  James  D.  Sonmiers,  both  her 
and  his  rei)resentatives  are  iiound  by  that 
election,  and  are  debarred  liy  tlie  attachment 
of  Mr.  McDows  marital  riirlits,  by  lapse  of 
time,  and  otherwise  by  law,  from  now  re- 
calling the  same. 

2.  That  the  residuary  clause  in  the  will  of 
Chs.  E.  Howand.  the  yonuiier,  extends  to  and 
embraces  the  interest  of  the  said  Chs.  E. 
Rowaud,  the  younger,  in  the  Tongeville  in-op- 
erty,  real  and  personal. 

Yt«adon,  Petigru,  for  appellant.s. 
Munro,  contra. 

JOHNSTON,  Ch.,  delivered  the  ..pinion  of 
the  Court.  [ 

Little  need  be  added  to  what  the  Chancel- 
lor has  said,  in  his  decree,  in  relation  to  the  ! 
construction    of    the    (so    called i    residuary  | 
clause  of  Charles  E.  Rowand's  will.  i 

This  testator  was  entitled,   under  his  fa-  ; 
ther's  will,  to  the  annual   interest,  for  life.  ! 
of  one-tenth  part  of  a  certain  porti<ui  of  the  i 
father's  estate,   which,  under  the  directions  ' 
of  the  will,  was  sold,  and  the  proceeds  vested 
for  his  benefit.     And  besides  what  arreara;;es 
of  this  provision  might  Ix?  due  him,  at  his 
death,  there  was  nothing  coming  to  him  from 

*294 

his  father's  estate.  So  that  *this  money,  and 
what  little  might  be,  accidentally,  due  to 
liim  from  other  quarters,  was  ail  the  money 
be  had  to  dispose  of. 

Accordingly  we  tind  that  the  specific  sums 
disposed  of  by  him  in  his  will,  amounted,  in 
the  whole,  to  only  the  sum  of  ."f.'UtO:  and  even 
the.se  small  legacies  were  given  with  expres- 
sions of  distrust  whether  there  wcniltl  be 
Jnoney  enough  to  satisfy  them. 

In  his  will,  after  disposing  specificallj*  of 
some  few  articles  of  insignificant  value:  he 
proceeds  as  follows: 

"I  leave  Rev'd.  Arthur  Buist  the  sum  of 
$200,  should  there  be  a  sufficiency,  after  some 
or  all  my  delits  are  jiaid. 

"Should  there,  also.  l>e  a  sulliciency.  I 
leave  to  the  Ladies  Henevolent  Society  the 
^um  of  $50,  to  be  paid  them  by  my  executor. 

"I  leave  to  my  nephew,  C.  E.  Rowand 
Drayton,  .$.30;  and  all  the  rest  of  nionies 
coming  to  me  from  the  estate  of  my  father, 
or  from   any  other  (luarter,  I  give  and   be- 


<iueath  to  my  brother  Roliert  Rowand's  fam- 
ily, for  their  u.se  and  support. " 

The  word  nu)nies.  must  i>e  understood  ]u*re 
in  its  ordinary  meaning,  of  cash,  coin,  bank 
notes,  or  other  circulating:  medium,  unless 
there  is  .something  in  the  context  of  the  will, 
or  in  the  existing  circumstances,  to  shew  that 
it  was  employed  in  a  different  sense. 

In  looking  to  the  extrinsic  circinustances, 
we  sliouid  not  be  justified  in  applying  the 
Word  used  by  the  testator  to  any  thing  but 
money,  unless  in  that  survey  we  discover 
that  there  was  no  money,  to  come  to  the  te.s- 
tat(»r  from  his  father's  e.state,  Imt  that  .some- 
thing else  was  coming  from  that  estate  to 
which  the  term  money  might  l)e  applied,  in 
a  secondary,  or  less  olivious  .sense. 

But,  when  we  discover  that  money  was 
coming  to  him,  and  nothing  else,  we  are 
obliged  to  say  that  the  reference  of  the 
testator,  was  to  money,  and  to  nothing  el.se. 

Neither  does  the  context  of  the  will  lead 
to  any  other  conclusion. 

The  clauses  immediately  prece^lini:  the 
*295 
clau.se  in  question  *relate  to  money:  or  be- 
quests of  money: — and  it  is  oliviously  of 
importance,  that  from  tlu'se,  he  proceeds  im- 
mediately to  disjiose  of  the  rest  of  the  monies 
due  hlm.(rt)-  The  word  re.st  here  vnidoubtedly 
lefi'rs  to  the  rest  of  that  subject,  which  he 
was  engaged  in  disposing  of  at  the  time. 
The  interpretation  of  the  word  (rest)  by  the 
comiection  in  which  it  is  u.sed,  is  a  rule  of 
interpretation  familiar  to  the  jtrofession:  and 
.so  far  has  it  l)een  carried  tliat.  in  some  in- 
stances, where  the  residuary  words  weri'  de- 
scriptive not  only  of  the  subjects  emiu-aced 
in  the  ])rior  clauses,  but  had  a  general  mean- 
ing taking  in  other  species  of  property,  they 
have  been  restricted,  by  the  connexion,  to 
property  of  a  like  description  with  that  pre- 
viously disposed  of.  Thus,  where  the  resid- 
uary words  would,  in  themselves,  have  ex- 
tended to  realty,  as  well  as  per.sonalty,  they 
have  been  .so  restricted  as  to  indicate  only 
the  rest  of  personalty,  l)ec;uise  the  prior  dis- 
positions were  of  personally  only.t^) 

This  doctrine  has,  un<loubtedly,  been 
stretched  beyond  the  limits  of  good  sense  in 
some  of  the  cases.  But  it  is  founded  in  good 
.sense,  and  is  conformable  to  the  usages  of 
mankind:  and  it  is  presumed  that  no  man, 
speaking  in  the  ordinary  way  of  the  distri- 
bution of  c«'rtain  portions  of  money,  thus 
and  thus,  and  the  rest  .so  and  so,  would  ever 
be  understood  as  meaning  by  this  rest  any 
thing  else  than  the  re.st  of  that  of  which  he 
had  been  speaking;  i.  e.  the  re.st  of  his  mon- 
ey. How  much  stronger  the  evidence  of  his 
meaning,  when,  as  in  this  case,  he  expressly 
characterises  the  residue  as  money  I 

This  Court,  therefore,  concurs  in  that  part 
of  the  decree  whith   relates  to  this  subject ; 

(<i)   Ilaynesworth  v.  Cox,  Harp.  Eq.  121. 
(b)  Marcbant  v,  Twisden,  (Jilb.  Eq.  Ca.  HO. 

121 


^295 


3  RICHARDSON'S  EQUITY  REPORTS 


and  it  is  ordered  that  the  same  be  atBrmed, 
and  the  appeal  dismissed. 

Another  part  of  the  decree  is,  in  our  view, 
more  doubtful.  It  is  that  part  of  it  which 
establishes  a  right  of  election  between  tlie 
dower  awarded  to  the  widow  of  James  D. 
Sommers,  in  her  life  time,  and  a  distribu- 
tive part  of  his  estate,  which  is  now  claimed 
in  its  place. 

*296 

*B.v  the  will  of  Edward  Tonge,  who  died 
in  1809,  his  estate,  real  and  personal,  was 
given  to  his  wife,  during  widowhood ; — re- 
mainder, for  life,  to  his  mother ; — remainder, 
for  life,  to  James  B.  Perry ; — remainder  to 
such  of  his  issue  as  should  survive  him: — in 
default  of  such  issue,  to  John  W.  Sommers, 
with  like  limitations; — and  in  default  of  is- 
sue surviving  him, — then  over,  in  fee,  to 
James  D.   Sommers. 

The  widow  of  Tonge  forfeited  her  estate 
by  marriage.  The  mother  took  possession 
and  enjoyed  the  property  until  her  death; 
upon  which  it  devolved  on  J.  B.  Perry. 

While  he  was  yet  alive,  James  D.  Sommers 
died,  (about  1819,)  leaving  a  wife, — who,  in 
the  latter  part  of  that  year,  intermarried 
with  McDow. 

Then,  in  1821,  or  1822,  James  B.  Perry  died 
without  issue. 

Thereupon,  John  W.  Sommers  took  pos- 
session and  enjoyed  the  property  until  1848 ; 
when  he  died  without  issue. 

It  was  held  by  Chancellor  Dargan  that  the 
personal  property  covered  by  the  will  of 
Tonge,  passed  over,  upon  the  death  of  John 
W.  Sommers,  to  the  estate  of  James  D.  Som- 
mers ;  and  he  having  died  intestate,  was  dis- 
tributable among  his  distributees,  of  whom 
his  wife,  (afterwards  Mrs.  McDow,)  was 
one. 

But,  as  far  back  as  1820,  it  appears  that 
she  and  her  second  husband,  McDow,  brought 
suit  against  the  other  distributees  of  James 
D.  Sommers,  and  recovered  about  .$400,  as 
a  commutation  for  her  dower  in  James  D. 
Sommers's  real  estate  called  Golden  Grove; 
the  execution  for  which  was  levied  on  Gold- 
en Grove ;  and  that  tract,  (which  was  all 
that  existed  or  remained  of  James  D.  Som- 
mers's real  estate,  at  the  time)  was  sold  and 
conveyed  by  the  sheriff  to  McDow,  at  a  sum 
approximating,  but  somewhat  less  than  the 
dower  assessed.  This  sale  and  conveyance 
took  place  in  December,  1820. 

Mrs.  McDow  lived  until  somewhere  about 
1831,  and  Mr.  McDow  somewhat  longer: 
but  no  movement  was  made  by  them,  or  ei- 
ther of  them,  or  the  heirs  or  representatives 
of  either,  towards  claiming  any  further  in- 

*297 
terests  In  James >D.  Sommers's  es*tate  until 
after  John  W.  Sommers's  death  ;    which  took 
place,  as  has  been  stated,  in  1S4S. 

When  Chancellor  Dargan  delivered  his  de- 
cree, of  which  I  have  spoken,  (adjudging  dis- 
tribution,) the  fact  of  this  allotment  or  as- 
122 


signment  of  dower  did  not  appear  in  the 
pleadings,  and  was  not  brought  to  his  view. 
After  the  decree  was  pronounced,  but  before 
it  came  before  the  Appeal  Court,  this  fact 
was  suggested  on  the  record,  by  way  of 
amendment  to  the  bill:  and  the  parties  pro- 
ceeded to  argue,  and  did  argue,  the  question- 
in  the  Appeal  Court,  (Jan.  1850,)  whether  the 
allowance  of  dower  was  a  bar  to  the  thirds 
(c)  claimed  for  Mrs.  McDow,  or  whether  an 
election  between  the  dowe^  and  the  thirds 
should  still  be  allowed.  As  that  question 
had  not  been  heard  on  the  circuit,  the  Court 
could  not  determine  it  in  appeal ;  and,  there- 
fore, remanded  the  cause  to  the  circuit,  that 
it  might  be  heard  and  determined  there; 
thus  opening  the  circuit  decree  upon  that 
point. 

In  the  decree  now  under  review.  Chancel- 
lor Dunkin  has  entitled  the  heirs  and  rep- 
resentatives of  Mrs.  McDow,  and  of  Mr.  Mc- 
Dow, (one  of  the  distributees,)  to  claim  the 
thirds,  in  her  right,  out  of  the  estate  which 
fell  in  upon  John  W.  Sommers's  death,  pro- 
vided they  repay  the  sum  received  in  1820, 
in  lieu  of  her  dower,  witli  interest. 

And  this  is  an  appeal,  by  all  parties,  from 
his  decision. 

It  may  be  proper,  before  proceeding  to  the 
questions  made  by  the  grounds  of  appeal,  to 
dispose  of  a  point  which  was  obscurely  inti- 
mated after  the  argument  was  closed. 

It  is  that  the  parties  claiming  Mrs.  Mc- 
Dow's  thirds  are  entitled  to  the  beneht  of 
Chancellor  Dargan's  decree ;  that  it  is  to 
be  regarded  as  still  subsisting  and  unopened, 
unless  the  other  side  shew  grounds  of  equity 
for  setting  it  aside. 

I  can  only  say  that  the  amendment  of 
the  record  was  made  by  consent,  to  come  up 
with  Chancellor  Dargan's  decree,  as  if  the' 
decree  had  been  made  upon  the  record  as 
amended;  and  the  parties  must  take  the' 
consequences. 

*298 

*It  was  made  with  the  express  view  of 
submitting  the  question  to  the  Appeal  Court,, 
whether  the  assessment  and  assignment  of 
dower  were  not  a  bar,  in  this  Court  to  the 
claim  of  thirds,  and  whether,  under  the  cir- 
cumstances, the  parties  making  the  claim 
might  not  retract,  and  make  an  election  now.. 

It  was  so  argued,  in  Appeal,  in  1850 ;  and 
the  order  remanding  the  cause  was  made 
with  a  view  to  the  discussion  and  decision 
of  that  question. 

It  was  so  argued  here,  on  this  appeal ;, 
and  never,  until  after  the  case  was  closed 
was  any  intimation  given  to  the  contrary. 
Indeed,  I  hardly  understand,  now,  whether 
the  point  is  intended  to  be  made. 

But  if  it  is,  there  is  nothing  in  it. 

(c)  Note  b.v  his  Honor.  I  have  used  the 
word,  "thirds,"  throughout  this  opinion  to  ob- 
viate circumlocution,  and  designate  Mrs.  Mc- 
Dow's  distributive  share:  which  was,  in  fact,, 
one-half,  and  not  one-third. 


BUIST  V.  DAWES 


*:?oi 


There  is  no  doubt  whatever  that  the  ac- 
■ceptance  of  dower,  whether  iiiteiuh'd  as  a 
waiver  of  thirds,  or  not,  is  a  War,  at  law, 
and  in  equity,  to  the  claim  of  thinls.  It  is 
made  so  by  the  necessary  const nution  of  the 
statute  of  1791;  a  construction  which  has 
been  adopted  in  many  cases. 

Can  it  be  doubted,  then,  that,  when  the 
fact  is  proved  that  dower  has  been  ai-cepted, 
tile  party  acceptinj:  it  is  not  equitably  enti- 
tled to  retain  a  divree  for  its  equivalent? 
I  do  not  mean  when  this  proof  is  made  col- 
laterally, in  a  different  suit,  as  in  .McDowall 
V.  McI>owall,  Bail.  Kq.  ;}24,  but  when,  as  in 
this  case,  it  is  made  in  the  same  cause,  and 
made  by  consent  with  the  express  view  of 
testing  the  correctness  of  a  part  of  the  de- 
cree in  the  case. 

Can  any  one  attirni,  tiiat  if  Mrs.  McOow's 
acceptance  was  intended  to  have  l>een  in  lieu 
of  thirds,  she  could  e(iuital)ly  insist  on  the 
decree  obtained  for  tiie  thirds,  while  the  case 
is  still  pending,  and  the  (piestion  open,  by 
consent,  and  before  the  Court  V 

It  is  impossible.  The  dower  being  ac- 
cepted, is, — so  long  as  the  dowress  is  not 
allowed  to  retract, — a  conq)lete  bar:— and, 
tiierefore,  a  decree  for  thirds  is  inequitable 
and  should  not  be  allowed  to  stand,  when 
the    Court    retains    a    control    over    the   sub- 

*299 
*ject.     But  the  truth   is  the  decree  referred 
to  in  this  case  was  virtually  opened  by  this 
Court   in  1850. 

The  case  was  presented  and  argued  in  ap- 
peal, in  18d0,  as  if  the  amendment  had  been 
in  before  Chancellor  Dargan's  decree,  and  In- 
teri)osed  by  way  of  objection  to  his  making 
the  decree  he  did: — as  if  he  had  overruled 
the  objection.  This  was  the  light  in  which 
this  Court  viewed  the  objecti<»n:  and  it  sent 
the  case  back,  only  because  he  had  not,  in 
fact,  heard  and  overruled  it.  How,  then,  can 
it  be  said  that  the  ease  was  sent  back  sub- 
ject to  the  decree:  when  plainly  it  was  sent 
back  to  a.scertain  whether  such  a  decree 
should  ever  have  been  madeV 

If  I  am  right  in  tliis,  then,  upon  the  merits 
the  only  e<juity  of  the  parties  in  possession  of 
the  dower,  must  consist  in  a  rigiit  to  retract 
and  elect,  if  such  right  can  be  shewn. 

This  was  the  view  taken  by  the  Chancel- 
lor, as  appears  by  the  whole  tenor  of  his  de- 
cree. It  is  the  correct  view ;  and,  if  the 
claimants  are  not  entitled  to  the  election  he 
has  given  them,  they  must  abid(>  by  the  dow- 
er as  assessed  and  accei)ted. 

It  has  been  attempted  to  be  siiewn  in  the 
argument,  that  the  proceedings  at  law,  by 
which  the  dower  was  allotled,  are  null  and 
void,  in  conseipience  of  defects  in  the  record ; 
and  that,  therefore,  the  amount  received  un- 
der the  recovery  is  no  satisfaction  of  the 
right  of  dower;  and  con.seipicntly  dower  has 
not  been  received  or  accepted. 

If  the  record  were  void,  it  would  by  no 
means  follow  that  the  s>um  of  money  recov- 


ered as  a  compensation  for  dower,  though  re- 
ceived under  it,  was  no  satisfaction  of  the 
dower,  and  equivalent  to  a  reception  of  the 
dower,  itself.  But  the  defects  pointed  out  do 
not  vitiate  the  judirment.  We  are  not  to 
l(X)k  behind  the  judgment  for  the  i»urpo.so  of 
ascertaining  whether  Mrs.  McDow  was  or 
was  not  before  the  i'ourt,  in  virtue  of  a  pow- 
er of  attorney  executed  by  her  as  authorised 
l»y  the  statute.  It  was  the  business  of  the 
Court,  Itefore  which  the  cau.sc'  was  heard,  to 
see  that  the  parties  were  before  it,  and  after 
it  has  given  judgnu-nt,  we  are  bound  to  [ire- 
sume  that  it  had  proper  evidence  of  the  fact, 
before  it  took  jurisdiction.     .Miserable  would 

♦  300 
be  the  *coiidition  of  the  comnuniity,  if  a  doc- 
trine >houbl  receive  the  least  countenance,  by 
which  solenui  judgnii-nts  would  be  converted 
into  ab.solnte  nullities,  merely  because  the 
writ,  or  the  warrant  of  attorney,  which  led 
to  them,  may  have  been  mislaid  or  may  have 
perished  from  lapse  of  time. 

Neither  can  the  form  of  the  judgment 
vitiate  it.  The  Court  had  jurisdiction  of  the 
subject  matter,  and*  nmst  determine  for  it- 
self, (for  it  was  a  part  of  its  judicial  func- 
tions in  the  case,)  what  judgment  was  luoper 
to  be  given  between  the  parties  before  it. 

These  principles  are  too  well  settled  to  re- 
quire further  consideration. 

TlKMi,  the  important  question,  wbicli  was 
considered  in  the  decree,  occurs: — whether 
Airs.  McDow's  acceptance  of  the  dower  pri- 
eluded  the  claim  for  thirds  now  set  up;  and 
whether,  a  letraction  will  be  allowed,  and  a 
right  of  election  given. 

Wherever  two  rights  are  alternatively 
created,  or  given,  either  in  exjiress  terms  or 
by  construction,  the  party  to  whom  they  are 
given  is  entitled  to  only  one  of  the  two,  and 
nmst  elect  between  them,  but  after  he  has 
made  his  election,  lie  is  bound  ;  and  will  not 
be  allowed  to  elect,  again,  unless  he  can  shew 
some  equitable  circumstances  entitling  him 
to  retract  the  choice  he  has  made. 

There  is  some  difference,  in  this  matter  of 
election,  owing  to  the  iiuality  of  the  rights, 
among  which,  the  election  is  to  be  made: — i. 
e.  wlii'lher  they  are  legal  or  equitable. 

If  the  alternative  rights  are  legal,  that  is 
to  .say,  if  both  of  them  puriiort  to  vest  a  legal 
title  in  the  party  to  whom  tlit\v  are  given: — 
though  a  court  of  law  could  not  comitel  an 
election,  while  the  matter  may  have  remain- 
ed executory,  yet  after  an  election  has  been 
made  (and  it  is  suthcient,  to  constitute  such 
an  election  at  law,  (hat  one  has  been  taken, 
— though  it  was  not  taken  as  an  alternative, 
or  l)y  way  of  choice  between  the  two): — it  op- 
erates as  a  comi)lete  legal  bar,  by  way  of 
estopi)el.  against  the  claim  of  the  altermitive. 
The  title  to  that,  though  it  was  bef(jre  a  com- 
plete legal  title,  is  extinguished. 

Thus,  under  the  statute  of  u.ses,  uses  which 
*301 
would  have  been  *executed  in  the  husband  to 

12Z 


*301 


3  RICHARDSON'S  EQUITY  REPORTS 


the  extent  of  creating  a  tHle  to  dower  in  the 
wife,  are  prevented  from  being  executed  to 
that  extent,  by  the  proviso  that  the  dower 
shall  not  be  claimed  if  a  jointure  was  set- 
tled on  her.(d)  In  such  case  the  acceptance 
of  the  jointure  is  a  bar  of  the  dower,  and 
vice  versa.  The  acceptance  of  the  one  is  a 
satisfaction  of  the  other,  and  the  legal  right 
or  title  to  that  other  is  extinguished. 

So  here:  the  right  to  dower,  or  thirds,  is 
made  convertible  by  the  statute  of  1791:  and 
both  being  legal  rights  proceeding  to  the 
wife,  if  she  takes  one,  her  legal  right  to  the 
other  perishes. 

It  is  unnecessary,  therefore,  to  go  into  an 
examination  of  the  argument,  at  bar,  in  re- 
lation to  rights  of  an  ecjuitable  character,  or 
in  relation  to  elections  expressly  created  by 
the  instrument,  or  implied  by  equity  in  pro- 
motion of  the  evident  intention ;  or  in  rela- 
tion to  the  different  degrees  of  evidence  re- 
quired to  prove  that  an  election  has  been 
made  in  the  one  case  or  the  other. 

I  take  it  that  whenever  an  election  has 
been  made,  either  at  law  or  in  equity,  it  is 
a  satisfaction  of  the  alternative  right:  and 
that  the  party  will  not  be  allowed  to  retract, 
unless  upon  grounds  of  ecjuity,  shewn  to  ex- 
ist, by  evidence  inherent  in  the  circumstanc- 
es, or  extrinsic. 

I  will  assume  that  equity  has  a  right  to 
put  out  of  the  way  the  legal  consequences  of 
Mrs.  McDow's  acceptance  of  dower:  the 
question  is  whether  she  herself,  if  now  alive, 
would  be  allowed,  under  the  circumstances  of 
this  case,  to  retract  what  she  has  done,  and 
to  elect  between  her  dower  and  thirds. 

This  is  not  a  case  where  an  election  re- 
mains to  be  made.  The  right  is  not  execu- 
tory, but  executed. 

It  is  not  a  case,  even,  where  dower  was 
taken,  irrespective  of  the  alternative  right. 
It  is  not  a  case  of  mere  estoppel,  but  a  posi- 
tive election,  intentionally  made.  Clarke's 
testimony  shews  that  the  attention  of  the  par- 
ties was  di'awn  to  the  alternative  of  choosing 
between  dower  and  thirds  in  James  D.  Som- 

*302 
mers's    *estate:      and    that   the   former   was 
chosen  inider  his  advice,  as  the  more  valu- 
able of  the  two. 

It  is  true  that  the  value  of  the  expectancies 
dependent  upon  the  deaths  of  James  B.  Ter- 
ry and  John  W.  Somniers  and  their  issue 
may  not  have  been  estimated  on  that  occa- 
sion. But  it  is  probable  that  the  circum- 
stances upon  which  that  contingent  right  de- 
pended were  known  ;  because  Clarke  speaks 
of  opinions  as  "set  down  opinions  in  the  fam- 
ily" which  could  only  have  sprung  from  a 
knowledge  of  the  provisions  of  Tonge's  will. 

But  a  choice  made  upon  a  view  of  interests 
as  contingent,  and  which  were  in  fact  con- 
tingent at  the  time  of  the  choice,  is  a  de- 


(d)   See    Grettou    v.    Harvard,    1    Swan.    425, 
note  {a) :  cited  2  Story  Ey.  §  1080,  (5tli  Ed.) 

124 


liberate  choice,— a  well  understood  act, — a 
fair  exercise  of  the  judgment: — and  a  subse- 
quent result  of  the  contingency,  which,  if 
foreseen,  would  have  led  to  a  different  choice, 
— forms  no  ground  for  another  election. 

It  may  be  affirmed,  without  hesitation,  that 
Mrs.  McDow  was  right  in  the  choice  she 
made,  supposing  that  she  took  a  deliberate 
view  of  the  expectancy,  and  the  contingencies 
upon  which  it  was  to  depend.  Her  election 
was  made  in  1S20 ;  at  wiiich  time  two  life 
estates,  of  young  men,  interposed  oefore  her 
husband's  expectancy:  and  not  only  so,  but 
the  expectancy  was  liable  to  be  entirely  de- 
feated by  either  of  those  two  leaving  issue. 

Such  an  expectancy  could  have  had  no 
marketable  value  at  the  time  she  was  called 
upon  to  elect  between  it  and  her  dower:  and 
if  she  had  chosen  to  abide  by  the  expectan- 
cy, she  could  not  have  sold  it  and  must  have 
starved  herself  to  enrich  her  heirs.  Would 
that  have  been  the  exercise  of  a  sound  elec- 
tion on  her  part?  If  the  Court  were  to  grant 
her  if  now  living,  a  second  choice,  it  must  be 
upon  the  principle  that  her  first  choice  was, 
— at  the  time  it  was  made, — improvident  and 
mistaken:  and  I  repeat  the  question: — Was 
it  unwise,  improvident,  or  mistaken? 

But,  if  a  right  of  election  can  be  revived, 
the  claim  nmst  be  made  within  reasonable 
time.  Here  thirty  years  have  expired ;  dur- 
ing all  which  time  there  was  a  perfect  ac- 
quiescence. Lord  Ilardwicke  observes  in 
Pawlet   V.    Delaval,    (2   Ves.    sen.    COS,)    that 

*303 
"facts  *and  acquiescence  are  material  to  de- 
termine great  rights  and  properties ;  and 
many  decrees  have  been  made  thereupon  in 
this  Court:"'  and  we  see  how  far  our  own 
Courts  have  gone  upon  this  subject  in  the 
cases  of  Wilson  v.  Hayne,  (Chev.  Eq.  37)  and 
Caston  V.  Caston,  (2  Rich.  Eq.  1)  where 
elections  were  held  to  be  conclusive  upon  a 
much  shorter  lapse  of  time. 

Suppose,  however,  that  Mrs.  McDow  could 
insist  upon  a  retraction  of  her  acts ; — can 
her  heirs  and  representatives  claim  the  same 
rights  ? 

As  a  general  rule  privies  in  the  post  are 
bound  by  all  the  acts  and  engagements  of 
those  under  whom  they  claim ;  and  if  the 
latter  rested  satisfied  with  their  transac- 
tions, and  died  without  seeking  to  unravel 
them,  their  privies  are  concluded. 

In  Stratford  v.  Powell,  Ball  &  B.  24,  Lord 
Ch.  Manners  said:  "The  utmost  I  could  have 
done  if  I  had  any  doubt  upon  this  part  of 
the  case,"  (a  question  of  election,  the  elect- 
ing party  being  dead  after  having  eh>cted) 
"would  have  been  to  refer  it  to  the  master,, 
to  ascertain  what  was  most  for  her  advan- 
tage:— though  I  never  heard  of  that  being 
done  after  the  death  of  the  wife,  or  of  the' 
party  bound  to  elect:  Here  the  act  and  ac- 
quiescence of  Lady  Aldborough  are  suthcieut 
to  bind  her  and  those  deriving  from  her.'' 

In  Archer  v.  Pope,  2   Ves.  sen.  525,  Lord 


JOnXSOX  V.  CLARKSOX 


*r>06 


Hanlwicke  expressod  the  oiiinion  that  "if  a 
freeman  of  London  make  a  will  contrary 
to  the  custoni,  and  dies.  tln)U>;h  the  wife  is 
not  perhaps  executrix  ;  nor  does  so  strong 
an  act  as  is  done  here,  hy  her  proving  the 
will,  but  has  acted  in  this  niaiuier,  without 
declaring  one  way  or  the  other;  the  ('ourt 
will  not  sufler  the  representative  of  the  wife 
to  insist  on  the  custom,  in  contradiction  to 
what  was  done  by  her:— and  that  in  cases 
where,  if  the  wife  had  bet'ii  before  the  Court, 
she  mifilit  have  had  an  election;  therefore, 
if  she, has  done  it,  for  a  short  time  only,  that 
acciuiescence  shall  bind  her  and  her  repre- 
sentatives:— and  it  would  be  very  mischie- 
vous if  the  Court  should  suffer  her  represen- 
tatives to  take  it  up  in  prejudice  of  the 
children." 

*304 

*He  expressed  the  same  opinion  in  a  num- 
ber of  the  reported  cases:  so  that  it  was 
well  considereil  and  settled  in  his  mind. 

Upon  what  principle  can  it  1h'  maintained 
in  tills  case,  that  the  privies  of  Mrs.  McDow 
are  entitled  to  be  let  in  to  elect,  uidess  it  be 
that  her  election  when  made  was  luiwise  and 
to  lier  disadvantage?  We  have  seen  that  it 
was  not  .so.  The  privies  come  in  here  to  elect, 
upon  a  contemplation  of  their  own  interests, 
as  they  now  stand,  and  not  upon  a  contempla- 
tion of  her  interests  as  they  .stood  at  the 
time  she  made  her  election.  But  it  is  her 
electi<ni,  and  not  that  of  her  representatives, 
which  is  sought  to  be  set  aside:  and  the  true 
question  is  whether  tlie  election  made  by  her,  I  the  ostato,  b<Mu 
with  whom  the  right  of  election  was,  was 
beneficial  and  satisfactory  to  her,  whether 
it  be  otherwise  to  her  representatives  or  not. 

Being  upon  the  whole,  of  opinion  that  no 
new  election  .should  have  been  allowed;  we 
are,  of  course,  of  opinion  that  the  compen- 
sation which  was  given  as  a  condition  of  al- 
lowing it,  should  not  have  been  decreed.  In- 
deed the  parties  to  whom  the  compensation 
should  have  been  made,  were  the  creditors  of 
James  D.  Sommers  and  not  his  heirs. 

It  is  ordered  that  .so  much  of  Chancellor 
Dunkin's  decree  as  gives  a  right  to  elect 
thirds,  and  decrees  compensation  for  the 
dower;  and  also  (out  of  caution)  that  so 
much  of  Chancellor  Dargan's  decree  as  al- 
lowed :sirs.  McDow,  her  representatives  and 
distributees,  to  come  in  for  a  distributive 
share  of  James  D.  Sommei-s's  estate,  be  re- 
versed. 


DARGAN  an«l  WARDLAW,  CC.  concurred 
Decree  reversed. 


3   Rich.  Eq.  *305 

•W.   C.   JOII.NSOX.   by    Xoxt    Frion.l.   v.    WM 

CLARKSOX  and  T.   B.  CLARKSOX. 

(ChiirlKstoii.      Jan.    Term,    ].s.")l.) 

ri.   Wills  c=(isl.] 

win.  (li.-(l  in   lS4!t.  left  of  force  his 
liatc    LM    OctolMi-.    1S4(I,    in    tin 


Tostiit 
will,    hcarin 


words,  to  wit:— "After  all  my  debts  are  paid.  I 
will  and  boqueatU  to  ni.v  l)rotlier.  \V.  C.  .-ill  of 
my  property,  on  certiiin  conditions  ni.nle  with 
Inrn.  Should  he  decline  takin-  it.  I  will  and 
be<iiieath  it  to  the  Itev.  \V.  I',,  on  tiie  same  con- 
ditions. I  appoint  my  said  brother.  W.  C.  my 
executor:"  shortly  after  testator's  ileatii.  \V.  ('. 
(pialitied  as  executor:  with  the  will  were  found 
several  unattested  jiapers  sii;ne<l  by  tiie  testa- 
tor, and  bearini:  d.ites  subsri|u<nt  to  the  date 
of  the  will,  in  whicli  lie,  tlic  testator,  expres.sed 
his  desire,  and  decl;neri  it  to  be  one  of  the  con- 
ditions mentioned  in  his  will,  that  his  slaves 
should  he  emancipated,  if  it  coidd  be  done  witli- 
out  evasion  of  the  law,  and  in  whi.h  he  directed 
certain  Iciiaeies  to  be  paid,  and.  in  a  ceitain 
contini;ency,  distribution  of  his  whole  estate: 
to  a  bill  tiled  i)y  the  next  of  kin  of  testator 
claiming  that  a  trust  resulted  to  them.  W.  C. 
answered  and  stated,  tiiat  he  had  never,  before 
testator's  death,  seen  r-ither  his  will,  nr  any  of 
the  papers  accompanyiiii;  it,  "although  testatta- 
had,  at  diflfercnt  times,  conversed  with  him  ui»on 
the  first  and  )iriii(i|)al  sub.iect  mentioned  in  the 
pai)ers  accompanying,'  his  will,  (the  ein.un-ipation 
of  his  slaves)  and  relied  imidicitly  upon  this 
defendant's  inte-rity  for  carryin-  out  his  inten- 
tions as  far  as  he  could  witiiout  practisjnir  anv 
evasion  of  the  law:"— //<■/</.— Th.it  no  beneficial 
interest  was  given  by  the  will  to  W.  C. 

|Kd.    Xote.— For  other  cases,  see  Wills,  Cent. 
Dig.  S   l(!i:;;    Dec.   Di;r.  (g=>(;sl.| 

12.    Willf,  ©=5!)s.l 

That  the  papers  f<iund  with  the  will,  hav- 
ing been  executed  after  the  will,  and  not  bein;: 
attested  hy  three  witne.s.ses,  could  not  i>e  receiv- 
ed in  evidence  as  testamentary  jiapers.  or  as 
showing  the  conditions  referred  to  in  the  will. 
fKd.  Xote. — For  other  cases,  see  Wills,  Cent. 
Dig.  S  234;.  Dec.  Dig.  <s=5(ts.i 

[3.  .Sin  res  (©=313.) 

That  the  conditions  upon  wliirh  W.  C.  held 
stated    in    his   answer,    for 
the   benefit   of  the  slaves  of  testatur.   were   void 
by   the   provisions   of   the   Act   of   1*>41. 

[Ed.  Xote. — For  other  cases,  see  Slaves,  Cent. 
Dig.  S  59;    Dec.  Dig.  <g=>13.] 

[4.   Wilis  <©=3fiSl.] 

That  a  trust  resulted  to  the  next  of  kin  of 
testator:— and  partition  of  the  estate  was  or- 
dered. 

fEd.   X'ote. — For  other  cases,  see 
Dig.  S  1613;    Dec.  Dig.  <S=3(isi.l 

[5.   Wills  <S=>nS.  lOS.] 

A  paper  referreil  to  in  a  will,  or  descril)ed 
so  that  there  can  be  no  doubt  as  to  its  identit.v. 
becomes  part  of  the  will,  whether  executed  or 
not;  l)nt  a  paper  executed  after  the  will,  and 
not  attested  by  three  witmsses.  can  have  no  op- 
eration as  a  testamentary  paper. 

I  Ed.   Xote.— For  other  ca.ses.  see   Wills.  Cent. 
Dig.  S§  2.34.  24J»;    Dec.  Dig.  <©=:).s.   los.) 


Dunkiii.    Ch..   at   Chariest. ui.    .Imu 


Wills.   Cent. 


Befon^ 
lS.->(). 

The  bill  .stated  that  the  nnch'  of  plaintiff. 
John  Clarkson,  late  of  Charleston,  departe.l 
this  life  in  eighteen  hundred  and  forty-nine, 
having  first  made  and  published  an  instru- 
ment in  the  nature  of  a  last  will  and  testa- 
ment, of  which  the  following  is  a  copy,  to 
wit:     "I   make  the   following  will   and   testa- 

*306 
ment:  .Vfter  all  my  deiits  *are  iiaid,  I  will 
and  be<iueatli  to  my  brother.  William  Clark- 
son,  all  of  my  property  on  certain  conditions 
made  with  him. — Should  he  decline  taking  it, 
se  )  I    \vill   and   be(|neatli   it  to   the  Rev.   Win.    H. 


<£=:»l'"ur  other  cases  see  same  topic  and  KliV-NLMBEK  in  all  Key-Numbered  Digests  aud  Indexes 


125 


*n06 


3  RICHARDSON'S  EQUITY  REPORTS 


Barnwell  on  the  same  conditions.  I  appoint 
my  said  brother,  William  Clarkson,  my  ex- 
ecutor. Witness  my  hand  and  seal,  this 
second  day  of  October,  eighteen  hundred  and 
forty.  John  Clarkson.  [Seal.] 

Signed  and  sealed  in  the  presence  of  E.  A. 
Clarkson,  H.  S.  Wilson,  C.  C.  Woodruff." 

That  William  Clarkson,  the  executor  nam- 
ed in  the  said  will,  duly  proved  the  same  in 
common  form,  and  assumed  the  duty  of  ex- 
ecutor, and  took  possession  of  the  property  of 
the  testator.  That  the  said  property  con- 
sisted of  a  plantation  and  a  large  number  of 
negroes,  together  with  stocks  and  other  per- 
sonal estate ;  and  that  but  few,  if  any,  debts 
remained  unpaid;  that  the  devise  and  be- 
quest aforesaid  was  not  made  to  the  said 
AVm.  Clarkson  for  his  own  use  and  benefit ; 
and  that  said  William  cannot  take  the  bene- 
ficial interest  in  the  property,  and  there  be- 
ing no  designation  in  the  will  of  the  persons 
who  are  to  take,  either  the  whole  devise  is 
void  for  uncertainty,  or  a  trust  results  for 
the  benefit  of  the  next  of  kin  of  the  said  John 
Clarkson;  and  they  are  entitled  to  partition 
both  of  the  real  and  personal  estate  of  which 
he  died  possessed. 

That  plaintiff  is  informed  and  believes, 
that  the  mind  of  his  uncle  was  in  a  diseased 
state  in  relation  to  his  right  to  hold  his 
negroes  in  slavery ;  that  he  spoke  from  time 
to  time  of  emancipating  them,  but  never 
came  to  any  fixed  conclusions,  and  plaintiff 
apprehends  and  so  charges  that  the  devise 
and  bequest  to  the  said  William  Clarkson, 
his  brother,  was  made  by  the  said  John 
Clarkson  with  a  view  that  the  said  slaves 
should,  after  his  death,  be  removed  from 
this  State  and  be  emancipated ;  or  tliat  they 
should  be  held  in  nominal  servitude;  and 
plaiutift'  expressly  charged  that  the  said  be- 
quest is  made  void  by  the  Act  of  Assembly 
to  prevent  the  emancipation  of  slaves,  pass- 
ed the  17th  day  of  December,  eighteen  hun- 

*307 
dred  and  forty-one ;    and  that  *the  said  ex- 
ecutor is  bound  to  deliver  up  the  said  slaves 
to  the  next  of  kin. 

That  at  the  decease  of  the  said  John  Clark- 
son, his  heirs  at  law  and  distributees  were 
his  two  brothers,  William  and  Thomas  B. 
Clarkson,  and  plaintiff,  the  only  child  of  his 
deceased  sister,  all  of  whom  are  now  alive. 
"To  the  end,  therefore,  that  the  said  William 
Clarkson  and  Thomas  B.  Clarkson  may  an- 
swer the  premises ;  that  the  said  William 
Clarkson  may  account  for  his  actings  as  ex- 
ecutor, and  may  set  forth  and  discover 
whether  he  hath  accepted  the  devise  and  be- 
quest made  to  him  by  the  said  will;  whether 
the  removal  of  the  slaves  of  the  said  John 
Clarkson,  or  some  of  them,  without  the  limits 
of  this  State  after  the  death  of  the  said  John, 
with  a  view  to  their  emancipation,  was  not 
intended  or  secured  by  the  said  bequest  made 
to  him,  the  said  William ;  whether  there  is 
any  secret  or  expressed  trust,  that  the  slaves 

126 


of  the  said  John,  or  any  of  them,  shall  be 
held  in  nominal  servitude ;  whether  he  claims 
the  said  negroes  and  other  property  as  given 
to  him  absolutely,  or  whether  there  is  any 
secret  or  expressed  or  implied  trust  or  condi- 
tion accompanying  the  devise  or  bequest,  and 
what  that  is,  and  what  is  the  evidence  there- 
of;  whether  he,  the  said  William  Clarkson, 
does  not  intend  to  remove  the  said  negroes 
from  the  State,  with  a  view  to  their  emanci- 
pation, or  what  disposition  he  conceives  him- 
self under  obligation  to  his  brother's  wishes 
to  make  of  them ;  that  the  said  devise  and 
bequest  may  either  be  declared  void,  or  a 
trust  for  the  benefit  of  the  heirs  at  law  or 
distributees  of  the  said  John  Clarkson ;  that 
partitions  may  be  made  of  all  and  singular 
the  property,  and  your  orator's  share  deliver- 
ed him  in  severalty,  and  that  such  other  and 
further  relief  may  be  granted  as  to  your 
Honors  shall  seem  meet.  ]May  it  please  your 
Honors,"  &c. 

The  defendant,  William  Clarkson,  in  his 
answer,  after  admitting  the  execution  of  the 
will, — the  death  of  testator, — that  defendant 
had  qualified  as  executor, — that  plaintiff  and 
the  two  defendants  were  the  heirs  at  law 
and  distributees  of  testator,  &e.  says— "that 
he  was  not  present  at  the  death-bed  of  his 

*308 
*said  brother,  the  testator,  but  has  under- 
stood and  believed,  that  when  the  testator 
found  his  death  rapidly  approaching,  he  di- 
rected this  defendant's  co-defendant  and 
brother,  Tliomas  B.  Clarkson,  where  he  should 
look  for  his  will,  and  that  the  said  will  was 
there  found,  and  along  with  it  several  other 
papers  bearing  several  dates,  in  the  words 
and  figures  set  forth  in  copies  thereof  here- 
with filed  as  an  Exhibit,  and  marked  A. 

"And  this  defendant  further  answering, 
saith,  that  he  never,  at  any  time,  induced  the 
said  testator  to  devise  his  said  estate  to  him, 
this  defendant,  by  any  promise  or  assurance 
or  undertaking  on  his,  this  defendant's,  part, 
that  he  would  carry  the  wishes  expressed  iu 
the  said  written  directions  into  execution, 
nor  had  he  ever  seen  (as  far  as  his  memory 
serves)  either  his  brother's  will  or  any  of  the 
papers  accompanying  it,  in  his  brother's  life- 
time, nor  until  after  his  brother's  death,  al- 
though his  said  brother  had,  at  different 
times,  conversed  with  him  upon  the  first  and 
principal  subject  mentioned  in  the  papers 
accompanying  his  will,  and  relied  implicitly 
upon  this  defendant's  integrity  for  carrying 
out  his  intentions  as  far  as  he,  this  defend- 
ant, could,  without  practising  any  evasion 
of  the  law ;  and  with  a  view  to  so  doing, 
this  defendant,  after  a  full  consideration  of 
the  subject,  qualified  upon  his  brother's  will. 
And  this  defendant  further  answering,  saith, 
that  he  has  accepted  the  devise  and  bequest 
of  the  whole  of  his,  testator's,  estate  real  and 
personal,  upon  the  conditions  intended  by  his 
testator,  and  that  he,  this  defendant,  is 
bound  to  undertake,  and  is  ready  and  will- 


JOHNSON  V.  CLAKKSON 


*311 


ing  to  pfrfurm.  the  sniil  ((HKlitioiis.  unless 
prevented  li.v  this  Ildnoralile  Court,  and  these 
c-onditions  he  understands  to  he  as  foUows: — 
That  he,  tliis  defendant,  is  to  practise  no  eva- 
sion of  the  law,  (as  he  is  so  directed  hy  the 
memorandum  dated  .January,  1.S4;5,  a  eoi)y  of 
which  is  herewitii  tiled  in  Kxhiitit  A,)  hut  to 
make  application  to  the  Le^;islature  of  this 
State,  which  body  alone  can  emancipate 
slaves,  to  emancipate  all  the  slaves  heionijin}^ 
to  his  brother  at  his  deatii,  or  to  jiive  this 
defendant  license  and  permission  to  send 
'Jiem  out  of  this  State;  and  if  the  said  ne- 
groes he  emancipated  Ity  the  Lejiislature,  or 

♦  309 
this  defendant  have  the  ♦lesiislative  license  to 
send  them  out  of  this  State,  then  that  he, 
this  defendant,  shall  sell  the  plantation  of 
his  testator,  and  out  of  the  proi-eeds  thereof, 
to  pay  five  thousand  dollars  each  to  two  lega- 
tees named  in  the  said  papers,  and  the  bal- 
ance, with  such  moneys  as  his  testator  left 
at  his  death,  to  divide  among  the  said  ne- 
groes; but  if  the  Legislature,  upon  such  ap- 
plication made  by  this  defendant,  refuse  both 
to  emancipate  the  said  slaves  or  to  give  this 
defendant  license  to  remove  tliem  out  of  the 
State,  then  that  this  defendant  shall  sell  the 
whole  of  the  testator's  estate,  and  divide  the 
proceeds  into  tive  e(iual  parts,  or  <jtherwise 
divide  said  estate  into  tive  equal  parts,  to  be 
paid  to  the  said  several  legatees  and  objects 
designated  in  the  said  papers,  that  is,  in  the 
memorandum  bearing  date  Fei)ruary.  ]s4!>. 
And  he,  this  defendant,  sulmiits  to  this  Hon- 
orable Court,  that  he  holds  the  estate  of  his 
testator  upon  the  said  conditions,  and  that 
the  said  conditions  are  lawful  conditions, 
and  that  he,  this  defendant,  is  bound  and  also 
ready  and  willing  to  perform  them,  and  tluit 
even  if  the  said  conditions  were  unlawful  and 
he  could  not  perform  them,  his  riglit  to  hold 
the  said  estate  could  not  be  affected  thereby, 
but  would  be  held  by  him  disciiarged  of  the 
condition  which  he  could  not  lawfully  per- 
form." 

Kxhibit  A. 

To  William  Clarkson.— By  my  will  all  my 
property  will  come  into  your  hands  on  certain 
conditions,  or  on  your  declining  to  take  It, 
into  the  possession  of  the  Rev.  William  H. 
Barnwell,  on  the  same  conditions.  Some  of 
these  conditions  I  now  express  In  writing. 
All  of  my  negroes  nuist  be  emancipated,  ei- 
ther immediately  or  at  any  time  tiie  Hev.  Wm. 
II.  Barnwell  shall  think  advi.sable.  Should 
immediate  emanciiiation  be  deemed  inexpedi- 
ent, the  proceeds  arising  from  the  lands  and 
negroes,  nnist  be  placed  at  interest  until  they 
are  liberated,  and  then  this  accumulated  sum, 
together  with  the  sale  of  my  lands  and  other 
moneys  not  specifically  appropriated,  shall  be 
given  to  them,  that  is,  my  land  and  all  the 
proceeds   shall   be  considered   their  proiierty. 

♦310 
If  the  law  for*bidding  the  emancipation  ol 


slaves  in  .'<outh  Carolina  is  then  in  force,  so 
that  all  my  negroes  nmst  be  removed,  then 
the  husbands  or  wives  of  any  of  nunc  belong- 
ing to  other  persons,  mu.st  be  purchased  from 
monies  of  my  estate  not  vested  in  lands,  if 
there  is  a  suMicient  amount,  but  if  there  is 
not  a  sufticient  sum.  then  .so  nun  h  as  is  neces- 
sary in  addition,  nuist  be  taken  from  the  sale 
of  the  lands.  The  purchase  is  only  to  be 
made,  provided  no  arrangement  can  be  effect- 
ed by  which  the  husbands  and  wives  will 
not  be  separated.  If  there  is  any  amount 
left  after  the  purchase  of  the  negroes  and 
without  using  the  funds  arising  from  the 
sale  of  the  lands,  then  two  hundred  dollars 
is  to  be  given  to  the  Ladies'  Benevolent 
Society  of  Charleston,  and  the  remainder  to 
the  Domestic  and  Foreign  Missi<»nary  Society 
of  the  United  States  of  America,  provided 
there  is  as  nuich  as  six  hundred  dollars  left. 
But  if  there  is  not  .so  much,  then  the  Dome.s- 
tic  and  Foreign  Missionary  Society  is  to  re- 
ceive twice  as  much  as  the  I.Kidies'  Benevolent 
Society  of  whatever  sum  is  left ;  but  should 
there  be  more,  the  Ladies'  Benevolent  Society 
is  only  to  receive  the  two  hundred  dollars, 
and  the  Domestic  and  Foreign  Missionary 
Society  the  remainder,  whatever  it  may  be. 
I  wish  (if  possible)  that  the  negroes  should 
not  be  sent  out  of  Americ-a.  I  will  expect 
you  or  the  Rev.  Mr.  Barnwell,  whoever  re- 
ceives the  property,  to  make  a  will  providing 
for  the  emancipation  of  my  negroes,  together 
with  their  husbands  and  wives  belonging  to 
other  persons  as  stated  aViove,  if  the  negroes 
nuist  be  sent  and  remain  out  of  the  neighbor- 
hood. The  Rev.  W.  II.  Barnwell  must  be 
advised  with  in  every  case  that  I  do  not  de- 
termine in  writing  or  orally.  Whatever  oral 
directions  I  may  give  are  to  lie  considered  my 
will   in   preference  to  this,   although   verbal. 

John  Clarkson. 
October  7th  1,840. 

Husbands  and  wives  nuist  on  no  account  be 
separated. 

Nov.  i;5th,  1S42.  John  Clarkson. 

*311 

*I  became  of  age  on  rhe  5th  of  Jan.,  ls.'>2. 
From  the  5th  Jan.,  1KV2,  to  5th.  1S41— !> 
years.  Betty  came  into  my  possession  5th 
Jan.,  1832.  George,  Ca\sar,  Jack,  Henry, 
David,  Robert, — owned  a  fourth  part  of  these 
six  negroes  until  Sth  Nov.,  is:',[\.  when  (ieorge 
and  Cii'sar  were  taken  by  me  in  the  division 
that  was  made  at  that  time.  George  owed 
me  $112  in  August.  1S41.  and  has  paid  me 
very  little  I  think  since  that  date.  But  cred- 
it him  with  $25.  Anthony  was  .sold  on  the 
7th  Dec.  1S:52,  by  Mr.  Kunhardt  to  B.  I). 
Ileriot.  I  wish  a  calculation  to  be  made  as 
lo  what  the  above-named  negroes  could  have 
earned  me  after  paying  all  their  exiienses, 
which  sums  I  wish  paid  to  them — I  mean 
during  the  time  I  owned  them.  Deduct  the 
amount  which  George  owes  me.  iuid  will  owe 
me,   unless  he  pays.     Ca'sar's  wages  should 

127 


*311 


3  RICHARDSON'S  EQUITY  REPORTS 


be  counted  up  to  1837,  besides  that  he  will  be 
on  the  same  footing  with  the  plantation  ne- 
groes. Betty  and  George,  besides  their 
wages,  will  be  on  the  same  footing  with  the 
plantation  negroes. 

Nov.  2.5th,  1842.  John  Clarkson. 

If  there  is  any  portion  of  my  property 
given  to  the  'Domestic  and  Foreign  Mission- 
ary Society,  I  wish  it  given  to  tl-a  domestic 
department,  or  a  portion  to  Texas. 

Nov.  2.5th,  1842.  John  Clarkson. 

I  understand  that  my  will  cannot  be  law- 
fully carried  into  effect.  I  wish  no  evasion 
of  the  law  practised,  but  application  to  be 
made  to  the  Legislature  to  permit  it  to  be 
executed. 

January,  1843.  John  Clarkson. 

Should  my  negroes  be  emancipated,  in- 
stead of  giving  to  them  all  the  proceeds  from 
the  sale  of  my  plantation,  I  bequeath  $5,000 

of  the  said  proceeds  to  Miss  J J , 

(you  will  know  who  I  mean.)  and  .$5,000  to 
Miss  A.  E.  M.,  (Rev.  J.  S.  Hauckel  can  tell 
you  who  I  mean,)  and  should  my  negroes  not 
be  emancipated,  and  there  be  no  intention  of 
its  being  done,  I  wish  my  property  divided 
into  five  equal  parts:  one  given  to  missions 
and    charity ;     one    to    my    brother    William 

*312 

Clarkson ;  one  to  my  *  brother  T.  B.  Clark- 
son ;    one   to   Miss   J J ,   named 

above,  and  one  to  Miss  A.  E.  M.,  named 
above.  Rev.  Mr.  Barnwell  must  be  consult- 
ed as  to  the  propriety  of  giving  legacies  to 
these  ladies.  I  wish  it  done,  if  there  be  no 
impropriety  in  doing  it. 

Feb.,  1849.  John  Clarkson. 

I  do  not  wisli  my  negroes  forced  to  go  to 
Africa,  if  they  do  not  wish  it. 

Aug.  13,  1849.  John  Clarkson. 

I  wish  whatever  amount  I  shall  receive 
from  my  mother's  estate,  having  come  to  me 
through  my  aunt,  Mrs.  Broughton,  to  be 
returned  to  Mrs.  Broughton's  family.  That 
is  all  that  I  can  control. 

Aug.,  1849.  John  Clarkson. 

Thomas  Boston  Clarkson,  in  his  answer, 
submitted  the  whole  matter  to  the  judgment 
of  the  Court. 

Dunkin,  Ch.  The  will  of  John  Clarkson 
bears  date  2nd  October,  1840,  and  is  as  fol- 
lows, viz: — "I  make  the  following  will  and 
testament.  After  all  my  debts  are  paid,  I 
"Will  and  bequeath  to  niy  brother,  William 
Clarkson,  all  of  my  property  on  certain  con- 
ditions made  with  him.  Should  he  decline 
taking  it,  I  will  and  bequeath  it  to  the  Rev. 
Wm.  H.  Barnwell  on  the  same  conditions. 
I  appoint  my  said  brother  my  executor." 
The  testator  died  on  the  21st  October,  1849, 
and  soon  afterward  the  executor  named, 
proved  the  will  and  qualified  thereon.  The 
estimated  value  of  the  testator's  real  estate 
is  $23,500,  and  of  his  personal  estate  about 
$93,000.  His  next  of  kin  and  heirs  at  law 
are    his    two    brothers,    William    and    T.    B. 

128 


Clarkson,  and  the  complainant,  who  is  the 
only  child  of  a  deceased  sister.  The  bill  sub- 
mits that  no  valid  testamentary  disposition 
has  been  made  of  the  testator's  estate,  and 
that  a  trust  results  to  his  heirs  at  law. 

It  may  be  as  well  first  to  imiuire,  whether 
any  beneficial  interest  is  given  to  William 
Clarkson?  If  none,  then  his  title  is  wholly 
fiduciary.     He  is  a  trustee,   and  the  conse- 

*313 
quences  result*ing  from  that  will  be  after- 
wards considered.  Did  the  testator  intend  a 
bounty  to  William  Clarkson,  and  were  "the 
conditions  made  with  him"  merely  subordi- 
nate or  incidental?  or,  on  the  other  hand, 
was  the  legal  title  vested  in  him  for  the  ex- 
press purpose  of  enabling  him  to  accomplish 
certain  objects,  and  not  with  any  view  to 
his  own  advantage  and  emolument?  The 
terms  used  imply  no  intention  to  confer  a 
I)ersonal  benefit.  No  donative  words  are  used 
but  as  coupled  with  the  condition.  The  con- 
text repels  any  such  inference.  It  is  tnie 
the  will  shows  William  Clarkson  to  have 
been  the  brother  of  the  testator,  and  thence 
an  object  of  his  affection,  and  a  natural  ob- 
ject of  his  bounty.  But  the  will  declares, 
should  he  decline  taking  it,  the  property  is 
given  to  the  Rev.  Mr.  Barnwell  on  the  same 
conditions.  Was  any  bounty  intended  to  Mr, 
Barnwell?  Manifestly  none.  The  only  pur- 
pose was  to  fix  the  legal  title  in  some  per- 
son who  would  execute  the  trust.  In  Stubbs 
V.  Sargon,  (3  M.  &  C.  507,)  the  language  was 
much  stronger  to  support  the  position,  that 
Sarah  Sargon  held  the  £2,000  as  a  gift  sub- 
ject to  a  charge,  but  the  Lord  Chancellor 
held  it  a  gift  upon  trust.  She  was  no  more 
than  the  donee  of  a  power  to  be  exercised  in 
favor  of  others. 

Then  what  is  the  trust  upon  which  Wil- 
liam Clarkson  took  the  property?  The  will 
bears  date,  as  has  been  stated,  2nd  Oct., 
1840.  No  particular  trust  is  specified  on  the 
face  of  the  instrument.  No  reference  is 
made  to  any  existing  document.  He  is  to 
take  the  property  "on  certain  conditions 
made  with  him,"  or  not  to  take  it  at  all. 
But  the  will  is  silent  as  to  those  conditions. 
It  is  proposed  to  give  in  evidence  certain 
loose  pieces  of  paper,  containing  memoranda 
made  by  the  testator  at  various  times  from 
the  7th  October,  1840,  to  August,  1849.  The 
first  is  directed  to  W'illiam  Clarkson,  and  all 
are  signed  by  the  testator.  In  William 
Clarkson's  answer  he  says,  that  he  under- 
stands these  papers  were  found  where  the 
will  was  found,  and  along  with  it ;  but  he 
says  that  (so  far  as  he  remembers)  he  had 
never,  before  his  brother's  death,  seen  either 
his  brother's  will,  or  any  of  the  papers  ac- 
companying it,  "although,"  he  adds,  "his  said 

*314 
*brother   had,   at  different   times,   conversed 
with  him  upon  the  first  and  principal  sub- 
ject mentioned  in  the  papers  accompanying 


JOHNSON  V.  CLARKSON 


»816 


liis  will,  and  relied  Implicitly  upnu  this  de- 
fendant's integrity,  for  carry inj.'  out  his  in- 
tentions, as  far  as  he  could,  witliout  practis- 
ing any  evasion  of  the  law."  This  lirst  and 
princiiial  suhject  to  whi<li  the  defendant  re- 
fers, as  the  only  matter  alniut  which  they 
had  conversed,  was  the  emancipation  of  the 
te!^tator*s  slaves.  Assundng  that  to  he  a 
trust,  acknowledged  hy  the  defendant,  it 
may  stand  on  a  different  tooting,  and  will  he 
presently  considered.  The  admissihility  of 
the  papers,  ahoiit  which  the  defendant  knows 
nothing,  which  he  never  saw  until  after  his 
hrother's  death,  is  tirst  to  lie  deteruuned. 
Upon  this  jioint.  as  well  as  other  hranches  of 
this  cau.se.  the  argument  in  Ilahergham  v. 
Vincent,  (1'  Ves.  Jr.  'M~>.)  is  very  instructive. 
In  the  decision  t)f  the  case,  the  Lord  Chan- 
cellor had  the  assistance  of  Justices  Wilson 
and  Buller,  and  all  concurred  in  the  judg- 
ment. It  was  insisted  that  the  deed  was 
valid  as  part  of  the  testator's  will.  After 
premising  tlnit  the  statute  was  made  not  for 
the  lieiielit  of  the  testator  only,  i»ut  for  gen- 
eral public  purposes,  and  that  the  law  did 
not  allow  a  testator  to  say  that  he  would 
make  a  will  without  the  retpusites  pre.scrlh- 
ed,  either  not  thinking  he  wouUl  he  imposed 
upon,  or  not  caring  about  it,  Judge  Wilson 
adverts  to  a  distinction  as  well  established. 
"If  a  testator  in  his  will  refers  expressly  to 
any  paper  already  written,  and  has  so  de- 
scribed it  tliat  there  can  be  no  doubt  of  the 
identity,  and  the  will  is  executed  in  the 
presence  of  three  witnesses,  that  paper 
makes  part  of  the  will,  whether  executed  or 
not:  such  reference  is  the  same  as  if  he  had 
incorporated  it.  Rut  the  difference  between 
that  case  and  a  relation  to  a  future  inten- 
tion, is  striking.  In  the  former,  there  is  a 
precise  intt'ution  mentioned  at  the  time  of 
making  the  will:  but  when  a  man  declares 
he  will,  in  some  future  paper,  do  something, 
he  says  he  will  make  a  will  as  far  as  his 
intention  is  then  known  to  himself,  but  lie 
will  take  time  to  consider  what  lu>  shall  do 
in  future."  In  the  argument.  Adilngton  v. 
Can  &  Andrews,  (3  Atk.  141,)  was  cited  as  a 
leading  authority,  in  which  Lord  Ilardwicke 

*315 
held,  that  it  would  be  ♦a  rejieal  of  the  stat- 
ute, if  a  paper,  subsequent  in  date  to  the 
will,  and  to  which  the  testator  Imd  made  no 
reference,  should  be  allowed  any  effect.  It 
ivas  conceded  at  the  bar,  that  "where  such 
reference  is  wanting,  none  of  the  cas(>s  have 
gone  so  far  as  to  connect  the  p.-iper  with  the 
will:  for  it  must  be  collected,  that  the  testa- 
tor meant  to  refer  to  the  paper  not  executeil 
a<'Cording  to  the  statute,  otherwise  the  stat- 
ute Is  not  satisfied."  The  will  of  John  Clark- 
son  refers  to  no  paper  whiitever.  It  refers 
to  "certain  conditions"  made  wilii  William 
Clarkson.  If  under  this  description  could  be 
classed  the  various  changes  made  by  the  tes- 
tator, oral  or  written,  within  the  ensuing 
eight   or    nine   years,    it    would   introduce   a 

8  Rxcu.Eq.— 9 


mode  of  testamentary  disposition  entirely 
novel,  and  rendering  nugatory  all  the  safe- 
guards of  the  statute.  The  defendant,  Wil- 
liam Clarkson.  is  no  i»arty  to  these  pai>ers. 
He  adnuts  himself  not  to  have  known  of 
their  existeme  until  after  his  hrother's 
death.  t)ne  ot  thesv  papers  provicies  for  a 
distribution  of  the  e.*tate,  on  a  certain  con- 
tingency, into  five  i)arts,  which  are  disposed 
of  to  several  legatees.  Why  could  not  any 
other  legatees  insist  on  pand  declarations  of 
the  testator  tluit  the  conditions  made  with 
William  Clark.son  wen*,  that  he  shovdd  ilivide 
the  estate  among  them?  "If  a  pap«'r  can 
have  this  effect  against  the  statute,  imnuMli- 
ately  after  the  execution  of  the  will,  it  nnght 
at  any  distance  of  time,  .so  that  having  gone 
through  tlie  form  of  a  will,  which  parts  with 
nothing  effectually,  he  might,  when  under  in- 
finenie,  or  incnpaMe  of  <lisposition.  or  even 
just  expiring,  in  short,  in  that  situation  which 
the  statute  meant  to  protect  again.st  fraiul. 
by  an  unatti'sted  paper,  dispose  of  his  whole 
estate."  These  pajn'rs  can  have  no  effect  but 
as  a  testamentary  »lisposition,  and,  not  being 
executed  with  the  formalities  iire.scrilied  by 
the  statute,  they  have  no  legal  operation. 

Then  it  is  .said  that,  witliout  any  reference 
to  these  unattested  papers,  the  defcn<lant  is 
a  trustee  to  carry  into  effect  the  intentions 
of  the  testator,  in  regard  to  the  emancipa- 
tion of  his  slaves,  "as  far  as  he  could  with- 
out practising  any  evasion  of  the  law."  And 
if  there  were  any  conditions  made  with  the 

•316 
defendant,  *which  have  been  proved,  this 
was  the  trust  to  be  discharged  hy  him.  The 
Court  is  willing  to  i>lace  the  case  on  the 
footing,  that  this  admission  of  the  defend- 
ant's answer  was  incorporated  in  the  will ; 
or  (which  is  perliaps  nearer  the  fact)  that 
the  case  is  directly  analagous  to  Smith  v. 
Attersoll,  (1  Russ.  :.U">,)  and  that  the  defend- 
ant, cotemporaneously  with  the  execution 
of  the  will,  had  signed  a  declaration  of  trust, 
to  the  eft'ect  of  the  implied  understandin;; 
adndtted  by  the  answer.  If  the  will  shouhl 
be  regarded  as  taking  eft'ect  from  its  date,  or 
if  the  testator  had  died  prior  to  I>ec.,  1S41, 
then  it  would  fall  precisely  within  the  prin- 
ciple of  the  second  class  in  I'iniey  v.  Hun- 
ter, (1!  ytrob.  Eti.  L'08,  I'lC.)  Slaves  were  be- 
(jueathed  on  the  condition  that  they  should 
be  emancipated  or  sent  out  of  the  State. 
Chancellor  Johnston,  delivering  the  judgment 
of  the  Court  of  Appeals,  says:  "i  am  of 
oi)inion,  that  what  lias  lieen  called  a  con- 
dition, is  to  be  regarded  in  this  Court  as  a 
trust.  The  second  class  was  given  entirely 
upon  trust,  without  any  intent  to  confer  a 
benefit  upou  the  trustee.  Ever  since  Morrice 
V.  the  r.isho]>  of  Durham,  the  rule  has  l>een, 
that  wliere  no  lienetl<ial  interest  is  intended, 
hut  a  trust  is  attempted  to  be  imposed,  if 
the  trust  fails  from  any  cause,  the  trustee 
shall  not  hold  for  his  own  benefit;  but  a 
trust  results  to  the  grantor  or  his  next  of 

129 


*316 


3  RICHARDSON'S  EQUITY  REPORTS 


kin."  Blackmann  v.  Gordon,  (2  Rieh.  Eq. 
42  [44  Am.  Dec.  241]),  proceeds  upon  tbe 
same  principle. 

But  tlie  testator  died  in  1849.  Tlie  valid- 
ity of  his  will,  and  the  trusts  therein  declar- 
ed, must  be  determined  by  the  law  of  1841. 
The  defendant  does  not  state  very  particu- 
larly, or  exactly,  what  were  the  conditions 
or  trusts  on  which  the  slaves  and  other  prop- 
erty of  the  testator  was  confided  to  him. 
But  the  Act  of  1841,  after  declaring  void 
certain  provisions  for  the  emancipation  of 
slaves,  concludes  by  a  declaration,  that  "ev- 
ery devise  or  bequest  to  a  slave  or  slaves, 
or  to  any  person  upon  a  trust  or  confidence, 
secret  or  expressed,  for  the  benefit  of  any 
slave  or  slaves,  shall  be  null  and  void."  The 
conditions,  whatever  they  were,  on  which 
this  estate  was  devised  and  bequeathed  to 
the  defendant,  were  confessedly  for  the  bene- 

*317 
fit  of  the  slaves  of  the  *testator,  so  far  as  the 
law  would  permit.  But  the  law  permits  no 
such  benefits  as  the  testator  contemplated. 
The  design  which  he  had  in  view  cannot  be 
accomplished.  The  consequence  is,  as  de- 
clared in  Finley  v.  Hunter :  "The  trustee 
shall  not  hold  for  his  own  benefit,  but  a 
trust  results  to  the  next  of  kin  of  the  testa- 
tor." 

It  is  declared  that  the  defendant,  William 
Clarkson,  holds  the  estate,  real  and  personal, 
of  John  Clarkson,  deceased,  in  trust  for  his 
heirs  at  law  and  next  of  kin.  It  is  ordered 
and  decreed,  that  a  writ  of  partition  issue, 
according  to  the  prayer  of  the  bill,  for  the 
purpose  of  dividing  the  said  estate  among 
the  parties  to  the  pleadings.  It  is  further 
ordered,  that  one  of  the  Masters  take  an  ac- 
count of  the  management  of  the  defendant  as 
executor  of  the  said  John  Clarkson.  Tarties 
to  be  at  liberty  to  apply  for  any  further  or- 
der, or  for  any  modifications  of  these  orders, 
consistent  with  the  principles  of  the  decree. 
Costs  to  be  paid  out  of  the  estate. 

The  defendant,  William  Clarkson,  appealed 
on  the  following  grounds : 

1.  Because  the  devise  of  the  estate  to  Wil- 
liam Clarkson,  was  a  devise  upon  a  condition 
subsequent,  which  vested  the  estate  in  the 
devisee ;  and  if  the  condition  be  unlawful 
the  estate  remains,  and  if  lawful  the  condi- 
tion may  be  performed. 

2.  Because  even  if  the  devise  be  a  devise 
of  a  trust,  the  trustee  having  declared  his 
readiness  to  execute  the  trust  which  is  law- 
ful, the  cestui  que  trusts  may  now  enforce  him 
to  it,  and  he  is  therefore  trustee  for  these  for 
whose  benefit  he  has  declared  the  trust  to  be. 

3.  That  the  devise  to  William  Clarkson, 
was  a  devise  of  the  beneficial  interest,  sub- 
ject to  uses  to  be  declared  by  the  testator, 
and  that  he  changed  his  mind  and  declared 
new  uses  from  time  to  time;  that  the  last 
uses  declared  by  him  are  contained  in  the 
written    memoranda    found    with    his    will. 


That  those  uses  are  lawful ;  and  there  is 
nothing  in  the  statute  of  frauds,  or  in  the 
Act    against    emancipation,    to    prevent    the 

*318 
devise  from  taking  *effect  as  a  devise  to  the 
uses    contained    in    the    written    memoranda 
left  by  the  testator. 

McCrady,  for  W.  Clarkson. 

Martin,  for  T.  B.  Clarkson,  cited  2  Story 
Eq.  §§  1304,  1306  ;  Att'y.  Gen.  v.  Christ's  Hos- 
pital, 3  Bro.  C.  C.  165 ;  Crommelin  v.  Crom- 
melin,  3  Ves.  227 ;  Holmes  v.  Lysaght,  2  Bro. 
P.  C.  261 ;  Stratton  v.  Grymes,  2  Vern.  357 ; 
Dawson  v.  Dawson,  Rice  Eq.  260;  Izard  v. 
Montgomery,  1  N.  &  McC.  381;  Milledge  v. 
Lamar,  4  Des.  617;  Rose  v.  Cunynghame,  12 
Ves.  36 ;  Bonner  v.  Bonner,  13  ^'es.  379 ; 
Buckeredge  v.  Ingram,  2  Yes.  652 ;  Smart 
V.  Prujean,  6  Ves.  559 ;  Slieddon  v.  Good- 
rich, 8  Ves.  500 ;  Smith  v.  Attersold,  1  Russ. 
226;  Rob.  on  Frauds,  332,  337;  Habergham 
V.  Vincent,  4  Bro.  C.  C.  371 ;  Lawson  v.  Law- 
son,  1  P.  W.  440 ;  Coxe  v.  Basset,  3  Ves.  160 ; 
Chaworth  v.  Beech,  4  Ves.  565 ;  Finley  v. 
Hunter,  1  Strob.  Eq.  208;  Blackmau  v.  Gor- 
don, 2  Rich.  Eq.  43. 

Memminger,   for  plaintiff. 
Petigru,  for  legatees. 

PER  CURIAM.  This  Court  concurs  in 
the  decree ;  and  it  is  ordered  that  the  same 
be  affirmed,  and  the  appeal  dismissed. 

JOHNSTON,     DUNKIN,     DARGAN     and 
WARDLAW,  CC,  concurring. 
Appeal  dismissed. 


3   Rich.  Eq.  318 

J.  J.   CLARKE  V.  J.   JENKINS   and  Others. 

(Charleston.      Jau.    Term,    ISol.) 

[Appeal  and  Error  <©=1022.] 

Executors  charj^ed  with  neiilect  in  the  man- 
agement of  the  plantations  of  testator  under 
Lin-ir  iuari;e:  the  xMa^iter  and  Chancellor  hav- 
ing concurred  that  there  had  been  no  neglect, 
the  Court  of  Appeals  refused  to  disturb  their 
judgment. 

[Ed.  Note. — ^Cited  in  Austin  v.  Kinsman,  1 
S.  C.  101;  Arnold  v.  House.  12  S.  C.  608; 
Willoughby  v.  North  Eastern  R.  R.  Co.,  52  S. 
C.  175,  29  S.  E.  629;  Ex  parte  Baker,  67  S. 
C.  82,  45  S.  E.  143. 

For  other  cases,  see  Appeal  and  Error,  Cent. 
Dig.  §  4015;   Dec.  Dig.  <S=>1022.] 

[Executors  and  Administrators  <©=393.] 

Testator  devised  separate  plantations  to  his 
three  infant  children;  there  being  a  consid- 
erable amount  of  debts  of  testator  to  pay,  and 
the  number  of  worliing  hands  of  the  children 
being  about  equal,  the  executors,  until  the  debts 
were  extinguished,  managed  the  several  planta- 
tions as  one  estate,   without  separation   of  the 

*319 
income  of  *each  child — charging,   however,  one 
of  the   children,    whose   plantation    was   of  less 
value  than  the  others,  with  a  reasonable  amount 
for  rent ;     Held,   that   there  was  no   reasonable 


130 


@=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  aU  Key-Numbered  Digests  and  Indexes 


CLARKE  V.  JEXKINS 


•321 


objertion    to   the   conduct   of   the    executors    in 
manaKing  the  estate  as  a  whole. 

[Ed.  Soto. — For  other  ruses,  see  Kxecutor.s 
and    Administrators,    Cent.    l>ii:.    §    4(>7 ;     Dec. 

I>i-  <s=>;>o.] 

[Coiniirdiiilsr  and  Seitlemrnt  c=)lt>.l 

At  the  foot  of  an  account,  containiiii:  sev- 
eral rlemands.  the  creditor  anvo  a  receipt  in 
full,  and  niurc  than  four  years  afterwards  rlaiiu- 
ed  other  demands  not  inchided  in  tlie  aicount ; 
Held, — Tliat  the  receipt  amounted  to  a  waiver 
and  abandonment  of  the  chtims  uot  included  in 
the   account. 

I  Ed.  Note. —  V  r  other  cases,  see  Comi)romise 
aiul  Settlement,  ^ent.  Dig.  §  50;    Dec.  Dig.  <S=> 

[LiniUation   of  Actions  <g=(»0.1 

Jleld  further,  that  if  the  i)arty  nii^ht  have 
opened  the  receipt  ui)on  any  ;,'round  of  eipiity, 
such  as  fraud  or  mistake,  the  statute  of  limi- 
tations be«an  to  run  av:ainst  the  exercise  of  such 
rinht   from   the   date  of  the   receii)t. 

I  Ed.  Note.— For  other  cases,  see  Limitation  of 
Actions.  Cent.  Dig.  §  .>34  ;    Dec.  Dig.  ©=>00.] 

{Limitation   of  Actions   (©=>14.3.] 

The  acknowledgment  of  an  executor  of  the 
justice  of  a  claim,  after  the  bar  of  the  statute 
of  limitations  is  complete,  will  uot  prevent 
legatees  and  distributees,  into  whose  hands  the 
estate  h.-is  gone,  from  availing  themselves  of  the 
bar  of  the  statute. 

[Ed.  Note.— For  other  cases,  see  Limitation  of 
Actions,  Cent.  Dig.  S  582;    Dec.  Dig.  <@=3l43.] 

[Executors  anil  Administrators  ®=>ll.'5.1 

Every  executor  has  a  several  riuht  to  re- 
ceive the  assets  of  the  estate ;  and  he  who  re- 
ceives, is  exclusively  answerable  for  the  mis- 
application of  them,  unless  his  coexecutors  have 
contributetl  to  enable  him  to  get  i)ossession  of 
them,  or  have  acquiesced  iu  his  appro[)riatiou 
of  them  contrary  to  the  trusts  of  the  will,  know- 
ing of  such  misapplication. 

[Ed.  Note.— Cited  in  (iatcs  v.  Whetstone,  8 
S.  C.  247.  28  Am.  Rep.  284. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.   Dig.  §  522;    Dec.  Dig.   <©=>125.] 

[Infants  <S=3ll2.] 

[Cited  in  Barnes  v.  Cunningham,  9  Rich. 
Eq.  4T!>.  to  the  point  that  until  a  decree  is 
regularly  vacated  infant  i)arties  are  bound  by 
it  to  the  same  degree  as  adults. 1 

[Ed.  Note. — For  other  cases,  see  Infants,  Cent. 
Dig.  §  320;    Dec.  Dig.  <S=>112.1 

Before  Dargan,  Ch.,  at  Charleston,  Febru- 
ary, 1850. 

This  ca.se  came  before  the  Court  on  ex- 
(•ei)tion.s  to  the  report  of  the  Master,  which  is 
as  follows: 

This  case  was  refi'rred  to  uie  to  report  on 
the  niatter.s  set  forth  in  the  pleadings,  llav- 
ini^  received  no  instructions  from  the  Court, 
touching  the  iirincii)les  upon  which  the  report 
should  be  foundcti,  the  Master  will  be  com- 
jtelled,  in  order  to  bring  the  whole  case  fair- 
ly and  fully  before  the  Court,  to  express  opin- 
ions on  several  important  points  of  law. 

The  ccunidainant  is  James  .To.seph  Clarke, 
son  of  William  M.  Clarke,  deceased;  and  the 
defendants  are  John  Jenkins,  William  M. 
Murray,  and  George  W.  Seabrook.  executors 
of  the  said  William  M.  Clarke,  and  Mr.  and 
Mrs.  Ilanckel,  and  Mr.  and  Mrs.  Whaley. 
These  two  ladies  being  daughters  of  the  said 
William  M.  Clarke. 


It  appears  that  Williaiu  >r.  Clarke  was 
twice  inarrh'd:  his  first  wife  was  Martha 
Mary  Murray;  she  departed  this  life  in  the 
year  1S21.  about  nine  months  after  h«'r  mar- 
riage, leaving  surviving  her  the  said  William 

*320 

.^^.  Clarke,  and  one  daughter.  Mar*tha  .Marj- 
Murray  Clarke,  now  .Mrs.  Whaley.  one  of  the 
defiMidants.  The  second  wife  of  Mr.  Clarke 
was  Elizabeth  Jenkins.  He  died  in  the  year 
1S.'51.  leaving  surviving  him  his  .said  widow. 
Elizabeth  Jenkins,  and  two  children  by  her. 
the  complaiimnt  .1.  J.  Clarke,  and  the  defend- 
ant Mrs.  Ilanckel.  The  widow  afterwards  in- 
termarried with  John  Ilaniuihan :  but  nei- 
ther of  them  are  parties  to  this  bill. 

In  order  to  understaiul  the  (piestions  in- 
volved in  this  case,  it  is  necessary  to  advert 
to  the  will  of  Joseph  James  Murray,  the  fa- 
ther of  Mr.  Clarke's  tirst  wife,  and  grand- 
father of  the  defendant.  Mrs.  Whaley.  This 
gentleman,  on  the  2.'?d  February,  1S15,  execut- 
ed two  deeds,  which  he  coulirnu^d  by  his  will 
bearing  the  same  date — wherein  he  conveyed 
to  trustees,  sixteen  negro  slaves  for  the  sepa- 
rate use  of  his  daughter.  Maitha  Mary  Mur- 
ray, mother  of  the  defendant,  Mi's.  Whaley, 
during  her  life,  atul  renuiinder  to  any  child 
or  children  living  at  the  time  of  her  death, 
absolutely.  At  or  socui  after  her  marriage 
i  with  ^Ir.  Clarke,  these  negroes  went  into  his 
I)os.session,  and  he  continued  to  u.se  them 
from  that  time,  about  the  year  1S2U.  to  his 
death  in  the  year  ls.";i,  without  accounting 
for  their  hire  to  his  daughter,  Mrs.  Whaley, 
in  wh<un,  iii>on  the  death  of  her  mother,  they 
had  absolutely  vested. 

Mr.  Clarke,  by  his  will  made  in  18:50. 
among  other  things,  after  tlevising  to  his  wid- 
ow in  fee  a  plantation  called  '"Cypress  Trees," 
devised  and  beciueathed  in  the  following 
words: 

•'Item.  I  give,  devise  and  beciueath  unto 
my  dear  daughter.  Martha  Mary  Murray 
Clarke,  her  heirs  and  assigns  forever,  all  my 
right,  title,  interest  and  estate  in  the  planta- 
tion or  tract  of  land  commonly  called  "Vine- 
gar Hill."  that  came  from  the  estate  of  her 
grand-father,  .Joseph  Janu's  Murray  ;  and  as 
the  said  plantation  is,  in  my  oitinion,  less 
valuable  than  the  plantations  respectively 
given  to  my  wife  and  other  children  :  and  as 
it  is  my  wish  that,  at  my  death,  my  wife  and 
each  of  my  children  be  as  nearly  as  possible 
on  an  eiiuality  in  regard  to  proi)erty,  I  give, 
devise  aiul  heiiueath  unto  my  daughter,  Mar- 
tha Mary  Murray  Clarke,  .so  nuich  money  as, 

*321 

with  the  said  plantation  *"\'iiiegar  Hill,"  will 
be  equal  in  value  to  "Cypress  Trees"  planta- 
tion, in  lieu,  and  to  stand  in  the  place  of,  so 
much  land,  to  her  and  her  heirs  forever. 

"Item.  I  give,  devi.se  and  bequeath  the 
plantation    or    tract    of    land    called    "Shell 


®=3For  other  ca.'ies  see  same  topic  auii  KEY-NL'.MlibllC  iu  all  Key-Numbered  Ulgcsis  aud  lude.xes 


131 


*321 


3  RICHARDSON'S  EQUITY  REPORTS 


House,"  unto  my  son  James  Joseph  Clarke,  [  the  rest,  residue,  and  remainder  of  my  estate. 


his  heirs  and  assigns  forever. 

"Item.     It  is,  as  I  have  already  said,  my 
desire  that,  at  my  death,  my  wife  and  chil- 
dren respectively,  should  be  as  nearly  as  pos- 
sible possessed  of  property  of  equal  value. 
And  as  my  dear  daughter,  Martha  Mary  Mur- 
ray Clarke,  under  the  deed  of  her  grand-fa- 
ther, Joseph  James  Murray,  to  her  mother, 
then  Abigail  Jenkins  Murray,  dated  the  twen- 
ty-third day  of  Febi-uary,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifteen, 
will  be  possessed,  in  her  own  right,   of  as 
many  slaves  as  can  fall  to  my  present  wife 
and  her  two  children,  on  a  division  among 
them  of  all  the  negroes  that  belong  to  me,  I 
therefore  will,  order,  and  direct,  that  all  the 
negro  slaves  of  which  I  may  die  possessed  in 
my  own  right,  be  divided  into  three  equal 
portions   or   parts.     That   my   negro    slaves 
Frank,    Bob,    Sarah,    and   her    children   Joe, 
Prince,  John,  Martha,  Mary,  Sam  and  Ben, 
be  included  in  one  of  these  three  equal  parts ; 
and  I  give  and  bequeath  the  one  of  the  said 
three   equal   portions,   in    which   the    slaves 
designated  are  included,  unto  my  dear  wife 
Elizabeth  Mary  Clarke,  forever,  to  and   for 
her  own  sole  and  separate  use,  and  without 
being  in  any  respect  subject  to  the  debts,  in- 
fluence, or  control  of  any  husband  whom  she 
may  have.    And  I  give  and  bequeath  the  re- 
maining two  equal  parts  or  shares  of  my  said 
slaves  unto  my  dear  children,  James  Joseph 
Clarke  and  Elizabeth  Jenkins  Clarke,  namely, 
one  share  or  part  to  each  of  them  forever. 
And  should  any  or  either  of  my  said  children 
die  under  twenty-one  years  of  age,  without 
leaving  lawfully  begotten  issue  living  at  the 
time  of  his,  her,  or  their  death,  then  the  share 
or  shares  of  my  estate,  real  and  personal,  of 
such  child  or  children  so  dying,  whether  spe- 
cifically given,  or  otherwise  accruing  under 
this  will,  shall  go  to  the  survivor  or  survivors 
of  my  said  wife  and  children,  and  the  issue 

*322 

of  any  deceased  child  *or  children,  to  be 
equally  divided  among  them,  share  and  share 
alike.  The  issue  of  any  deceased  child  or 
children  taking  among  them  the  share  or  pro- 
portion only  to  which  the  parent  or  parents, 
if  alive,  would  have  been  entitled.  And 
should  all  my  said  three  children  die  before 
attaining  twenty-one  years  of  age,  without 
leaving  issue  lawfully  begotten,  living  at  the 
time  of  his,  her,  and  their  death,  then,  and  in 
that  case,  I  give,  devise  and  bequeath  all 
and  singular,  the  property,  real  and  personal, 
given,  devised  and  bequeathed  unto  my  said 
three  children,  whether  specifically  given,  or 
otherwise  accruing  under  this  will,  unto  the 
issue  of  my  two  sisters,  Elizabeth  Grimball 
Jenkins,  the  wife  of  John  Jenkins,  and  Lydia 
Calon  Murray,  the  wife  of  Millivan  Murray, 
to  them  and  their  heirs  forever,  to  be  equally 
divided  between  them. 

"Item.  I    give,    devise,    and    bequeath    all 

132 


real  and  personal,  unto  my  dear  wife  and 
children,  to  be  equally  divided  among  them, 
share  and  share  alike,  to  them  and  their 
heirs  forever." 

The  executors  named  in  the  will  all  quali- 
fied thereon,  and  are  now  defendants  to  this 
bill.  Finding  much  difficulty  in  the  adminis- 
tration of  the  estate,  the  executors  above 
named,  in  the  j'ear  1837,  filed  their  bill  in  this 
Court  against  Mr.  and  Mrs.  Hannahan,  and 
against  J.  J.  Clarke,  Mrs.  Hanckel,  and  Mrs. 
Whaley ;  all  three  of  whom  were  then  in- 
fants, and  answered  by  their  guardian  ad 
litem,  asking  instructions  on  the  following 
points : 

1st.  As  to  the  mode  of  determining  the 
amount  of  money  to  be  paid  to  Mrs.  Whaley, 
to  equalize  her  plantation  "Vinegar  Hill" 
with  "Cypress  Trees." 

2d.  How  that  amount  should  be  raised. 
3d.  The  proportion  to  be  borne  by  each  dev- 
isee. 

The  case  was  referred  to  me,  and  my  report 
is  on  file. 

The  sum  of  $9046  was  reported  as  the  dif- 
ference in  value  between  "Vinegar  Hill"  and 
"Cypress  Trees."  Chancellor  Harper  decreed, 
at  January  Term,  1839,  that  the  executors, 
out  of  the  residue  after  the  payment  of  the 

*323 
debts  of  the  testator,  *shonld  pay  two-thirds 
of  that  amount,  to  wit,  $6030,  to  Mrs.  Whal- 
ey; and  in  case  the  residue  was  insufficient, 
that  that  sum  must  be  made  up  out  of  the 
negroes  bequeathed  to  the  complainant,  James 
J.  Clarke,  and  his  sister,  Mr.s.  Hanckel,  by 
their  father.  The  executors  proceeded  to  ad- 
minister the  estate  upon  these  principles,  and 
in  December,  1841,  they  paid  to  Mr.  Whaley 
the  sum  of  $11,222.76,  and  took  the  following 
receipt  at  the  foot  of  their  accounts  on  the 
executors's    book: 

"1841,  November  17,  by  balanc-e  due  W.  J. 
Whaley,  $11,222.76.  Edisto  Island,  December 
11th,  1841,  received  of  George  W.  Seabrook, 
executor  estate  Wm.  M.  Clarke,  the  sum  of 
eleven  thousand  two  hundred  and  twenty- 
two  dollars  76.1-4,  in  full  of  the  above  bal- 
ance. Wm.  J.  Whaley." 

The  complainant,  James  J.  Clarke,  having 
arrived  at  the  age  of  twenty-one  years,  filed 
the  present  bill  against  the  defendants,  pray- 
ing an  account  from  the  executors ;  charging 
that  the  debts  of  the  estate  had  been  improp- 
erly paid  by  the  executors  out  of  his  share, 
and  that  of  his  sister,  exclusive  of  Mr.s. 
WHialey ; — that  the  executors,  whilst  the  es- 
tate was  under  their  management,  neglected 
the  same,  by  means  whereof  the  annual  in- 
come and  profits  thereof  were  diminished. 
The  bill  further  prays,  that  the  defendants, 
Mr.  and  Mrs.  Whaley,  may  account  for  such 
sums  of  money  as  they  had  received,  and  that 
'le  be  held  liable  for  one-third  of  the  debts 
of  the  testator.  The  answer  of  the  executoi-s 
stated,  that  the  principal  burthen  of  the  ad- 


CLARKE  V.  JEXKINS 


*32G 


ministration  was  assumed  by  the  defendant, 
George  W.  Soaljroolv:  that  they  vouched  their 
accounts  in  tlie  proper  oflice;  that  they  eliari:- 
ed  the  debts  upon  tlie  residue,  and  after  tliat 
was  exhausted,  they  were  l)ound  to  fall  hack 
upon  the  residuary  bequest  of  nc;:roes.  in 
preference  to  tla*  land  devised.  That  they, 
upon  demand  by  eoniplainant's  solicitor,  ex 


'325 


•1st.  Governor  Seabrook  testified,  that  "the 
overseer;  Wescoat,  employed  by  them,  the 
executors,  has  an  excellent  reputation,  but 
has  known  nothing  of  him  personally." 

I'd.  Mr.  James  Legare  testifies,  -Knows 
We.scoat  very  well;  about  four\vears  ago, 
when    he,   witness,   was   niarried.   found   him 


hibited  their  accounts  to  him  •  that  thev  h-ne     b       J.  .7^'   ""/   '"'"■'•'^'"-   ^""""l   !>"" 

ma.mged  the  nrone.fv  to  t,.,:  .  'j    ........   .\!  T'^^^  ^''^*'^^'-  "^  ^'"^  ^^'^^  «"J  "*'r  sisters;    has 


managed  the  property  to  the  best  advantag* 
in  their  jiower,  and  have  credited  the  entire 
amount  of  the  income  of  the  estate.  That 
the  property  is  by  no  means  very  produc- 
tive:   and  that  tlie  income,  under  tlieir  man- 

♦324 
agement,  was  ♦as  great  as  complainant  has 
realized  from  it  since  it  was  turned  over  to 
him.  They  admit  to  have  in  hands  $1,L'77.S9, 
which  they  are  ready  to  pay  over,  according 
to  the  direction  of  the  Court.  They  further 
state,  that  the  defendant,  Whaley,  daims 
against  the  estate  an  account  for  the  hire  of 
Mrs.  Whaley's  negro«'s,  from  the  time  of  the 
death  of  the  first  Mrs.  Clarke  to  the  death 
of  Mr.  Clarke,  and  while  they  continued  in 
the  hands  of  the  executors ;  and  thev  admit 
that  the  claim  is  perfectly  just,  and  interpose 
no  objection  thereto. 

The  answers  of  Mr.  and  Mrs.  Hanekel.  and 
Mr.  and  Mrs.  Whaley.  contain  no  facts  not 
already  mentioned.  The  principal,  if  not  only 
point,  to  which  the  complainant,  and  the  de- 
fendants Mr.  and  Mrs.  Hanekel,  have  intro- 
duced testimony,  is  as  to  the  alleged  mis- 
management, by  the  executors,  of  their  sever- 
al plantations. 

The  rule  laid  down  by  the  Court  in  Taveau 
V.  Ball,  (1  McCord  E.].  401.)  is,  that  executors, 
administrators  and  others,  acting  in  a  fidu- 
ciary  character,   are   bound    to   manage   the 
funds  committed  to  their  care,  with  the  same 
care  and  diligence,  that  a  prudent  and  cau- 
tious man  would  bestow  on  his  own  concerns. 
In  all  cases,  tlierefore,  where  a  loss  arises 
in  the  management  of  funds  by  the  executor, 
or  other  person  acting  as  trustee,  the  ques- 
tion arises,  whether  the  loss  happened  from 
casualties  against  which  no  one  can  bo  ex- 
pected always  to  guard,  or  from  his  want  of 
care    and    circumspection.      2    Hill    Eq     ;3G4 
Bryan  v.  Mulligan.     Such  is,  I  presume,  the 
law  api)lical)le  to  the  present  c-a.se.    The  first 
question   of  fact   therefore  is,   di.i  the  exe- 
cutors manage  this  property  with  the  same 
care  and  diligence  that  a  prudent  and  cau- 
tious man  would  bestow  on  his  own  concerns •> 
I  find  that  they  did.    The  executors  employed 
as    their   overseer,    from    the   death    of    Mr 
Clarke,  to  the  period  when  the  devisees  to,.k 
possession   of  their  .several   plantations.   Mr 
John  W.  Wescoat ;    to  him  was  confided  the 
luanagement  of  the  several  plantations.     So 
that  the  fidelity  of  the  executors  to  the  obli- 
gation of  their  office,  depends  upon  the  hon- 
esty, c-apacity  and  industry  of  their  overseer 
On  this  point  the  testimony  is  as  follows- 


continued  to  employ  him;  has  alwavs  been 
satisfied  with  him;  thinks  him  an  honVst  and 
competent  overseer." 

.'5(1.  Mr.  A.  J.  Clarke,  brother  of  the  com- 
plainant, "Knows  Wescoat ;  he  is  a  perfectly 
competent  overseer." 

•Ith.  Mr.  Thomas  Hailey.  "Knows  Wescoat: 
he  managed  the  places  as  overseer  for  .several 
years;  far  as  he  knows  him  personally, 
thinks  he  is  as  good  an  overseer  as  can  be 
found  in  the  Southern  States." 

lu  behalf  of  the  complainant  and  Mrs. 
Hanekel,  the  witnesses  testify  as  follows: 

Mr  William  Whaley.    Among  the  men  with 
whom  witness  associated,  did  n<it  think  Wes- 
coat a  great  or  good  planter;   witness's  father 
hired  him  for  one  year  on  the  estate  of  Ken- 
jamin  Whaley,  and  at  the  close  of  the  year 
dismissed  him  ;    told  him  early  in  the  .season 
he  might  go  as  .soon  as  he  plea.sed  ;    this  was 
at  the  same  time  he  managed  Clarke's  place. 
Mr   Legare  is  the  first  man  he  ever  heard 
speak  well  of  We.scoat  as  a  planter,  though 
there  may  be  others,  and  must  be,  from  the 
number  of  places  he  is  employed  on ;    thinks 
he,    Wescoat,    was   as   extensively   emploved 
as  any  other  overseer;    never  heard  of  his 
having   made    any    distinguished    crop.      He 
has  latterly  been  employed  by  men  of  proper- 
ty.   Would  himself  rather  go  without  an  over- 
seer   on    his    plantation,    though    not    living 
there,  rather  than  employ  Wescoat.    Wescoat 
is  employed  by  Ephraim  Baynard. 

2d.  Mr.  Edward  Fuller's  testlmonv  leads 
to  the  conclusion,  that  the  Clarke  estat*'  was 
not  as  well  managed  as  he  manaiged  his  „w„ 
property. 

I'rom  this  testimony.  I  find  that  the  ex- 
ecutors have  managed  with  the  care  and  dil- 
igence   that    a    prudent    man    would    bestow 

♦326 
♦on  his  own  allairs.  At  the  .sam,.  time  it  is 
probable,  that  if  these  plantations  h.-ul  been 
the  property  of  one  or  more  individuals  of 
greater  energy,  capability  and  .iis.ietion 
than  the  executors  named  by  the  t.'stator' 
larger  crops  might  have  been  obtained. 

Assnnung  then  that  the  executors  are  not  re- 
sponsible for  more  than  they  have  received 
the  next  question  that  arises  is  as  to  their 
accounts.  It  is  admitted  by  all  jiarties.  that 
they  have  actually  disbursed  all  that  has 
been  received  by  them.  But  it  is  contended 
on  the  part  of  the  complainant,  that  the  ae^ 
counts  should  be  readjuste<I.  .so  as  to  allow  to 
him  l'.-»  per  cent,  more  of  the  annual  crops  than 
IS  allowed  to  Mrs.  Whaley  and  Mrs.  Hanekel, 
because  of  the  superior  fertility  of  his  laud.' 

133 


*326 


3  RICHARDSON'S  EQUITY  REPORTS 


So  a  claim  for  a  greater  share  than  that 
allowed  to  Mrs.  Whaley,  is  claimed  in  behalf 
of  the  defendant,  Mrs.  Hanckel. 

From  the  testimony,  it  appears  that  each 
of  the  devisees  had  about  an  equal  number  of 
hands.  The  plantations,  says  Mr.  Wescoat, 
were  cultivated  together  as  one  place.  The  ne- 
groes were  pretty  much  on  one  place.  Thinks  it 
was  the  best  way  to  cultivate  the  lands,  by 
cultivating  them  as  one  whole.  In  a  division 
of  the  crops.  Old  Franks  (the  plantation  of 
the  defendant)  ought  to  have  had  a  little 
the  most,  "perhaps  one  quarter  more  than 
either  of  the  other  places.'' 

If  the  testator  had  died  free  of  debt,  and  it 
had  been  unnecessary,  by  the  provisions  of 
this  will,  to  raise  the  sum  of  $6030  paid  to 
Mrs.  Whaley,  it  would  clearly  have  been  their 
duty  to  cultivate  the  places  separately,  or 
at  all  events  to  have  discriminated  in  favor  of 
the  complainant,  between  the  shares  allotted 
to  the  other  two  parties.  But  the  testator 
being  in  debt,  and  the  complainant  and  Mrs. 
Hanckel  having  taken  their  shares  subject 
to  the  allotment  to  Mrs.  Whaley  of  .$60.30, 
the  executors,  looking  to  the  payment  of  the 
creditors,  in  which  class  I  place  Mrs.  Whaley, 
pro  hac  vice,  made  an  equal  partition  of  the 
annual  income.  To  obtain  this  annual  in- 
come, Mrs.  Whaley's  gang  contributed  their 
services,  and  also  the  use  of  the  Vinegar 
Hill  tract  for  provisions.     This  income  was 

*327 

applied,  as  before  stated,  to  *the  payment  of 
debts,  for  which  the  complainant  and  Mrs. 
Hanckel  were  liable;  and  for  which,  between 
the  distributees,  Mrs.  \v  haley  was  in  no  event 
liable. 

Besides,  the  executors,  in  their  account,  p. 
144,  have  charged  ]Mrs.  'NMialey  with  the  sum 
of  $209.5  for  the  hire  of  the  land  of  Clarke 
and  Hanckel,  at  the  price  of  $5  per  acre, 
which,  according  to  the  testimony,  is  a  fair 
valuation. 

I  am  of  opinion,  therefore,  that  the  divi- 
sions of  the  income  made  bj-  the  executors 
was  proper. 

The  defendants,  Mr.  and  Mrs.  Whaley, 
have  also  presented  tliree  distinct  claims, 
which  will  now  be  considered.  The  first  is 
a  claim  against  the  estate,  as  a  debt,  for  the 
hire  of  Mrs.  A^'haley's  negroes,  from  the 
death  of  her  mother  in  1821,  to  the  death  of 
her  father  in  1831.  The  executors,  in  their 
answer,  admit  that  this  claim  is  i>erfectly 
just;  but  the  complainant  and  Mrs.  Hanckel 
contend  that,  as  against  them,  the  lapse  of 
time  is  a  bar.  I  find  that  the  claim  of  Mrs. 
Whaley  is  correct,  and  recommend  that  she 
be  allowed  hire  at  the  rate  of  £10  per  annum 
for  13  hands,  for  the  space  of  nine  years, 
with  annual  rests.  Whether  this  claim  is 
barred  or  not  as  to  the  other  devisees,  I  refer 
to  the  Court  as  a  question  of  law ;  and  I 
report  a  statement  of  her  claim  made  up  on 
these  principles. 

134 


Tlie  second  claim  of  Mrs.  Whaley  is  for 
interest  on  the  sum  of  $6030,  decreed  by 
Chancellor  Harper,  from  one  year  after  the 
testator's  death,  to  wit,  from  1832.  It  has 
been  already  seen  that  the  testator  intended 
to  equalize  the  fortunes  of  liis  cliildren,  and 
for  that  purpose  excluded  Mrs.  Whaley  from 
any  share  of  his  negroes ;  and  as  Vinegar 
Hill  was  inferior  in  value  to  other  places, 
he  devised  to  Mrs.  Whaley  "so  much  money 
as,  with  tlie  said  Vinegar  Hill,  will  be  equal 
in  value  to  Cypress  Trees  plantation,  in  lieu, 
and  to  stand  in  the  place  of,  so  nmch  land, 
to  her  and  her  heirs  forever."  It  is  contend- 
ed by  Mrs.  Wlialey,  that  the  true  construc- 
tion to  be  put  on  the  will  is  to  read  it,  as  if 
instead  of  tlie  words  "so  mucli  money,"  there 
had  been  inserted  the  sum  found  by  the  de- 
cree to  be  the  difference  in  value,  to  wit, 
$6030.     In  that  case,  the  amount  would  have 

*328 

borne  interest  *from  one  year  after  the  death 
of  the  testator.  I  concur  in  that  opinion,  for 
whether  the  sum  be  regarded  as  money  or 
land,  in  order  to  preserve  equality  between 
tlie  heirs,  it  must  be  considered  as  belonging 
to  Mrs.  Whaley  from  the  time  of  the  death 
of  her  father,  when  Cypress  Trees  and  the 
other  plantations,  as  well  as  negroes,  vested 
in  the  other  devisees.  There  can  be  no  doubt, 
that  if  the  executors  liad  tiled  their  bill  for 
instructions  in  1S31,  upon  the  death  of  Mr. 
Clarke,  that  a  certain  sum  of  money  would 
have  been  decreed  to  I\Irs.  Wlialey,  and  that 
sum  would  have  borne  interest  in  the  hands 
of  the  executors.  But  it  is  objected  on  the 
part  of  the  executors,  that  the  decree  of 
Chancellor  Harper  precludes  this  claim.  To 
this  it  is  replied,  that  Mrs.  Whaley  was  then 
an  infant ;  that  the  executors  were  also  her 
guardians  by  the  will  of  her  father,  and  that 
neither  they,  nor  her  guardians  ad  litem, 
could  waive  her  rights  to  her  prejudice. 

On  the  part  of  the  complainant  and  Mrs. 
Hanckel,  the  lapse  of  time  is  also  objected  to 
this  claim ;  so  far  as  the  executors  are  con- 
cerned, I  can  discern  nothing  in  the  decree 
of  Chancellor  Harper,  which  authorizes  me 
to  conclude  that  they  were  exonerated ;  and 
I  therefore  report  the  claim  as  well  founded 
against  them.  As  to  the  other  devisees,  it  is 
as  in  the  former  case,  a  question  of  law, 
which  I  respectfully  refer  to  the  Court. 

The  third  and  last  claim  of  Mrs.  Whaley 
is,  that  she  is  entitled  to  a  credit  for  the 
sum  of  $2095,  charged  to  her  debit  in  the 
books  of  the  executors,  page  144,  as  hire  paid 
by  her  to  the  other  devisees  for  the  use  of 
their  laud.  Vinegar  Hill  plantation  was  in- 
ferior in  fertility  to  the  other  places,  the 
executors  therefore  employed  Mrs.  Whaley's 
gang  on  the  best  lands,  allowed  her  one-third 
of  the  crops,  and  to  make  up  for  the  differ- 
ence in  fertility,  charged  her  with  that  sum 
as  rent  of  so  much  land  hired  for  her  use. 
She  would  be  entitled  to  thi?v  credit,  if  she 


CLARKE  V.  JEXKIXS 


*zrA 


were  oJ)li?0(l  to  account  for  25  per  cent,  of 
llie  one-third  part  of  the  income  allotted  to 
her :  hut  as  she  is  not,  accordini;  to  my 
view  of  the  case,  hound  to  do  so,  I  think  the 
executors   were  rl;.'lit  in  charj^ing  lier  with 

•329 

that  sum.  as  liire  of  the  land  of  her  •co- 
devisees.  I  therefore  recommend  that  the 
claim  he  not  allowed. 

The  only  otlier  iiuestion  remaining  is, 
whether  all  the  executors  are  respoiisihle,  or 
only  Mr.  (Jeorsjre  W.  Seahiook,  for  any  de- 
mand which  may  he  estahlished  hy  any  of 
the  parties.  The  complainant  and  the  de- 
fendants. Ilanckel  and  Whaley,  all  contend 
fur  their  joint  liahility.  The  executors  state 
in  their  answer,  that  the  principal  hurthen 
of  the  adminisl ration  was  home  hy  Mr.  Sea- 
brook.  Mr.  I^'jrare,  who  was  the  factor  of 
the  estate,  states  that  his  dealings  were  prin- 
cipally with  Washini-'ton  Seahrook  ;  thinks  in 
>ome  cases  orders  may  have  been  drawn  by 
.John  Jenkins;  knows  that  Mr.  Murray  was 
an  executor,  would  have  paid  any  order  he 
had  drawn  on  him;  does  not  recollect  that 
any  such  order  was  drawn.  Always  looked 
upon  Washiiii;ton  Seahrook  as  the  actins;  ex- 
ecutor. Has  con\ersed  about  the  business  of 
the  estate  with  John  Jenkins,  bad  no  more 
to  do  with  him  than  with  Murray.  In  reply, 
he  states  that  in  his  business  relations  with 
Seahrook,  considered  that  his  co-executors 
were  bound  by  his  accounts ;  but  has  no  rec- 
ollection of  ever  having  any  business  dealings 
ia  the  matter  of  the  estate,  with  either  Mur- 
)  ay  or  Jeidcins. 

John  Wescoat,  the  overseer,  testifies  that 
after  Clarke's  death,  he  was  emidoyed  by 
John  Jenkins,  one  of  the  executors ;  con- 
tinued  as  overseer  until  the  last  three  jears. 

Whitemarsh  B.  Seahrook  testifies,  that  he 
was  employed  by  Washington  Seahrook  to 
adjust  his  accounts  as  executor  of  Clarke; 
so  far  as  he  knows,  Washington  Seahrook 
was  the  oidy  acting  executor ;  knew  him 
only  in  the  business;  believes  that  he  alone 
managed  the  financial  concerns  of  the  estate. 

In  behalf  of  the  other  parties,  it  is  contend- 
ed, that  the  executors  ai'e  bound  for  each 
others  acts  by  the  fact  that  they  united  in 
the  bill  tiled  in  18.'J7,  asking  instructions; 
.md  that  they  cannot  now  excuse  themselves 
from  loss,  by  pleading  that  they  have  not 
executed  the  instructions  prayed ;  that  they 
were  bound  also,  as  testamentary  guardians, 
to  additional  responsibility  beyond  that  im- 
posed  merely   upon    executors;     that   G.    W. 

•330 

•Seahrook  was  in  fact  their  agent  for  certain 
purposes,  to  wit,  the  management  of  the 
financial  part  of  the  estate,  but  not  of  the 
whole  business,  as  it  is  proved  that  the  over- 
seer had  been  hired  by  John  Jenkins. 

I  find  that  George  W.  Seahrook  was  the 
sole  acting  executor,  and  that  the  others  are 


I  not  re.sponsible  for  Ids  defaults,  if  any  should 
be  proved.     Respectfully  suhnntted. 

Edward  R.  Laurens,  Master  in  Equity. 

Dargan,  Ch.  This  case  comes  Ijefore  me 
for  trial,  on  the  report  of  the  Master,  and 
exceptions  thereto.  The  excellent  syno[>sis  of 
the  facts  given  by  the  Master  in  his  report, 
renders  it  uiuiecessary  for  me  to  make  a 
statement  of  them.  Yet  the  case  was  imper- 
fectly prepared  for  trial.  No  statements  or 
exhibits  of  the  accounts,  have  been  tiled  with 
the  report.  There  are  numerous  excei)tions, 
many  of  which  relate  to  the  form  and  partic- 
ulars of  the  account:  there  is  no  reixjrt  upon 
the  exceptions.  And  on  account  of  the  de- 
ficiencies here  noted,  some  of  the  exceptions 
are  not  sufhciently  intelligible  to  warrant  me 
in  deciding  upon  them.  Under  the.se  circum- 
stances, I  shall  decide  the  general  questions 
of  law  and  fact,  pre.sented  in  the  pleadings, 
and  refer  the  oa.se  back  to  the  Master,  to  be 
more  elaborately  reported  upofl  as  to  the 
details,  and  to  have  the  report  conformed 
to  the  decree. 

And  lirst,  as  to  the  alleged  mlsmanagemeut 
and  neglect  of  the  executors,  in  the  conduct 
of  the  planting  interest,  of  which  they  had 
the  charge.  The  complainant  and  Mr.  and 
Mrs.  Ilanckel  allege  that  there  have  been  such 
mismanagement  and  neglect  on  the  part  of 
the  executors,  and  consequent  loss  to  them, 
as  to  make  the  executors  liable.  It  strikes 
me  that  the  agricultural  operations  of  this 
estate,  conducted  by  the  executors,  have  not 
been  successful.  This  is  not  sufticient  of 
itself,  to  make  them  responsible.  If  they 
use  the  ordinary  means  of  good  farming,  and 
pursue  the  common  agricultural  sy.stem  of 
the  country,  with  an  adaptation  of  means  to 
ends  which  prudence  and  care  would  dictate, 
this  is  all  that  is  re<piired.  It  would  be  un- 
just to  make  them  insurers  against  the  un- 

•331 

propitiousness  of  the  seasons.  *or  those  fail- 
ures arising  from  natural  and  sometimes  un- 
perceived  causes,  which  so  often  batUe  the 
skill  and  disappoint  the  hopes  of  the  agricul- 
turalist. Moreover,  it  is  not  to  be  expected 
tluit  an  executor  will,  or  can,  (at  least  in 
many  instances,)  devote  his  entire  personal 
attention  to  the  management  of  the  planting 
business  of  the  estate,  to  the  abandonment 
and  neglect  of  his  own  affairs.  It  is  not  to 
be  expected,  that  he  would  devote  the  same 
inten.se  personal  attention  and  care  to  an 
estate  of  which  he  had  charge  as  an  execu- 
tor, as  he  would  to  one  of  which  he  was  the 
proprietor.  To  riMjuire  him  to  do  this  would 
be  to  engro.ss  the  whole  of  his  time.  To 
impose  these  terms  uiHm  his  acceptance  of 
the  trust,  and  to  exact  the  performance  of 
them  at  his  peril  and  cost,  would  be  to  estab--* 
lish  a  rule  to  which  few  could  be  found  will- 
ing to  submit.  The  conse(iuence  would  be, 
that  it  would  be  ditticult  to  find  competent 
and  worthy  persons  who  would  be  willing  to 

135 


*331 


3  RICHARDSON'S  EQUITY  REPORTS 


assume  these  necessary,  important  and  re- 
sponsible trusts  ;  particularly  where  they  in- 
volved the  management  of  a  planting  inter- 
est. In  some  instances,  where  the  estate 
consists,  as  it  does  in  this,  of  plantations  and 
negroes,  there  is  a  necessity  imposed  on  the 
executor  of  carrying  on  a  plonting  interest. 
To  hire  out  the  negroes  might  sometimes 
bring  in  a  greater  ready  income.  But  in 
such  cases,  the, negroes  generally  deteriorate, 
and  are  not  so  prolific;  and  the  homestead 
and  plantation  are  abandoned  to  dilapidation 
and  decay.  I  might  pursue  this  train  of 
reflection  farther,  but  it  is  unnecessary. 

Upon  an  attentive  consideration  of  the  evi- 
dence, I  cannot  perceive  any  such  misman- 
agement and  inattentiou  on  the  part  of  the 
executors,  as  should  subject  them  to  liability 
for  unsatisfactory  or  deficient  results.  They 
employed  a  skilful  overseer,  and  one  who  had 
enjoyed  a  high  reputation  in  his  line  of  busi- 
ness. They  pursued  the  ordinary  routine  of 
making  crops ;  and  if  the  crops  were  not  as 
abundant  as  might  have  been  hoped  or  antici- 
pated, I  see  no  reason  for  making  the  execu- 
tors responsible.  And  this  is  the  judgment 
of  the  Court  on  this  point. 

The  next  question  which  I  shall  consider 
is,  whether,  for  the  balance  found  due  on  the 

*332 
accounts  of  the  executors,  the  three  *execu- 
tors  are  jointly  responsible ;  or  is  G.  W.  Sea- 
brook,  who  alone  received  the  funds  of  the 
estate,  alone  liable.  I  think  that  the  evi- 
dence warrants  the  conclusion  that  the  three 
executors  acted  in  conjunction  in  their  man- 
agement of  the  planting  interest ;  and  if 
there  had  been  such  default  in  this  respect, 
as  to  have  charged  them  for  losses  on  ac- 
count of  deficient  crops,  they  would  all  have 
been  jointly  liable.  But  the  question  now  is, 
as  to  their  liability  for  moneys  actually  re- 
ceived ;  and  it  appears  that  G.  W.  Seabrook 
alone  performed  the  duty  of  receiving  and 
disbursing  the  funds  of  the  estate.  Tfie  ac- 
counts were  kept  and  made  up  in  the  name 
of  "the  Executors  of  W.  J.  Clarke."  But  this 
is  only  a  matter  of  form ;  and  the  proof  is, 
that  Seabrook  received  all  the  money,  and 
made  all  the  payments ;  and  the  other  two 
executors  not  only  did  no  act  of  this  kind, 
but  there  is  no  evidence  that  they  concurred 
in  the  receipts  or  payments  of  the  acting 
executor.  Under  these  circumstances,  I  am 
of  the  opinion  that  G.  W,  Seabrook  is  alone 
liable  for  the  balance  due  upon  the  execu- 
tors's  accounts.  And  it  is  accordingly  so 
decreed. 

In  regard  to  the  apportionment  and  divi- 
sion of  the  income  of  the  estate  among  the 
comphiinants,  Mrs.  Whaley  and  Mrs.  Ilauck- 
el,  and  the  charges  and  allowances  which 
have  been  made  in  the  way  of  rent,  on  ac- 
count of  the  different  fertility  and  produc- 
tiveness of  the  several  plantations,  I  am 
satisfied  with  the  decision  and  report  of  the 
Master  thereon,  and  for  the  reason  which  he 

136 


has  given.  And  the  report  is,  in  this  respect, 
confirmed. 

I  come  now  to  consider  the  claims  set  up 
in  behalf  of  Mrs.  Whaley. 

The  first  which  I  shall  notice  arises  under 
the  following  circumstances.  She  got  no  ne- 
groes from  her  father's  estate.  Her  grand- 
father, Joseph  James  Murray,  by  a  deed,  gave 
to  his  daughter,  (Mrs.  Whaley's  mother,  and 
the  first  Mrs.  Clarke,)  certain  negroes  for 
her  life ;  and  at  her  death,  he  gave,  by  way 
of  limitation,  the  same  negroes  to  her  chil- 
dren.   She  died  in  1S21,  and  Mrs.  Whaley  be- 

*333 

ing  her  only  cTiild,  was  then  entitled  *to  the 
negroes.  But  they  were  kept  by  her  father, 
the  late  Mr.  Clarke,  and  used  and  employed 
as  his  own.  He  appropriated  the  products  of 
their  labor  to  his  own  use,  kept  no  account, 
and  seemed  to  have  contemplated  no  liability 
for  the  rents  and  hire  of  these  negroes.  He 
made  no  provision  in  his  will,  or  otlierwise, 
for  the  payment  of  this  claim ;  and  he  de- 
clared and  provided  in  his  will,  that  in  con- 
sequence of  his  oldest  daughter  being  enti- 
tled to  these  negroes,  in  her  own  right,  and 
they  being  equal  in  value  to  one-third  of  his 
own  negroes,  all  his  own  negroes  shouM  be 
equally  divided  among  his  two  other  chil- 
dren and  his  wife.  And  this  has  accordingly 
been  done. 

There  cannot  be  a  doubt  but  that  the 
claim  of  Mrs.  Whaley,  for  the  hire  of  the 
negroes  after  her  mother's  death,  was,  at  one 
time,  valid  against  her  father's  estate.  It  is 
contended  now,  in  reference  to  this  claim, 
that  the  will  presents  a  case  of  election ;  and 
that  in  conseciuence  of  the  devise  of  land  by 
the  will  to  Mrs.  Whaley,  and  her  acceptance 
thereof,  that  she  is  not  to  be  allowed  this  de- 
maud.  It  is  supposed  that,  upon  a  fair  con- 
struction of  the  will,  this  claim  is  incompati- 
ble with  its  provisions ;  and  that  Mrs.  Wha- 
ley having  elected  to  take  the  land  devised 
to  her,  cannot  now  be  pernntted  to  recover 
a  demand  which  would  be  adverse.  I  think 
differently.  A  doctrine  has  been  invoked 
which  has  no  application.  As  to  Mrs.  Wha- 
ley, the  will  presents  no  case  of  election.  The 
testator  evidently  contemplated  equality 
among  the  different  members  of  his  family, 
as  to  negro  property.  But  this  claim  was 
a  debt,  honestly  and  actually  due.  He  did 
not  affect  to  dispose  of  it,  and  said  not  a 
word  about  it,  in  any  way  whatever.  There 
are  no  conditions,  express  or  implied,  impos- 
ed by  the  will,  as  to  the  devise  of  land  to 
Mrs.  Whaley.     It  is  not  a  case  of  election. 

But  there  are  other  difficulties.  There 
were  former  proceedings  between  these  par- 
ties, on  a  bill  filed  in  1S.39,  in  reference  to 
the  estate  of  the  testator.  All  the  persons 
now  parties  before  the  Court,  were  parties 
to  that  bill.  The  widow  of  the  testator, 
Mrs.  Hannahan,  and  Mr.  Hannahan,  her  sec- 
ond husband,  were  also  parties.    Mrs.  Wha- 


CLARKE  V.  JENKINS 


*336 


♦334 
ley  then  set  up  aRuiiist  tlie  executors  a  •claim 
for  the  hire  of  lier  nejiroes  after  the  testator's 
death,  which  was  allowed  her.  liut  she  ad- 
vanced no  claim  for  the  hire  that  had  ac- 
crued lief(»re  her  father's  <leath.  She  was 
then  an  infant.  The  Triurt  decn'ed  that  she 
should  ite  paid  the  dift'erence  hetween  "Vine- 
gar Hill,"  devised  to  her.  and  "Shell  lianU," 
devi.sed  to  her  brother,  W.  J.  Clarke.  The 
widow's  share  was  exonerated  from  contri- 
bution for  this  purpose.  In  etiualizinn  the 
value  of  her  land,  one-third  was  borne  by  her- 
self, and  two-thirds  imposed  as  debts  on  the 
share.s  of  J.  J.  Clarke  and  Elizabeth  M. 
Clarke.  The  amount  of  the  dilTerence  be- 
tween the  places  wa.s  found  to  be  .$0040 ; 
which  entitled  her  to  receive  from  her  broth- 
er and  sister  .$(!030.  She  afterwards  inter- 
married with  the  defendant,  W.  J.  "Whaley  ; 
and  he,  on  the  ITtli  November.  1S41.  executed 
to  the  executors  a  receipt  for  .$11,1222.70. 
which  included  the  amount  due  for  the  dif- 
ference in  the  value  of  "Vinejxar  Ilill"  and 
"Shell  Bank,"  the  nejrro  hire  due  his  wife, 
that  had  accrued  after  testator's  death,  and 
all  other  demands  at  that  time  claimed,  or 
thought  to  be  due.  The  executors  had  de- 
livered up  the  estate  to  the  devisees  and  lega- 
tees, before  this  claim  was  advanced.  They 
admit  it  to  be  a  just  demand,  as  it  obviously 
was  in  its  inception.  They  make  no  objec- 
tion to  its  being  alh)wed,  but  contend  that  a 
decree  cannot  go  again.st  them,  on  the  ground, 
that  the  claimants  stood  by  and  saw  them 
part  with  the  control  and  possession  of  the 
estate,  without  intimating  a  desigi\  to  set  up 
this  demand.  There  is  only  a  small  balance 
now  in  the  hands  of  one  of  the  executors, 
that  remains  to  be  accounted  for.  This  rea- 
soning, I  think,  is  not  to  be  resisted.  If  the 
claim  .should  be  allowed,  a  decree  is  not  to  be 
made  against  the  executors,  except,  perhaps, 
so  far  as  regards  the  small  balance  before 
spoken  of.  But  in  case  the  claim  is  allowed, 
the  decree  must  be  against  J.  J.  Clarke  and 
Elizabeth  Clarke,  who  have  received  the 
property ;  the  claimants  themselves  bearing 
their  proportionate  shares. 

But  in  this  view  of  the  case,  these  parties 
are  not  to  be  compromised  by  the  pleadings 
or  admission  of  the  executors,  but  they  are 
to  be  permitted  to  use  the  same  grounds  of 

*335 
defence  that  *the  executors  would,  had  they 
been  the  parties  liable,  and  the  claim  set  up 
against  them. 

In  Dawson  v.  Dawson,  MSS.  Feb.  7,  lSr.0, 
under  precisely  the  circumstances  of  the 
case  now  before  me  a  party  was  held  to  have 
forfeited  and  lost,  what  could  otherwise  have 
been  considered  as  a  just  and  valid  claim. 
A  party  is  not  allowed  to  litigate  his  rights 
to  the  same  subject  matter  by  piece-meal. 
Therefore,  if  a  present  claim  before  the  Court 
could  have  been  adjudged  in  a  former  suit 
between  the  same  parties,  and  was  not  ad- 


judged, because  not  advanced,  the  claimant 
is  concluded.  The  rule  is  that  a  former  suit 
is  a  bar  to  all  matters  that  have  been,  or, 
from  the  nature  of  the  proceedings,  nught 
havt'  iK'en  adjudged. 

Mrs.  Whaley  was  an  infant  at  the  time  of 
the  former  i»ro(eedings.  Admitting  that  this 
fact  would  qualify  the  rule,  and  entitle  her 
to  open  the  jiroceedings,  (upon  which  p<ant  I 
exi)ress  no  dpinion.)  yet  on  her  conung  of  age, 
or  intermarriage  with  an  adult,  she  nmst 
proceed  with  diligence  to  assert  her  rights; 
and  failing  to  do  this,  she  would,  at  all 
events,  be  concluded.  From  Novemlier.  1841, 
to  IGth  December,  1840,  the  claimants  have 
not  impugned  the  correctness  of  the  former 
settlement. 

Thus  I  think  that  .Mrs.  Whaley  is  conclud- 
ed and  barred  as  to  this  claim,  by  the  former 
suit.  I  think  she  is  concluded  by  the  receipt 
to  the  executors,  considering  it  as  a  .settle- 
ment without  reference  to  a  suit  or  decree. 
Porter  v.  Cain,  McM.  Eq.  81.  I  also  think 
that  the  claim  was  barred  by  the  statute  of 
limitations,  which  has  run  against  it  from 
the  date  uf  W.  .J.  Whaley's  receipt. 

Can  the.se  pleas  and  defences  be  available 
to  the  parties  in  who.se  favor  they  operate, 
without  being  made  in  the  pleadings'.'  I 
think  they  can.  The  claim  is  not  set  up  in 
a  bill.  It  is  brought  forward  by  the  N\  lial- 
eys,  not  by  bill,  but  in  their  answer,  against 
the  comprainant  and  one  of  their  co-defend- 
ants. Keplications  are  not  usual  in  the  Court 
of  Equity  in  this  State.  Questions  made, 
and  claims  brought  forward,  in  the  manner 
in  which  this  has  been  done,  are  not  required 

♦336 
to  be  answered,  ♦and  are  not  presented  ac- 
cording to  the  strict  rules  of  i)leading.  I 
think  that  the  objections  to  the  claims  are 
available  in  the  manner  in  which  they  have 
been  presented,  and  I  hold  that  the  claim  is 
barred.     And  it  is  so  ordered  and  decreed. 

The  next  claim  set  up  by  Mr.  and  Mrs. 
Whaley,  is  for  interest  on  the  sum  of  .$00.'i2, 
which  they  received  under  the  decree  of  the 
Court  in  the  former  case,  in  the  iMpializatiou 
of  the  devises  of  the  plantations.  They  con- 
tend that  this  was  a  pecuniary  legacy,  and 
should  have  biu'ne  interest  from  one  year  aft- 
er the  testator's  death.  This  may  be  a  true 
interpretation  of  that  part  of  the  will.  I  ex- 
press no  opinion. 

But  it  is  a  late  day  to  claim  interest,  so 
long  after  the  principal  has  been  paid.  If  the 
interest  was  due.  I  think  it  has  been  waived. 
I  think  it  is  barred  by  the  former  bill,  by  the 
settlement,  and  by  the  statute  of  limitations. 
In  fact,  every  objection  against  the  claim  for 
negro  hire,  apitlies  with  equal  force  against 
this.     The  claim  is  di.sallowed. 

Another  question  raised  in  behalf  of  .Mi-s. 
Whaley  is,  in  regard  to  a  charge  of  land- 
rent  made  against  her  by  the  executors.  The 
executors,  as  has  already  been  stated,  culti- 
vated the  diilereut  plantations  together,  for 

137 


*336 


3  RICHARDSON'S  EQUITY  REPORTS 


the  joint  benefit  of  the  parties  interested. 
Her  place,  "Vinegar  Hill,"  was  of  au  inferior 
quality  as  to  soil  and  productiveness.  Her 
liands  have  been  worked  in  part  on  a  better 
place,  and  she  has  had  the  benefit  of  it.  For 
this  she  has  been  charged  rent.  The  amount 
charged  is  reasonable,  according  to  the  testi- 
mony ;  and  in  making  the  charge,  the  use  of 
her  own  land  in  the  joint  cultivations  has 
been  considered.  The  exception  is  overruled. 
There  is  only  one  more  topic  which  I  will 
discuss.  I  do  not  think  it  proper,  in  the  ex- 
amination of  the  executoi^s's  accounts,  to  go 
farther  back  than  the  decree  made  upon  them 
in  the  former  bill.  As  far  as  they  are  affect- 
ed by  that  decree,  they  are  to  be  presumed 
to  be  correct.  From  this  stage  in  the  ac- 
counts, the  Master  will  examine  them  in  the 
usual  manner. 

*337 

*There  are  some  errors  that  have  confes- 
sedly crept  into  the  statement  of  the  ac- 
counts.    These  will,  of  course,  be  corrected. 

It  is  ordered  and  decreed,  that  this  case 
be  re-committed  to  the  Master,  that  he  con- 
form his  report  to  the  principles  of  this  de- 
cree, and  that  he  correct  all  errors  that  may 
appear  in  his  statement  of  the  accounts. 

The  defendants,  W.  J.  Whaley  and  wife, 
appealed,  on  the  grounds, 

1.  Because  the  bill  of  1839  having  been 
filed  by  the  executors  for  instructions  as  to 
the  mode  of  paying  all  the  debts  of  the  tes- 
tator, no  particular  debt  is  forfeited  because 
not  specially  mentioned  to  the  Court  at  that 
time  by  the  creditors  or  executors,  but,  on 
the  contrary,  the  decree  protects  the  debt. 

2.  Because  the  receipt  of  1841  does  not 
affect  to  be,  nor  is  in  law  or  in  fact,  a  re- 
ceipt in  full  of  all  demands;  on  the  contrary, 
the  executors,  at  the  same  time  that  they 
produce  the  receipt,  admit  that  Mrs.  Whaley 
is  still  a  creditor  to  a  large  amount. 

3.  Because  the  debt  to  Mrs.  Whaley  for 
hire,  being  admitted  by  the  executors  to  be 
due,  the  statute  of  limitations  is  inapplica- 
ble, and  she  is  entitled  to  a  decree  therefor 
against  G.  W.  Seabrook. 

4.  Because  G.  W.  Seabrook  being  admitted 
to  be  insolvent,  the  complainant  and  Mrs. 
Hanckel  ought  to  refund  for  the  payment 
of  this  debt. 

5.  Because  neither  the  complainant  nor 
Mrs.  Hanckel,  can  plead  the  statute  of  limita- 
tions in  bar  to  the  claims  of  Mrs.  Whaley. 

6.  As  to  the  decree  under  the  bill  of  1839 — 
Because  the  proceedings  in  that  suit  cannot 
bar  her  rights  under  that  decree. 

7.  Because  the  plea  of  the  statute  of  lim- 
itations cannot  be  pleaded  to  a  decree  of  this 
Court. 

8.  Because  the  receipt  of  1841  is  not  a  set- 
tlement in  full  of  the  decree,  nor  has  the 
same  been  pleaded  as  such  by  the  executors, 
or  by  the  complainant,  or  by  Mrs.  Hanckel. 

9.  Because  the  decree  and  so  much  of  the 

138 


*338 
interest  as  is  *unpaid,  is  a  valid  and  subsist- 
ing charge  upon  the  estates  of  the  complain- 
ant and  Mrs.  Hanckel. 

The  complainant  also  appealed,  on  the  fol- 
lowing grounds. 

1.  Because  the  complainant  was  entitled  to 
an  account  of  the  profit  or  income  of  his 
property  in  the  hands  of  the  executors  of  W. 
M.  Clarke,  who  were  also  the  guardians  of 
complainant,  and  this  account  has  never  been 
rendered. 

2.  Because  the  executors,  in  the  testimony 
which  they  introduced,  established  the  fact, 
that  of  the  income  which  they  derived  and 
disbursed,  a  much  larger  proportion  was  de- 
rived from  the  property  devised  to  the  com- 
plainant than  from  the  property  devised  to 
the  other  children.  And  the  complainant 
submits  that  they  are  bound  to  account  with 
him  for  their  application  of  the  income  aris- 
ing from  his  share  of  the  estate. 

3.  Because  the  executors  were,  and  are, 
jointly  liable  to  the  complainant. 

Magrath,  Yeadon,  for  complainant. 
Memminger,   J.  M.   Walker,   McCrady,   for 
defendants. 

WARDLAW,  Ch.,  delivered  the  opinion  of 
the  Court. 

The  questions  raised  by  the  grounds  of  ap- 
peal in  this  case  may  be  considered  most  con- 
veniently, by  taking  up  the  points  decided  in 
the  circuit  decree. 

1.  Neglect  is  imputed  to  the  executors  in 
the  management  of  the  plantations  under 
their  charge. 

The  Master  and  the  Chancellor  concur  iu 
the  conclusion,  that  there  has  been  no  mis- 
management ;  their  judgment  upon  a  mat- 
ter of  fact  would  not  be  disturbed  by  us, 
where  there  was  testimony  upon  both  sides, 
upon  any  doubt  as  to  the  weight  of  evidence. 
Here  their  judgment  is  amply  sustained  by 
the  eviden^-e. 

2.  It  is  complained,  that  the  executors  have 
treated  the  several  plantations  of  the  chil- 
dren of  testator  as  one  estate,  without  sep- 
aration of  the  income  of  each  devisee,  where- 
as the  land  of  plaintifl:  was  more  productive 
than  the  land  of  either  of  the  other  two,  and 
the  laud  of  Mrs.   Hanckel  more  productive 

*339 
than  *the  land  of  Mrs.  Whaley.  In  the  judg- 
ment of  the  Master  and  Chancellor,  which 
we  are  not  disposed  to  controvert,  Mrs.  Whal- 
ey has  made  sutticient  compensation  to  the 
plaintiff  and  Mrs.  Hanckel  for  the  superior 
productiveness  of  their  lands,  by  the  pay- 
ment of  $2095  for  rent  of  their  lands;  and 
as  the  slaves  bequeathed  to  the  latter  two 
were  liable,  by  the  decree  of  1839,  to  the 
payment  of  $6030  to  Mrs.  Whaley,  to  pro- 
duce equality  among  the  three  devisees,  we 
see  no  reasonable  objection  to  the  executors's 
conduct  in  managing  the  estate  as  a  common 


CLARKE  V.  JENKIXS 


•341 


property,  until  the  debts,  Including  the  $0030, 
were  extin^-'uished. 

3.  A  daiiu  is  set  up,  in  behalf  of  Mrs. 
Whaley,  for  the  hii"e  of  her  negroes  from  the 
death  of  her  mother  until  the  death  of  her 
father,  about  ten  years.  One  of  the  grounds 
upun  which  the  Chancellor  rejects  this  claim, 
is.  that  it  was  a  matter  litigated,  or  proper 
for  litigation,  in  the  former  case  between  the 
parties  to  the  present  suit,  reported  as  Jen- 
kins V.  Ilanahan,  (Chev.  Eti.  lliU.i  That  a  for- 
mer decree,  or  judgment,  is  a  bar  to  further 
litigation  between  the  parties  and  privies,  as 
to  the  same  subject  of  controversy,  is  hrndy 
e.stablished  in  this  Court.  (McDowall  v.  Mc- 
Dowall,  Bail.  Eq.  3;i0;  Tate  v.  Hunter,  3 
Strob.  10(1.  136.)  The  infancy  of  a  party  at 
the  time  of  the  former  decree,  is  no  ground 
of  exception  to  the  estoiipel;  for  an  infant  is 
bounil,  as  fully  as  an  adult,  by  a  decree,  un- 
til it  lie  reversed.  (Story's  Eq.  PI.  §  792; 
Spencer  v.  Bank,  Bail.  Eq.  468;  Iluson  v. 
Wallace,  1  Rich.  E(i.  1.)  But  the  oliscurity  of 
the  facts  as  i)resented  to  us.  makes  the  ap- 
plication of  the  doctrine  somewhat  doubtful 
in  this  matter ;  and  the  necessity  of  scrutiny 
into  the  facts  is  superse<led  as  other  objec- 
tions to  this  claim  clearly  appear.  At  the 
foot  of  an  account,  containing  a  demand 
against  the  executt)rs  for  the  hire  of  Mrs. 
Whaley's  negroes  after  the  death  of  her  fa- 
ther, her  husband,  then  adult,  and  entitled 
to  receive  her  choses  in  action,  November 
17,  1841,  signed  a  receipt  in  full  to  the  ex- 
ecutors. The  omission,  at  that  time,  to 
set  up  any  claim  for  the  hire  of  Mrs. 
Whaley's  negroes  before  the  death  of  her 
father,  amounts  to  a  waiver  and  aban- 
donment of  such  claim.     (Chesnut  v.  Strong, 

*340 
1  Hill  Eq.  128.)    *It  is  the  duty  of  the  Court 
to  give  full  effect  to  private  .settlements  be- 
tween parties  of  adverse  interests,  ut  sit  finis 
litium.     (Eraser  v.  Hext,  2  Strob.  Eq.  2.50.) 

If  the  party  might  have  opened  this  re- 
ceipt upon  any  ground  of  equity,  such  as 
fraud  or  mistake,  the  statute  of  limitations 
would  begin  to  run  against  the  exercise  of 
such  right  from  the  date  of  the  receipt;  and 
here  the  bar  of  the  statute  was  complete  be- 
fore this  claim  was  stirred.  It  may  be  men- 
tioned, although  the  fact  is  not  regarded  as 
important,  that  Mrs.  Whaley  herself  was  of 
full  age  more  than  four  years  ante  litem 
motam.  It  is  urged,  however,  that  the  ac- 
knowledgment by  the  executors  of  the  justice 
of  the  claim,  removes  the  bar  of  the  statute, 
and  revives  the  demand.  But  the  acknowl- 
edgen)ent  was  after  the  claim  had  been  fully 
barred,  and  was  not  accompanied  by  any 
promise  to  pay;  and  under  such  circumstanc- 
es the  debt  would  not  be  revived  against  an 
original  debtor;  much  less  against  a  legal 
representative  to  create  liability  through  him 
upon  legatees  or  distributees.  The  mere 
omission  of  the  executors  to  plead  the  stat- 
ute, will  not  preclude  other  parties,  who  may 


be  charged  with  the  debt,  from  availing 
themselves  of  the  defence.  (Shewen  v.  Van- 
derhor.st,  1  Rus.  &  Myl.  347.)  One  legatee 
can  make  reclamation  of  another  only 
through  the  executors,  and  upon  some  ground 
of  trinity  that  entitles  the  executors  to  be 
reimbur.«ed  for  the  erroneous  api»ropriation 
of  the  assets.  How  could  executors  establish 
such  grounds  of  equity,  after  they  had  will- 
fully refrained  from  resorting  to  a  legal  de- 
fence V 

4.  Mr.  &  Mrs.  Whaley  propounded  another 
claim,  for  interest  (m  the  .$00.'?0  decreed  to 
her  for  e<iuality.  The  principal  sum  was  in- 
cluded ill  the  account,  at  the  foot  of  which, 
W.  J.  Wiialey  gave  a  receipt  in  full  in  No- 
vember, 1S41.  The  interest  should  have  been 
claimed  then,  if  ever.  The  claim  of  it  now, 
is  liable  to  all  the  defences  which  have  been 
considered  to  exclude  her  demand  for  hire. 
More  than  that:  this  claim  was  never  well 
founded.  It  is  not  allowed  in  terms  by  the 
decree  of  18.3!);  and  it  is  not  just  that  she 
should  receive  interest  on  a  sum  representing 
land  devised  to  her,  while  the  profits  of  the 

♦341 
lands  of  *her  co-devisees  are  in  the  cour.se  of 
appropriation    to    make    her    land    of    equal 
value  with  theirs  respectively. 

5.  The  remaining  (luestion  is  as  to  the  joint 
liability  of  all  the  executors  for  the  acts  of 
each.  The  effect  of  our  decision  upon  the 
first  point — as  to  mismanagement  of  the  plan- 
tations— is  to  restrict  this  eutiuiry  to  the  sub- 
ject of  the  pecuniary  assets  of  the  estate 
received  by  CJ.  W.  Seabrook.  As  to  the  re- 
ceipts and  payments,  he  alone  was  the  acting 
executor;  and  no  act  of  concurrence,  on  the 
part  of  the  co-executore,  appears  in  the  evi- 
dence. Indeed  we  are  not  furnished  with 
any  proof  of  his  misapplication  of  the  assets. 
Every  executor  has  a  several  right  to  receive 
the  assets  of  the  estate;  and  he  who  re- 
ceive.s,  is  exclusively  answerable  for  the  mis- 
application of  them,  unless  his  co-executors 
have  contributed  to  enable  him  to  get  posses- 
sion of  them,  or  have  acciuiesced  in  his  ap- 
Iiropriation  of  them,  contrary  to  the  trusts  of 
the  will,  knowing  of  such  misapplication. 
Here  his  co-executors  have  been  merely  pas- 
sive; they  have  not  obstructed  (i.  W.  Sea- 
brook  in  getting  possession  of  the  as.sets ; 
and  they  are  not  responsible  for  his  acts. 
(Langford  v.  Gascoyne,  11  Ves.  .335 ;  Atche- 
son  V.  RolxM-tson,  Col.  Dec.  1850,  ante,  p. 
132  [55  Am.  Dec.  634].) 

It  is  not  our  purpo.se,  in  this  opinion,  to 
conclude  the  parties  on  any  matter  outside  of 
the  case  made  for  our  decision.  The  equities 
of  the  parties  as  to  the  distribution  of  the 
funds  remaining  in  the  hands  of  the  acting 
executor,  will  be  determined  when  they  are 
properly  presented. 

It  is  represented  to  us,  that  the  plaintiff 
and  Mrs.  Whaley  have  died  since  tiie  filing  of 
the  circuit  decree.  Leave  is  granted,  to  any 
party,  to  take  the  necessary  steps  for  revivor. 

13d 


*341 


3  RICHARDSON'S  EQUITY  REPORTS 


Ordered  that  the  circuit  decree  be  affirmed 
and  the  appeal  be  dismissed. 

JOHNSTON,  DUNKIN  and  DARGAN,  CC, 
concurred. 
Appeal  dismissed. 


3  Rich.  Eq.  *342 
*JAMES    R.    PRINGLE    and    JULIUS    ST. 
JULIEN  PRINGLE,  Executors  of  Elizabeth 
M.    Pringle,    v.    WILLIAM   RAVENEL    and 
Wife  et  al. 

(Charleston.      Jan.   Term,    18.51.) 

[Wills  <©=j718.   781.] 

By  marriage  settlement  the  survivor  liad 
power,  by  will,  to  fix  the  proportion  eacli  child 
should  take  of  the  settled  estate:  the  wife  sur- 
vived, and  on  bill  for  settlement  of  the  hu.s- 
band's  estate,  by  a  consent  decree,  the  trustee 
under  the  settlement  became  the  purchaser,  to 
and  for  the  uses  of  the  settlement,  of  the  hus- 
band's separate  estate,  and  entered  into  bonds 
to  pay,  as  trustee,  to  each  child,  a  certain 
sum,  the  value  of  its  share  of  the  husband's  es- 
tate: the  wife  died  leaving  a  will,  by  which  she 
devised  and  bequeathed  the  trust  and  other 
property  to  the  children,  and  directed  that  her 
several  devises  and  bequests  should  be  taken 
by  her  devisees  and  legatees  in  full  satisfaction 
of  any  demand  on  herself,  or  her  estate,  or 
the  estate  of  her  deceased  husband;  the  bond 
of  the  trustee  to  E.  R.  one  of  the  children,  was 
unpaid  at  the  death  of  the  wife:  Held,  that  the 
acceptance  of  E.  R.  of  the  devises  and  bequests 
to  her  operated  as  a  satisfaction  of  the  bond. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  §§  1718,  2016;   Dec,  Dig.  <®=»718,  781.] 
[This   case   is   also   cited   in    Matthis   v.    Ham- 
mond. 6  Rich.  Eq.  402,  without  specific  ap- 
plication.] 

Before  Dunkin,  Ch.  at  Charleston,  June, 
1850. 

The  bill  stated  that,  by  marriage  settle- 
ment, made  between  plaintiff's  father,  James 
Reid  Pringle  and  Elizabeth  Mary  Pringle,  by 
her  then  name  of  Elizabeth  Mary  McPherson, 
and  Susanna  McPherson,  James  E.  McPher- 
son, and  John  Julius  Pringle,  trustees,  bear- 
ing date  the  18th  day  of  March,  1807,  certain 
real  and  personal  estate ;  and  also  certain 
reversionary  interests  to  whicli  the  said  Eliz- 
abeth Mary  was  entitled  under  the  will  of 
her  father,  General  John  McPherson,  were, 
by  her,  with  the  consent  of  the  said  James 
Reid  Pringle,  conveyed  to  the  said  trustees, 
among  other  uses,  after  the  marriage  then 
expected,  and  shortly  after  solemnized  be- 
tween the  said  James  Reid  Pringle  and  Eliz- 
abeth Mary  McPherson,  to  the  use  of  hus- 
l)and  and  wife  during  life,  and  the  survivor 
for  life,  and  after  the  decease  of  the  surviv- 
or, "to  the  use  of  all  and  singular,  or  such 
one  or  more  of  the  clnldren  of  them  the  said 
Elizabeth  Mary  McPherson  and  James  Reid 
Pringle,  and  for  such  estate  and  estates  in 
such  parts  and  proportions,  manner  and 
form,  with  or  without  power  of  revocation  as 
the  said  Elizabeth  Mary  McPherson  and 
James   Reid  Pringle  shall,   at  any   time   or 

*343 
times  during  their  joint  lives,  *by  any  deed 


or  deeds,  writing  or  writings,  under  both  their 
hands  and  seals,  attested  by  two  or  more 
credible  witnesses,  direct,  limit  and  appoint ; 
and  in  default  of  such  direction,  limitation 
and  appointment,  and  in  case  any  such  shall 
be  when  and  as  soon  as  the  estates  and  inter- 
ests thereby  limited  shall  respectively  end 
and  determine,  and  as  to  such  part  or  parts 
of  the  premises  where  no  such  direction, 
limitation  or  appointment  shall  be  made, 
then,  as  the  survivor  of  them,  the  said  Eliza- 
beth Mary  McPlierson  and  James  Reid  Prin- 
gle, shall,  at  any  time  or  times,  during  his 
or  her  life,  by  any  deed  or  deeds,  writing  or 
w'ritings,  under  his  or  her  hand  and  seal, 
attested  by  three  or  more  witnesses,  or  by 
his  or  her  last  will  and  testament,  in  writing, 
to  be  by  him  or  her,  signed,  sealed  and  pub- 
lished, in  the  presence  of  the  like  number 
of  witnesses,  direct,  give,  limit  and  appoint, 
the  same  as  aforesaid ;  and,  in  default  of 
such  direction,  limitation,  gift  and  appoint- 
ment, or  in  case  any  such  shall  be,  when  and 
so  soon  as  the  estates  and  interests  thereby 
limited  shall  respectively  end  and  determine, 
and  as  to  such  part  or  parts  of  tlie  premises 
whereof  no  direction,  gift,  limitation  or  ap- 
pointment as  aforesaid,  shall  be  made,  to  the 
use  of  all  and  every,  the  child  or  children  of 
the  said  Elizabeth  Mary  McPherson  and 
James  Reid  Pringle,"  &c. 

That  Susanna  McPherson,  by  her  last 
will  and  testament,  bearing  date  the  20th 
day  of  August,  1834,  gave  and  bequeathed 
to  the  said  James  Reid  Pringle,  one-third 
part  of  the  residue  of  her  estate,  in  trust, 
for  the  sole  and  separate  use  of  her  daugh- 
ter, the  said  Elizabeth  Mary  Pringle,  during 
her  life,  and  after  her  death,  to  her  children 
then  living:  and  appointed  the  said  James 
Reid  Pringle  one  of  her  executors. 

That  on  the  11th  day  of  July,  1840,  the  said 
James  Reid  Pringle  died  intestate,  leaving 
the  said  Elizabeth  Mary  Pringle  surviving 
him,  and  leaving  issue,  the  plaintiffs,  and 
Eliza  Butler,  wife  of  William  Ravenel,  and 
Rosamond  Miles  Pringle,  and  having  had  is- 
sue of  the  said  marriage,  one  son  and  three 
daughters,  who  had  died  before  him;  that 
administration  of  his  estates  and  effects  was 
committed  to  the  plaintiff,  James  Reid 
*344 

*Pringle,  and  for  the  settlement  of  his  es- 
tate, a  bill  was  filed,  wherein  Elizabeth  Mary 
Pringle,  William  Kavenel,  Eliza  Butler  Ra- 
venel, Julius  St.  Julien  Pringle,  and  Rosa- 
mond Miles  Pringle,  were  complainants,  and 
the  plaintiff,  James  R.  Pringle,  defendant; 
and  an  account  was  taken  between  the  said 
James  Reid  Pringle,  and  the  trust  estate  un- 
der the  marriage  settlement,  and  also  an  ac- 
count of  the  funds  which  came  into  the  hands 
of  the  said  James  Reid  Pringle  as  trustee 
of  his  wife,  under  the  will  of  Mrs.  :McPher- 
son,    and   the   said   Elizabeth   Mary   Pringle, 


140 


®=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


PRIXGI.E  V.  RAVENEL 


*346 


became  the  purchaser  of  his  estate,  and  un- 
dertook to  pay  to  his  chililien  the  sum  of 
seventeen  thousand  seven  hundred  and  one 
dollars,  sixty-four  cents,  as  the  amount  of 
two-thirds  nf  his  estate  afti'r  the  payment 
of  debts,  wliioh  arranj;ement,  on  the  liOth 
day  of  May,  1841,  was  carried  into  etTi'Ct  by 
a  decree  of  this  Court. («) 

That  soon  after  the  sfttU>mt'nt  of  the  said 
estate,  the  said  Elizabeth  Mary  Trin^-de  en- 
tered into  a  bond  to  William  Uavenel  con- 
ditioned for  the  payment  of  .«4,4-_'r).41,  being 
the  i>ortion  of  the  said  Eliza  1'..  Havt-nel  in 
her  father's  said  estate,  and  the  said  Wil- 
liam Kavenel  soon  afterwards  assi^'ned  the 
said  bond,  and  all  the  interest  and  estate 
of  the  said  Eliza  B.  Kavenel,  under  the  mar- 
riage settlement,  and  the  will  of  Mrs.  Mc- 
pherson, to  the  plaintiff,  James  Ueid  I'ringle, 
in  trust  for  husband  and  wife  for  life,  and 
to  the  survivor  for  life,  and  to  the  issue  of 

*345 
the  mar*riage,  as  the  survivor  may  appoint, 


and   in  default   of  issue  to  the  survivor  in 
fee.  {h) 

That  plaintiffs's  mother,  the  said  Elizabeth 
Mary  I'r ingle,  by  her  last  will  and  testa- 
ment in  writing,  bearing  date  the  14th  day 
of  April,  lS4n.  in  e.xe(Utit)n  of  her  power  of 
appointment,  and  in  exerci.se  of  her  rights  of 
proi)erty.  undertook  to  dispose  of  all  the 
tru.st  estate  under  the  marriage  settlement, 
as  well  as  her  mother's  will,  and  gave  her 

*346 
son-in-law,  William  Kavenel,  ♦one  tht)usand 
dollars,  and  legacies  to  her  grandehildren, 
Catharine  I'rioleau  Kavenel,  James  Pringle 
Kavenel,  and  Elizabeth  Mcl'herson  Kavenel, 
(the  legacy  to  Catharine  I'rioleau  Kavenel  be- 
ing a  slave  belonging  to  the  trust  estate.) 
and  to  plaintiffs,  an  undivided  fourth  part  of 
the  plantation  and  negroes,  and  other  real 
and  personal  property  in  trust,  for  the  sole 
and  separate  use  of  her  daughter,  Eliza  But- 
ler Kavenel,  during  the  joint  lives  of  herself 


(rt)  So  much  of  the  consent  decree,  of  29th 
May.  1S41.  as  is  necessary  to  a  proper  under- 
staiuliug  of  this  case  is  as  follows. 

"Ou  hearing  the  Master's  report  in  this  case, 
and  on  motion  of  Mr.  DeSaussure,  complain- 
ant's solicitor,  ordered  that  tlio  same  be  con- 
tirmed.  And  it  is  furtlier  ordered  and  decreed 
that  James  W.  Gray,  Master  in  E(iuity.  do  con- 
vey to  James  R.  I'ringle,  the  trustee  substituted 
in'heu  of  John  Julius  Pringle.  at  the  present 
term,  as  trustee,  under  the  marriage  settlement 
of  Mrs.  Elizabeth  M.  I'rinsle.  uikhi  the  trusts, 
and  subject  to  the  conditions  ami  limitations 
expressed  therein,  the  plautatinn  on  Santee  riv- 
er, called  the  Marsh,  cmitaining  two  hundred 
and  forty  acres— also,  the  plantation  adjoining 
the  above,  on  Santee  river,  containing  two  hun- 
dred and  six  acres  of  swami)  bind ;  also,  the 
small  lot  and  house  on  South  Island:  also,  the 
h)t  of  land,  witii  the  dwellinu:  lionse  thereon,  in 
Cannonsborouuh.  on  Charleston  Neck,  all  which 
premises  are  fully  described  in  the  pleadings." 
"And  that  the  said  James  R.  I'ringle  hold,  to 
the  uses  of  tlie  nuirriage  scttliMiient.  the  remain- 
ing sixteen  negroes,  mentioned  in  Schi'dulc  No. 
Ii.  as  standing  in  the  name  of  his  testator,  nine 
of  whom  are  taken  to  supply  the  i)la<e  of  nine, 
which  were  siild  by  the  late  Janu's  K.  I'ringle, 
belon'j;ing  to  the  trust  estate,  and  seven,  to  make 
up  the  seven  due  by  the  ScIumIuIc  No.  ."..  And 
it  is  further  ordered  and  dei'reed.  that  the  saitl 
trustee  do  pay,  with  the  funds  of  the  trust  es- 
tate, tiie  sum  of  sixteen  thousand  and  sixtj'- 
eight  dollars,  and  forty-one  cents,  with  the  ac- 
cruing interest  thereon,  being  the  amount  of  the 

*345 
debts  *the  said  James  K.  Pringle,  deceased,  re- 
ported by  the  Master.  And  it  is  further  ordered 
and  decreed,  that  the  said  trustee  do  pay,  from 
the  funds  of  the  trust  estate,  to  the  four  chil- 
dren of  James  K.  I'ringle,  deceased,  seventeen 
thousand,  seven  hundred  and  one  dollars  and 
si.\ty-six  cents,  with  interest  from  the  date  of 
this  decree,  in  equal  shares,  to  wit.— to  Mrs. 
Eliza  I?.  Kavenel,  and  William  Kavenel.  her 
luisliand.  the  sum  of  four  (liousand.  four  hun- 
dred and  twenty-fivf>  dollars  and  forty-one  cents; 
to  himself,  the  said  James  K.  I'rimile.  the  sum 
of  four  thousand  five  luuidred  and  twenty-five 
dollars  and  forty-one  cents ;  and,  to  the  dtdy 
appointed  ;;uardian  of  Rosamond  M.  I'ringle.  the 
sum  of  four  thousand,  five  hundred  and  twenty- 
hve  dollars  and  forty-one  cents;  and  to  the  duly 
appointed  guardian  of  Julius  St.  Julien  I'ringle, 
the  sum  of  four  thousaml  five  hundred  and 
twenty-live  dohars  and  forty-one  cts." 


(b)  The   bond   here    referred    to    was,    in    fact, 
the  bond  of  James  R.  Pringle,  trustee,  and  is 
as  follows. 
The  State  of  South  Carolina. 

Know  all  men  by  these  presents,  That  I, 
James  R.  Pringle.  substituted  trustee,  under 
the  marriage  settlement  of  -Mrs.  Elizabeth  M. 
I'ringle.  in  conformity  and  obedience  to  a  de- 
cree of  the  Court  of  Eiputy.  made  on  I'Oth  May. 
1S41.  at  Charleston,  in  a  certain  cause,  wherein 
the  said  Elizabeth  M.  I'ringle  and  her  children 
are  complainants.  an<l  James  K.  I'riugle,  ex- 
ecutor of  James  K.  I'ringle,  deceased,  is  defend- 
ant, acknowled?ie  myself,  as  trustee  under  the 
said  marriage  settlement,  to  be  held  and  firmly 
hound  unto  James  K.  I'ringle.  trustee  under  the 
marriau'e  settlement  of  William  Kavenel  and 
Eliza  P..  his  wife,  in  the  full  and  just  sum  of 
eisiht  thousand  eight  hundred  and  fifty  dollars, 
eiiihtv-two  cents,  to  be  paid  to  the  said  James 
R.  I'riniile.  trustee  of  William  Ravenel,  and 
J-:iiza  B  his  wife,  his  certain  attorney,  execu- 
tors and  administrators,  or  assigns ;  to  which 
payment,  well  and  truly  to  be  made  and  done. 
I  hind  myself,  and  each  and  every  one  of  my 
heirs,  executors  and  administrators,  jointly  and 
severally,  firmly  by   these  presents. 

Sealed  with  my  seal,  ami  dated  at  Charleston, 
the  tweuty-nintli  day  of  May.  in  the  year  of 
our  Lord'  one  thousand  eight  hundred  and 
forty-iuu'.  and  in  the  sixty-fifth  year  of  the 
Sovereignty  and  Independence  of  the  United 
States  of  America. 

The  condition  of  the  above  obligation  is  such. 
That  if  the  above  bound  James  K.  I'ringle. 
trustee  of  Elizabeth  M.  Pringle.  his  heirs,  ex- 
ecutors, and  administrators,  shall  and  do  well 
and  truly  pay,  or  cause  to  be  paid,  unto  the 
above  named  James  R.  Priniib',  trustee  of  Wil- 
liam Ravenel  and  Eliza  B.  his  wife,  [theirl  cer- 
tain attorney,  executors,  administrators  or  as- 
signs, the  full  and  just  sum  of  four  thousand 
four  hundred  and  twenty-five  dollars  and  forty- 
one  cents,  with  legal  interest  from  the  date, 
payable  annually,  in  two  eipial  successive  in- 
stalments, the  tirst  instalment  whereof  is  to 
be  paid  on  or  before  the  twenty-ninth  day  of 
May,  which  will  he  in  the  year  of  our  Lord, 
one  thousand  eight  hundred  and  forty-two,  with- 
out fraud,  or  further  delay,  then  the  above  ob- 
ligation to  be  void,  and  of  none  effect,  or  else 
to  remain  in  full  force  and   virtue. 

(Signcil)  James  R.  Pringle. 

Seale(i  and  delivered  in  the  presence  of 
(Signed)    H.  A.  De  Saussure. 

141 


»346 


3  RICHARDSON'S  EQUITY  REPORTS 


and  husband,  and  in  case  she  should  die  in 
his  lifetime,  to  the  use  of  her  issue  then  liv- 
ing; the  issue  of  a  deceased  child  to  take 
the  parent's  share  and  no  more,  and  in  de- 
fault of  issue,  as  she  may  appoint;  and  in 
case  she  should  survive  her  husband,  to  her 
absolute  use  and  behoof  forever  freed  and 
discharged  from  all  other  and  further 
trusts.  And  declared  the  same  trusts  of  the 
estate  given  to  her  daughter  Rosamond  Miles 
Pringle,  and  directed  that  her  several  lega- 
tees should  receive  their  legacies  as  a  satis- 
faction of  all  demands,  on  her  or  her  estate, 
or  that  of  her  late  husband. 

That  the  testatrix  afterwards,  on  the  14th 
day  of  August,  1843,  departed  this  life,  leav- 
ing the  said  will  in  full  force ;  and  plain- 
tiffs, as  executors  therein  named,  proved 
the  same,  and  have  undertaken  the  execu- 
tion thereof;  but  are  unable  to  proceed  with- 
out the  aid  of  this  Court. 

That  it  is  denied  that  the  said  power  of 
appointment  to  which  the  said  Elizabeth 
Mary  Pringle  was  entitled,  authorized  her 
to  limit  estates  to  her  grandchildren ;  and 
it  is  also  denied  that  the  legatees  are  bound 
to  elect  between  provisions  made  by  the 
settlement  and  the  will  of  Mrs.  McPherson, 
and  that  made  by  the  testatrix ;  and  the  said 
William  Ravenel  insists  that  the  share  to 
which  the  said  Eliza  Butler  Ravenel  is  en- 
titled, under  the  marriage  settlement  of  her 
parents,  and  the  will  of  her  grandmother, 
should  be  held  by  the  plaintiff,  James  Reid 
Pringle,  subject  to  the  uses  which  have  been 
declared  thereof  by  the  assignment  of  the 
same  in  trust,  as  before  mentioned.  And 
that  the  bond  of  the  testatrix  for  Mrs.  Ra- 
venel's  part  of  her  father's  estate  should  be 
satisfied ;    whereas,  the  plaintiffs  insist  that 

*347 
the  testatrix  had  the  power  to  ap*point,  and 
that  the  said  power  is  well  executed  by  her 
will,  and  that  the  parties  interested  must  all 
elect  whether  to  take  under  or  against  the 
will  of  the  testatrix.  And  the  bill  prayed 
that  the  trusts  of  the  said  will  may  be  de- 
clared and  executed  under  the  sanction  of 
this  Court,  &c. 

Dunkin,  Ch.  The  first  inquiry  is,  whether 
the  will  of  Mrs.  Pringle  is  a  due  execution 
of  the  power  of  appointment,  vested  in  her 
by  the  settlement  of  1807.  It  is  very  clear, 
that  such  was  the  purpose  of  the  testatrix. 
In  the  recital,  it  is  declared,  that  the  will  is 
made  "as  a  disposition  of  all  the  estate 
which  I  may  dispose  of,  either  in  my  own 
right,  or  by  virtue  of  any  power."  If  she 
has  failed,  it  is  from  a  misapprehension  of 
the  extent  of  her  authority. 

On  the  part  of  the  defendants,  William 
Ravenel  and  wife,  it  is  insisted  that,  under 
the  marriage  settlement,  Mrs.  Pringle  had  no 
authority  to  limit  any  part  of  the  property 
to  her  grandchildren,  and  that  such  limita- 
tion is  void.  The  settlement  declares  that, 
upon  the  decease  of  the  survivor  of  them, 

142 


"the  property  shall  be  held  to  the  use  and 
behoof  of  all  and  singular,  or  such  one  or 
more  of  the  children  of  them,  the  said  Eliza- 
beth Mary  McPherson  and  James  Reid  Prin- 
gle, and  for  such  estate  and  estates,  in  such 
parts  and  proportions,  manner  and  form,  with 
or  without  power  of  revocation,  as  they,  the 
said  Elizabeth  Mary  McPherson  and  James 
Reid  Pringle,  may  direct,  limit  and  ai)point, 
and,  in  default  of  such  direction,  limitation 
and  appointment,"  &c.,  "then,  as  the  survivor 
of  them,  the  said  Elizabeth  M.  McPherson 
and  James  R.  Pringle,"  shall,  at  any  time,  by 
deed  or  will,  "direct,  give,  limit  and  appoint 
the  same  as  aforesaid." 

The  important  clause  of  Mrs.  Pringle's  will 
is  as  follows: — 

"Item.  To  the  use  of  my  daughter  Eliza, 
(Mrs.  Ravenel,)  subject  to  the  trusts  herein- 
after mentioned,  and  ro  my  sons,  Jas.  Reid 
and  Julius  St.  Julien,  and  my  daughter  Rosa- 
mond Miles  Pringle,  I  give  my  plantation, 
and  all  my  lands  on  Santee  River,  in  the 
parishes  of  Prince  George,  Winyah,  and  St. 
James',  Santee,  and  all  the  negro  slaves  em- 
ployed on  the  said  plantation,"  &e.  "And,  to 
provide  against  the  casualties  of  commerce, 

*348 
from  *which  the  most  prudent  are  not  se- 
cure, I  do  hereby  declare  the  following  trusts 
of  the  property  bequeathed  to  the  use  of  my 
daughter, ,  Eliza  Butler  Ravenel,  that  is  to 
say: — the  estate,  so  bequeathed  to  my  said 
daughter,  shall  not  be  vested  in  her,  but  in 
my  sons,  James  Reid  Pringle  and  Julius  St. 
Julien  Pi-ingle,  as  her  trustees,  to  have  and 
to  hold  the  same  to  the  said  trustees  and 
their  heirs,  upon  the  following  trusts,  that  is 
to  say,  upon  trust,  for  the  sole  and  separate 
use  of  my  daughter,  Eliza  Butler  Ravenel, 
during  the  lives  of  her  and  her  said  husband, 
and,  if  she  should  die  in  the  lifetime  of  her 
said  husband,  then  to  the  use  of  her  issue 
then  living,  the  issue  of  a  deceased  child  to 
take  the  parent's  share  and  no  more ;  but, 
if  she  should  die  in  the  lifetime  of  her  said 
husband,  without  leaving  issue,  then  to  such 
uses  as  she,  by  her  last  will  and  testament, 
may  limit  and  appoint ;  and,  in  case  she 
should  survive  her  said  husband,  then  to  her 
absolute  use  and  behoof  forever,  freed  and 
discharged  from  all  other  and  further  trusts." 

The  argument  seems  to  be,  that  the  limita- 
tion to  the  children  of  Mrs.  Ravenel,  on  her 
death,  in  the  lifetime  of  her  husband,  is  an 
excessive  execution  of  the  power,  and  null 
and  void.  Robinson  v.  Hardcastle,  (2  Bro.  C. 
O.  22,)  bears  a  striking  analogy  to  this  case. 
Tlie  power  was  there  created  by  a  marriage 
settlement,  and  was  executed  by  the  will  of 
the  husband.  Lord  Thurlow,  before  whom 
the  cause  was  heard,  said,  that  except  the 
case  of  Cavendish  v.  Cavendish,  he  knew  of 
no  case  where  it  had  been  decided  that  an 
appointment  to  grandchildren  is  a  good  ex- 
ecution of  a  power  to  divide  among  children. 
If  that  case  be  so  decided,  he  believed  it  was 


PRIXGLE  V.  RA^'KXEL 


*351 


the  first  case  to  that  purpose.  "^Vhat  Is  a 
perpetuity."  continues  he,  afterwards,  "but 
the  extendins  the  estate  beyond  a  life  in  be- 
ing, and  twenty-one  years  after.  That  woukl 
have  been  the  effect  of  this,  if  done  l)y  de- 
vise; the  question,  therefore,  is,  wlietlier,  by 
the  intervention  of  a  power  a  grantor  may 
extend  the  estate  beyond  the  rule.s  of  law, 
to  what  the  law  terms  a  perpetuity'.'"'  A  case 
was  directed  for  the  opinion  of  the  Court  of 
King's  Bench;  and  P.uUer,  J.,  in  delivering 
the  judgment,  or  rather  the  reasons,  uf  tlie 

*349 
♦Court,  says:  "I  take  it  to  be  a  clear  rule 
of  law,  on  the  execution  of  a  power,  tiiat  the 
execution  must  have  a  reference  to  the  \}o\\- 
er  itself;  and  that  a  person,  claiming  under 
the  execution,  takes  under  the  deed  by  which 
llie  power  is  created ;  and,  therefore,  that 
the  uses,  limited  by  the  power,  must  be  such 
as  would  have  been  good  if  limited  by  the 
original  deed.  If  that  rule  be  law,  it  puts 
an  end  to  the  case."  (2  T.  R.  2r)2.)  So  if 
the  uses,  limited  by  the  will  of  Mrs.  Pringle 
to  the  children  of  Mrs.  Ravenel,  had  been  so 
limited  in  the  original  settlement.  (Mrs. 
Ravenel  not  being  then  in  exi.stence,)  it  seems 
tpiite  clear  that  they  would  have  been  too  re- 
mote and  void.  But,  as  was  said  by  Ix)rd 
Xorthington,  in  Marlborough  v.  Godolphin, 
(1  Eden,  404,)  if  the  grantor  could  not  lock 
lip  his  proi^erty  in  this  manner  him.self,  nei- 
ther can  he  deliver  up  the  keys  to  another, 
and  empower  him  to  do  it.  The  will  of  Mrs. 
I'ringle,  being  no  more  than  an  execution  of 
the  power,  this  limitation  to  the  children  is 
consequently  inoperative  and  void.  The  re- 
sult, or  effect,  is  not  equally  clear. 

In  reference  to  the  valuable  estates,  includ- 
ed in  the  clause  already  cited,  the  scheme  or 
purpose  of  the  testatrix  is  not  easily  to  he 
misapprehended.  She  designed  to  exe<'ute  her 
power  of  appointment,  then  to  make  an  eipial 
division  of  the  property  among  her  four  chil- 
dren, as  between  themselves ;  and,  lastly,  to 
place  her  daughters  on  precisely  the  same 
footing,  in  regard  to  the  restrictions  and  lim- 
itations of  the  estates  designed  for  them  re- 
si)ectively.  These,  in  the  opinion  of  the  Court, 
were  the  leading  objects  of  the  testatrix,  to 
which  every  provision  of  the  clause  was  in- 
tended to  be  subordintite.  If  any  of  these 
provisions  prove  inoperative,  as  violating  the 
rules  of  law,  or  transcending  the  authority 
of  the  testatrix,  this  should  not  be  i)ernutted 
to  defeat  the  general  design,  if  it  may  be 
carried  Into  effect  without  reference  to  those 
inoperative  designs.  The  estates  on  Santee, 
with  the  negroes,  &c.,  upon  them,  are  ap- 
pointed to  her  four  children.  To  three  out 
of  four,  the  terms  of  the  ai)pointnient,  in  the 
first  part  of  the  clau.se,  are  in  the  most  ab- 
i<olute  and  unqualified  language,  and  "I  re- 

♦350 
quest,"  she  adds,  "that  the  said  *p;aiitation 
and  negroes  be  not  divided,  as  long  as  the 
parties  can  agree  iu  the  management  of  the 


property,  believing  that,  as  a  joint  estate,  it 
will  conduce  most  to  their  advantage." 

The  testatrix  then  proceeds,  "and  to  pro- 
vide against  the  casualties  of  conunerce,  from 
which  the  most  prudent  are  not  secure.  I  do 
hereby  declare  the  following  trusts  of  the 
property  bequeatlunl  to  the  u.se  of  my  daugh- 
ter, Eliza  Butler  Ravenel."  It  is  then  de- 
clared, that  the  property  shall  be  held  by  the 
trustees  "for  the  sole  and  separate  use  of 
Mrs.  Ravenel,  during  the  joint  lives  of  her 
husband  and  lier.«<elf,  and  if  she  should  die, 
in  the  lifetime  of  her  husband,  then  to  the 
u.se  of  her  issue  then  living. '  vVrc.  The  testa- 
trix had  an  undoubted  right  to  restrict  the 
estate  of  her  daughter  to  her  sole  and  seiv 
arate  use.  and  the  only  part  of  the  declara- 
tion which  exceeds  the  power,  is  the  limita- 
tion to  the  issue  of  the  marriage  on  the  con- 
tingency conteniplatfd.  A  similar  condition 
is  annexed  to  the  gift  of  the  lands  and  ne- 
groes given  to  her  daughter,  Rosamond  Miles 
I'ringle.  And  it  will  be  more  simple,  first  to 
consider  her  interests  in  connection  with  the 
authorities  to  be  cited.  The  first  part  of  tlie 
clause  gives  in  as  absolute  terms  to  Rosa- 
mond as  to  James  Reid  and  .Tulius  St.  Julien. 
Afterwards  the  condition,  (as  it  is  called.)  is 
annexed  to  this  "gift  of  land  and  negroes," 
to  wit,  that,  on  her  marriage,  a  settlement 
should  be  made  declaring  the  property  sulv 
ject  to  the  same  uses  as  those  declared  "of 
the  testatrix's  daughter.  Eliza."  In  Arnold 
V.  Congreve,  (1  Rus.  &  Mylne.  L'tK),)  Sir  Thom- 
as I'lumer,  after  holding  that  a  limitation  to 
children  of  grandchildren  was.  in  the  partic- 
ular case,  void  for  remoteness,  uses  this  lan- 
guage: "The  testatrix,  having  by  her  will, 
given  her  grandchildren  absolute  interests, 
has  made  a  codicil,  expressing  her  desire 
that  they  should  take  only  life  estates,  in  or- 
der that  their  children  might  take  in  succes- 
sion after  their  deaths ;  that  her  sole  object 
in  making  the  codicil  was  to  let  in  those  chil- 
dren of  grandchildren  :  that  that  puri)ose  nec- 
essarily failed,  and  that,  as  the  great-grand- 
children could  not  take,  the  intention  of  the 
testatrix  would  be  best  effectuated  l)y  hold- 
ing, that  the  absolute  interests  given  to  the 

*351 
grandchildren  by  the  will,  were  not  des*troy- 
ed  by  the  codicil."  So  here,  the  gift  to 
Rosamond  is  absolute.  The  subseiiuent  at- 
tempt to  limit  the  succession,  i)eing  mellectu- 
al  for  the  purpc»se  intended,  should  not  be 
permitted  to  cut  down  the  absolute  estate, 
previously  well  given.  And  this  rejection  of 
(jualifying  clauses,  ineftectually  attenqited  to 
be  engrafted  on  a  previous  absolute  gift, 
equally  obtains  where  the  whole  is  contain- 
ed in  the  same  testamentary  paper;  it  being 
considered  that  the  testator  intends  the  prior 
absolute  gift  to  prevail,  except  so  far  only  as 
it  is  effectually  superseded  by  the  subseciuent 
qualified  one.  (1  Jarm.  257.)  Carver  v. 
Bowles  is  cited  as  authority.  In  that  case, 
a  testatrix,  having,  mider  u  marriage  settle- 

143 


•351 


3  RICHARDSON'S  EQUITY   REPORTS 


ment,  a  power  of  selection  in  favor  of  her 
children,  appointed  the  settled  fund  absolute- 
ly, in  equal  shares,  to  her  five  children,  two 
sons  and  three  daughters,  and  then  declared 
that  the  shares  of  each  of  her  daughters 
should  be  held  to  her  sole  and  separate  use, 
for  life,  and  after  her  decease,  for  her  chil- 
dren, &c.  It  was  held,  that  the  words  of 
the  appointment  were  sufficient  to  vest  the 
shares  absolutely  in  the  daughters ;  that  the 
attempt  to  restrict  their  interests  by  limita- 
tions to  their  issue,  being  inoperative,  did  not 
cut  down  the  absolute  appointment ;  but  that 
it  was  competent  to  the  donee  of  the  power, 
to  limit  the  interests  which  she  appointed  to 
her  daughters,  to  their  separate  use,  &c. 
This  authority  was  followed  by  Lord  Lang- 
dale,  in  Kempf.  v.  Jones,  (2  Keene,  756.) 
"The  testatrix,"  says  he,  "has  made  limita- 
tions, which  to  a  certain  extent,  were  quite 
within  her  power  but  she  has  attempted  to 
make  others  which  were  beyond  the  limits  of 
her  power ;  and  I  think  that  the  absolute 
gift  ought  to  have  effect,  subject  to  the  lim- 
itations which  were  within  the  power,  and 
free  from  the  others."  It  seems  very  dif- 
ficult to  distinguish  the  appointment  in  favor 
of  Rosamond  Miles  Pringle,  from  the  cases 
thus  adjudicated. 

The  gift  to  Mrs.  Ravenel,  in  the  first  part 
of  the  clause,  is  not  in  the  same  unqualified 
terms,  but  the  difference  is  rather  verbal 
than  substantial.  As  has  been  stated,  the 
evident  purpose  of  the  testatrix,  in  this 
clause,  was  to  exercise  her  power  of  ap- 
pointment,  by  making  an  equal  division  of 

*352 
that  estate  among  *her  children,  and  by  plac- 
ing the  fortunes  given  to  her  daughters,  (in 
the  language  of  the  will,)  under  the  same  re- 
strictions and  limitations.  The  gift  to  Rosa- 
mond was  absolute,  and  no  condition  was  an- 
nexed, but  in  the  event  of  her  marriage. 
Mrs.  Ravenel  was  already  married.  Giving 
to  her  daughter  Eliza  one-fourth  of  the  es- 
tate, she  was  solicitous  "to  provide  against 
the  casualties  of  commerce.,"  and,  in  that 
view,  declared  that  the  estate  should  be  held 
to  her  sole  and  separate  use,  during  the  cov- 
erture, and,  in  the  event  of  her  decease  in 
the  lifetime  of  her  husbaiid,  leaving  issue,  to 
the  use  of  the  issue  then  living.  If  she  sur- 
vived her  husband,  whether  with  or  without 
issue,  then  to  her  daughter,  discharged  of  all 
further  trusts.  So  far  as  the  purpose  of  the 
testatrix  is  to  be  accomplished,  by  securing 
the  fortune  of  her  daughter  to  her  sole  and 
separate  use,  this  object  is  fully  attained. 
The  deed  of  1807  authorized  her  to  prescribe 
"the  manner  and  form"  in  which  the  estates 
given  to  her  children  should  be  enjoyed. 
But  she  had  no  power,  under  that  instru- 
ment, to  limit  the  succession,  either  for  the 
purpose  declared  by  the  will,  or  for  any  other 
purpose.  She  was  vested  with  unlimited  au- 
thority to  apportion  the  estate,  as  she  might 
think  proper,  among  the  children ;  to  give  all 

144 


to  one  absolutely,  and  leave  all  the  others 
unprovided  for,  or  to  give  such  estate  or  es- 
tates to  each,  as  to  her  might  seem  expedient. 
She  might  make  a  partial  appointment,  or 
might  omit  entirely  to  exercise  the  power 
of  appointment.  The  only  limit  to  her  dis- 
cretion was  the  circle  of  objects  within  which 
it  was  to  be  exercised.  She  could  not  look 
beyond  her  own  children.  So  the  settlement 
declared,  and  beyond  this,  the  law  would  not 
have  permitted  the  parties  to  the  settlement 
to  have  provided,  had  they  been  so  disposed. 
Mrs.  Pringle's  power  of  appointment  did  not 
extend  to  grandchildren,  and  her  purpose, 
in  making  this  limitation,  is  necessarily  frus- 
trated. But,  as  the  estate  given  to  her 
daughter,  was  thus  restricted  or  qualified, 
only  for  this  purpose,  and  this  has  failed,  the 
general  intention  of  the  testatrix  will  be  best 
effectuated  by  holding,  as  in  Arnold  v.  Con- 
greve,  that  the  estate  of  the  daughter  is  not 

*353 
impaired  by  this  inoperative  limita*tion. 
Whittell  V.  Dudiu,  (2  Jac.  &  Walk.  270,)  was 
not  decided  on  the  principle  of  the  cases  al- 
ready cited,  but  is  illustrative  of  what  re- 
mains to  be  said.  In  that  case,  the  testator 
directed  the  residue  of  his  property  to  be 
equally  divided  between  his  wife,  and  sons 
and  daughters,  subject,  as  to  the  shares  of 
the  daughters,  to  certain  trusts,  for  the  ben- 
efit of  themselves  and  their  children.  The 
Master  of  the  Rolls  held,  that  a  daughter, 
dying  without  a  child,  was  entitled  absolutely 
under  the  original  bequest,  from  which  it 
was  to  be  collected  that  the  testator's  de- 
sign was  to  make  an  equal  division  among 
his  children,  which  would  be  frustrated,  if 
the  shares  of  the  daughters  were  to  go  to 
the  testator's  next  of  kin,  as  undisposed  of 
property,  on  their  dying  without  children. 
So  in  Holme  v.  Holme,  (9  Sim.  644,)  the  tes- 
tator directed  the  trustees,  on  the  death  of 
his  wife,  "to  divide  and  assign  the  trust 
moneys"  into  as  many  shares  as  there  were 
children  of  that  wife ;  the  shares  of  the  sons 
to  be  paid  to  them  when  the  youngest  child 
attained  t\^•enty-one  years  of  age,  and  the 
shares  of  the  daughters,  who  should  be  alive 
at  that  time,  he  directed  should  remain  in 
the  hands  of  the  trustees,  upon  trust  to  pay 
the  interests  to  the  daughters,  during  their 
natural  lives,  for  their  sole  and  separate 
vise,  and,  upon  the  death  of  a  daughter,  leav- 
ing issue,  to  such  issue,  &c.,  &c.  The  vice- 
Chancellor  declined  to  hear  Mr.  Knight 
Bruce,  and  declared  the  gift  to  the  daughter 
to  he  absolute,  notwithstanding  the  super- 
added directions  to  settle  the  shares  of  the 
daughters ;  and  that  a  daughter,  who  died 
without  leaving  children,  took  an  absolute 
estate.  In  a  note  to  that  case,  Mayer  v. 
Townsend,  (3  Bea.  443,)  is  referred  to.  Tes- 
tator had  directed  trustees  to  raise  £5000 
for  his  daughter  Elizabeth;  and  when  rais- 
ed, to  invest  the  same,  and  pay  the  dividends 
to  his  daughter,  for  her  separate  use,  during 


PRINGLE  V.  RAVENEL 


*r>oG 


life,  and.  after  the  decease  of  his  dausliter.  ( 
tliere  was  a  liiiiitatinn  to  li»^r  childri'ii.  Lord 
Lanf:(ial«' lu'ld,  tliat  tln'  limitation  not  liaving 
taken  effect,  in  constM|iii'iico  of  the  ilcath  of 
the  daii;,'hter  without  children,  tlu'  ahsolute  [ 
interest  remained  in  tlu'  daii^'hter.  When 
Mrs.  rrinyle  uses  the  expressions  "to  tlie  use 
of  my  daufihter  Kllza,  suliject   to  tlie  trusts 

♦354 
hereinafter  ♦mentioned,"  and  tiu-n.  "the  es- 
tate, so  be<iueatlied  to  my  said  danj;l»ter, 
shall  not  vest  in  her,  hut  in  my  sons,  as  lier 
trustees,"  no  more  is  implied  than  liy  the 
lan.L.'uai.'e  used  in  Holme  v.  Holme,  and  in 
Mayer  v.  Townsend.  The  ^'ift  is  to  her 
daufihter.  The  provision  is  for  her.  More 
than  once  it  is  referred  t(»  as  "her  tlan^hter 
Eliza's  estate."  "her  dau-hter  l^liza's  for- 
tune." The  absolute  character  of  the  irift  to 
her  wa.s  only  to  lie  qualiticd  for  tlu'  purposes 
and  with  the  limitations  mentioned.  I'art  of 
these  attach  eflectnaily  to  the  jrift.  The  oth- 
er is  inoperative.  From  whatever  cause  is 
immaterial.  "The  jxeneral  rule."  says  Vice- 
Chancellor  Wi«ram,  "is,  that  an  absidute  in- 
terest is  not  to  be  taken  away  by  a  nift  over,  , 
unle.ss  that  jrift  over  may  itself  take  effect."  ! 
Green  v.  Harvey,  (1  Hare,  4l's.i 

Then,  what  is  the  result V  The  Court  has! 
as.sumed,  as  clearly  deducible  from  tlie  lau-  j 
guajre  of  the  clause,  that  the  desijrn  of  Mrs. 
Prinjile  was  to  make  an  eiiual  division  amont? 
her  children,  of  the  estates  therein  describ-  ! 
ed.  It  .seems,  too,  scarcely  open  for  ((uestion 
uiK)n  principle  or  authority,  that  the  limita- 
tion to  the  children  of  Mrs.  Kavenel.  was  an 
excessive  aiipointment.  and  is.  conse(piently. 
void.  Then  upon  any  other  construction  than 
that  adopted  i)y  the  Court,  the  fortime  of 
^Irs.  Kavenel,  on  the  contin^'ency  contemplat- 
ed, would  jiass.  not  to  her  own  children,  but 
by  the  expre.^^s  terms  of  the  marriajre  settle- 
ment, to  the  children  of  Mr.  and  Mrs.  Prinjrle, 
to  be  equally  divided  between  them,  if  the 
provision  be  reiiarded  as  a  limited  (U-  defec- 
tive appointment.  But,  whether  the  estate 
vested  in  the  .several  chiMren,  as  they  came 
in  esse,  or  in  those  who  survived  the  iiarents, 
or  in  the  heirs  at  law  of  the  grantors,  as  in 
a  case  not  contemplated,  or  provided  for  in 
the  settlement,  is  uinmportant  for  the  pur- 
poses of  this  iiKjuiry.  The  result  would  be 
the  same.  The  design  of  the  testatrix  to  es- 
tablish eipiality  among  her  children  woidd  be 
entirely  broken  up  and  defeated;  and  an  in- 
effectual attempt  to  secure  the  tortuue  of  the 
daughter  "from  the  casualties  of  conunerce," 
would  lieconie  the  means  of  disiidieriting  her 
offspring.  On  the  other  hand,  tlie  leading 
purposes  of  the  testatrix  will  be  accompllsti- 
ed   by   establishing  the   gift    in    the   daugh- 

♦355 
*ter,  as  in  Kempf  v.   .lones.   subject    to   the 
limitations    which    were    within    the    iniwer, 
cud  free  from  the  others. 

Then  uoes  this  pre.sent  a  case  of  election? 
The  text  writers  all  agree  that,  iu  regard  to 
3  Ricu.lCci.— 10 


the    doctrine    of    election,    it    is    inunaterial 
whether   the   testator,    in    disi»osing   of   that 
which   was  not  lil.s  own,   was  aware  of  the 
want  of  title,  or  proceeded  upon  the  errone- 
ous supposition  that  he  was  exercising  a  pow- 
er of  dispo.viition  which  behmged  to  him;    in 
either  case,  whoever  claims  in  opp(islti<»u  to 
the  will  nnist  relin<|uish  what  the  will  gives 
liim.     (1  .larman,  ;{S7.)     The  whole  language 
and  spirit  of  Mrs.   I'ringle's  will  provt'  that 
she,  her.xelf,  entertained   no  mis>;ivings  as  to 
her   absolute   right   of   dispcjsition.   and    tiiat 
she  intended  to  exercise  it.     In  this   respect 
tlie  case  differs  from  Church   v.   Kemble.   (.j 
Sim.  oL'u.)     There  the  testatrix  was  author- 
ized. !)y  the  fathers  will,  to  ai)p<»int  to  such 
(hildren.   grandcliildreii.   or  more   remote   is- 
sue,  as   were   born    before   tlie   apiiointment. 
Hy  her  will  she  be<iueatlied  her  own  estate, 
and  that  which  she  had  the  power  t<»  dispose 
of  under  her  father's  will,  to  be  ei|Ujilly  di- 
vided among  her  four  children,  the  shares  of 
her  three  daughters  to  their  sole  and  separate 
use;    a  codicil,  premising  in  ca.<e  she  had  tlie 
liower   so  to  do,   under  the  will  of   her   late 
father,    or   otherwi.se,    directed    the    interest, 
under  her  will,  of  her  daughter.  Mrs.  Church 
to  be  vested  in  trustees,  for  her  tmU-  usi\  dur- 
ing life,  and,  after  her  death,  to  divide  the 
jirincipal   among  her  children.      It    was   con- 
ceded that  the  appointment,  includiiiic  all  the 
children  of  Mrs.  Church  that  might  be  there- 
after born,"  exceeded  the  power,  and  was  con- 
seciueiitly  void.     On  the  (luestion  (»f  election, 
Sir  Edward  Sugden.  for  Mrs.  Church,  insi.st- 
ed  that  the  codicil  applied  only  to  the  projier- 
ty  which  was  the  subject  of  the  power:    and 
the  testatrix  says  she  did  not  mean  to  make 
the  gift,  unless  she  had  the  power  to  make  it 
under   her   father's   will,   or  otlurwis  ■.      Slu' 
had  no  such  power.     A  ca.se  of  election  never 
ari.ses.  unles.s  a  party  does  an  a.t  wliiili  he 
believes  he  has  power  to  do.     The  \ice  Chan- 
cellor said,  "the  que-stioii  is  whether  the  tes- 
tatrix  meant   the   disposition   to   take   effect 
in    all  events,   or  only   in   the  event   of   her 
having  the  power  to  make  it.     If  the  testa- 
*356 

trix  had  ♦an  ab.solute,  unconditional  intention 
to  give  what  she  could  not.  then  a  ca.^e  of 
election  would  arise."  Holding  that  the  dis- 
position was  conditional,  that  she  only  in- 
tended to  give,  provided  she  had  the  power 
under  her  father's  will,  the  Vi<e  Chancellor 
decided  that  it  was  not  a  case  of  election. 
Mrs.  I'ringle  expresses  no  such  doubt,  im- 
plies no  such  condition,  but,  believing  that 
she  had  the  powi-r,  manifests  an  absolute. 
une<|uivocal  intention  to  give  the  jtroperty  in 
the  manner  indiiated.  As  was  said  by  Sir 
Pepper  Arden,  in  Whistler  v.  Webster.  r2  Ves. 
jr.  .'tTO.)  it  is  not  iK-rmitted  to  the  Court  to 
speculate  as  to  what  she  would  have  done  if 
she  had  known  one  thing  or  another.  "No 
man."  .says  he,  "shall  claim  any  benefit  un- 
der a  will,  without  conforming,  as  far  as  he 

143 


*356 


3  RICHARDSON'S  EQUITY  REPORTS 


is  able,  and  giving  effect  to  everj'  thing  con- 
tained in  it,  wliereby  any  disposition  is  made, 
shewing  an  intention  that  such  a  thing  shall 
take  place,  without  reference  to  the  circum- 
stance whether  the  testator  had  any  knowl- 
edge of  the  extent  of  his  power  or  not." 
Again,  "Whether  the  testator  thought  he 
had  the  right,  or  knowing  the  extent  of  his 
authority,  intended,  by  an  arbitrary  exertion 
of  power,  to  exceed  it,  no  person,  taking  un- 
der the  will,  shall  disappoint  it." 

The  Court  is  of  opinion  that  Mrs.  Ravenel 
is  bound  to  elect;  but  she  cannot  be  required 
to  make  her  election,  "until  all  the  circum- 
stances are  known,  and  the  state  and  condi- 
tion and  value  of  the  funds  are  clearly  as- 
certained."    (2   Story  Eq.   §  10,98.) 

The  remaining  question,  on  v^'hich  the  com- 
plainants ask  the  decision  of  the  Court,  re- 
lates to  the  bond  of  the  testatrix  for  four 
thousand  four  hundred  and  twenty-five  dol- 
lars and  forty-one  cents.  The  bill  alleges 
that  this  bond  was  executed  to  William  Ra- 
venel, and  by  him  afterwards  assigned  to  the 
trustees  of  his  marriage  settlement.  The 
last  disposing  clause  of  Mrs.  Pringle's  will 
declares  as  follows:  "And  it  is  farther  my 
will  that  the  several  gifts  and  devises  here- 
in contained,  shall  be  taken,  deemed  and  ac- 
cepted by  my  several  devisees  and  legatees, 
as  full  satisfaction  of  and  for  any  claim  or 
demand,  whatsoever,  which  such  legatees  or 
devisees  may  have  on  me  or  my  estate,  or  the 
estate   of    my    deceased    husband."     This    is 

*357 

the  law  of  the  case,  *and  is  binding  equally 
upon  femes  coverts  and  infants,  as  upon  all 
other  persons  claiming  under  the  will:  "The 
doctrine  of  election  extends  to  all  interests, 
whether  they  are  immediate  or  remote,  vested 
or  contingent,  of  value  or  of  no  value."  (2 
Story  Eq.  §  1096.)  The  legatees  of  Mrs. 
Pringle,  insisting  on  their  rights  under  the 
will,  can  take  them  only  upon  the  terms  pre- 
scribed, namely,  in  full  satisfaction  of  their 
respective  interests,  whatever  they  may  be, 
in  the  bond  executed  by  testatrix.  It  is  or- 
dered and  decreed,  that  it  be  referred  to  one 
of  the  Masters  of  this  Court,  to  take  an  ac- 
count of  the  estate  of  Mrs.  Pringle,  and  of 
the  debts  due  and  owing  by  her  and  by  the 
late  James  R.  Pringle,  and  out  of  what  fund 
the  same  ought  to  be  paid,  with  leave  to  state 
any  special  matter,  and  with  leave  to  either 
party,  upon  the  coming  in  of  the  Master's  re- 
port, to  apply  for  further  directions. 

W.  Ravenel  and  wife  appealed,  on  the 
following  grounds: 

1.  That  his  Honor,  it  is  respectfully  sub- 
mitted, has  erred  in  supposing  that  the  bond 
mentioned  in  the  decree,  was  the  bond  of  the 
testatrix,  when,  in  fact,  it  was  the  bond  of 
James  R.  Pringle,  substituted  trustee  of  the 
marriage  settlement  of  the  late  James  R. 
Pringle,  deceased,   and  family. 

2.  That  his  Honor,  it  is  respectfully   sub- 

146 


mitted,  has  erred  in  decreeing  that  Mrs.  Prin- 
gle's will  presents  any  case  of  election,  so 
far  as  Mrs.  Ravenel  is  concerned. 

That  the  decree  is,  in  these  and  other  re- 
spects, contrary  to  equity. 

Yeadon,  for  defendants. 
Petigru,  contra. 

DUNKIN,  Ch.,  delivered  the  opinion  of  the 
Court. 

It  is  true  that  the  bond  adduced,  is  not  the 
bond  of  Mrs.  Pringle,  but  of  the  trustee.  Yet 
the  bill  sets  forth  expressly,  that  by  what  is 
called  the  consent  decree  of  May  1841,  Mrs. 
Pringle  became  the  purchaser  of  her  hus- 
band's estate,  and  undertook,  among  other 
things,  to  pay  his  four  children  $17,701.64, 
as  the  amount  of  their  shares,  and  that  she 

*358 
executed  a  bond  to  William  *Ravenel  for  his 
wife's  share,  ($4,425.41,)  which  was  after- 
wards assigned  by  liim  to  J.  R.  Pringle,  as 
trustee  of  his  marriage  settlement.  The 
answer  made  no  issue  on  this  allegation.  On 
reference  to  the  Master's  report,  which  con- 
stituted the  basis  of  the  decree  of  May,  1841, 
in  schedule  No.  3,  (c)  Mrs.  Pringle  is  made 
the  purchaser  of  certain  property,  and 
charged  with  the  payment  of  $17,701.66, 
as  the  balance  due  to  the  children.  Among 
the  property,  of  which  Mrs.  Pringle  is  thus 
set  down  as  the  purchaser,  is  the  Cannons- 
borough  House,  valued  at  $24,000,  and  the 
plantations  on  Santee,  valued  at  $42,000. 
In  her  will,  Mrs.  Pringle  devises  the  first, 
as  "my  house  in  Cannonsborough,  where  I 
reside,"  and  the  second  she  devises  to  her 
four  children,  as  "my  plantation  and  all 
my  lands  on  Santee  River,  in  the  parishes 
of  Prince  George,  Winyaw,  and  St.  James, 
Santee ;"  and  she  afterwards  provides,  that 
these,  and  the  other  beneficial  interests  un- 
der her  will,  shall  be  taken,  by  her  several 
devisees,  in  full  satisfaction  of  any  demand 
on  herself,  or  her  estate,  or  the  estate  of  her 
deceased  husband. 


(c)  Schedule  No.  3,  accompanying  the  Master's  re- 
port, is  as   follows: 

Schedule  No.  3. 

Adjustment  with  Mrs.  Pringle. 


Dr. 

To  Santee  Plan- 
tation       $42,000  00 

To  Cannonsbo- 
ro'    House 24,000  00 

To  42  Negroes, 
$400    17,200  00 


Cr. 

By  property  due 

her,       as       by 

Schedule  No.  1  $;36,000  11 
By  one  third  of 

Mr.     Pringle's 

e  s  t  a  t  «,      by 

Schedule  No.  2  13,429  Sf; 
By  debts  of  es- 
tate,   assumed 

by  Mrs.  P 16,968  41 


$65,498  34 
Balance    ....    17,701  66 


?83,200  00 


$83,200  00 


To  balance  due  by  Mrs.   Pringle   to  estate 
of    Mr.    P $17,701  66 


PRIXGLE  V    RAVKNEL 


•;i60 


It  is  nevertheless  true.  that,  allhouuh  the 
Master  recoiiiiiifmU'd  tlie  adjiistiin'iit  st't 
forth  in  schediUe  No.  ;{,  and  this  n'comiuenda- 
tion  was  approvt-d  and  confirnie<l  ljy  the 
Court,  in  the  decree  of  May.  1S41.  yet  the 
same  decree  recomnit-nds,  tliat  tlie  Master 
eonvey  this  same  proi)erty  to  .Tamos  U.  I'rin- 
gle,  who  had  been  suhslituted  for  the  orijjinal 

*359 
trustee  to  tlie  niarriajje  st'ttlcmt'iit  of  *ls(»7, 
and  it  further  directs,  that  the  tnistoe  siiail 
l)ay  out  of  the  trust  estate  tlii'  ."<lT,7(H.(J(i,  due 
to  the  children  of  James  K.  rriiijrle,  deceased. 
Accordiuf;ly,  instead  of  a  bond  from  Mrs. 
I'riuf^le,  to  William  Ravenel,  as  set  forth  in 
the  bill,  a  bond  was  e.xecuted  liy  James  II. 
Priufile,  trustee  under  the  nnirria^'e  settle- 
ment of  Mrs.  I'rinjile.  to  himself  as  trustee  to 
the  marriajio  settlement  of  William  Ravenel 
and  wife,  for  ."};-t,4L'r).41.  in  obedience  (as  is 
recited)  to  the  decree  of  May,  1S41.  It  need 
hardly  be  said,  that  tliis  decree,  as  well  as 
every  thinj;  done  under  it,  is  tlie  act  of  tlie 


had  a  claim  of  four  thousand  four  hundred 
dollars  on  the  estate  whitli  she  had  puicha.s- 
ed.  The  trust  estate  was  autrnieiited  by  the 
transfer  of  this  i»roperty.  and  the  trustee 
<liarj;ed  with  the  iiayment  of  that  debt.  Mrs. 
rrin^le's  will,  substantially,  declart-s  tiiat  the 
share  devised  to  each  shall  be  received  di.s- 
char;.'ed  of  the  incumbrances  held  by  them 
mutually.  This  is  no  more  than  a  leiritimate 
exercise  of  the  discretion  vestecl  in  her  under 
the  power  of  appointnuMit. 

The  only  qui'stion  presi-nted  by  the  i^mvinds 
of  a|)peal,  or  argued  by  the  counsel,  was  in 
relation  to  the  Inind  of  I'it  May,  1S41.  This 
b(»nd  is  the  creature  of  the  decree  of  the 
.sanu'  date.  Mrs.  I'ringle  may  well  have  re- 
garded this  as  a  claim  on  her  "e-state"  as 
she  so  treats  the  property  from  which  this 
bond  was  to  be  pai<i.  Rut  the  intention  cun- 
not  bi'  mistaken.  Regarding  the  bond,  how- 
ever, as  that  of  the  trustee,  and  the  iirojierty 
devised  as  part  of  the  trust  estate,  a  case  of 
♦360 


parties  themselves.      Hut  it  is  evident,  that  ,  satisfaction,  and  not  *of  election,  is  i>reseiit- 


the  proiH'ity  purchased  by  ..^rs.  I'ringle.  and 
for  which  this  sum  of  .l^lT.TOl.tUi.  was  in  part 
the  consideration,  became,  by  the  <leclaration 
of  the  decree,  part  of  the  trust  estate  under 
the  marriage  settlement,  and  her  trustee  was 
directed  to  pay  the  amount  out  of  the  trust 
estate,  and  so  it  is  admitted,  or  rather  stat- 
ed, in  the  defendants  answer.  In  her  will, 
Mrs.  Pringle  seems  not  to  have  distinguished 
very  precisely  between  her  own  estate,  and 
the  estate  held  under  the  marriage  settle- 
ment. But,  by  the  terms  of  the  settlement, 
she  was  authorized  to  dispose  of  the  estate 
among  her  children  in  such  proportions  as 
she  thought   lit.     Each  of  the  four  children 


ed.  In  devising  tlie  property,  which  by  the 
decree  was  made  part  of  the  trust  estate,  the 
testatrix  declares  that  it  shall  be  taken  by 
the  several  devisees,  discharged  of  the  re- 
spective liens  created  by  that  decree.  This 
ojjerates  a  sjitisfaction  of  the  bond.  It  is  an 
appointment  to  each  of  so  much  of  the  estate 
less  the  incumbrance.  Such  is  the  manifest 
olgect  of  the  testatrix,  and  so  much  she  was 
fully  competent  to  do  under  the  settlement 
of   1S07. 

The  decree  of  the  circuit  Court  is  allirnied. 

1>AK(;a.\  and  WAK1»1.AW,  CC,  concurred. 
Decree   atlirmed. 

147 


CASES  IX   EQUITY" 


ABOUED    AND    UKTKKMINEI)    I.N    THE 


COURT  OF  APPEALS 


AT  COLUiMBIA,  SOUTH  CAROLINA— MAY  TERM,  1851 


Cir.wcnrj.oRS  PrKSEXT. 
Hon.    .top.   .TOHNSTOX, 

R.  F.  nrxKix, 
"     a.  w.  D arc; AX, 

"       F.  II.  WARDLAW. 


3   Rich.  Eq.  *36l 

•ADDITIOXAL     KILKS     OF     COURT, 

ADOPTED  MAY  Tr;RM,  IS-jI. 

1.  X'o  Master,  or  Coiiiniissioner,  of  this 
Court,  shall  hereafter  he  :i])iioiiite(l  Receiver. 

2.  The  annual  return  of  the  Master,  or 
Commissioner,  required  hy  the  15th  clause 
of  the  Act  of  1840  shall  be  accompanied 
by  the  following  oath,  viz: — "I,  A.  R.  do 
solemnly  swear  that  the  foregoing  return 
contains  a  full  account  of  every  estate,  and 
al.so  of  all  moneys,  bonds,  notes,  certificates  of 
stock,  or  other  evidences  of  choses  in  action, 
which  are  in  my  hands,  jtossession.  or  man- 
agement, by  virtue  of  my  othc(\  or  of  any 
order  or  decree  of  the  Court;  and  that  the 
said  return  contains  a  full  account  of  all 
moneys,  received,  or  paid  out.  by  me.  relat- 
ing to  the  said  estates. — So  help  me  God." 
\Miich  affidavit  shall  form  part  of  the  said 
rt^turn.  and  precede  the  said  Master's,  or 
Commissioner's,  signature  tbt>n>to. 

.7.    Johnston. 
Ren.t.  F.  Dun  kin, 
Geo.  W.  Darc.an. 
f.  ii.  w.vudlaw. 
May  19,  1851. 


3  Rich.  tq.  *362 

*geor(;e  rrowx  v.  thk  chester- 
ville  academy  society 

and  Others. 

(Columbia.      May   Term,    ISol.) 

[i'^chnolft  and  School  Di-iiricts  <©=>.5.1 

The  10th  section  of  an  Act  of  the  18th 
Deeembor.  1818.  incorporatod  tlip  C.  A.  Society 
for  "Jl   yiMps.  and  the  lltii  section   veste  1  in   the 


corporation  escheated  property  to  a  certain  ex- 
tout:  a  clause  in  an  Act  of  i84(>  enacts,  "that 
the  Act  passed  on  the  18th  December,  1818. 
incorporating  the  C.  A.  Society,  be  revived  and 
continue  in-foroe  for  the  i)erio(l  of  14  vears:" — 
JJcld.  that  by  the  Act  of  1840.  i)()th  "the  10th 
and  11th  sections  of  th^  Act  of  1S18  were  re- 
vived. 

fEd.  Xote. — For  other  cases,  see  Schools  and 
School  Districts,  Cent.  Dig.  §  6;  Dec.  Dig. 
<©=>5.] 

[Corporations  <g=337 ;    Encheat  (@=>7.] 

An  Act  of  the  Legislature  vested  in  a  cor- 
poration "all  such  property  as  hath  heretofore, 
or  may  hereaftor  accrue  to  the  State."  in  Ches- 
ter district,  which  by  the  Act  to  regulate  es- 
clieats  "hath  esclieatod  to  the  State:" — UcUl, 
that  tiie  corporation  were  entitled  to  property 
which  escheated  after  the  passing  of  the  Act. 

I  Ed.  Xote. — For  other  cases,  see  Corporations, 
Cent.  Dig.  §  105;  Dec.  Dig.  (©=>:{7  ;  Escheat, 
Cent.  Dig.  §  19;    Dec.  Dig.  ©=7.] 

Refore  Dargan,  Ch.,  at  Chester,  June  1850. 

This  case  will  be  understood  from  the  cir- 
tuit  decree,  which  is  as  follows. 

Dargan.  Ch.  James  M.  Egger  was  a  per- 
.son  of  illegitiniate  birth.  He  was  possessed 
of  a  jier.sonal  estate.  He  died  in  1842,  in- 
testate. There  being  no  person  who  could 
claim  as  his  next  of  kin.  his  estate  escheated 
or  reverted.  The  administration  of  the  In- 
testate's estate  has  been  granted  to  \Yilliam 
Kirki)atrick,  who  is  a  defendant.  There 
are  two  parties  claiming  this  estate  as  es- 
cheated property,  by  virttie  of  grants  from 
the  State,  namely — th(>  Cliesterville  Academy 
Society  and  the  complainant.  The  Chester- 
ville  Acaclemy  Society  was  incorporated  in 
1818,  (8  Stat.  20G-7).  And  the  same  Act  by 
which    the    Society    was    incorporated,    pro- 


©=3For  other  cases  see  sanit  topic  and  KEY-NUMBER  ia  all  Key-Numbered  Digests  and  Indexes 


149 


362 


3  RICHARDSON'S  EQUITY  REPORTS 


vides,  "that  all  siich  property  as  hath  here-  j 
tofore,  or  may  hereafter  accrue  to  the  State 
in  said  district  of  Chester,  ou  account  of 
property  which  hy  an  Act  entitled  "An  Act 
to  appoint  Escheators  and  regulate  es- 
cheats," hath  escheated  to  the  State, — pro- 
vided, the  same  do  not  amount  to  more  than 
three  thousand  dollars,  shall  be,  and  the 
same  is  hereby  vested  in  the  said  corpo- 
ration, for  the  use  of  the  Chesterville 
Academy,  and  the  said  corporation  is  here- 
by vested  with  all  the  powers  necessary 
for    receiving    said    property,    and    for    dis- 

*363 
*posing  of  the  same  for  the  benefit  of  the 
said  Academy:  Provided,  nevertheless,  that 
such  escheats  shall  not  affect  any  citi- 
zen or  friendly  alien,  but  that  in  all  cases 
such  citizen  or  friendly  alien,  shall  have 
liberty  to  plead  the  statute  of  limitations 
in  all  proceedings  under  the  existing  laws 
regulating  escheats,  in  like  manner  as  the 
said  statute  may  now  be  pleaded  in  actions 
between  citizens  of  this  State."  The  char- 
ter was  to  continue  of  force  for  twenty-one 
years.  It  therefore  expired  in  December, 
1839.  In  1846,  in  the  general  corporation  Act 
of  that  session,  it  was  enacted  "that  the  Act 
passed  on  the  ISth  day  of  December,  1818, 
incorporating  the  Chesterville  Academy  So- 
ciety, be  revived  and  continue  in  force  for 
the  period  of  fourteen  years."  (11  Stat. 
397).  By  an  Act  of  1847,  (11  Stat.  438)  all 
the  right,  title  and  interest  of  the  State,  in 
and  to  the  estate  of  James  M.  Egger,  late  of 
Chester  district,  in  the  hands  of  William 
Kirkpatrick,  administrator  of  the  said  Eg- 
ger, was  declared  to  be  vested  in  George 
Brown,  and  his  heirs  forever.  From  tliese 
various  Legislative  Acts,  arise  the  conflict- 
ing claims  of  these  parties. 

In  some  of  the  Acts  granting  escheated 
property  to  educational  institutions,  the 
State  has  reserved  a  power  of  otherwise 
disposing  of  tlie  prctperty,  in  case  any  strong 
equitable  claim  should  be  presented.  And 
it  has  been  argued  that  such  must  be  the 
construction  of  the  grant  in  this  case,  under 
the  proviso,  "that  such  escheats  shall  not 
affect  any  citizen  or  friendly  alien."  I  am 
of  a  d>fferent  opinion — I  think  that  the  pro- 
viso was  to  enable  citizens  and  friendl.v 
aliens  to  plead  the  statute  of  limitations.  It 
was  intended  to  obviate  the  maxim,  "nul- 
lum tempus  occurrit  regi."'  It  evidentl.v 
means  this  and  nothing  more.  This  maxim 
liad  been  incorporated  in  the  Act  to  regulate 
escheats,  except  as  to  lands  claimed  under 
grants  or  actual  possession  for  five  years 
prior  to  the  4th  of  .July,  1776.  (7  Sect.  Act. 
1787,  .5  Stat.  48). 

It  will  scarcely  be  doubted  tliat  on  the  ex- 
piration of  the  first  charter  of  tlie  Chesterville 
Academy  Society,  in  1839,  all  its  rights  un- 
der the  grants  of  escheated  property  ceased. 
And  it  is  equally  clear,  that  if  the  Society 
has  any  rights  of  that  kind,  it  must  be  under 

150 


the    revival    of   the    charter   in    1846.      That 

*364 

Act  *simply  revived  the  old  charter  for  14 
years.  It  is  silent  as  to  any  grant  of  es- 
cheated property. 

We  will  recur  to  the  charter  of  1818.  The 
Act  incorporating  the  Society  is  found  in  the 
general  incorporation  Act  of  that  year.  The 
10th  section  of  that  Act  (8  Stat.  296)  enacts, 
"that  the  members  of  the  Chesterville 
Academy  Society,  and  those  persons  who 
may  hereafter  become  members  thereof,  be 
and  the  same  are  hereby  declared  a  body 
politic  and  corporate,  in  deed  and  in  law.  by 
the  name  and  style  of  the  Chesterville  Acad- 
emy Society."  That  is  the  Act  of  incorpo- 
ration. What  follows  in  the  11th  section  is 
a  grant  to  the  cori^oration  thus  created,  of 
escheated  estates  in  Chester  district,  under 
certain  conditions,  but  is  no  part  of  the  Act 
of  incorporation.  The  Societ.v  was  a  per- 
fect corporation  without  it.  Then  follows 
the  Act  of  1846,  which  enacts  "that  the  Act 
passed  on  the  18th  da.v  of  December.  1818, 
incorporating  the  Chesterville  Academy  So- 
ciet.v, be  revived  and  continue  of  force  for 
the  period  of  fourteen  years."  What  is  here 
revived?  In  the  .iudgment  of  this  Court,  it 
is  that  part  of  tlie  general  incoriioration 
Act  of  1818,  incorporating  the  Society,  and 
not  that  part  of  it  which  grants  escheated 
property. 

There  is  another  view  of  the  case  whicli 
strikes  me  with  considerable  force.  The 
language  of  the  11th  section  is  peculiar. 
What  is  the  extent  of  the  grant?  It  is,  "all 
such  property  as  hath  heretofore,  or  may 
hereafter  accrue  to  the  State  in  said  district 
of  Chester,"  which,  by  the  escheat  laws, 
"hath  escheated  to  the  State,  provided,"  &c. 
It  gives  the  property  "which  hath  heretofore 
or  may  hereafter  accrue."  but  not  that  which 
hath  or  may  hereafter  esclieat.  When  the 
Act  speaks  of  property  accruing,  the  provi- 
sion is  both  prospective  and  retrospective. 
When  it  speaks  of  property  escheating,  it 
seems  onl.v  to  grant  that  which  hath  esclieat- 
ed.  The  clause  might  read  thus: — All  the 
property  that  has  or  may  accrue  to  the  State 
on  account  of  property  which  has  escheated, 
is  vested.  &c.  Whence  these  studied  distinc- 
tions of  language?  It  may  be  that  the  Leg- 
islature intended  to  limit  the  grant  to  prop- 
ert.v  which  had  already  escheated,  and  to- 
which  tlie  State  had  an  inchoate  right ;    but 

*365 

*which  wcmld  not  accrue  to  the  State,  or 
bec-ome  perfect  and  vested  until  after  of- 
fice found.  The  language  is  so  different 
from  that  employed  in  other  grants  of  es- 
cheated property  for  similar  purposes,  that 
I  am  inclined  to  think  there  is  a  meaning  in 
the  apparently  studied  ft)rm  of  language,  in 
which  the  grant  is  expressed.  In  all  the 
other  Acts  of  this  kind,  which  I  have  ex- 
a:*ined,    the    language    is    simple,    and    the 


BROWN  V.  CHESTEKVILLE  ACADEMY  SOCIETY 


*367 


property  tliat  li.is  escheated  or  may  escheat 
is  firaiited. 

It  is  ordered  and  decreed,  that  the  defend- 
ant, Kirkpatrick,  account  for.  and  pay  over 
to  the  complainant,  the  estate  of  the  said 
James  M.  E;.'f:er.  It  is  also  ordered  and  de- 
creed, that  the  costs  be  paid  out  of  tlie  finals 
4)f  the  ("State  of  the  said  intestate. 

The  Chesterville  Academy  Society  ainteal- 
t'd.  on  the  fcdlowinfj  srounds. 

1.  Because  the  Act  of  lS4t),  revivin.u  the 
Act  of  ISIS,  incorporatiui:  said  society,  re- 
vived tlie  whole  of  the  latter  Act,  and  not  a 
part  thereof;  and  the  decree  decidiujr  that 
it  was  only  revived  in  part,  is  erroneous, 
and  oupht  to  he  reversed. 

2.  Be<"Uise  it  was  manifi-stly  the  intention 
rif  the  Act  of  ISIS,  that  said  society  should 
receive  all  property  which  had  escheated, 
and  all  pro]»erty  which  mi>;ht  escheat  after 
the  passinjr  of  said  Act,  mitil  said  society  had 
lealized  the  svnn  of  three  thousand  dollars; 
and  the  decree  of  the  Chancellor  is,  therefore, 
erroneous  in  deciding  that  it  was  property 
only  which  had  escheated  anterior  to  the 
passing  of  saitl  Act  that  vested  in  said  So- 
i'iety. 

(Jre^TL,'  &  McAlilly,  for  api)ellants. 
Williams,  contra. 

.lOIlNSTUX,  Ch.,  delivered  the  opinion  of 
tlie  Coui-t. 

The  lOtli  section  of  the  general  corporation 
Act  of  ISIS,  (S  Stat.  21)i;-7.1  incori)orates  the 
Chesterville  Academy  Society  for  twenty-one 
years ;  and  the  11th  vests  in  them  escheated 
property  to  the  extent  of  .S:'>,tMH). 

A  clause  in  the  general  coriM)ration  Act  of 
="366 
1S4G,  (11  Stat.  :W7,)  enacts  *"that  the  Act, 
passed  on  tlie  ISth  day  of  December.  ISIS,  in- 
corporating the  Chesterville  Academy  Soci- 
ety, be  revived,  and  continue  of  force  for  the 
period  of  fourteen  years." 

It  has  been  contended,  that  without  a  re- 
vival of  not  only  the  10th  but  the  11th  sec- 
tions, the  right  granted  to  the  Society  in  the 
escheated  property,  was  lost  to  theui. 

1  do  not  mean  to  as.sert  that  this  position 
is  erroneous, — because  the  itoint  has  not  been 
arguetl.  But,  in  my  opinion,  it  is  far  from 
«lear.  By  the  ex])iration  of  their  cori>orate 
exi.stence, — by  the  ettlux  of  their  charter,  the 
•society  certainly  lost  their  corporate  capac- 
ity; and  so  were  disabled  as  a  corporation 
from  enforcing  a  remedy  against  persons 
who  might  interfere  with  tlieir  property  or 
rights.  But  is  it  true,  that  upon  the  cessa- 
tion of  their  charter,  all  the  property  and 
riglits  of  a  cori)oration  became  lost  to  them? 
May  it  not  be  that  they  are  rather  susiiend- 
ed,  for  want  of  caiiacity  to  assert  them:  and 
that  they  are  re-instated  by  the  mere  revival 
of  the  corporation?  Does  not  rlie  revivor 
prevent  a  breach  of  continuity  in  the  char- 
ter. 

But  the  investigatiou  of  this  point  is  uii- 


necessarj',  because,  in  my  opinion,  the  reviv- 
ing statute  applies  not  only  to  the  lOtli  but 
to  the  11th  clause  of  the  Act  of  ISls. 

If  the  words  of  the  statute  of  lS4<i  are  to 
lie  applied  according  to  their  literal  mean- 
ing, neither  the  10th  nor  the  lltli  clause  is 
revived.  That  statute  professes  to  revive  an 
Act  of  a  particular  date  by  the  title  of  an 
Act  incorporating  the  Chesterville  Academy 
Society.  But  no  such  Act  exists,  or  ever 
existed.  The  only  Act  of  that  date,  relating 
to  cori)orations  is  an  Act  for  incori>orating 
sundry  societies.  Of  these  the  Chesterville 
Academy  Society  is  one.  We  nuist  therefore 
apply  the  words  of  the  reviving  statute  to 
that  Act.  But  we  liave  no  more  right  to 
restrict  the  jdiraseology  of  the  reviving  Act 
to  the  10th  clau.se  of  it  than  to  apply  it  to 
every  clause  in  it.  Indeed,  a  literal  con- 
struction would  compel  us  to  say  that  the 
whole  Act  was  revived ;  and  every  societ.v 
mentioned  in  it  re-incori)orated. 

This,  however,  was  clearly  not  tiie  iiiren- 
tion  of  the  Legislature,  and  we  are  therefore 

*367 

forbidden  to  adopt  a  literal  construc*tion. 
The  Act,  of  lS4f),  was  manifestly  intended  to 
apply  to  only  so  much  of  that  of  Isis  as  re- 
latetl  to  the  Cliesterville  Academy  Society. 
But  having  arrived  at  this  conclusion  only 
by  means  of  a  free  construction  ;  are  we  war- 
ranted in  re-adopting  a  narrow  construction, 
for  the  purpose  of  limiting  the  revivor  to  the 
clause  by  which  the  society  was  given  a  cor- 
porate character,  leaving  out  another  clause 
by  which  further  i»rivileges  were  conferred 
ujiou  it?  I  think  not.  Both  the  clau.ses  in 
ipiestion  are  to  be  considered  as  clauses  re- 
lating to  the  incorporation  of  the  society; 
and  are  both  revived. 

Upon  the  other  view  suggested  in  the  de- 
cree, I  am  ecpially  clear.  The  words  relating 
to  vesting  escheated  proiHM-ty  are  clearly  not 
employed  with  a  studied  reference  to  gram- 
matical rules.  "Ilath  escheated"  has  not 
reference  to  time  precetling  the  enactment, 
but  is  used  loosely  in  reference  to  the  accru- 
al of  the  right,  intended  to  be  vested  in  tlie 
corporation. 

It  is  ordered  that  an  account  he  taken  of 
the  value  of  escheated  proiH*rty  already  re- 
ceived by  the  Chesterville  Academy  Society  ; 
and.  if  found  to  be  less  than  they  were  enti- 
tled to  receive  under  their  charter,  that  John 
L.  Harris,  adnunistrator  de  bonis  non  ol 
James  M.  logger,  and  Reubin  Cassels,  admin- 
istrator of  William  Kirkpatrick.  former  ad- 
ministrator of  said  I'vgger,  do  account  for  the 
assets  of  said  logger's  estate,  and,  according 
to  the  amount  thereof  chargeable  to  them,  re- 
.spectivel.v,  in  a  due  course  of  adnunistra- 
tion,  apply  said  as.sets  towards  making  up 
tlie  amount  of  escheated  property  to  which 
said  Six'iety  (taking  into  computation  what 
it  may  have  already  received)  is  by  its  char- 
ter entitled. 

151 


*367 


3  RICHARDSON'S  EQUITY  REPORTS 


The  costs  to  be  paid   as  directed   l)y   the  [ 
Chancellor's  decree  now  under  review. 

DUNKIN,  DARGAN  and  WARULAW,  CC, 
concurred. 

Decree  modified. 


3   Rich.  Eq.  *368 
*C.  H.  COLDIN(J  V.  J.  N.  BADGER  and 

Others. 
(Cohmibia.      ^lay    Term,   1851.) 

[Appeal  and  Error  <g=>9ti2.] 

An  order  dismissing  a  bill  for  want  of  pms- 
ecution  comes  properly  within  the  discretion  of 
the  circuit  Chancellor ;  and  the  Court  of  Ap- 
peals will  not  interfere  with  his  decision,  un- 
less it  be  grossly  erroneous. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.   Dig.  i;  :J83S ;    Dec.  Dig.  (©=3U«2.] 

[Egnity  <S=3407.] 

A  commissiouer  cannot  refuse  to  make  a  re- 
port upon  the  ground  that  the  evidence  is  either 
too  obscure,  or  insufficient:  the  plaintiff  has 
the  right  to  require  a  report  either  for  or 
against  him  ; — to  whieh.  if  against  him,  he  may 
file  exceptions. 

[P]d.  Note. — For  other  cases,  see  Equitv,  Cent. 
Dig.  §  895;    Dec.  Dig.  <g=»4U7.J 

{Equity  <®=>.362.] 

Where  a  commissioner  refused  to  make  a  re- 
port, on  the  ground  that  the  evidence  was  too 
obscure,  and  there  was  laches,  on  the  part  of 
plaintiff",  in  failing  to  take  proper  steps  to  com- 
pel him  to  make  one;  Held,  that  the  bill  was 
properly  dismissed   for   want  of  prosecution. 

[Ed.  Note. — For  other  oases,  see  Equitv,  Cent. 
Dig.  §  760;    Dec.  Dig.  <S=>362.J 

Before  Dunkin,  Ch.,  at  Barnwell,  Febru- 
ary, 1851. 

The  original  bill  was  filed  on  the  KJth  day 
of  March,  1812,  and  a  supplemental  bill  was 
filed  on  the  2!Jth  of  August,  1845.  The  object 
of  the  bill  was  for  an  account  of  the  estate 
of  John  Badger,  and  involved  a  very  consid- 
erable mass  of  testimony  in  the  way  of  re- 
ceipts and  expenditures.  The  defendants 
closed  their  references  in  January,  1850. 
The  case  stood  on  the  docket  as  continued  at 
February  Term,  1,S50,  by  the  comidainant. 
It  was  stated  that  this  was  done  in  conse- 
quence of  the  absence  of  Mr.  Patterson  from 
indisposition.  At  that  term  of  the  Court, 
the  complainant  retained  Mr.  Owens,  as  as- 
sistant counsel  for  the  prosecution  of  his 
case.  Nothing  further  was  done  until  the 
14th  of  November,  1850,  when  Mr.  J.  T.  Aid- 
rich,  defendant's  solicitor,  served  the  follow- 
ing notice  on  Mr.  Owens: — "The  complainant 
\n  the  above  cause  is  liereby  notified  that 
the  defendants  have  long  since  closed  their 
references  in  this  cause,  and  that,  on  the 
first  day  of  January  next,  a  motion,  on  the 
part  of  the  defendants,  will  be  made  before 
the  commissioner,  to  nuike  up  his  report ; 
and  if  it  shall  turn  out  that  the  commission- 
er is  unable  to  make  up  a  report,  on  account 
of  the  obscurity  of  the  materials  furnished 
him,  then  the  complainant  is  further  notified 


that  a  motion  will  be  made,  at  the  sitting  of 
the  Court,  that  the  bill  be  dismissed  for  want 
of  prosecution." — About  ten  days  before  the 

*369 
Court  met,  the  commissioner  infonned  *Mr. 
Owens  that  he  should  be  unable  to  make  up 
the  report,  for  the  want  of  materials,  in  the 
way  of  explanation  and  further  evidence. 
Mr.  Owens  informed  him  that  Mr.  Patterson 
said  there  was  no  farther  evidence  t.)  offer, 
and  if  the  Connnissioner  could  not  make  up 
the  report,  he  (Mr.  O.)  could  not  help  it. 

The  comnnssioner  stated  to  the  Court  that 
tliere  were  a  great  many  vouchers,  on  the 
part  of  the  complainant,  that  required  ex- 
planation ;  and  that  he  had  been  unable, 
from  the  obscurity  of  the  evidence,  to  make 
up  a  report.  His  Honor,  the  Chancellor,  or- 
dered the  bill  to  be  dismissed,  for  want  of 
prosecution. 

From  that  order  the  complainant  appealed, 
and  now  submitted  that  the  cause  ought  to 
be  restored  to  the  docket,  to  be  heard  on 
its    merits. 

1.  Because,  at  various  meetings  held  before 
the  connnissioner,  the  complainant  furnished 
all  his  evidence  in  relation  to  the  matters  of 
account,  and  rested  his  cause,  awaiting  the 
conmiissioner's  report. 

2.  Because  it  was  the  duty  of  the  comnns- 
sioner to  report  on  the  evidence,  in  order  that 
the  sufficiency  of  the  evidence  nnght  be  sub- 
mitted to  the  judgment  of  the  Court,  on  ex- 
ceptions to  the  report. 

Patterson,   Owens,  for  motion. 
J.  T.   Aldrich,   contra. 

JOHNSTON,  Ch.,  delivered  the  opinion  of 
the  Court. 

The  case  presented  by  this  appeal  came 
proi>erly  within  the  discretion  of  the  Chan- 
cellor ;  and  we  should  not  be  authorized  to 
interfere  with  his  decision  unless  it  were 
grossly  erroneous.  So  far  from  being  so; 
we  are  all  satisfied  his  discretion  was  very 
properly  exercised. 

We  do  not  intend  to  say,  that  it  was  within 
the  competency  of  the  commissioner  to  with- 
hold a  report,  upon  the  ground,  that  the  evi- 
dence was  either  too  obscure,  or  insufiicient. 
Such  a  position  would  constitute  him  tlie  ex- 
clusive judge  of  the  evidence.  The  plaintiff 
had  a  right  to  require  a  report  either  for  or 
against  him ;    and  if  a  report  of  tlie  latter 

*370 
claaracter  were   made, — he  had   *a   right  to 
except  to  it,  and  to  take  the  opinion  of  the 
Court  upon  the  effect  of  the  evidence  sub- 
mitted. 

But  the  plaintiff  required  no  report, — took 
no  measure  to  obtain  one, — either  by  rule  or 
otherwise.  And  when  we  consider  the 
length  of  time  the  case  had  been  pending; 
the  time  which  had  elapsed  since  the  evidence 
was  closed ;  and,  especially,  when  we  con- 
sider,  that  after   the   explicit  notice  served 


152 


<S;=pFor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Inde.xes 


INABINIT  V.  INABIN'TT 


*3-3 


on  him  in  Novfuilter,  he  totally  abstainml 
from  taking'  any  steps  whatcvt-r ;  we  think 
there  was  contlusive  evidence  of  lathes  on 
his  part,  rirhly  entitling  the  defendants  to 
their  imition.  Were  they  to  he  forever  hung 
ni>  in  Court".'  and.  how  else  were  they  to  .se- 
izure them.selves  from  internnnalde  litigation 
than  hy  moving  for  an  order  to  dismiss  tlie 
bill  for  want  of  prosecution? 

It   is  ordered   that   the  order  be  ulhrmed, 
and  the   appeal   dismissed. 

DUNK IX.   Ch.,   concurred. 
Appeal  dismissed. 


3   Rich.  Eq.  370 
INABINIT  V.  INAHINIT. 

(Colunihia.      May    Term,    IS.")!.) 

iWiii/i  <s=37:-.(>.  7n:'..l 

Testator,  having-  a  plantation,  almiit  thirty- 
five  negroes,  furniture,  i*^>".  (leviscd  mid  lieiiucatli- 
ed,  by  the  1st.  clause  of  his  will,  to  his  wife, 
for  life,  his  plantation,  furniture,  iV:c.  an(l  four 
negroes,  with  remainder  to  his  children:  in  the 
2d  clause  ho  declared  that,  as  he  had  a<lvanced 
to  his  married  daughter,  E.  M.  two  negroes,  one 
horse,  &e.  he  desired  "that  as  each  one  of  my 
children  marries  or  becomes  of  age,  they  are  to 
receive  out  of  my  estate,  two  negroes,  one  boy 
and  one  girl,  bc-tween  the  age  of  ten  and  twenty 
years,  one  horse,"  &c.  "to  make  them  ecjual 
with  my  said  daughter."  E.  M:  and  by  the  IJd 
clause,  he  bequeathed  the  remainder  of  his  ne- 
groes, "not  heretofore  devised  of,"  to  all  his 
children,  to  be  e(]ually  divided  among  them. 
Testator  left  nine  children,  all  of  wiiom  were 
minors — the  youngest  being  six  years  of  age — ex- 
cept E.  yi-.—Hcld,  (1)  that  there  could  l)e  no 
division  of  the  negroes  bequeathed  l)y  the  '.k\ 
'jlause  of  the  will,  until  the  last  cliild  ai-rived 
at  age  or  married,  and  received  his  two  negroes. 
horse,  &:c.  under  the  lid  clause;  (li)  that  the  an- 
nual income  of  the  negroes  betjucathed  by  the 
3d  clause,  after  using  so  much  (if  any)  as  may 
be  necessary  for  jirocuring  the  articles  given  by 
the  2d  clause,  could  not  be  used  for  the  main- 
tenance of  the  nunor  chihli-en,  but  siioidd  be 
distributed  annually  among  all  the  children. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  §§  1TS8,   1825:    Dec.  Dig.  <©=>7;>(),   7:i:>.] 

*371 

♦Before  Dunkin,  Ch.,  at  Orangebuigh,  Feb- 
ruary, 1851. 

I)uidcin,  Ch.  James  luabinit  died  on  the 
7tli  March,  1840,  leaving  a  will  duly  executed, 
on  the  seventh  day  of  January,  previous. 
The  testator  loft  a  widow,  the  complainant 
in  these  proceedings,  and  who  has  also  (puil- 
ified  as  e.\ecutri.\  of  his  will.  He  left,  also 
a  daughter,  the  wife  of  the  defendant,  Daniel 
V.  V.  Fnnchess.  and  eight  other  children,  all 
of  whom  ai-e  minors,  the  .voungest  about  six 
years  of  age,  (except  the  defendant,  Mary 
C.   Inabiuit). 

His  estate  consisted,  principally,  of  the 
plantation  on  which  he  reside<l,  and  some 
thirty-five  negroes. 

The  bill  is  tiled  for  the  purpose  of  having 
the  trusts  of  tlu'  will  declared,  so  far  as  may 


be  necessary  for  the  instruction  of  the  com- 
plainant in  the  discharge  of  her  duty. 

In  ascertaining  the  intention  of  the  testa- 
tor, the  Court  is  always  at  liberty  to  look  in- 
to the  condition  of  his  fannly,  and  of  his 
l)roperty.  In  this  view,  the  general  scheme 
of  the  testator  seems  clear  enough. 

His  widow  was  left  with  a  large  family  of 
young  children.  To  her  he  devises.  f«)r  her 
natural  life,  all  his  real  estate,  his  houseludd 
and  kitchen  furniture.  &c.  &c.  and  all  things 
pertaining  to  the  plantation  use;  also,  four 
negroes,  stub  as  she  ndght  select  from  all  hi-; 
negroes. 

Th(»  next  provision  in  order  of  time,  may- 
be considered  the  betiuest  to  his  children,  as 
they  become  of  age  or  marry.  Reciting  that 
he  had  given  to  his  married  daughter.  Eliza 
M.  two  negroes.  Will  and  Hannah,  one  horse, 
saddle  and  bridle,  and  one  bed  and  furniture, 
he  directs  that,  as  each  of  his  other  children 
marries  or  arrives  of  age,  he  or  .she  shall 
receive,  out  of  his  estate,  precisely  the  same 
advancement,  so  as  to  make  them  etpnil  with 
his  daughter,   Eliza   ^l.   Funchess. 

The  real  and  personal  estate,  including  the 
homestead  and  everything  connected  with  it, 
as  specified  in  the  fir.st  clause,  was  given  ti> 
his  wife  for  life,  "to  be  kept  by  her  in  quiet 
and  peaceable  possession,  luidisturbed  by  any 

*372 
person  ;"  and,  after  *her  death,  was  directeil 
to  be  divided  between  his  four  sons;  and  his 
five  daughters  were  "to  receive,  in  lieu  oi 
said  real  estate,  one  hundred  and  fifty  dollars 
each,  as  their  portion  of  said  real  estate*' — 
the  remainder  of  the  personal  estate  which 
his  wife  might  leave  at  her  death,  was  to  be 
(•i|ualiy  divided  amoi.gst  testator's  heirs; 
1  "but  sliould  any  of  them  die  without  heirs, 
their  part  is  to  be  returned,  and  be  eiiually 
divided  amongst  my  heirs." 

The  first  question  preseiired,  relates  to  the 
payment  of  this  sum  to  the  daughters,  in  lieu 
and  as  their  portion.  His  evident  intention, 
as  manifested  in  various  parts  of  the  will, 
was  to  establish  etiuality  among  his  children. 
This  sum  is  to  be  paid  by  the  sons  to  the 
daughters,  when  the  life  estate  ternunates. 
and  they  (the  sons)  come  into  the  enjoyment 
and  pos.session  of  the  real  estate,  as  provided 
by  their  father's  will. 

The  third  and  la.st  disposing  clause  is  as 
follows,  viz:  "The  remainder  of  my  negroes 
not  heretofore  divided  of  in  my  will,  is  to  be 
etfually  divided  amongst  my  chiiaren"  (nam- 
ing themi:  "but  should  any  of  my  aforesaid 
children  die  without  m\  legal  issue,  their  jiart 
is  to  return  back,  and  be  eijiially  divided 
amongst  my  remaining  heirs.  I  do  give  the 
same   to  them   and    their  heirs   forever." 

It  slioultl  be  pri'ini.sed  that  this  clause  fol- 
lows immediately  that  clause  of  the  testator's 
will,  which  directs  that  t,wo  negroes,  between 
the  age  of  ten  and  twenty  years,  should  be 
received  by  each  of  his  children,  as  he  or  she 


^=»For  other  cases  see  same  topic  auU  KKY-  NU.MUEK  iu  all  Key-Numbered  Digests  aud  lnde.\es 


15o 


3  RICHARDSON'S  EQUITY  REPORTS 


respectively  attained  tlie  age  of  twenty-one 
years,  or  day  of  marriage.  Then  follows  this 
provision:  "The  remainder  of  my  negroes 
not  heretofore  divided  of  in  my  will,"  .^c.  &c. 

The  rational  construction  seems  to  the 
Court  to  he,  that  the  complainant,  as  execu- 
trix, was  to  have  charge  of  the  negroes,  giv- 
ing to  each  child  two,  as  they  married  or  be- 
came of  age,  and  furnishing  each,  at  that 
time,  with  the  other  articles  to  which  he  or 
she  should  at  that  period  become  entitled. 
"I  desire  that  as  each  one  of  my  children 

*373 
marries,  or  becomes  of  age,  they  are  to  *re- 
.  ceive  out  of  my  estate  two  negroes,"  &c., 
"one  horse,  saddle  and  bridle,  and  one  bed 
and  furniture,  to  make  them  equal  with  my 
daughter,  Eliza." 

This  necessarily  implies  that  there  should 
be  in  the  hands  of  his  executrix  the  means 
of  giving  to  each  child,  out  of  the  testator's 
estate,  the  same  advancement  as  they  re- 
spectively arrived  of  age  or  became  settled  in 
life,  which  the  testator  had  himself  furnished 
to  his  daughter,  Mrs.  Funchess.  The  testator 
probably  contemplated  that,  until  his  chil- 
dreh  reached  maturity  or  married,  they 
would  reside  with  their  mother  at  the  home- 
stead, as  they  had  resided  with  him,  and 
would  be  supported  and  educated  by  her  as 
they  had  been  by  him.  When  he  specifies 
what  each  child  is  to  receive  out  of  his  es- 
tate, at  marriage  or  maturity,  it  excludes 
the  idea  that  any  part  of  the  property  was 
to  be  received  by  such  child  until  that  peri- 
od ;  and  it  also  precludes  the  presumption 
that,  when  that  period  arrived,  any  child 
should  receive  more  than  was  thus  specified. 
The  scheme  is  very  analogous  to  that  of  the 
testator  in  Whilden  v.  Whilden,  (Riley  Eq. 
Cas.  205,)  although  the  testator  has  not  in 
this  will  used  precisely  the  same  language 
to  express  his  purposes.  But,  says  Chancellor 
Harper,  delivering  the  judgment  of  the  Court, 
"if  the  testator  had  said  nothing  about  the 
maintenance  of  his  children,  but  had  merely 
directed  the  estate  to  be  vested  till  the  young- 
est child  should  come  of  age  or  be  married, 
the  Court  would,  of  itself,  have  done  just 
what  he  has  expressed.  It  would  have  pro- 
vided for  the  maintenance  of  the  children  out 
of  the  income  of  the  fund."  In  tlie  will  un- 
der consideration,  the  testator  left,  substan- 
tially, every  thing  to  his  wife,  during  her 
life,  except  the  slaves,  and  of  these,  he  be- 
queathed to  her  four  for  life.  He  does  not 
expressly  direct  the  remaining  slaves  to  be 
kept  together  until  the  youngest  child  mar- 
ries or  becomes  of  age,  but  the  law  puts  or 
keeps  them  in  the  hands  of  the  executrix, 
to  be  disposed  of  according  to  the  provisions 
of  the  will.  In  order  to  enable  her  to  ex- 
ecute her  trust,  by  giving  to  each  child,  at 
particular  periods,  two  negroes  and  otlier 
property  out  of  his  estate,  she  must  have  pos- 

*374 
session  of  the  estate.     I^ike  any  *other  trus- 

154 


tee.  she  must  take  care  of  the  slaves,  and, 
although  nothing  is  said  about  maintaining 
those  of  the  children  who  are  under  age  and 
unmarried,  yet,  as  Chancellor  Harper  de- 
clares, the  law  itself  would  provide  for  their 
maintenance  out  of  the  income  of  the  slaves. 
In  this  case,  as  I  have  said,  I  think  such  in- 
tention of  the  testator  is  manifestly  to  be  in- 
ferred by  collating  the  various  provisions  of 
the  will.  Nearly  all  the  children  are  under 
age.  It  is  unnecessary,  and  would  be  prema- 
ture, to  express  any  opinion  as  to  the  char- 
acter  and  extent  of  the  estate  which  they  de- 
rive under  the  testator's  will. 

It  is  ordered  and  decreed  that  the  com- 
plainant carry  into  execution  the  will  of  her 
testator,  according  to  the  opinion  hereinbe- 
foi-e  declared.  Parties  to  be  at  liberty  to  ap- 
ply for  further  orders,  if  any  such  be  neces- 
sary.    Cost  to  be  paid  out  of  the  estate. 

It  was  suggested  that  the  executrix  had  in 
hand  about  five  hundred  dollars,  arising  from 
the  sales  of  the  crop  of  the  preceding  year, 
hire  of  the  negroes,  &c.  and  that  no  disposi,- 
tiou  was  made  of  this  sum  by  the  will.  As  to 
this  fund,  (as  there  is  no  general  residuary 
clause,)  it  constitutes  a  case  of  intestacy. 
The  fund  is  first  applicable  to  the  payment 
of  the  debts  of  the  testator,  and  to  the  ex- 
penses incurred  by  the  executrix  in  the  dis- 
charge of  her  trust,  including  the  costs  and 
expenses  of  these  proceedings ;  the  balance 
remaining  of  the  five  hundred  dollars,  is  to 
be  distributed  under  the  Act  of  1791. 

The  defendants,  Daniel  V.  V.  Funchess  and 
Eliza  M.  his  wife,  appealed,  and  moved  this 
Court  to  modify  so  nuich  of  the  circuit  de- 
cree as  decides,  that  there  should  be  no 
present  division  among  testator's  children, 
of  the  slaves  bequeathed  in  the  third  clause, 
upon  the  following  grounds. 

1.  Because  the  expression,  "the  remainder 
of  my  slaves  not  heretofore  divided  of  in  my 
will,"  indicates  testator's  intention  to  have 
been,  that  such  and  so  many  of  his  slaves  as 
in  the  second  clause  he  desires  to  be  given  to 
his  children,  as  they  respectively  marry  or 
become  of  age,  should  be  retained  uy  his- 
executrix  for  that  purpose,  and  that  the  re- 

*375 
mainder  afore*said,  should  be  equally  divid- 
ed at  once  among  his  children,  without  wait- 
ing until  the  youngest  child  becomes  of  age, 
who  is  now  about  six  years  old. 

2.  Because  the  decree  of  his  Honor,  by  thus 
postponing  the  testator's  bequest  to  his  chil- 
dren in  the  third  clause  of  his  will,  oi)erates 
injuriously  to  the  elder  children,  and  partic- 
ularly to  Mx-s.  Funchess,  to  whom  the  be- 
quest is  now  necessary  and  important,  and 
works  no  benefit  whjitever  to  their  mother 
or  her  minor  children,  all  of  whom  would 
have  the  slaves,  »&c.  bequeathed  to  them,, 
which  would  be  ample  for  their  supi)ort. 

3.  Because,  under  the  construction  given 
by  his  honor,  it  is  respectfully  submitted, 
that  the  widow  of  the  testator,  and  the  duly 


IXAI5INIT  V.  IXAr.IN'IT 


♦377 


■qualified  executrix  of  his  estate,  Is  nlili^ed  to 
act  as  the  trustee  of  the  estate  and  to  hold 
all  the  iK'irroes  in  trust,  and  to  keep  the  estate 
open  for  many  years,  until  the  younjxest  ehild 
marries  or  l)econies  of  ajie,  while  the  slaves 
hequeathed  to  her  for  life,  and  the  slaves 
which  she  should  retain  for  the  minor  chil- 
dren, tofjether  with  those  which  she  would 
hold  for  the  minors  upon  the  division  of  the 
slaves  in  the  third  clause,  as  their  natural 
guardian,  would  proliably  be  as  many  as  she 
could  profitably  manage. 

Ellis  &  Brewster,  for  appellants. 
Munro  &  Dunkin,  contra. 

DARGAX,  Ch.,  delivered  the  opinion  of  the 
Court. 

In  this  case,  very  little  need  be  said  in  ad- 
dition to  what  has  fallen  from  the  Chancel- 
lor in  his  circuit  decree.  This  decree  must 
be  modified,  in  one  particular,  so  as  to  make 
it  conform  to  the  opinion  of  this  Court. 

The  testator  gave  to  his  wife  all  his  real 
estate,  household  and  kitchen  furniture,  plan- 
tation tools  of  every  description,  provisions 
of  all  kinds,  horses,  hous,  cattle,  and  stock 
of  every  description,  wagons,  gears,  bridles, 
saddles,  and  barouche,  and  every  thing  per- 
taining to  the  plantation  use.  He  also  gave 
her  four  negroes,  to  be  selected  by   lierself 

*376 
from  among  *all  his  negroes.  This  properry 
she  was  to  have  and  enjoy  during  her  life, 
and  at  her  death,  the  real  estate  was  to  be 
equally  divided  among  the  testator's  four 
sons:  and  his  five  daughters  are  each  to  re- 
ceive one  hundred  and  fifty  dollars  in  com- 
pensation for  their  portion  of  the  land. 

The  testator  then  proceeds,  in  the  second 
clause,  to  provide  as  follows: — "As  I  have  al- 
ready given  unto  my  daughter,  Eliza  M.  the 
wife  of  Daniel  V.  V.  Funchess,  two  negroes, 
named  Will  and  Hannah,  one  horse,  saddle 
and  bridle,  one  bed  and  furniture.  I  further 
desire,  that  as  each  one  of  my  children  mar- 
ries or  becomes  of  age,  they  are  to  receive 
•out  of  my  estate  two  negroes,  one  boy  and 
one  girl,  between  the  age  of  ten  and  twenty 
years  t>ld.  one  horse,  saddle  and  bridle,  one 
bed  and  furniture,  to  make  them  equal  with 
my  said  daughter,  Eliza  M.  the  wif»>  of  Daniel 
V.  V.  Funchess." 

The  testator  then  says: — ".'Ul.  The  remain- 
der of  my  negroes  not  heretofore  divided  of  in 
my  w'ill,  is  to  be  equally  divided  amongst  my 
children,  Eliza  M.  Funchess,  .Mary  Catha- 
rine, James  Baltus,  Vandy  Vastine  L.,  Eliza- 
beth Lovicia,  Kachael  Owins,  David  .Jacob, 
Barbara  Dorcas  E.  E.,  and  Absalome  .Moorer 
Inabinit;  but  should  any  of  my  children 
afoi'esaid  die  without  an  legal  issue,  their 
part  is  to  return  back,  and  be  eiiually  divid- 
ed, amongst  my  remaining  heirs.  I  do  give 
the  same  to  them  and  their  heirs  forever." 

One  of  the  questions  made  on  the  circuit 
trial,  and  also  ou  this  appeal,  is  this; — at 


what  time  did  the  testator  mean  that  this 
division  of  the  remainder  of  his  negroes 
should  take  place,  and  his  children  be  put 
into  the  possession  of  their  respei-tive  .shares 
thereof?  The  will  does  not.  in  terms,  fix  the 
time,  though  it  is  positive  and  express  as  to 
the  gift.  The  construction  that  would  give 
to  the  legatees  under  the  third  clause,  a 
present  right  to  a  partiti<in  of  the  negroes, 
disposed  of  in  that  clause,  is  incompatible 
with  other  important  parts  of  the  will.  The 
testator  has  been  impartial  in  the  disposi- 
tion of  his  property  among  his  children.  lie 
.seems  to  have  contemplated  a  perfect  eiiuali- 
ty  among  them.     lie  had  given  to  his  mar- 

*377 
ried  *daughter,  Mrs.  Funchess,  two  negroes, 
a  horse,  saddle,  &c.  And  his  positive  direc- 
tion is,  that  as  his  children  came  of  age  or 
married,  they  should  each  receive,  out  of  his 
estate,  two  negroes  of  a  particular  descrip- 
tion, a  horse,  saddle.  &c.  All  his  children, 
with  the  exception  of  Mrs.  Funchess,  were 
and  are  still  infants;  the  youngest  not  more 
than  six  years  old.  How  can  this  provision 
be  carried  into  effect: — how  can  this  ad- 
vancement of  two  negroes  and  the  other  ar- 
ticles, be  made  out  of  his  estate  to  his  chil- 
dren as  they  respectively  come  of  age  or 
miirry,  if  the  negroes  are  now  to  be  divided? 
There  is  no  fund  in  cash,  or  otherwise,  from 
which  this  provision  can  be  carried  into 
effect.  Ill  fact,  there  is  no  property  of  any 
kind  belonging  to  the  estate  which  is  to  ac- 
complish this  end,  unless  resort  is  had  to  the 
negroes  dispo.sed  of  in  the  third  clause.  This 
is  the  view  which  the  Chancellor  has  taken 
of  this  part  of  the  subject.  And  in  this  the 
Court  concurs. 

This  view  of  the  case  involves  the  neces- 
sary implication,  that  the  negroes  dispo.sed 
of  in  the  third  clause,  should  remain  in  the 
hands  of  the  executors,  until  the  objects 
expressed  in  the  second  clause  have  been  ac- 
complished. And  these  are,  that  each  one  of 
tile  testator's  children  shall,  at  the  proi)er 
time,  receive  the  advancement  provided  foi" 
in  that  clause.  The  means  of  making  these 
advancements,  are  a  charge  upon  the  negroes 
disiKKsed  of  in  the  third  clau.se ;  which  ne- 
groes are  to  remain  in  the  possession  of  the 
executors  for  this  purpose,  until  the  whole 
of  this  trust  is  performed:  that  is  to  say, 
until  the  last  child  entitled  to  take  under  the 
second  clause,  has  received  his  or  her  ith- 
vancement.  After  this  a  division  may  take 
I)lace.  In  making  the  advancements  under 
the  second  clause,  the  executors  will  resort, 
in  the  first  place,  to  the  stock  of  negroes  be- 
longing to  the  estate,  for  the  purpose  of 
getting  negroes  of  a  proper  description  to 
make  the  advancements.  If  none  such  are 
to  be  had  from  this  source,  they  may  be  pur- 
chased from  the  income  of  tiie  estate  then  on 
hand.  If  that  be  insutficient  for  this  purpose, 
a  resort  may  be  had  to  some  portion  of  the 
corpus  of  the  estate   in  order  to  effectuate 

155 


*378 


3  RICHARDSON'S  EQUITY  REPORTS 


♦378 

this  intention  of  the  testator.  *Biit  in  the 
last  named  contingency,  application  must  be 
made  to  this  Court.  The  other  articles  to  be 
advanced,  namely,  the  horse,  saddle,  bridle, 
&c.  must  be  provided  for  in  the  same  way, 
as  is  indicated  above,  in  reference  to  the  ne- 
groes to  be  advanced. 

So  far  this  Court  concurs  in  the  views  and 
in  the  decree  of  the  Chancellor.  But  what 
is  to  be  done  with  the  income  of  the  negroes 
disposed  of  in  the  third  clause,  until  the  time 
of  the  division?  A  portion  of  it  will  be  ab- 
sorbed, from  time  to  time,  in  carrying  into 
effect  the  provisions  of  the  second  clause. 
So  much  of  it  as  may  be  necessary,  will  be 
applied  to  these  purposes.  But  what  is  to  be- 
come of  the  balance,  and  to  whom  does  it 
belong?  The  circuit  decree  gives  it  for  the 
maintenance  of  the  minor  children  who  reside 
with  the  widow,  and  who  are  thus  entitled, 
according  to  the  decree,  imtil  they  are  to  re- 
ceive their  advancements.  This  Court  is  of 
a  different  opinion.  It  is  not  so  given  by 
the  terms  of  the  will,  nor  is  there  just  ground 
for  such  an  implication.  The  lega<'ies  given 
in  slaves  in  the  third  clause  are  vested  leg- 
acies, subject  to  be  divested  on  certain  con- 
tingencies. They  are  given  in  language, 
which  imports  a  right  to  a  present  division. 
But  this  clause  has  been  construed  in 
connection  with  other  parts  of  the  will ;  so 
that,  although  the  legacies  are  vested,  the 
division  and  possession  are  postponed.  This 
postponement  takes  place,  because  the  prop- 
erty is  subject  to  certain  charges,  which  have 
been  herein  declared.  Subject  to  these 
charges,  the  legatees  under  the  third  claiise 
are  entitled  to  an  equal  share  of  the  annual 
income,  to  be  paid  annually  as  the  income 
arises.  In  other  words,  so  much  of  the  an- 
nual income  as  remains,  after  obtaining  the 
necessary  articles  for  carrying  into  effect 
the  provisions  of  the  second  clause,  accord- 
ing to  the  rules  hereinbefore  laid  down,  must 
constitute  a  fund  to  be  distributed  so  soon  as 
the  fund  exists  in  equal  shares  among  all  the 
legatees  mentioned  in  the  tliird  clause.  The 
circuit  decree  is,  in  this  respect,  reformed. 
In  all  other  respects,  it  is  affirmed  and  the 
appeal  dismissed. 


JOHNSTON,    DUNKIN 
CC,  concurred. 
Decree  modified. 


and   WARDLAW. 


3   Rich.  Eq.  *379 

*ALLEN  W.  NIX  and  Others  v.  ALMEDIA 
HARLEY  and  HENRY  MILHOUSE. 

(Columbia.      May   Term,    ISul.) 

[Account  <©=»!.] 

Defendant  purchased  plaintiflf's  slave  from 
a  third  person — remained  in  possession  some- 
time,— and  then  re-sold  her  to  the  person  from 
whom  he  had  purchased, — all  without  notice  of 


any  right  in  plaintiffs:— JTcW,  that  a  bill  woultT 
not  lie  to  gompel  defen'lant  to  account  for  the 
price  received  by  him,  and  the  hire  before  the 
re-sale, — plaintiffs  should  pursue  their  remedy  at 
law. 

[Ed.  Note.— Cited  in  Hollidav  v,  Post^ju  & 
Son,  60  S.  C.  106,  38  S.  E.  449. 

For  other  cases,  see  Account,  Cent.  Dig.  §  1 ; 
Dec.  Dig.  <©=>!.] 

[Eqiiitij  €=3427.1 

Nine  plaintiffs  filed  their  bill  against  defend- 
ant for  the  specific  delivery  of  a  slave  which 
they  claimed  as  tenants  in  common:  defendant 
pleaded  the  statute  of  limitations,  which  was 
sustained  as  to  four  of  the  plaintiffs  who  were 
of  age  four  years  before  the  filiug  of  the  bill — 
the  other  five  being  then  infants:  the  effect  of 
sustaining  the  plea  as  to  four  of  the  plaintiffs  be- 
ing to  vest  in  the  defendant  four-ninths  of  the 
slave,  ]iehl,  that,  under  the  prayer  for  general 
relief,  the  other  five  plaintiffs  were  entitled  to 
a  decree  for  the  sale  of  the  slave  for  partition. 

[Ed.  Note.— Cited  in  Barr  v.  Haseldon,  10' 
Rich.  Eq.  60. 

For  other  cases,  see  Equity.  Cent.  Dig.  § 
1009;    Dec.  Dig.  <g==>427.] 

Before  Dunkiu,  Ch.,  at  Barnwell,  February,. 
1S51. 

Dunkin,  Ch.  The  bill  is,  obviously,  mul- 
tifarious. Thei^  is  no  connexion  whatever 
between  the  defendants.  The  comiilaint 
against  them  is  in  reference  to  different  ob- 
jects, and  the  relief  sought  entirely  ditftrent. 
They  form  two  distinct  cases,  and  must  be- 
separately  considered. 

The  complaint  against  ^lilhouse  is  that, 
knowing  the  rights  of  the  plaintiffs  in  a 
negro  woman,  Jenny,  he  sold  said  slave  for 
the  purpose  of  defeating  them.  The  prayer 
is,  that  he  may  account  for  the  price,  with 
interest.  According  to  the  testimony,  the 
right  of  the  plaintiffs,  to  the  possession  of 
the  negro,  accrued  in  June,  1844.  The  an- 
swer of  Henry  Milhouse  is  directly  responsive 
to  the  charges  and  interrogatories  of  tiie  bill. 
He  avers  that,  in  the  latter  part  of  I84.j,  or 
beginning  of  184G,  he  purchased  Jenny,  for 
four  hundred  dollars  from  Charles  Ray,  who 
was  in  possession,  and  claimed  the  slave  as 
his  own  property,  and  that  he  paid  him  the 
money ;  that  the  defendant  held  the  slave 
for  more  than  four  years,  and  afterwards, 
to  wit,  in  the  spring  of  1850.  he  sold  her  tO' 
the  said  Charles  Ray,  wiio  was,  and  still  is,, 
a  resident  of  Barnwell  district,  for  the  same 
sum  as  lie  had  given  for  her.  He  positively 
denies  that,  at  the  time  of  his  purchase,  or 
of  the  subsequent  sale,  he  had  any  knowledge 

*380 
*of  the  plaintiffs's  right  or  that  they  ever 
applied  to  him  for  any  information  on  the 
subject,  which  lie  would  readily  have  affordco 
to  them.  The  bill  was  tiled  on  the  liOth 
October,  18.50. 

On  this  state  of  facts,  (and  no  other  was 
attempted  to  be  made  out  by  the  evidence.) 
it  is  difficult  to  perceive  on  what  ground  tne 
plaintiffs  are  entitled  to  the  aid  of  this  Court, 
as  against  the  defendant,  Milhouse.  The  bill 
states  that  he  was  not  in  possession  of  the 


156 


«g=»For  other  cases  see  same  topic  aud  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


XTX  V.  IIARLEY 


*382 


plaintiffs's  slave.  It  avors  no  dcinand.  There 
is  no  reason  to  surmise  that,  in  1S45  or  1S4(», 
when  the  defendant  imreliased  the  slave,  he 
had  any  doulit  aliout  the  title:  it  is  mere 
surmise,  ai,'ainst  the  positive  denial  of  the 
answer,  that  he  had  any  knowled^'e  of  the 
plaintiffs's  riu'ht  when  he  parted  with  the 
slave  in  the  sprin;:  of  is."><t.  If  t.iere  he  any 
principle  on  which  the  plaintiffs,  under  tliese 
circumstances,  have  any  ri^iht  to  recover 
from  the  defendant  the  amount  for  whidi  he 
sold  the  slave,  it  is  a  ri.i,'ht  for  which  they  have 
a  plain  and  adequate  reme<ly  in  the  ordinary 
triliunal. 

The  case  aj,'ainst  the  other  defendant,  Al- 
luedia  llarley,  is  for  the  specitic  delivery  of 
a  negro  fellow  named  Jeff,  and  for  an  account 
of  his  hire  since  he  has  been  in  the  defend- 
ant's possession. 

The  defendant,  not  concedini,'  the  plaintiffs's 
rij,'ht.  insists  on  the  statute  of  limitations, 
as  well  as  the  want  of  jurisdiction. 

The  plaintiffs  are  the  nine  children  of 
Elizabeth  Nix,  deceased,  and  they  claim 
under  a  deed  of  their  jirandfather,  date<l 
December,  1S15,  by  which  their  mother  had 
a  life  estate  in  this  and  other  slaves,  with  a 
valid  limitation  to  the  plaintiff's.  The 
life  tenant  died  on  the  4th  June.  1.S44;  and. 
some  two  and  a  half  years  afterwards,  the 
father,  with  some  of  the  plaintiffs,  his  chil- 
dren, removed  to  the  State  of  Florida.  The 
defendant  is  a  daughter  of  Colonel  Tarlton 
Brown.  It  seems  that  Jeff"  was  purchased 
by  Colonel  Brown,  from  Charles  Nix.  (the 
father  of  plaintiffs.)  in  1,S4.'{.  Colonel  Hrown 
died  in  September.  1845. — On  the  15th  De- 
cember, 1.S45,  his  negroes  were  divided,  and 
Jeff  fell  to  the  lot  of  the  defendant.  The 
plaintiff's  instituted  these  proceedings  on  the 
25th  October,  l,s."i(».     At  the  time  of  the  right 

*381 
♦accrued,  to  wit,  4th  June,  1S44.  all  the  plain- 
tiffs residcHl  in  Soutii  Carolina.  Three  of 
them,  to  wit,  Allen,  Edward  and  Frances, 
were,  at  that  time,  more  than  twenty-one 
years  of  age.  Allen  being  about  twenty-cMght 
■ — Edward,  between  twenty-six  and  twenty- 
seven — and  Frances,  some  two  years  younger. 
Mary  Ann  became  of  age  in  March,  1.S46, 
more  than  four  years  prioi*to  the  institution 
of  these  proceedings.  Four  of  the  plaintiffs 
were,  therefore,  l>arred  of  their  claim  by  the 
statute  of  limitations.  The  jtrayer  of  the 
bill  is  for  specilic  delivery  of  the  negro.  Jeff, 
antl  an  account  of  his  hire;  and  the  plain- 
tiffs have  established  a  title  to  only  live- 
ninths.  It  is  very  clear  that  this  would  not 
entitle  them  to  a  specilic  delivery.  If  the  ac- 
tion were  detinue  in  the  court  of  law.  the 
plaintiffs  would,  necessarily,  be  nonsuited — 
for  it  is  a  .joint  action — the  right  is  a  joint 
right.  In  Henry  v.  .Means,  {-2  Hill.  :V.',4.)  and 
in  Bail.  Eij.  .">.'!5.  the  rule  is  recognized  that 
the  right  of  the  infant  joint  tenants  may  be 
preserved,  although  the  adults  be  barred  by 
the  statute;    and  the  Court   consider  the  ac- 


tion of  trover  as  a  proper  mode  of  enforcing 
the  right.  "The  action  of  trover,"  says  the 
Court,  "which  is  the  one  liefore  us,  does  not 
seek  the  recovery  of  the  specitic  chattel,  but 
damages  for  the  conversion.  It  is  also  c-lear 
that,  in  such  an  action,  the  jury  may  tind 
damages  exactly  proportioned  to  the  title 
proved.  There  is  no  techincal  unity  in  the 
tlnng  to  be  recovered,  which  compels  us  to 
l)rotect  all  from  the  bar  of  the  statute,  be- 
cause it  does  not  reach  one." 

Hut,  in  a  i)ill  for  the  specitic  delivery  of  a 
chattel,  there  is  "a  technical  unity  in  the 
thing  to  be  recovertnl." 

The  ground  of  jiwisdiction  in  this  Court, 
for  the  siiecitic  delivery  of  a  slave,  eiitirel.xt 
fails,  if  the  right  of  the  plaintiff  to  the  whole 
be  not  perfect.  If  the  plaintiff'  can  make  out 
a  title  only  to  a  third,  or  to  two-thirds,  he 
can  have  no  specitic  delivery,  and  his  remedy 
at  law  is  as  perfect.  fi)r  the  wrong  done  to 
his  interest,  as  it  would  be  in  the  case  of  any 
other  chattel. 

The  Court  is  of  opinion  that  the  plaintitYs' 
bill  nuist  be  dismissed,  and  it  is  so  (U'dered 
and  decreed. 

Comi)lainants  aj)pealed.  on  the  followinir 
grounds,  viz. : 

*382 

*1.  That  the  complainants  were  not  barred 
b.v  the  statute  of  linntations.  and  were  en- 
titled to  relief  on  the  case  as  ma<le,  both 
against  Almedia  llarley  aiul  Henry  Mil- 
house. 

'2.  That,  even  if  some  of  them  weie  bar- 
red, the  others  were  entitled  to  relief,  as 
against  Almedia  llarley.  by  partition  or  oth- 
erwise. 

'A.  That  the  complainants  were  entitled  to 
relief  against  Henry  Milhouse.  on  the  well 
established  principle  of  e<iuity.  that  if  a  per- 
.son  in  possession  of  propert.v  undertakes  to 
sell  it.  and  delivers  it  accordingly,  it  is  at 
the  owner's  option,  either  to  i)ursue  the 
property  in  the  hands  of  the  holder,  or  to  af- 
firm the  sale,  as  the  act  of  the  voluntary 
agent,  and  recover  the  prtn-eeds  in  his  hands. 
Nor,  in  this  case,  was  the  reme<ly  at  law 
plain  and  ade<iuate. 

Bellinger  &  Ilutson,  for  complainants. 
J.    T.    .\ldricb,    Owens,    c-ontra. 

WAHDE.VW,  Ch.,  deliver«Ml  the  opiinon 
of   the   Court. 

The  Chancellor  properly  remarks  that  this 
bill  is  nniltifarious.  presenting  two  distinct 
ca.ses  that  must  be  separately  considered. 

We  "will  first  consider  the  case  against 
Milhouse.  He  Ixaight  the  slave.  Jenny,  to 
which  the  plaintilTs  were  entitled  in  remain- 
der after  a  life  estate  in  their  mother, — re- 
mained in  possession  of  the  slave  for  more 
than  four  yeai*s. — then  re-s(dd  the  slave  to 
the  person  from  whom  he  had  i»urchased — 
all  without  notice  of  any  right  in  the  plain- 
tiffs. The  bill  states  the  fact  that  .Milhouse 
had  sold  the  slave,  and  prays  that  he  may 

157 


*.182 


3  RICHARDSON'S  EQUITY  REPORTS 


be  required  to  pay  to  the  plaintiffs  tlie  price 
received  by  liim  witli  interest,  and  account 
for  the  liire  before  the  sale.  The  claim  of 
the  plaintiffs  is  one  strictly  legal,  whicli 
might  be  enforced  by  trover  or  assumpsit 
in  the  court  of  law,  and  no  circumstance  is 
stated  requiring  the  peculiar  intervention  of 
this  Court.  It  may  be  admitted  to  be  a 
principle  of  equity,  as  stated  by  Chancellor 
Harper,  in  Bryan  v.  Robert,  (1  Strob.  Eq. 
343),  and  Hill  v.  Hill,  (1  Strob.  Eq.  23.)  that 
if  a  stranger  in  possession  of  my  property 
undertakes  to  sell  it,  and  delivers  it  accord- 
ingly, it  is  at  my  option  either  to  pursue  tlie 
property  in  the  hands   of  the  holder,  or  to 

*383 
afHrm  tlie  *sale  as  the  act  of  a  voluntary 
agent,  and  recover  the  proceeds  in  his  hands. 
In  both  of  these  cases,  the  vendors  had  ex- 
plicit notice  of  the  adverse  claims  they  had 
sought  to  evade  by  sales  of  the  property ; 
and  although  it  may  be  true  that  the  prin- 
ciple may  be  sometimes  enforced  against  ven- 
dors who  made  such  sales  in  good  faith,  be- 
lieving themselves  to  be  owners  of  the  prop- 
erty sold ;  yet,  certainly,  it  is  the  fact  of 
notice  of  adverse  rights  that  affects  the  con- 
science of  vendors  in  such  cases,  and  pecu- 
liarly justifies  the  interposition  of  this  Court. 
I  do  not  question,  that  if  Milhouse  had  been 
proiierly  brought  before  the  Court  for  the 
specific  delivery  of  some  slaves  in  his  posses- 
sion, to  whicli  plaintiffs  had  legal  title,  and 
to  account  for  the  value  of  other  slaves,  in 
the  same  bill,  which  he  had  sold  that  the  bill 
would  be  properly  entertained  in  tliis  Court 
for  both  purposes.  But  here  plaintiff's  pro- 
ceed for  the  price  of  a  single  slave  sold,  and 
uotliing  more ;  and  we  think  that  for  such 
a  demand,  strictly  legal  in  its  character,  he 
should  pursue  his  remedy  in  the  court  of 
law.  We  are  the  more  moved  to  this  course, 
because  this  defendant  has  been  joined  in  a 
controversy  with  another  defendant,  with 
whom  he  has  no  community  of  interest.  It 
is  ordered  and  decreed  that  the  bill  be  dis- 
missed as  to  Milhouse,  but  without  preju- 
dice to  the  right  of  the  plaintiff's  to  prose- 
cute their  claim  elsewhere. 

As  to  the  case  against  Almedia  Harley,  we 
concur  with  the  Chancellor  that  four  of  the 
plaintiff's  are  barred  by  the  statute  of  limi- 
tations, and  as  to  them  the  bill  is  dismissed. 
But  we  think  that  the  other  five  plaintiffs 
are  entitled  to  partition  of  the  slave,  they 
being  tenants  in  common  with  this  defend- 
ant. The  remedy  to  be  afforded,  in  a  case  in 
equity,  depends  upon  the  whole  pleadings,  in 
the  cause.  The  case  may  be  so  varied  by 
the  answer  of  defendants  or  the  proofs  that 
a  plaintiff  may  be  barred  from  the  special 
remedy  he  seeks,  yet,  under  the  prayer  for 
general  relief,  the  Court  will  afford  such 
remedy  as  is  proper  under  all  the  circum- 
stances of  the  case.  Here  the  plaintiffs  pre- 
sented a  case,  in  which,  prima  facie,  the  pe- 
culiar remedy   prayed   for, — specific  delivery 


of  the  slave, — was  just  and  equitable ;  and 
they  may  not  have  had  the  means  of  know- 

*384 

ing,  and  were  not  bound  *to  anticipate,  what 
defences  might  be  set  up  by  the  defendant. 
The  whole  case  is  before  us,  and  in  avoid- 
ance of  further  litigation,  we  will  decide  now 
upon  the  rights  of  the  plaintiffs  and  the  de- 
fences of  the  defendant.  The  effect  of  allow- 
ing the  plea  of  the  statute  of  limitations 
against  the  adnlt  plaintiff's  and  disallowing 
it  as  to  the  infants  is  to  vest  four-ninths  of 
the  slave  in  the  defendant  and  to  leave  the 
five  younger  plaintiff's  each  entitled  to  one- 
ninth.  It  is  ordered  and  decreed  that  the 
defendant  Almedia  Harley  deliver  the  slave 
Jeff'  to  the  commissioner  of  this  Court  for 
Barnwell  district  and  that  said  commission- 
er proceed  to  sell  said  slave  at  public  auc- 
tion, on  a  credit  of  twelve  months,  and  dis- 
tribute the  proceeds  of  sale  among  the  par- 
ties according  to  their  interests  as  herein  in- 
dicated. 

JOHNSTON,  DUNKIN  and  DARGAN,  CC, 

concurred. 
Decree  modified. 


3    Rich.  Eq.   384 

CHARLES  C.  HAY  v.  FREDERICK  J.  HAY, 

Jr.,   et   al. 

(Columbia.      May   Term,   ISol.) 

[Wills  <©==>603.] 

Testator  devised  and  bequeathed  his  estate, 
real  and  personal,  to  his  only  child,  S.  B.  "'and 
the  heirs  of  her  body;"  and  if  she  should  "die 
without  living  issue  of  her  body,  then,  and  in 
that  case,  all  my  estate,  both  personal  and  real, 
to  return  to  the  nearest  heirs  of  my  body  by 
my  mother's  lineage:" — Held,  that,  in  the  real 
estate,  S.  B.  took  a  fee  conditional,  and  that 
there  was  no  remainder  to  her  issue,  as  pur- 
chasers. 

[Ed.  Note. — Cited  in  Corbett  v.  liaurens,  5 
Rich.  E(].  323;  Gadsden  v.  Desportes,  39  S. 
C.  143,  17  S.  E.  706;  Bethea  v.  Bethea,  48  S. 
C.  441,  443,  26   S.   E.   716. 

For  other  cases,  see  Wills,  Cent.  Dig.  §  1354 ; 
Dec.  Dig-.  <@=>603.] 

{Perpetuities  <©=34.] 

As  to  the  real  estate,  the  limitation  over,  on 
S.  B's  dying  "without  living  issue,"  was  void 
for  remoteness. 

[Ed.  Note.— Cited  in  Graham  v.  Moore,  13 
S.  C.  119  ;  Gadsden  v.  Desportes,  39  S.  C.  144, 
17  S.  E.  706. 

For  other  cases,  see  Perpetuities,  Cent.  Dig. 
§  26;   Dec.  Dig.  (©=>4.] 

The  question, — whether,  as  to  the  personal- 
ty, there  was  a  valid  limitation  to  the  issue  of 
S.  B.,  as  purchasers, — ordered  to  be  re-argued. 

Whitworth  v.  Stuckey,  (1  Rich.  Eq.  404)  ex- 
plained. 

[Witnesses  <©=:'65.] 

A  wife  is  not  an  incompetent  witness,  mere- 
ly because  of  the  conjugal  relation,  to  prove, 
after  the  husband's  death,  that  a  parol  gift,  al- 


158 


®s:3For  other  cases  see  same  topic  and  KEY-NUMBEH  iu  all  Key-Numbered  Digests  and  Indexes 


HAY  V.  HAY 


*387 


leged  to  Lave  boon  mado  l\v  the  luisbaiul  in  his 

lifetime,  was,   in   fact,  a  loan. 
|K(1.    Note. — For   other   cases,    see    Witnesses, 

Cent.  DIr.   S  IM-':    I>«'f.   Dii:.  C=3(i.">.l 

[This  case  is  also  cited  in  (Jadsden  v.  Desportes, 
o9  S.  C.  V.','2,  17  S.  10.  7(lt;.  and  distinguisli- 
ed  therefrom,  and  in  (Jraham  v.  Moore.  Vi 
S.  C.  lis,  as  to  the  legal  effect  of  the  phrase 
"die  without  leaving  lawful  issue."] 

Before  Johii.ston,  Cli.,  at  I^'xiiigton,  July 
1S50. 

Johnston,  Cb.  This  <.asc>  was  broujiht  be- 
fore   me,   by   consent   ot   parties,   and    heard 

*385 
the  24ih  day  of  July,   ISfH),  at   Lex*ingtou, 
where  I  was  holding  an  extra  term  for  the 
business  of  that  district. 

Of  the  numerous  (luestions  made  by  the 
pleadings,  two  only  were  subnntted  for  ad- 
judication: and  I  shall  state  only  so  nuich 
of  the  ease  as  may  siiftice  to  render  my  de- 
cision of  them  intelligilde — 

The  late  Col.  Frederick  J.  Hay  died  the 
10th  of  August,  1S4"J.  leaving  a  widow.  Susan 
Cynthia  Hay;  five  sons.  Charles  C.  Hay. 
Frederick  J.  Hay,  (the  younger)  Kev.  Samuel 
H.  Hay.  Thomas  T.  Hay  and  Oscar  P.  Hay; 
three  daughters,  Mary  L.  (the  wife  of  Uichard 
A.  Gantt)  Susan  C.  Hay  (the  youngeri  and 
Martha  H.  Hay ;  and  a  grand-daughter, 
Harriet  Ford  Hay.  only  child  of  a  pre-deceas- 
ed  son.  "NVm.  A.  Hay. 

He  left  about  two  hundred  slaves,  and  a 
large  landed  estate,  consisting  of  numerous 
tracts,  described  in  the  pleadings.  All  the 
slaves,  and  the  larger  portion  of  the  land, 
he  had  acquired  by  his  said  wife.  Susan,  who 
was  the  only  issue  of  her  father,  Charles 
Jones  Brown,  who  died  some  fifty  years  ago. 

Col.  Hay  left  a  last  will  and  testament, 
dated  the  19th  of  July,  1S48,  and  a  codicil 
thereto,  dated  the  8th  day  of  September. 
1848,  both  duly  executed:  by  which,  among 
othqr  things,  he  disposed  of  the  slaves  and 
land  ac(iuired  by  his  marriage,  among  his 
wife,  children  and  grand-child. 

After  his  death,  a  will  left  by  his  wife's 
father,  the  said  Charles  J.  I?rown.  came  to 
light.  It  was  duly  executed,  so  as  to  pa.ss 
real  estate,  the  Ttli  of  July,  17!)S,  and  is  in 
the  following  terms: — 'I  give  and  beipieath 
to  my  loving  daughter,  Susan  Cynthia  Brown, 
and  the  heirs  of  her  body,  all  my  worldly 
estate,  both  real  and  personal;  i>rovided,  if 
my  said  daughter.  Susan  Cynthia  Brown, 
shoidd  happen  to  die  without  living  issue  of 
her  bod.v,  then,  and  in  that  case,  all  my  said 
estate,  both  personal  and  real,  to  return  to 
the  nearest  heirs  of  my  body,  by  my  mother's 
lineage." 

Mrs.  Hay,  and  all  those  of  her  children, 
who  are  of  ag«'.  and  capable  of  consenting, 
ac(|uiesce  In  Col.  Hay's  will,  and  raise  no 
claim    in    opposition    thereto,    uiuler   Brown's 

*386 
will.     But  it  is  *contended,  in   behalf  of  the 
infant    grand-daughter.    Harriet    Ford    Hay. 
that  Brown's  will  limits  the  slaves  and  huid. 


which  Col.  Hay  accpMred  by  his  wife,  in  re- 
mainder to  her  hssue  as  purchasers:  and  that 
it  was  not  in  Col.  Hay's  i»ower  to  deprive 
them  of  this  interest  by  his  will. 

The  tirst  of  the  two  (luestions  suiindtled  to 
me,  is  whether  the  will  of  Charles  J.  Brown 
creates  the  limitation  conti-nded  for;  and 
this  in(iinry  is  made  for  the  beneht  not  only 
of  the  grand-daughter,  but  of  all  the  parties 
who  are  not  sui  juris  and  capal)le  of  consent- 
ing to  the  dispositions  of  this  property  made 
by  Col.  Hay. 

I  shall,  in  the  first  place,  apply  the  words 
of  Brown's  will  to  the  p«Msoiial  property — 
the  slaves. 

The  Witrds  of  direct  gift  to  Mrs.  Hay  and 
the  heirs  of  her  body,  without  more,  would 
certainly  have  given  her  this  jiroiierty  abso- 
lutely; this  adnuts  of  no  doubt.  But  it  is 
as  well  settled  in  this  State  as  any  question 
can  be.  though  perhaps  not  as  satisfactorily, 
that  where  an  express  linntation  of  person- 
alty to  one  and  the  heirs  of  his  body,  or  issue, 
is  followed  by  a  linntation  over,  to  take  ef- 
fect on  the  failure  of  such  heirs  or  issue,  at 
the  death  of  the  lirst  taker. — this  linntation 
over  reflects  back  upon,  and  gives  construc- 
tion to„  the  lirst  words,  and  creates  a  re- 
mainder, to  such  heirs,  or  issue,  of  the  tir.st 
taker  as  shall  be  living  at  his  death.  This 
was  settled,  after  nuich  discussion,  in  the 
construction  of  Bell's  will,  (Henry  v.  Arch- 
er, Bail.  Eq.  ooH)  and  has  been  the  doctrine 
ever  sinc^.;   and  I  an>  bound  by  it. 

The  question,  then,  is ;  is  there  such  a 
limitation  over  in  this  case?     I  thiidv  not. 

The  property  is  to  go  over  "if."  (or  when) 
Susan  Cynthia  Brown  "shall  haiipen  to  die 
without  living  issue." 

If  the  word  "living"  were  onntted.  and  the 
linntation  overbad  been  upon  •Susan's"  dying 
"without  issue."  it  adunts  of  no  doubt  that 
this  would  not  have  been  a  limitation  over  to 
take  effect  dehnitely  at  Susan's  death,  but  at 
any  time  after   her  death,   however   remote, 

*387 
when  she  might  prove  to  be  'without  *issue;" 
— that  is,  as  the  cases  have  ruled,  upon  an 
indefinite  failure  of  issue. 

The  subtle  reasoning  upon  which  the 
doctrine  was  founded,  is  constantly  iiallling 
the  common  sense  meaning  of  terms,  and 
therefore  the  doctrine  itself  is  rarely  recalled 
to  the  mind  without  an  effort.  But  it  is  set- 
tled and  established  beyond  doubt :  and  is 
therefore  the  rule  by  winch  this  Court  nuist 
proceed. 

The  words  of  the  will  before  me.  are  pre- 
ci.s(dy  the  words  which  have  always  been  thus 
held  insuthcient  to  create  a  valifl  limitation 
over,  (and  therefore  insuthcient  to  convert 
the  heirs  or  issue  of  Mrs.  Hay's  body  Into 
purchasers  in  remainder.) — except  that  the 
word  "living"  is  prefixed  to  the  word  "issue." 
What  sort  of  difference  can  that  make':' 
The  proi)erty  is  not  to  go  over  when  Mrs. 
Hay    is    "without    issue,"    but    when    she    is 

159 


*387 


3  RICHARDSON'S  EQUITY  REPORTS 


"without  living  issue."     Is  not  tliis  one  and  t 
the  same  event?     Is  not  the  contingency  of' 
being  without   living   issue,   liable   to   be   as 
remote,  as  that  of  being  without  issue? 

A  man  can  never  be  without  issue  while 
the  issue  are  living ;  nor  be  said  to  have  is- 
sue when  they  are  dead.  By  issue,  wher- 
ever referred  to  in  the  cases.  Is  meant  living 
issue  ;— and  the  phrase  "without  issue,"  which 
has  been  judicially  interpreted  to  signify  a 
failure  of  issue,  necessarilj-l  imports,  that 
wherever  and  whenever  the  failure  occurs, 
it  has  arisen  in  consequence  of  there  being,  at 
that  time,  no  living  issue.  The  word  living, 
creates,  in  law,  no  qualitication  of  the  word 
to  which  it  is  prefixed  and  the  decision  must 
be  precisely  the  same  as  if  it  were  not  in  the 
will. 

The  word  "living"  is  not  the  only  one  in 
this  sentence  which  seems  to  be  surplusage. 
The  words  "of  her  body"  are  equally  so ; — 
and  add  nothing  to  the  word  "issue,"  which 
necessarily  as  issue,  is  "of  the  body." 

Until  satistied  on  that  point,  I  could  not 
avoid  the  conjecture  that  the  copy  furnished 
me  was  incorrect,  and  that  the  word  living 
had  been  mistaken  for  leaving;  a  word  that 
has  been  held  to  indicate  the  time  of  the 
first  taker's  death ;  as  pointing  out  the  junc- 
ture   when   he    leaves    (separate   or    departs 

*388 

from,)  his  *issue, — who  are  then  left  living 
behind  him.  The  word  living  has  no  such 
power.  It  has  no  reference  to  the  act  of  the 
dying  ancestor,  but  siuqjly  to  the  quality  of 
the  issue ;  and  the  quality  it  describes,  is 
one  always  intended  in  law,  whether  it  be 
used  or  not,  when  issue  are  spoken  of  in  such 
a  connexion. 

But  it  was  argued  that  though  all  this  be 
conceded,  still  there  is  a  circumstance  in  this 
limitation  over,  sutticient  to  confine  the  event 
on  which  it  depends  to  the  death  of  ^Irs. 
Hay ;— and  that  is,  that  the  limitation  over 
is  to  a  person  or  persons  in  esse. 

There  are  cases  in  which  a  limitation  over, 
otherwise  too  remote,  has  been  tied  down  to 
a  definite  period  by  such  a  circumstance.  But 
to  whom  is  the  property  limited  over  here? 

To  the  nearest  heirs  of  Brown's  body,  by 
his  mother's  lineage.  Whether  the  persons 
to  take  were  in  esse,  can  only  be  ascertained 
by  the  description  of  the  giver,  for  they  are 
not  named.  Who  or  what  Is  meant  by 
"heirs  of  my  body,  by  my  mother's  lineage?" 
— and  how  are  we  to  ascertain  which  of  them 
Is  meant? 

If  no  person  can  be  brought  under  the  de- 
scription, the  person  intended  to  be  described 
could  not  have  been  in  esse.  The  limitation 
over  is  to  nobody :  there  is  no  such  limitation. 

Now,  whom  did  the  testator  intend  to  de- 
scribe, as  not  heirs  of  his  mother's  body,  but 
of  his  own, — and  while  proceeding  from 
bis  own  body,  being  of  liis  mother's  lineage, 
in    exclusion    of    his    father's?      And    which 

160 


of  these   (if  this  can  be  found  out,)  did  he 
regard  as  the  nearest? 

What  did  the  testator  mean?  Sevpral  hy- 
potheses have  been  suggested.  It  was  sup- 
posed that,  by  nearest  heirs  of  his  body,  he 
meant  his  next  of  kin ;  and  that  his  intention 
was  to  limit  over  to  his  next  of  kin  in  the 
maternal  line. 

But,  in  the  first  place,  I  do  not  know  by 
what  authority  we  are  to  divert  the  meaning 
of  the  technical  words  "heirs  of  my  body" 
from  their  technical  import,  unless  there  was 
something  in  the  context  to  guide  us  to  an- 
other application  of  them.  We  are  not  at 
liberty    to    conjecture.      And    what    is   there 

*389 
in  the  cou*text  to  show  us  what  interpreta- 
tion, other  than  the  technical  one,  conforms 
to  the  intention? 

In  the  next  place,  if  we  suppose  that  next 
of  kin  were  intended,  what  is  there  to  show 
that  the  reference  was  to  next  of  kin  exist- 
ing at  the  death  of  Mrs.  Hay,  and  not  next 
of  kin  existing  when  her  issue  should  ulti- 
mately fail?  The  reference  to  a  class  of 
l)ersons,  by  description,  capable,  in  indefinite 
succession,  of  coming  within  the  description, 
and  claiming  the  property,  does  not,  as  Sir 
William  Grant  says  in  one  of  the  cases, 
(Massey  v.  Hudson,  2  Merivale,  135,)  "obvi- 
ate the  objection  of  remoteness ;" — it  is  not 
a  reference  to  persons  in  esse,  as  definite 
persons,  for  whom  a  personal  enjoyment  was 
intended. 

Another  hypothesis  was,  that  the  testator 
referred  to  his  mother's  nearest  relations,  or 
next  of  kin.  But  this  is  liable  to  the  same 
objections  as  the  one  we  have  already  con- 
sidered: it  is  merely  conjectural,  and  it  does 
not  point  us  to  a  definite  time. 

A  third  conjecture  was,  that  Mr.  Brown 
may  have  contemplated  the  possibilitj'  of 
having  other  issue,  besides  Mrs.  Hay,  to 
whom  he  wished  the  property  to  go  over,  in 
case  she  should  die  issueless,  either  in  his 
lifetime  or  afterwards.  The  answer,  in  the 
latter  case,  is  still  the  same  as  that  which 
has  been  given  to  the  previous  hypothesis. 
In  the  former  case,  (her  pre-decease  of  the 
testator,)  the  answer  is,  that  the  will  would 
have  taken  effect  in  Mrs.  Hay,  or  in  the  oth- 
er issue  of  Brown  alternatively  and  not  first 
in  the  former  and  then  in  the  latter,  by  way 
of  limitation  over.  If  it  took  effect  in  Mrs. 
Hay,  there  was  to  be  (in  the  case  supposed) 
no  limitation  over. 

But,  after  I  have  gone  through  this  will, 
in  every  way  it  has  been  presented,  I  confess 
my  inability  to  comprehend  what  the  testa- 
tor can  have  meant  by  the  limitation  over ; 
and  I  incline  to  the  opinion  that  it  is  void, 
for  uncertainty:  for  the  only  remaining  sup- 
position, (besides  these  which  were  suggested 
by  counsel,)  is  the  alisurd  one  that  the  limi- 
tation over  was  intended  for  the  heirs  of  te.s- 
tator's  body,  (meaning  Mrs.  Hay  and  her  is- 
sue) ;    that  is,  that  he  intended  to  limit  over 


HAY   V.  IIAY 


»39^ 


to  them,  to  take  effect  only  upon  the  eoiitiii- 
geiiey  uf  their  own  deaths  ami  extinction. 
♦  390 

♦I  will  now  apply  the  words  tif  tiie  will  to 
the  realty. 

The  words  of  direct  iU'ift,  of  t  lienisdves, 
create,  in  Mis.  Hay,  a  fee  conditional,  de- 
scendible, per  formam  doni,  to  the  lu'ir.s  of 
her  body.  Tlie  limitation  over,  as  we  have 
.veon,  is  too  remote  as  to  the  jiersonalty.  H 
is  eipially  so  as  to  the  realty.  Indeed,  words 
wliich  wonld  he  sulhcient  to  tie  «lown  a  limi- 
tation over,  of  persomilty,  to  the  death  of 
the  tirst  taker,  are  sonu'times  insuthcient  to 
produce  that  effect  as  to  lands; — of  wliich 
we  havi'  examples  in  Forth  v.  Chapman,  (1 
P.  Wins,  (ic.'l,)  and  in  our  own  ease  of  Mazyck 
V.  yanderhorst,  (1  I'.ail.  Kq.  4S.)  liut  even 
if  the  limitation  over  were  within  proper 
time,  it  has  not  the  .same  effect  upon  the  pre- 
<e(liiiij;  limitation,  in  cases  of  real  estate,  that 
is  allowed  to  it  in  cases  of  personalty.  In 
the  latter  case,  we  have  seen  (as  was  decid- 
ed in  the  cases  on  Hell's  will,  Bail.  Imi.  5.35,) 
that  such  a  limitation  over  converts  the  is- 
sue, or  heirs  of  the  body,  mentioned  in  the 
words  of  direct  gift,  into  purcha.sers  in  re- 
mainder. lUit  the  same  judge,  whose  opin- 
ion was  established  in  these  cases,  held,  in 
Whitwortli  v.  Stuckey,  (1  Kich.  Eq.  411,)  that 
when  real  estate  is  concerned,  the  direct  gift 
is  unaffected  by  the  limitation  over ;  and 
that  was  the  only  question,  in  relation  to  the 
construction  of  the  will  of  Fraser,  which 
was  considered  and  discussed  liy  him  in  that 
case.  As  it  has  been  sometimes  supposed 
that  the  learned  .Judge  had  investigated  the 
direct  words  of  limitation,  apart  from  the 
words  of  limitation  over,  I  have  thought  it 
worth  wliile  to  re-examine  liis  opinion,  and  I 
find  that  he  assumes  the  legal  construction 
of  the  former:  and.  taking  that  construction 
for  granted,  proceeds  to  consider  w^hat  he  re- 
garded the  real  question,  viz.: — Whether  the 
limitation  over  had  any  effect  to  control  or 
(lualify  it.  "Tliere  is  no  (luestion."  says  he, 
(Id.)  "that,  if  there  had  been  no  more  in  the 
will  than  a  gift  to  a  son,  for  and  during  the 
term  of  his  natural  life,  and,  at  liis  death,  to 
the  lawful  isstie  of  his  body,  this  would  have 
given  an  estate  tail,  or  fee  conditional,  un- 
der the  rule  in  Shelley's  case.  Tlie  (piestion 
is  upon  the  effect  of  tlie  limitation  over,  if 
lie  siiould  die  witiiont  leaving  issue  of  his 
body  living  at   the  time  of  his  death.     'Does 

*391 
*tliis.  according  to  the  eslalilislied  rule  of 
law,  sulliciently  indicate  the  testator's  inten- 
tion that  the  tirst  taker  should  be  restricted 
to  a  life  estate,  and  the  issue  take  as  pur- 
chasers';" It  is  with  reference  to  tliis  (lues- 
tion  that  he  i)roceeds  to  an  examination  of 
the  cases,  which  he  closes  by  a  remark  upon 
Gilmaii  v.  Elvey.  that  the  Court,  in  tlie  con- 
struction of  tlie  will  in  that  case,  did  "not 
resort  to  the  limitathni  over  in  the  event  of 
the  son's  not  leaving  issue  living  at  tlu-  time 
3  Rich. Eq.— 11 


of  his  death,  to  confirm  its  conclusion:" 
wliich  oliservation  shows  that  he  kept  the 
question  wliicii  he  had  proposed  to  discuss 
steadily  iiefore  him:    (Id.  412.) 

In  Forth  v.  Chapman.  (1  I'.  Wins.  tUi."..)  it 
was  held,  that  upon  the  same  words  of  tlie 
same  will,  limiting  over  real  and  personal 
property,  the  limitation  over  <tf  tiie  former 
would  ite  void  for  remoteness,  wliile  that  of 
the  latter  would  be  supported — an  authority 
that  lias  been  followed  ever  since; — and 
there  is  nothing  more  unreasoiialile  or  incon- 
sistt'iit  in  holding,  as  in  Henry  v.  Archer, 
and  in  Wliitworth  v.  Stuckey.  (1  llich.  Eq. 
411,)  that  tiie  t-tTect  of  a  limitation  over  to 
convert  the  word  "issue,"'  mentioned  in  a 
preceding  limitation,  into  a  word  of  pur- 
clia.se,  is  different,  according  as  the  subject 
be  real  or  personal  estate. 

The  decision  in  Forth  v.  Cliapiiian,  (1  I'. 
Wms.  ()t!.'l,)  turned  upon  the  different  quali- 
ties of  the  two  species  of  property  ;  a  sub- 
ject tliat  had  been  previously  considered,  and 
witli'the  same  result,  in  Target  v.  (iaunt,  (1 
P.  Wms.  4.'J.") :)  where  the  different  natures 
of  tlie  property  are  considered. 

Wliere  is  the  inconsistency':'  One  of  tliem, 
(real  estate,)  is  descendible — the  other,  (per- 
sonal estate)  never  is  so,  nor  can  it  be  ren- 
dered inheritable  liy  any  words  you  can  em- 
ploy. Now,  where  real  estate  is  limited  to 
one  and  the  heirs  of  his  body  or  i.ssue,  and 
then  limited  over,  (upon  any  contingency, 
however  near,)  the  primary  objects  of  tlie 
grantor's  bounty  are  those  to  whom  he  has 
expressly  given  his  estate  in  the  first  in- 
stance, and  it  is  contrary  to  his  intention 
that  the  ultimate  limitation  shall  ever  take 
effect  while  there  are  any  of  the  former  to 

*392 
enjoy  what  *he  designed  for  them.  If  you 
take  ad\antage  of  the  limitation  over  to  con- 
vert tlie  heirs  or  issue  mentioned  in  the  di- 
rect gift  into  purcliasers,  you  not  only  invert 
the  intended  oriler  of  the  bounty,  but  you 
are  destroying  the  very  estate  he  intended  to 
create  in  the  fir.st  instance.  He  intended  to 
create  an  estate  descendible  indefinitely  per 
formam  doni;  you  arrest  the  descent,  and 
turn  it  into  a  new  channel.  He  intended  the 
amplest  efflux  of  the  primary  e.state: — that 
issue  should  succeed  to  issue  in  the  enjoy- 
ment of  it,  while  there  shall  be  issue  to  en- 
joy. Put  you  mar  this  int«Mition  when  you 
declare  that  the  first  issue  shall  take  by  pur- 
chase, that  no  other  issue  shall  take,  and 
tliat  when  the  first  issue  are  dead,  though 
there  be  succeeding  issue,  tliey  sliall  not  en- 
joy as  such.  In  cases  of  real  estate,  there- 
fore, to  allow  tli(>  words  of  ultimate  limita- 
tion to  control  the  jirior  words  and  change 
their  operation,  would  be  a  complete  defeat 
of  the  primary  and  leading  intention  of  the 
grantor.  Nor  is  there  any  necessity  to  do  so. 
If  the  limitation  over  lie  sulliciently  near,  as 
to  time,  it  may  be  allowed  to  stand  by  way 
of  executory   devise,   without  abridging   tlie 

161 


*392 


3  RICHARDSON'S  EQUITY  REPORTS 


prior  disposition.  The  two  dispositions  may 
stand,  in  all  their  amplitude,  as  separate 
things,  according  to  the  terms  and  intention 
of  the  donor ;  and  so  they  should  stand.  Is 
there  any  instance  in  which  the  limitation 
over  of  realty  has  been  allowed  to  arrest  the 
efflux  of  the  prior  estate? 

But  does  this  reasoning  apply  to  personal- 
ty? It  is  not  descendible.  When  it  is  at- 
tempted to  be  limited  to  one  and  his  issue, 
the  issue  cannot  take  by  descent ;  and  if  they 
are  to  derive  any  benefit  under  the  convey- 
ance, it  must  be  by  purchase.  They  cannot 
take  in  succession,  as  in  cases  of  real  estate. 
But,  as  was  argued  by  Chancellor  HARPER, 
in  Henry  v.  Archer,  where  there  is  a  gift  to 
them,  there  is  an  expressed  intention  that 
they  shall  enjoy,  if,  in  the  circumstances, 
the  law  will  allow  it ;  and  where  there  is  a 
limitation  over  after  a  gift  to  issue,  there  is 
a  clear  declaration  that  the  issue  are  prefer- 
red over  the  ultimate  remaindermen,  in  the 
affection  of  the  grantor.  If  the  limitation 
over  is  to  take  effect  at  a  given  time,  the  will 
or  other  instrument  shews  us  that  whatever 

*393 

issue  may  happen  to  exist  at  that  time,  *are 
intended  to  take  before  the  ulterior  limitee. 
Now  the  question  is  reduced  to  this,  in  every 
such  case — is  the  limitation  over  good?  Is 
it  within  time?  Can  he,  for  whom  it  was 
intended,  take?  If  he  can,  then  any  other 
person  who  can,  at  that  juncture  of  time, 
shew  a  stronger  intention  in  his  favor,  is 
better  entitled  than  he,  and  should,  in  effect- 
uation of  the  intention,  be  preferred  before 
him,  as  far  as  the  law  will  allow  it.  Now, 
in  the  case  we  have  supposed,  (of  a  limita- 
tion over  at  a  lawful  time,  after  issue.)  any 
issue  existing  at  that  time,  can  shew  a  su- 
perior intention  in  their  favor ;  and  are  en- 
titled on  the  score  of  intention.  And  as  they 
cannot  lawfully  take  by  inheritance  or  suc- 
cession, must  be  allowed  to  take  in  a  differ- 
ent way,  by  way  of  purchase,  or  the  inten'- 
tion  is  defeated. 

Thus  we  see  that  the  decisions  in  Henry  v. 
Archer,  and  in  AVhitworth  v.  Stuckey,  though 
they  establish  different  rules,  establish  the 
same  principle ;  and  the  apparent  discrepan- 
cy arises  from  the  diversity  of  subjects  to 
which  it  is  applied.  The  intention  is  the 
Pole  Star,  and  both  these  cases  steer  to  it 
from  different  points. 

The  other  yuestion  relates  to  a  parol  gift 
of  slaves,  which  the  administrator  of  AVil- 
liam  A.  Hay,  the  pre-deceased  son,  alleges 
was  made  to  him  in  his  lifetime,  by  his  fa- 
ther. Col.  Hay.  This  gift  is  disputed,  and  it 
is  contended  that  the  slaves  were  loaned,  not 
given.  Mrs.  Hay  proves  a  loan,  beyond 
doubt;  and  if  I  could  receive  her  evidence, 
it  would  be  decisive  of  the  question,  (o) 


(a)   Mrs.  Hay's  testimony  was,  that  she  heard 

Willinin  A.  Hay  say  that  he  held  the  negroes 
as  a  loan.  R. 

162 


Her  competency  is  not  liable  to  the  objec- 
tion of  interest  on  her  part ;  but  1  think  it  is 
settled,  not  only  that  husband  and  wife  are 
exchided  from  testifying  for  or  against  each 
other,  during  their  joint  lives,  but  that  even 
after  the  dissolution  of  the  marriage  relation 
by  the  death  of  one  of  the  parties,  the  sur- 
vivor is  incompetent  to  testify  in  relation  to 
the  rights  or  estate  of  the  deceased.  See 
Footman  v.  Pendergrass,  (2  Strob.  Eq.  322.) 
Mayrant  v.  Guignard,  (3  Strob.  Eq.  112,)  and 

*394 
O'Conner  v,  *Mayerbank,  (43  Eng.  Com.  Law 
Rep.  228  (S.  C.)  4  Maning  &  Grayer  Rep.) 

The  ground  of  the  doctrine  is  one  of  social 
policy,  not  interest ;  it  arises  from  the  con- 
fidence essential  to  the  relation ;  and  it  is 
not  necessary  that  the  stibject  of  the  evidence 
should  have  been  imparted  to  the  survivor 
in  exiu'ess  confidence.  Whether  that  is  the 
case  or  not,  he  or  she  shall  not  be  allowed  to 
make  use  of  it  in  evidence;  because  such  is 
the  intimacy  of  the  relation  of  husband  and 
wife,  that  there  should  be  no  reserve  be- 
tween them ;  and  if  either  of  them  were  put 
under  fear  that  whatever  of  his  or  her  rights 
might  happen  to  be  exposed  to  the  othei", — 
whatever  that  other  might  chance  to  see  or 
hear,  might  be  brought  to  public  view, — this 
would  create  a  condition  of  tormenting  and 
intolerable  oppression,  and  would  lead  to  a 
degree  of  jealousy  and  suspicion  and  reserve 
utterly  destructive  of  domestic  peace  and 
happiness. 

The  other  members  of  the  family  whose 
testimony  has  been  brought  to  bear  against 
the  gift,  have  attempted,  by  releases,  to  di- 
vest themselves  of  their  interest.  Whether 
the  releases  have  effectually  removed  their 
interest,  it  is  tinnecessary  to  consider  or  deter- 
mine, because  their  testimony  relates,  not  to 
the  facts,  but  to  their  opinion  of  them.  In- 
dependently of  this,  there  is  little  in  evidence 
from  \A  hich  the  inference  of  gift  or  no  gift  is 
to  be  drawn,  beyond  the  bare  fact  that  the 
slaves  were  put  into  the  possession  of  the 
son  by  the  father,  and  were  employed  by  the 
son  in  planting.  Now  while,  as  I  have  said 
in  Henson  v.  Kinard,  (3  Strob.  Eq.  371,)  I  do 
not  think  this  amounts  ipso  facto,  to  a  gift 
in  law,  it  is  such  a  circumstance  as  may 
amotmt  to  evidence  of  it ;  and  should  be  so 
held  if  the  other  circumstances  are  equivocal, 
as  they  are  in  this  ease.  I  am  of  opinion 
that  there  was  a  gift,  but  would  prefer  that 
the  parties  would  take  an  issue,  for  which 
leave  is  hereby  granted  them,  if  they  make 
up  the  issue  within  three  months  after  my 
opinion  is  filed.  Having  now  given  the  opin- 
ion of  the  Court,  which  the  parties  desired  to 
take  upon  the  two  questions  submitted  by 
them,  it  is  left  to  coiuisel  to  propose  a  decree 
upon  those  points,  and  the  remaining  points 
of  the  case. 

*395 

*The  defendant,  Harriet  F.  Hay,  appealed, 
on  the  following  ground: 


HAY  V.  HAY 


*39-: 


That  his  Honor  should  have  decrood  that,  ( 
hoth  as  rej-'ards  tho  rt-al  and  iKM'sonal  estate  I 
devised  and  l)e<iuiathed  in  the  will  of  Charles  j 
J.  Brown,  the  said  will  contains  a  iHnnl  and  j 
valid  limitation  to  such  persons  as  shall,  at  | 
the  death  of  Mrs.  Susan  C.  Hay,  answer  the  j 
description  of  heirs  of  her  hixiy  then  livinj;,  ' 
as  purchasers. 

The  conipiainant,  C.  C.  Hay,  yave  notice 
that  he  appealed,  and  would  move  to  reverse 
and  modif.v  so  nnich  of  tlu'  Chancellor's  de- 
cree as  establishes  a  j,'ift,  (of  certain  slaves,) 
on  the  following  ;?rounds,  ami  in  the  follow- 
ing particulars,  viz.: 

1st.  In  this:  That  if  a  ,i:ift  be  established 
jrenerally,  it  is  respectfully  siibndtled  that  j 
the  Chancellor  should  have  expressly  except- 
ed the  nei^roes,  which  were  proved  to  have 
been  sent  for  n  special  and  temporiiry  pur- 
pose. 

2d.  In  this:  That  if  liie  Ajtpeal  Court 
should  decide  that  the  limitations  in  the  will 
of  Charles  J.  Brown  are  jiood,  then  it  will  be 
submitted  that  the  supposed  gift  was  valid 
only  durin.s;  the  life  time  of  F.  J.  Hay,  Sen., 
whose  marital  rights  did  not  attach  beyond 
that  period. 

3d.  Because  (as  it  is  respectfully  submit- 
ted) the  Chancellor  erred  in  rejecting  the  tes- 
timony of  Mrs.  Susan  C.  Hay,  (the  widow  of 
F.  J.  Ilay,  Sen.,)  who  was  a  competent  wit- 
ness, and  her  testimony  admissible. 

4th.  Because  the  testimony  of  the  other 
witnesses  for  the  complainant,  C.  C.  Hay,  ex- 
ecutor, negatived  the  supi)osed  gift. 

The  complaiiumt,  C.  C.  Hay,  also  gave  no- 
tice that,  by  his  notice  of  appeal,  he  did  not 
mean  to  waive  his  right  to  an  issue,  but  (if 
need  be)  an  application  would  be  made  for 
an  issue  at  the  hearing  in  the  Appeal  Court. 

Bellinger  &  Hutson,  for  comi)lainant. 
James  T.  Aldrich,  for  Ilairiet  F.  llay. 

JOHNSTON,  Ch.,  delivered  the  opinion  of 
the  Court. 

This  Court  is  satisfied  with  so  much  of  the 
decree  as  relates  to  the  real  estate;  and  it 
is  ordered  that  the  same  be  aliirmed. 

*396 

*It  is  quite  satisfactory  to  my  mind,  to  find 
that  the  case  of  Whitworth  v.  Stuckey,  as  I 
interpreted  it  in  the  decree,  is  corroborated 
by  the  amplest  authority. 

"It  remains,"  .says  Mr.  Jarman,  (2  Jarm. 
359,  .3G0;  chap.  .30,  division  2.  §  o.)  "to  be 
ob.served  that  where  a  devise  to  a  person  and 
liis  issue. — or  to  him  and  the  heirs  of  his 
body, — (b)  is  followed  by  a  limitation  over. 
In  case  of  his  dying  without  leaving  issue 
living  at  his  death,  the  only  eflect  of  these 
special  words  is  to  make  the  remainder  con- 
tingent on  the  described  event. — They  are  not 


(h)  Wri-ht  V.  Bearson.  1  Ed.  11!):  S.  C.  2 
Jarm.  272;  S.  C.  Amb.  ooS ;  S.  C.  I'laru.  C. 
K.  120. 


considered  explanatory  of  the  species  of  issue 
included  in  the  prior  devise  (c)  and,  there- 
fore, do  not  i»revent  the  prior  devi.see  taking 
an  e.state  tail  under  it.  (d)  The  result  simply 
is,  that  if  the  tenant  in  tail  has  no  issue  at 
his  death,  the  devise  over  takes  effect ;  if 
otherwise,  tiie  devise  over  is  defeated,  not- 
withstaiiding  a  sub.seiiuent  failure  of  issue. 
In  Doe  d.  Gilman  v.  Klvey,  (4  Fast.  :\i:\;  S. 
C.  2  Jarm.  3;>.3.)  the  circumstance  of  there 
being  a  limitation  over  on  failure  of  issue  at 
the  death  of  tiie  prior  devisee,  does  not  ap- 
pear to  have  given  ri.se  to  an  argument 
against  an  estate  tail.  The  only  doubt,  it  is 
conceived,  could  possibly  be,  whether  it  would 
have  the  effect  of  rendering  the  remainder 
expectant  on  the  estate  tail,  contingent  on 
the  event  of  the  devisee  in  tail  leaving  no  Ls- 
sue  at  his  death.  (<  i  The  atlirmative,  how- 
ever, .seems  to  be  the  better  opinion,  as  the 
courts  would  hardly  feel  themselves  author- 
ized, without  a  context,  to  reject  the  clause 
'living  at  his  decease.'  But  words  of  an 
equivocal  inq)ort  would  certaiidy  not  have  the 
effect  of  subjecting  tlie  remainder  to  such  a 
contingency."(/) 

Upon  the  subject  of  the  loan,  we  think  it 
advisaiile  that  an  issue  be  made  up.  as  in- 
dicated in  the  decree:  the  parties  asserting 
the  loan  to  be  the  actors:  and  it  is  ordered 
that  they  have  leave  to  make  uv  said  issue, 
to  be  heard  at  the  next  term  of  the  Court  of 
Common  Pleas  for  Barnwell  district. 
*397 

*As  to  the  competency  of  Mrs.  Susan 
Cynthia  Hay  (widow  of  Col.  Hay)  to  testify 
on  that  issue;  we  are  of  opinion,  that  the 
circumstance  of  her  being  the  widow  of  the 
donor  or  lender  is  not  sutHcient  to  render  her 
inconqietent :  and  that  the  decree  on  that 
subject  should  be  reverseil:  and  it  is  so  or- 
dered. 

Our  (!wn  cases,  referred  to  in  the  decree, 
are  cases  where  the  husband  or  wife  of  the 
witness  were  still  living.  :\Iy  own  opinion 
is  that  the  reason  of  incompetency  extends 
also  to  cases  where  the  marriage  relation  has 
been  ternunated  by  death.  But  the  tiuestion 
is  one  of  law,  and  the  testimony  in  this  case 
is  to  be  applied  to  a  legal  right ;  and  the 
statute,  in  such  cases,  reiiuires  us  to  yield  tt> 
the  judgments  of  our  law  courts.  The  case 
of  Cahlwell  V.  Stuart.  (2  Bail.  574,1  which, 
if  quoted,  was  overlooked  at  the  hearing,  is 
conclusive  upon  us. 

It  is  uiuiecessary  to  say  anything  further 
here  upon  the  (luestion  of  the  loan  or  gift.  It 
is  reserved  until  the  return  of  the  issue,  here- 
inbefore directed. 

It  is  ordered  that  the  (piestions  in  relation 
to  the  effect  of  Brown's   will   upon   the   per- 


((■)  Hutchinson  v.  Stephens,  1  Keen,  240. 

(rf)  2  Jarm.   .'WO. 

(c)  See  Lyon  v.  Mitcli.41.  1  MjkI.  It.  4(57,  as 
to  ixMsonalty:    and  note  2  .Tanu.  .'XiO. 

(/)  See  Bi-nndlun-st  v.  Mi>rris,  2  Baru.  & 
Adolph.  1;    S.  C.  2  Jarm.  301). 

163 


*397 


3  RICHARDSON'S  EQUITY  REPORTS 


sonalty  which  passed  under  it  be  reargued 
at  the  next  term,  in  connexion  -with  the  ver- 
dict upon  tlie  issue,  if  tlien  returned,  or  sep- 
arately if  the  issue  shall  not  have  been  tried 
before  that  time.  At  present  we  are  not  pre- 
pared to  decide  it;  and,  therefore,  reserve 
our  judgment. 

It  will,  also,  be  understood  that  we  reserve 
our  judgment  upon  the  question  whether 
those  parties  who  have  signified  their  will- 
ingness to  abide  by  Col.  Hay's  will  will  not 
be  allowed  (if  they  desire  it,)  to  retract,  in 
the  event  that  the  issue  of  Mrs.  Hay  be  de- 
clared entitled  to  take  the  personalty,  in  re- 
mainder, as  purchasers,  or  if  the  gift  con- 
tended for  in  the  pleadings  be  established. 
This  matter  is  here  stated  that  the  attention 
of  parties  and  their  counsel  may  be  drawn 
to  the  subject. 

It  is  ordered  that  all  questions  not  herein 
decided  be  reserved  until  further  hearing 
and  further  order. 

DARGAN  and  WARDLAW,  CO.,  con- 
curred. 

DUNKIN,  Ch.,  concurred  in  the  result. 
Decree  modified. 


3   Rich.  Eq.  *398 

*E.  J.  HIGGENBOTTOM  v.  WM.  II. 
TEYTON. 

WM.    H.    THOMSON,    Ordinarv,    v.    WM.    H. 
PEYTON. 

(Columbia.    May  Term,  1S51.) 

[Husland  and  Wife  €=>S.] 

By  marriage  settlement,  made  in  1S2G,  and 
not  recorded  until  eight  months  after  its  execu- 
tion, the  wife's  share  in  her  father's  estate  was 
conveyed  to  a  trustee  for  the  use  of  the  wife 
and  the  heirs  of  her  body:  proceedings  were 
then  pending  in  the  Circuit  Court  of  the  United 
States  in  which  the  father's  estate  was  inter- 
ested :  in  1832,  his  real  estate  was  sold  by  the 
Marshal  and  bond  taken  for  the  purchase  mon- 
ey :  The  U.  S.  Court  ordered  the  wife's  share 
to  be  paid  to  the  husband  in  right  of  his  wife; 
this  was  not  done,  and,  in  1S50.  after  the  death 
of  the  husband,  the  U.  S.  Court  ordered  the 
bond,  which  remained  unpaid,  to  be  transferred 
to  the  State  Court  of  Equity  for  Barnwell,  sub- 
ject to  its  decree:— Z/c/rf,  that  the  marital  rights 
of  the  husband  had  not  attached  on  the  wife's 
share,  and  that  she  was  entitled  to  it,  as  against 
the  creditors  of  the  husband,  under  the  pro- 
visions of  the  mari-iage  settlement. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
AYife,  Cent.  Dig.  §  21 ;    Dec.  Dig.  (g=3S.] 

[Husband  and   Wife  <^;=^?,1.'] 

At  the  sale  by  the  Marshal  of  the  father's 
personal  estate,  one  S.  at  the  request  of  hus- 
band and  wife,  bid  off  a  number  of  slaves  as 
trustee  for  the  wife,  and  gave  his  bond  for  the 
purchase  money  :  this  bond  was  afterwards  set- 
tled by  giving  credit  as  for  money  to  which 
the  wife  was  entitled,  as  her  share  of  her  fa- 
ther's estate:  S.  permitted  the  slaves  to  go 
into  the  possession  of  the  husband,  who  kept 
possession  of  them,  using  them  as  his  own  till 
his  death  : — Held,  that,  although  the  marriage 
settlement    was    void    as   against    creditors,    the 


parol  trust  created  by  the  purcha'^e  by  S.  was 
valid ;  and  that  the  marital  rights  of  the  hus- 
band had  not.  under  the  circumstances,  at- 
tached on  the  slaves  :  per  Harper,  Ch..  in  Pey- 
ton V.  Enecks,  in  note. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  §§  17S-195,  88.3.  884;  Dec. 
Dig.  <®=331.] 

[Husband  and  Wife  <©=11 ;  Trusts  <S=17,  18.1 
A  trust  in  personal  property  may  be  created 
by  parol ;  and  when  such  a  trust  is  properly 
created  in  favor  of  a  feme  covert,  it  is  not  re- 
garded as  being  executed,  so  as  to  be  liable  to 
creditors,  by  the  mere  circumstance  of  the  prop- 
erty going  into  the  possession  of  the  lausband  : 
per  Harper,  Ch.,  in  Peyton  v.  Enecks,  in  note. 

[Ed.  Note. — Cited  in  Trustees  v.  Bryson,  3-4 
S.  C.  412,  13  S.  E.  619. 

For  other  cases,  see  Husband  and  Wife.  Cent. 
Dig.  §  56:  Dec.  Dig.  (©=311 ;  Trusts,  Cent.  Dig. 
§  17;    Dec.  Dig.  e=Jl7,  18.1 

[Husband  and   Wife  <©=::>29.] 

[By  a  marriage  settlement  made  in  1826, 
and  not  recorded  until  eight  months  after  its 
execution,  the  wife's  share  in  her  father's  es- 
tate was  conveyed  to  a  trustee  for  the  use  of 
her  and  the  heirs  of  her  body.  Proceedings 
were  then  pending  in  the  federal  court  in  which 
the  father's  estate  was  interested.  In  1832  his 
real  estate  was  sold  by  the  marshal,  and  bond 
taken  for  the  purchase  money.  The  federal 
court  ordered  the  wife's  share  to  be  paid  to  the 
husband  in  his  wife's  right,  but  this  was  not 
done;  and  in  18.50,  after  the  husl)and's  death, 
the  federal  court  ordered  the  bond  to  be  trans- 
ferred to  the  state  court,  subject  to  its  decree. 
Held  that,  the  husband  having  never  reduced 
the  fund  to  possession,  nor  given  an  order  to 
the  trustee  for  the  fund,  his  marital  rights  had 
not  attached  to  the  wife's  share,  and  she  was 
entitled  to  it  under  the  provisions  of  the  mar- 
riage settlement,  as  against  his  creditors.] 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife.  Cent.  Dig.  §  167:  Dec.  Dig.  <©=^29 ; 
Fraudulent  Conveyances,  Cent.  Dig.  §  97.J 

Before  Dunkiu,  Ch.,  at  Barnwell,  Febru- 
ary, 1851. 

This  case  came  before  the  Court  on  excjep- 
tions,  by  Lucy  J.  Enecks,  one  of  the  defend- 
ants, to  the  Commissioner's  report. 

Duukin,  Ch.  The  exceptions  of  Lucy  J. 
Enecks  arise  out  of  this  state  of  facts.  She 
was  a  daughter  of  Elijah  Gillett.  On  her 
marriage  with  George  W.  Collins,  in  1826, 
he  executed  an  informal  settlement  of  all 
that  part  of  lands  and  tenements,  goods 
and  chattels,  rights  and  credits,  be(iueathed 
to  and  left  her  by  her  deceased  father  and 
mother.  This  transfer  was  made  to  James 
Higginbottom,   who  was   named   trustee   for 

*399 
the  said  Lucy,  *and  the  lawful  heirs  of  her 
body.  The  trusts  were  "for  her  only  proper 
use,  benefit  and  behoof,  and  the  lawful  heirs 
of  her  body."  Proceedings  were,  at  that 
time,  pending  in  the  Circuit  Court  of  the 
United  States,  in  which  the  estate  of  Elijah 
Gillett  was  interested.  In  1832,  his  real  and 
personal  estate,  in  the  hands  of  the  executor, 
was  sold.  The  real  estate  was  sold  by  the 
Marshal,  and  purchased  by  General  Erwin, 
who  gave  his  bond  for  the  purchase  money, 
about  $S,27'0.  The  complainant's  bill,  iu 
that    suit,    was    dismissed ;     but    the    Court, 


164 


<g=:3For  other  cases  see  same  topic  and  KEV -NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


HIGGEXBOTTOM  v.  PEYTON 


*401 


without  beiiifr  called  on  to  iiuike  (listrihiition, 
prottt'ded,  by  its  docretal  order — which 
Chaucellof  lljuiior  afterwards  styled  "un- 
usual and  peculiar"— to  direct  that  one- 
fourth  of  tlie  fund  sh<»uld  he  paid  to  J.  Iliy;- 
genbottom,  in  rij.'lit  of  his  wife,  Julia;  one- 
fourth  to  (;eor;.'e  W.  Collins,  in  ri«ht  of  his 
wife.  Lucy;  one-fourth  to  .J.  S.  Towcll.  in 
rijtht  of  his  wife.  Lavinia  :  and  the  remain-^ 
inj,'  fourth  part  to  Aaron  Ciliett.  It  does  not  [ 
appear  that  this  order  was  made  at  the  in- 
stance of  rollins.  or  that  he  ever  took  any 
steps  to  avail  himself  of  it.  If  the  money 
had  been  receiv»^l  by  him,  I  suppose  it  could 
hardly  be  (piestioned  that  he  would  be  con- 
strued a  trustee  for  his  wife,  under  the  set- 
tlement ,of  ISLH). 

But  Collins  departed  this  life  several  years 
since,  never  having  received  Ibis  money,  and 
the  bond  of  (ieneral  Krwin  >x\\\  remained  un-  \ 
paid.  liy  a  decretal  order  of  the  Circuit 
Court  of  the  T'nited  Stati-s,  made  on  the  L'Hth 
November,  ISoO.  the  bond  of  Ceneral  Erwin 
was  ordered  to  be  delivered  by  the  Clerk  of 
the  United  States  Court,  t«»  the  Comunssion- 
er  in  Equity  for  Barnwell  district,  to  be  held 
by  him,  subject  to  the  decree  of  the  State 
Court  of  E(piity.  It  will  be  jterceived  that 
the  only  question  is,  wMiether  the  marital 
rights  of  George  W.  Collins  attached— wheth- 
er he  held  the  fund  absolutely.  It  is  direct- 
ed to  be  paid  to  him  "in  right  of  his  wife," 
and  I  think  it  stronger  than  the  case  of 
Peyton  v.  Enecks,  MS.  184.").  Barnwell. («) 
in   which   Chancellor   Harper   sustained   the 

*400 
♦wife's   rights   under   this   settlement.      It   is 


ordered  that  the  second  e.xception  of  Lucy  J. 
Enecks  be  sustained. 

The  creditors  of  G.  W.  Collins  appealed,  on 
the  following  grounds,  viz.: 

1.  Because  the  marital  rights  of  G.  W.  Col- 
lins had  attached  to  his  share  of  the  fund  in 
the  Federal  Court. 

2.  Because  the  said  e.\ception  contravenes 
the  decision  of  Chancelhtr  Harper,  who  ex- 
pressly decided  tliat  the  marriage  articles  re- 
ferred to  were  null  and  void  as  against  cred- 
itors. 

3.  Because  the  said  exception  contravenes 

*401 
tlie  decisions  of  ♦this  Court,  not  oidy  on  gen- 


(o)  The  following  is  the  decree  of  Clinniellor 
Harper,  in  I'eyto.n.  Administrator  of  Collins 
V.  Enecks.  ' 

[Husband  and   Wife  <S=>119.] 

[By  marriage  settlement,  not  recorded  till  eight 
months  after  its  execution,  a  wife's  .share  in  her 
father's  estate,  which  was  then  involved  in  litiga- 
tion in  the  federal  court,  was  conveyed  to  a  trustee 
for  her  "only  proper  use.  benefit,  and  hehoof."  At 
the  sale  by  the  marshal  of  the  father's  personal 
t'^I^  «  o°<?  S'.,  at  the  request  c'  husband  and  wife 
Did  off  a  number  of  slaves  as  trustee  for  the  wife 
and  gave  his  bond  for  the  purchase  money.  This 
bond  was  afterwards  settled  by  giving  credit  as  for 
money  to  which  the  wife  was  entitled  as  her  share 
of  her  father's  estate.  S.  permitted  the  slaves  to 
go  into  the  possession  of  the  husband,  who  kept 
possession  of  them,  using  them  as  his  own  till  his 
death.  Held  that,  although  the  marriage  settlement 
was  void  against  creditors,  the  parol  trust  created 
by  the  purchase  by  S.  was  valid  :  and  hence  the 
niantal  rights  of  the  husband  did  not  attach  to 
the  slaves.! 

[Ed.    Note.-Por    other    cases,    see    Husband    and 
Wife,  Cent.  Dig.  §  425  ;    Dec.  Dig.  ®=»119.] 

Harper,  Cir.     On  the  13th  September,  1820 
*400 

Oeorge  W.  Collins,  in  contoiiipliition  of  ♦his  in- 
temlod  marriajio  with  the  defeiulant,  then  i.ucv 
(.illett.  conveyed  to  a  trustee  all  the  estate  o'f 
the  intended  wife,  in  trust  for  her  "onlv  proper 
use,  henefit  and  behoof."'  The  nnlv  property 
she  was  then  entitled  to  was  an  undivided  share 
of  her  father's  estate,  of  whom  she  was  a 
residuary  legatee.  The  estate  was  then  involv- 
ed in  liti?;ati(.n.  in  the  Federal  Court.  This 
deed  was  not  recorded  till  the  .".Otli  .May  Is-'T 
eiRht    months   after   its   execution. 


At    the   sales   of   the   estate   of   Elijah    (JIMett. 
the  father  of  the  defendant,    Lucy,  one   Stephen 
Smith,  at  the  recpn-st  of   Collins"  and   wife,   bid 
off  a   certain   luiiiiher  of  slaves,   as   trustee   for 
Mrs.    Collins,    and    gave   his   own    bond    for   the 
purcha.se    money.    This    bond,    if    I    understand 
correctly,     was    afterwards    settled.     I.v     ^'iving 
credit  as  for  money,  to  which  .Mrs.  Collins  was 
entitled,    as    her    share    of    her    father's    estate. 
The   trustee.   Smith,  permitteil   the  slaves  to  go 
into  possession  of  Geoit;e  W.  Cdlins.  who  kept 
possession  of  them,  using  them  as  his  own    till 
his  death,   in   IS'K;.    At   the   time  of   his   death. 
(  olhns   was  largely   indebted,   by  jud;;ment  and 
otherwise,    and   .some   of   his    creditors   are    pro- 
ceeding   to    enforce    their    claims    hy    action    at 
law,  against  the  complainant,  his  administrator. 
After  the  death  of  Collins,  by  an  arrangement 
.between    his    widow    and    the    administrator,    it 
!  was  agreed- that  the  propertv.  in  his  possession 
at  the  time  of  death,  including  the  slaves  claim- 
ed by  the  wife,  should  be  sold,  she  reserving  her 
claim    to    the    proceeds,    and    the    propertv    was 
.sold    accordingly.    The    objects    of   the    hill    are, 
that  the  creditors  may  be  restrained  from  pro- 
ceeding at   law— that  an  account   niav  be  taken 
of  the  estate  of  Collins,  and   that  the  rights  of 
the  defendant.   Mrs.   Enecks.  in  the  nroceeds  of 
the  property,  sold  hy  the  administrator,  mav  be 
declared.     I    take    the    marriage    rontra(-t    to   be 
void,   for  want  of  recording,  and  the  case  must 
be  decided  as  if  it  had  never  e.xisted.     The  tpies- 
tion.    then.    is.    whether    the    husb.and.    C.llins, 
during  his  lifetime,  reduced   into  his   possessicm 
his    wife's    share    of    her    father's    pers(.nal    es- 
tate,  so   that  his   marital   rights   attat  lied    upon 
it.     By   his  imrchase  at  the  sale.   I  snppo.se  the 
legal    title    to    the    slaves    vested    in    Smith,    as 
trustee    for   Mrs.    Collins.     A    trust    of   personal 
propi-rty   may  be  created   hy   pand  :    and.  if   the 
trustee     had     remaintnl     in     possessi<  n     of    the 
slaves,    hiring   them    out.    and    paying    over    the 
proceeds   of   their    labor    to   the    wife.    I    do   not 
perceive    how    any    (iu<'stion    could    have    arisen. 
The  case  of  IVrryclear  v.  .lacobs.  (i:   Hill's  E<i. 
504,)    is   very    similar    to    the   present,    and.    for 
the   most    iiart.    must   govern    it.     In    that   case, 
it  was  hild  that  an  assignment  might   he  made 
by   parol  of  an  undivided  share  of  an  estate,  to 
which    the   wife   was  entitled,    to   a    trustee,    for 
the  separate  use  (if  the  wife,  and  that,   reduced 
into    the    trustee's    possession,    the    proiierty    re- 
mained  subject    to  the   wife'r.  e(piity.   as   in   the 
hands  of  the  e.xecutor.     There  was  no  (piestion 
of  recording  a  parol  agreement;    and  the  prop- 
erty never  having  come  into  the  hiishand's  pos- 
session,  his  creditors   did   not  trust   him  on   the 
faith   of  it,   and  liad   no  right   to  look   to  it.     If 
the  trustee.   Smith,   jnirchased  for  the   wife,  and 
by  the  consent  of  the  husband,  the  monev  in  the 

♦401 
hands  of  the  executor,  to  which   he  *might  oth- 
erwise  have   been   entitled,    in   right   of   his   wife, 


0=3Kor  other  caaes  see  same  topic  and  KEV-XU.MilEU  iu  all  Key-Numbered  Digests  and  Indexes 


1G5 


*401 


3  RICHARDSON'S  EQUITY  REPORTS 


eral  principles,  but  in  relation  to  this  very  r 
claim,  set  up  by  Mrs.  Enecks.  i 

4.  Because  the  said  decision  is  contrary  to  j 
evidence,  law  and  equity. 

Bellinger,  for  appellants. 
Patterson,  Graham,  contra. 

DUXKIX,  Ch.  delivered  the  opinion  of  the 
Court. 

In  the  proceedings  in  the  Federal  Court, 
the  validity  or  effect  of  this  marriage  con- 
tract was  not  involved  in  the  issue.  Nor 
were  the  proper  parties  before  the  Court  for 
that  purpose.  So,  in  Gillett  v.  Powell, 
(Speers  Et].  142,)  Chancellor  Harper  express- 
ly declares  that,  in  the  case  then  before  the 
Court,  no  question  was  made  as  to  the  valid- 
ity of  the  marriage  settlement  of  George  W. 
Collins,  and  that  nothing  is  concluded  re- 
specting it  in  the  judgment  then  to  be  pro- 
nounced. In  truth,  the  Court,  in  that  case, 
considered  only  the  ett"ect  of  the  decree  in 
relation  to  the  rights  of  J.  S.  Powell,  who 
had  survived  his  wife,  Lavinia,  whose  marital 
rights  were  embarrassed  by  no  marriage  set- 
tlement, and  who  insisted  on  the  benefit  of 
the  Federal  decree.     Collins  never  interposed 

*402 
any   claim,   departed  this  life  in   1S36,    *his 


was  applied   to   pay  for  it,  it   forms  a   similar 
case. 

In  that  case,  however,  the  property  was  not 
permitted  to  go  into  the  possession  of  the  hus- 
band:  and  as,  in  this  case,  it  was  in  his  pos- 
session, and  he  may  have  gained  credit  on  the 
appearance  of  property,  it  would  seem  to  come 
within  tlie  mischiefs  of  the  recording  Acts.  But 
there  is  great  difficulty  in  applying  them.  Sup- 
pose the  trustee  had  purchased  of  any  other 
person,  and  the  executor,  with  the  hnsliand's 
assent,  had  paid  the  money,  should  I  be  au- 
thorized to  say  that  this  transfer  to  the  trustee 
must  be  in  writing? — that  it  is  a  marriage  con- 
tract, or  settlement,  and  must  be  recorded?  If 
not,  and  the  property  were  permitted  to  go  into 
the  hands  of  the  husband,  subject  to  the  trust, 
the  trust  would  be  good  as  against  him;  and,  if 
it  would  be  void  as  against  creditors,  it  would 
be  on  the  ground  of  fraud;  and,  apart  from  the 
recording  Acts,  this  must  mean  actual  inten- 
tional fraud.  But  it  has  nowhere  been  held 
that  the  mere  circumstance  of  giving  a  man 
the  appearance  of  property,  by  putting  it  into 
his  possession,  of  itself  constitutes  such  fraud. 
I  perceive  no  evidence  of  any  actual  fraudulent 
intention.  The  deed,  securing  the  estate  of  the 
wife,  was  not  kept  secret.  It  was  recorded, 
long  ])ef()re  the  property  came  into  the  hands  of 
the  husband ;  and,  if  creditors,  afterwards, 
trusted  him  on  the  faith  of  it,  they  had  the 
same  means  of  notice  as  if  the  instrument  had 
been  recorded  in  due  time:  and  this  woukl  liave 
been  valid  without  a  schedule.  It  is  said,  in 
Perryclear  v.  Jacobs,  that,  if  the  trustee 
"should  permit  chattels  to  go  into  the  hands 
of  the  husband,  this  might,  perhaps,  be  con- 
strued a  surrender  of  tbe  trust,  and  the  marital 
rights  attach  upon  them,  so  as  to  render  them 
liable    to    creditors."     But    this    was    before    the 

*402 
late  *decisions  that,  when  a  trust  is  properly 
created  in  favor  of  a  feme  covert,  it  is  not  re- 
garded as  being  executed,  so  as  to  be  liable  to 
creditors,  by  the  mere  circumstance  of  the  prop- 
erty going  into  the  possession  of  the  husband. 
Those    are    cases    of    marriage    settlement    duly 

166 


widow,  Lucy  J.  surviving  him  ;  and,  in  1850, 
the  fund,  in  the  Federal  Court,  still  remain- 
ing a  chose  in  action,  was,  by  the  order  of 
that  Court,  transferred  to  the  Couit  of  Chan- 
cery, for  Barnwell  district,  "subject  to  the 
decree  of  the  State  Court  of  Equity." 

In  the  circuit  decree  I  have  said,  that,  if 
Collins  had  actually  received  the  money,  he 
would  have  taken  it  affected  with  the  trusts 
of  the  ante-nuptial  settlement  executed  by 
himself,  and,  that  receiving  and  holding  in 
a  fiduciary  relation,  his  marital  right  would 
not  attach.  I  have  heard  nothing  to  remove 
that  judgment.  But  suppose  he  had  not  left 
this  to  implication  or  judicial  inference,  but 
had  given  an  order  on  the  registry  of  the 
Federal  Court,  or  on  the  obligee  of  the  bond, 
to  pay  the  money  to  Higgenbottom,  the  trus- 
tee of  the  settlement,  to  be  held  by  him  sub- 
ject to  the  trusts  thereof,  as  Chancellor  Har- 
per has  said  in  Peyton  v.  Enecks,  on  what 
principle  could  the  creditors  of  Collins  com- 
plain? The  lands  sold  were  his  wife's  in- 
heritance. The  decree  directed  the  proceeds 
to  be  paid  to  him  in  right  of  his  wife.  By 
the  settlement  of  1826,  Collins  had  transfer- 
red all  the  right  to  these  lands  to  Higgenbot- 
tom, the  trustee,  and  the  settlement  was  re- 
corded in  eight  months  thereafter.  He  had 
never  reduced  the  fund  into  his  possession, 

*403 

and  was  bound  not  to  *reduce  it  into  his  po.s- 
session,  but  to  do  every  thing  in  his  power 
to  secure  the  etHciency  of  the  trust,  and  he 
had  done  so.  Instead  of  giving  an  order  to 
the  trustee  for  the  fund,  Collins  merely  re- 
frained from  doing  any  act  inconsistent  with 
ills  covenant,  and  left  the  bond  in  the  custody 
of  the  Federal  Court,  who  have  transferred 


recorded.  But,  if  this  trust  was  duly  created, 
if  there  was  no  necessity  for  registration,  and 
if  there  was  no  actual  fraud,  it  must  come 
within  the  same  rule.  The  trust  must  be  held 
not  to  be  executed,  and  not  liable  to  creditors, 
unless  by  the  intervention  of  this  Court.  It  is 
usual  to  direct  a  reference  as  to  the  terms  of 
the  settlement.  But  the  settlement,  now  to  be 
made,  is  between  the  present  husband  and  wife, 
as  of  the  wife's  equity,  in  the  hands  of  the 
complainant:  and  I  understand  it  to  be  agreed 
that  it  shall  be  to  the  sole  and  separate  use  of 
the  wife. 

It  is,  therefore,  ordered  and  decreed,  that  it 
be  referred  to  the  Commissioner,  to  inquire  and 
report  a  proper  person  to  be  appointed  the 
trustee  of  the  defendant,  Lucy  J.  Enecks,  and 
whether  such  trustee  ought  to  give  any,  and 
what  security,  for  the  faithful  discharge  of  his 
trust;  that  the  Commissioner  take  an  account 
of  the  sales  of  the  property  sold  as  the  estate 
of  George  W.  Collins,  and  inquire  and  report 
what  portiim  of  the  proceeds  of  the  said  sale 
were  derived  from  the  trust  property  of  the 
defendant,  Mrs.  Enecks ;  and  that,  upon  a 
trustee  being  appointed,  the  Commissioner 
transfer  and  assign  the  amount  of  such  portion 
of  such  proceeds  to  such  trustee,  in  trust,  to 
the  sole  and  separate  use  of  the  wife  for  life ; 
to  the  use  of  husband  for  life,  if  he  shall  sur- 
vive his  wife;  at  the  death  of  the  survivor,  to 
the  issue  of  the  said  wife  then  living;  and,  if 
no  issue  of  the  wife,  to  the  survivor  absolutely. 


BOWIE  V.  FREE 


*-10j 


the  adniiiiistratioii  of  the  fuiul  to  the  State 
triliiiiial. 

The  Court  are  all  of  oiiinitm  that  the  rights 
of  Mrs.  Enecks  are  not  precluiletl  by  any 
judfrnient  heretofore  pronounced,  and  that,  on 
the  treneral  prineiples  of  this  Court,  she  is 
entitled  to  the  fund  under  the  iirovisions  of 
the  niarriajje  setth'iuent.  The  decree  of  the 
circuit  court  is  atlirmed  and  the  apjieal  dis- 
missed. 

JOIIXSTO.X.    1»AK(;AX    and    WAiCDLAW, 
CC  concurred. 
Appeal  disujissed. 


3   Rich.  Eq.  403 

.7.  S.  &  L.   BOWIE   V.   .](»n.\    n.   FREE  and 
Otlicrs. 
(Columbia.     May  Tenii.   IS.'jl.) 

{Framlulcnt    Convenances   (©=3lS.";.l 

Where  a  judgment,  cfnifcssed  for  a  much 
larger  amount  than  is  actually  due  the  plain- 
tiff, and  intended  not  only  to  secure  the  amount 
actually  due  but  also  to  defraud  other  creditors 
of  defendant,  is  set  aside,  at  the  suit  of  cred- 
itors, for  the  actual  fraud,  the  plaiiitilT  in  the 
judgment  will  not  be  allowed  to  retain  its 
lien,  as  against  the  other  creditors,  for  the 
amount  actually  due  him. 

[Ed.  Note. — Cited  in  DicJcinson  v.  Way,  3 
Rich.  E(i.  417 ;  Garvin  v.  Garvin.  55  S.  C. 
371.  33  S.  E.  458. 

For  other  cases,  see  Fraudulent  Conveyances, 
Cent.  Dig.  §  582;    Dec.  Dig.  (©=>1.S3.1 

Before  Dunkin,  Ch.,  at  Barnwell,  February, 
1851. 

Dunkin,  Ch.  The  complainants  are  credi- 
tors of  John  G.  Free.  The  oltject  of  the  pro- 
ceeding: is  to  set  aside  a  judgment  C(»nfessed 
by  John  G.  Free,  to  his  co-defendants,  11.  B. 
Rice  and  Allen  F.  Free,  on  the  ISth  January, 
1849.  It  seems,  from  the  evidence,  that, 
about  the  year  1845,  John  G.  Free  set  up  a 
country  store,  in  Barnwell  district,  not  far 
from  Buford"s  Bridge. — Desiring  to  obtain 
credit  from  the  wholesale  dealers  in  Charles- 
ton, he  was  introduced  by  the  defendant.  H. 
B.  Rice,  to  the  complainants,  J.  S.  &  L.  Bow- 
ie, "as  a  responsible  purchaser,  a  man  of 
property,  and  a  hard  working,  honest  man." 
This  reconnnendation  not  only  obtained  him 

*404 
credit  with  the  Messrs.  Bowies,  *but  with 
Wily,  Baid<s  &  Co.  and  with  others.  In  Sep- 
tember, 1848,  J.  G.  Free  was  in  debt  to  the 
Bowies  to  the  amount  of  .$lMis.s7,  and  to 
Wily,  Banks  &  Co.  .$1,158.04,  ami  was,  at  the 
.same  time,  consideralily  indebted  to  other 
dealers  in  Charlest(ui.  He  became  embar- 
rassed, and  was  threatened  with  suits.  Un- 
der these  circumstances,  he,  on  the  l!)th  De- 
cember, 1848,  gave  his  promissory  note  to  his 
co-defendants,  II.  B.  Rice  and  Allen  F.  Free, 
for  the  sum  of  six  thousand  seven  hundred 
and  fifty-four  dollars  and  thirty-eight  cents 
($6,754.38.)  and,  on  the  isth  January,  184!),  he 


(•(Mifessed  a  judgment  on  the  said  note,  with 
interest  from  the  date  thereof,  on  which 
judgment  a  ti.  fa.  was  issued  aiul  lodged  with 
the  sheriff  of  Barnwell  district.  On  the  sec- 
on<l  day  of  July  following,  the  lu-operty  of 
J.  G.  Free  was  taken  to  satisfy  said  execu- 
tion, and  was  sold  for  about  two  thousaiul 
dollars,  nearly  the  whole  of  the  property  be- 
ing bid  off  by  the  defendants,  II.  B.  Rice  and 

A.  F.  Free.  In  the  mean  time,  suits  a*^  law 
were  pending  against  John  G.  Free,  at  the 
instance  of  the  complaitmnts  and  other  credi- 
tors, and  judgnuuits  were  entered  thereon,  at 
Spring  and  Fall  Term,  1S4!).  This  bill  was 
hied  on  the  15th  August,  1849,  charging  that 
the  judgment  of  the  iSth  January,  1.S49,  was 
fraudulent.  The  answers  of  John  (J.  Free  and 
II.  B.  Rice  were  filed  on  the  L'9th  Decendier. 
1S49.  and  an  amended  answer  of  the  latter 
on  the  119th  January,  1S5().  Some  time  in 
1849,  but  at  what  time  does  not  appear.  J.  (J. 
Free  made  an  assignment  of  his  books,  notes 
and  accounts  to  II.  B.  Rice  and  Allen  F. 
Free.  One  of  the  witnesses  (Bratham)  .said 
that,  in  1849,  he  saw  an  advertisement,  call- 
ing on  the  creditors  of  J.  G.  Free,  to  make 
payment  to  him,  (Rice.)  and  that  the  ad- 
vertisement was  signed  by  Rice  as  assignee. 

At  Fall  Term,  1850.  for  Barnwell  district, 
John  G.  Free  was  admitted  to  the  be.nefit  of 
the  insolvent  debtor's  Act,  on  executing  the 
usual  a.ssignment.  In  his  schedule,  he  in- 
cludes any  interest  he  may  have  in  the  liooks, 
notes  and  accounts  assigned  by  him  to  II.  B. 
Rice  and  Allen  F.  Free. 

All  the  defendants  admit  that  no  such  sum 
as  $6,754.38  was  due  by  John  G.  Free  to  II. 

*405 

B.  Rice  and  Allen  F.  Free,  on  the  *isth  De- 
cember, 184S.  Rice  says  that,  about  that 
time,  he  and  John  G.  Free  made  a  calculation 
of  what  was  due  by  J.  (i.  Free  to  A.  F. 
Free,  (who  had  been  his  ward.)  and  also  of 
his  indebtedness  to  Rice,  as  well  as  of  the 
dei)ts  for  which  Rice  was  liable,  and  "found 
the  .same  to  be  about  $4,754.38,  for  which  J. 
G.  Free  proposed  to  give  them  a  confession  of 
judgment,  but,  as  the  amount  of  the  notes  of 
J.  (i.  Free,  on  which  Rice  was  indorser,  could 
not  be  ascertained,  and  as  J.  G.  Free  might 
re<iuire  subsequent  indorsements,  it  was 
agreed  that  the  sum  of  $L».000  should  be  add- 
ed and  included  in  said  judgment,  to  cover 
any  amount  that  might  be  omitted,  as  well 
as  any   further  indorsements." 

It  seems  that  John  G.  Free  was  appointed 
guardian  of  his  brother,  Allen  F.  Free,  about 
1841.  He  had  made  regular  annual  returns 
to  the  Conuuissioner.  His  last  return,  previ- 
ous to  the  confession  of  judgment,  was  in 
January.  1S4.S.  The  whole  amount  due  to 
his  ward,  according  to  tho.se  returns,  includ- 
ing a  calculation  of  interest  on  the  annual 
balances,  was  six  hundred  and  four  dollars 
and  thirty-four  cents.     One  of  the  witnesses, 


©=3For  other  ca-ses  see  same  topic  aud  KEV-NUMBEK.  iu  all  Key-Numoered  Digests  and  laae.xes 


107 


*405 


3  RICHARDSON'S  EQUITY  REPORTS 


^vho  was  a  surety  on  the  guardianship  bond, 
but  was  subsequently  released,  testified  tliat, 
in  December,  1S4S,  or  January,  1849,  he  had 
a  conversation  with  Allen  F.  Free,  in  which 
he  stated  that  he  and  his  brother  had  had  no 
settlement ;  that  there  were  transactions  be- 
tween them,  but  that  he  did  not  sui>pose  the 
amount  due  him  exceeded  seven  hundred 
dollars.  The  whole  amount  due  by  J.  G. 
Free  to  H.  B.  Rice,  in  January,  1849,  includ- 
ing interest  on  his  open  accounts,  appears 
by  the  statement  filed  with  his  answer  not 
to  have  exceeded  six  hundred  and  ninety-four 
dollars,  and  the  notes  for  which  he  says  he 
was  responsible,  amounted,  by  that  state- 
ment, to  about  one  thousand  or  one  thousand 
and  fifty  dollars.  The  whole  amount  of  in- 
debtedness and  liabilities  not  exceeding  stw- 
enteen  hundred  and  fifty  dollars.  It  is  not  sug- 
gested that  any  "further  indorsements"  were 
asked  or  obtained,  by  John  G.  Free  from  H. 
B.  Rice.  It  is  not  the  least  remarkable  fea- 
ture of  the  transaction  that,  at  that  time, 
January,  1849,  when  John  G.  Free  was  utter- 
ly bankrupt,  about  to  be  pressed  by  debts  ex- 

*406 
ceeding  three  times  *the  amount  of  his  prop- 
erty, he  should  confess  a  judgment,  a  large 
proportion  of  which  was  to  indenmify  the 
plaintiff  against  future  indorsements.  But, 
according  to  the  statement  of  H.  B.  Rice, 
filed  as  a  part  of  his  answer,  and  according 
to  the  sworn  returns  as  guardian,  by  John  G. 
Free,  the  whole  amount  for  which  his  co- 
defendants,  Rice  and  A.  F.  Free,  had  any  claim 
against  him,  in  January,  1849,  scarcely  ex- 
ceeded  twenty-three  hundred  dollars,  and 
they  took  from  him  a  sealed  note  for  six 
thousand  seven  hundred  and  fifty-four  dol- 
lars thirty-eight  cents,  with  a  confession  of 
judgment  thereon.  Upon  this  judgment  ex- 
ecution was  issued,  and,  in  July,  1849,  the 
defendant's  property  was  sold  by  the  sheriff', 
and  purchased  by  the  plaintiffs  in  the  execu- 
tion, for  about  two  thousand  dollars,  leaving 
subsequent  execution  creditors,  to  tlie  amount 
of  nearly  five  thousand  dcjUars,  wholly  un- 
satisfied. 

There  are  some  remarks  of  Chancellor  Har- 
per in  the  case  of  Hipp  &  Vansant  v.  Sawyer, 
(MS.  Lexington,  Februjiry,  1830,  attirmed  by 
Court  of  Appeals,  book  D,  311,)  which  seem 
not  inapplicable.  Part  of  that  case  related 
to  a  deeu  which  was  attacked  as  voluntary, 
but  which  was  attempted  to  be  sustained, 
because  a  part  of  the  alleged  consideration 
had  been  paid. — "Now,"  says  the  Chancellor, 
"if  this  liad  been  proven,  I  should  think  the 
difference  between  the  actual  payment  and 
the  ostensible  consideration,  a  strong  circum- 
stance against  the  deed.  It  does  not  follow 
that,  because  a  consideration  was  paid,  a  con- 
veyance cannot  be  fraudulent  as  to  creditors. 
In  Twine's  case,  there  was  a  consideration. 
Even  if  the  full  value  was  paid,  and  it  ai> 
pea  red  that  the  transaction  was  concerted 
between  the  grantor  and  grantee,  to  enable 

168 


the  former  to  defeat  creditors  by  changing 
the  land  into  money,  which  he  could  more 
easily  put  beyond  the  creditor's, reach,  I  pre- 
sume the  conveyance  would  be  considered 
fraudulent.  Lord  Mansfield  says,  in  the  case 
of  Cadogtui  V.  Kenneth.  (Cowper,  434,)  'But, 
if  the  transaction  be  not  bona  fide,  the  cir- 
cum.stance  of  its  being  done  for  a  valuable 
consideration,  will  not  alone  take  it  out  of 
the  statute.  I  have  known  several  cases 
where  persons   have   given    a   fair   and    full 

*407 
*price  for  goods,  and  where  the  possession 
was  actually  changed,  yet,  being  done  for 
the  purpose  of  defeating  creditors,  the  trans- 
action has  been  held  fraudulent,  and  there- 
fore void.'  He  instances  the  purchase  of  a 
house  and  goods,  with  a  view  to  defeat  a 
sequestration  out  of  Chancery,  and  of  goods 
to  defeat  an  execution,  and  adds — 'The  ques- 
tion, therefore,  in  every  case  is,  whether  the 
act  done  is  a  bona  fide  transaction,  or  wheth- 
er it  is  a  trick  and  contrivance  to  defeat  cred- . 
itors.'  The  inserting  of  a  false  consideration 
in  the  deed,"  continues  Chancellor  Harper, 
"shews  the  transaction  to  be,  in  some  degree, 
colorable.  It  indicates  that  they  thought  the 
true  consideration  inadequate  and  insutticient 
to  support  the  deed."  The  Chancell»r  says, 
tbe  defendant,  proliably,  did  pay  some  debts 
of  the  grantor,  and  intended  him  to  hold  the 
land  not  subject  to  the  claims  of  creditors, 
and  he  may  have  supposed  this  a  benevolent 
and  unexceptionable  transaction :  "but  the 
law,"  says  he,  "pronounces  it  fraudulent." 
In  the  same  case,  the  validity  of  a  confession 
of  judgment,  given  by  the  defendant.  Sawyer, 
to  his  co-defendant,  Martin,  was  impeached : 
it  was  for  .$8,377.  The  conqjlainants  alleged 
various  grounds,  all  of  which  were  examined 
by  the  Chancellor.  Among  others,  "The  con- 
fession of  judgment  to  Martin,"  says  he,  "was 
made  during  the  pendency  of  complainants's 
suit  at  law  against  Sawyer,  and  just  before 
the  judgment ;  and  though  a  debtor  may, 
without  fraud,  prefer  one  creditor  to  anoth- 
er, yet  the  circumstance  is  entitled  to  consid- 
erable weight  when  the  transaction  is,  other- 
wise, of  so  doubtful  a  character  as  the  pres- 
ent. According  to  Twine's  case,  the  making 
of  a  conveyance,  in  satisfaction  of  a  debt, 
during  the  pendency  of  the  suit,  is  one  of  the 
badges  of  fraud,  and  the  confession  of  a 
judgment  comes  within  the  same  reason." 
After  discussing  the  various  circumstances, 
the  Chancellor  concludes  "that  presumptions 
against  the  judgment  were  strong  enough  to 
impose  on  the  defendant  the  burden  of  shew- 
ing that  it  was  bona  fide,  and  founded  on  con- 
sideration, and  that  he  had  failed  to  do  so. 
Roberts,  in  his  Treatise  on  Fraudulent  Con- 
veyances, (p.  490,)  says,  'though  the  debt  be 
bona    tide    due,    the    judgment,    quoad    other 

*408 
*creditors  may  be  mala  fide  confessed,  i.  e. 
may  be  confessed  with  intent  to  delay,  hin- 
der or  defraud  others  of  their  just  and  law- 


BOWIE  V.  FREE 


^410 


fill  actions,  and  such  Intent  is  to  be  Kuthered 
from  the  circmnstances  of  each  case.'  "  "In 
the  present  case,"  says  the  Chancellor.  "I 
am  not  satisfied  that  any  debt  was  bona  fide 
due;  but.  if  there  was.  or  if  defendant  was 
under  liabilities  against  which  he  was  not 
sufficiently  secured,  I  am  satisfied  the  jud;:- 
nient  was  mala  fide  confessed  for  an  extrava- 
gant amount,  with  intent  to  cover  all  the 
pntperty  of  Sawyer,  and  to  hinder  and  de- 
fraud other  creditors."  The  judjimeiit  in  fa- 
vor of  Martin  was  declared  void,  and  he  was 
decreed  to  account  for  all  property  which  he 
had  received  under  it. 

If  Hipp  &  Vansant  v.  Sawyer  be  law,  (and 
it  seems  to  be  well  sustained,  not  only  by 
reason,  but  by  the  authority  of  elementary 
writers  as  well  as  by  that  of  the  distin>,'ui.><h- 
ed  jurist  who  pronounced  the  judj;ment»  it  is 
decisive  of  this  cau.se.  It  may  be  conceded 
that  John  G.  Free  was  indebted  to  his  co-de- 
fendants, but  why  was  a  judtiment  taken  for 
three  times  the  amount?  Why  was  a  note 
given  for  the  precise  sum  of  six  thousand 
seven  hundred  and  fifty-four  dollars  and 
thlrty-eisiht  cents,  but  to  hold  out  the  ap- 
pearance of  bona  fide  indebtedness  to  that 
particular  amount?  But,  say  both  the  de- 
fendants, II.  B.  Rice  and  John  (J.  Free,  it 
wa.s  partly  to  secure  Rice  ajiiiinst  "subse- 
quent indorsements."  The  judjrment  was 
confessed  January.  1849.  The  existing  in- 
debtedness and  liability  of  Free  to  the  plain- 
tiffs in  the  judgment  was  a.scertained  (say 
they)  to  be  about  four  thousand  seven  hun- 
dred and  sixtj-four  dollars,  thirty-eight  cents 
(.'?47<i4..'!Si.  J.  G.  Five's  property  was  worth 
about  -I^L'OCX)— yet  they  addetl  two  thousand 
dollars  to  the  amount  of  this  lien,  "as  John 
G.  Free  might  reijuire  sub.seciuent  indorse- 
ments." It  is  not  suggested  that  any  sub- 
sequent indorsements  were  ever  made.  But 
that  is  not  the  inquiry.  Can  it  be  supposed 
that  it  was  In  the  contemplation  of  the  par- 
ties to  increa.se  the  indebtedness  of  John  G. 
Free  on  the  faith  of  this  judgment?  On  the 
other  hand,  is  it  not  apparent,  from  all  the 
circumstances,  that  altlmugh  .some  indelited- 

*409 
*ness  existed,  and  the  defendant,  Rice,  was 
under  liabilities  for  J.  G.  Vn\\  yet,  in  the 
hmguage  of  ChaMcelior  Ilari)er.  "the  judg- 
ment was  mala  fide  confessed  for  an  extrava- 
gant amount,  with  intent  to  cover  all  the 
l»roperty  of  John  (J.  Free,  and  to  hinder  and 
defeat  other  creditors  wlio  were  about  to 
press  their   demands?" 

My  opinion  is,  that  the  judgment  in  favor 
of  H.  B.  Rice  and  Allen  F.  Free  must  be 
declared  null  and  void — the  original  indi'bt- 
edness  of  their  C(t-defendant,  John  G.  Free, 
is  unaffected.  It  is  only  determined  that 
they  can  take  no  advantage  and  derive  no 
security  from  the  judgment  wbidi  has  been 
mala  fide  confessed. 

It  is,  therefore,  ordered  and  dccrcetl,  that 
the  judgment  of  the  I6ith  January,  1!S4U,  be 


.set  aside — that  the  defendant,  II.  B.  Rice, 
pay  into  the  hands  of  the  Commissioner  the 
sum  of  seven  hundred  and  seventy-six  dollars 
and  sixty-two  cents,  with  interest.  il>eing 
the  price  at  which  he  re-sold  the  slave  An- 
thony.)— that  the  lease  of  the  land  and  build- 
ing's lid  off  by  II.  B.  Rice  on  :.'d  July,  1S4!>, 
le  re-sold  by  the  Commissioner,  on  a  credit 
until  1st  January,  l.Su2.  secured  by  bond 
bearing  interest  and  personal  security,  and 
that  II.  B.  Rice  account  for  the  rent  thereof 
since  lid  July,  lS4t)— that  the  slaves  iiid  off 
by  the  defendant,  Allen  F.  Free,  be  sold  by 
tlie  Comnnssioner,  on  a  credit  until  1st  Jan- 
uary, lS~y'2.  .secured  by  bond  bearing  intense 
personal  .security,  and  a  inortgage  of  the 
slaves,  and  that  Allen  F.  Free  account  for 
the  hire  of  said  slaves  since  2d  July,  ls4;>. 
It  is  further  ordered  and  decreed  that  the 
aggregate  amount  of  the  several  sums  thus 
to  be  realized  be  paid  to  the  execution  cred- 
itors of  the  defendant,  John  (i.  Free,  accord- 
ing to  their  respective  legal  priority.  It  is 
finally  ordered  that  the  Commissioner  take 
an  account  of  the  amount  due  by  the  defend- 
ants for  rent  and  hire  as  aforesaid,  and 
that  he  report  thereon;  and  also  that  he  re- 
port on  the  execution  debts  of  the  said  John 
G.  Free,  with  the  dates  thereof,  and  the 
amount  due  on  the  same — costs  to  l;e  paid  by 
the  defendants. 

The  defendants,   Henry  B.   Rice  and  Allen 

*410 

F.  Free,  moved  to  *reform  the  circuit  decree 
— because,  under  the  circumstances  of  tlie 
case,  the  judgment  at  law,  mentioned  in  the 
pleadings,  ought  to  be  permitted  to  stand  as 
a  security  for  the  amounts  really  and  bona 
fide  due  to  the  siiid  defendants  respectively. 

I'atter.son.  for  motion. 
J.  T.  Altlricli.  contra. 

Dl'NKIX,  Ch.  delivered  the  opinion  of  the 
Court. 

It  is  too  long  and  too  well  settled  to  be 
now  called  in  tiuestion,  that  a  debtor  has  the 
right  to  make  a  preference  among  his  bona 
tide  creditors.  Nor  is  it  any  violation  of  the 
statute  18  KHz.  c.  f),  that  tbis  preference  is 
gi\en  by  confession  of  judgment,  as  was  rul- 
ed by  tbe  King's  Bench  in  Holltird  v.  Ander- 
son. (5  T.  R.  2:551.  Nor  is  the  judi-'ment  void 
because  confe.s.sed  for  a  larger  sum  than  the 
amount  actually  due.  Bank  of  (Jetugia  v. 
lligu'inbottom,  ('J  IVters,  4S  [9  L.  Kd.  4GJ(.  It 
has  been  repeatedly  held,  too,  that  a  judg- 
ment, or  other  security,  may  Ix'  taken  for 
future  responsibilities,  or  future  advances. 
Chancellor  Kent  expresses  the  opinion  that 
this  doctrine  should  be  taken  with  the  limita- 
tion that,  where  a  subsetiuent  judgment  or 
mortgage  inti-rvened,  further  advances  alter 
that  period  could  not  be  covered. 

The  policy  of  permitting  such  preferences, 
and  especially  of  creating  liens  60  uncertain, 

169 


»410 


3  RICHARDSON'S  EQUITY  REPORTS 


and,  in  some  sort,  ambulatory,  has  been  fre- 
quently called  in  question.  Some  judges 
have  declared  that,  if  the  subject  were  res 
Integra,  a  different  rule  would  be  adopted. 
All  the  cases,  however,  hold  that  the  trans- 
action must  be  marked  by  good  faith,  an 
lionest  determination  to  secure  the  just  rights 
of  a  creditor ;  and  that  it  be  not  a  mere 
cloalc  to  secure  the  property  of  the  debtor, 
or  to  protect  it  from  the  claims  of  his  other 
bona  fide  creditors.  It  would  be  a  mockery 
of  justice  to  hold  the  transaction  valid,  be- 
cause one  creditor  was  secured  bj'  a  scheme, 
the  leading  purpose  of  which  was  to  defeat 
and  defraud  all  the  other  creditoi's.  The  in- 
quiry in  this,  and  in  all  similar  ca.ses,  is 
as  to  the  true  intention  of  the  parties ;  and 
*411 

in  solving  this  in*quiry  all  the  circumstances 
are  to  be  considered.  In  itself,  it  is  no  fraud 
to  take  a  jvidgment  for  a  larger  amount  than 
is  actually  due.  The  amount  may  not  be 
ascertained,  or  may  not,  at  the  time,  be  sus- 
ceptible of  accurate  statement.  But  why 
take  the  judgment  for  an  amount  three  times 
greater  than  any  sum  supposed  to  be  due, 
and  with  a  minuteness  of  dollars  and  cents, 
which  holds  out  the  appearance  that  an  ac- 
count of  indebtedness  had  been  taken,  and 
the  amount  due  accurately  ascertained  and 
adjusted  at  that  precise  sum?  AVhy  was  this 
delusion  continued  even  to  the  day  of  sale  of 
the  debtor's  property,  and  no  intimation 
given,  either  on  the  record,  or  otherwise,  that 
the  judgment  was,  to  a  great  extent,  fictitious? 
But  it  is  not  proposed  to  repeat,  or  enlarge 
upon,  the  observations  made  in  the  decree. 
The  Court  did  not  doubt  tliat  something  was 
due  by  John  G.  Free  to  both  his  co-defend- 
ants, and  that  one  of  the  objects  of  the  judg- 
ment was  to  secure  tliat  indebtedness,  but 
justice  must  be  hoodwinked  not  to  perceive 
that  the  debtor  had  otlier  and  ulterior  pur- 
poses to  answer,  which  formed  ji  principal 
consideration  for  iiis  conduct,  and  to  which 
Iiis  co-defendants  were  necessarily  privy. 
Tile  decree  of  the  circuit  Court  does  not 
impair  the  original  contract  of  indebtedness, 
but  oidy  declares  void  the  security  thus  un- 
lawfully obtained. 

The  principal,  and  perhaps  the  only  ground 
of  appeal  is  that  the  Chancellor  should  have 
permitted  the  judgment  to  stand  for  the 
amount  actually  and  bona  fide  due  by  the 
debtor,  John  G.  Free.  This  question  has 
been  heretofore  vei-y  fully  considered  in  our 
own  Courts,  and  the  cases  of  Miller  v.  Tol- 
lison,  (Harp.  Eq.  145  [14  Am.  Dec.  712]  ; ) 
Fryer  v.  Bryan,  (2  Hill  Eq.  56,)  and  I'arker  v. 
Holmes,  (2  Hill  Eq.  L>5,j  have  definitively  set- 
tled that,  when  a  judgment  or  other  security 
is  successfully  impeached  for  reasons  of  this 
character,  it  cannot  be  allowed  to  stand  for 
any  purpose  prejudicial  to  the  rights  of  the 
other  creditors. 


It  is  ordered  and  decreed  that  the  appeal 
be  dismissed. 

JOHNSTON,   DARGAN   and   ^YARDLAW, 

CC.  concurred. 
Appeal  dismissed. 


3  Rich.  Eq.  *4I2 

*JANE  C.  DICKINSON  v.  RICHARD  WAY 

and  HENRY  B.  RICE. 

(Columbia.    May  Term,  1S51.) 

[Executors  and  Adiiihiistrators  <Sx=3l44.] 

Where  a  judsmeut,  confessed  for  a  much 
linger  amouut  that  is  actually  due  the  plaintiff, 
and  intended  not  only  to  secure  the  amovmt 
due,  but,  also,  to  defeat  other  creditors,  is  set 
aside,  at  the  instance  of  a  creditor,  for  the 
actual  fraud,  the  whole  judgment  is  set  aside 
so  far  as  creditors  are  concerned,  and  the  plain- 
tiff must  stand   upon  the  original  indebtedness. 

[Ed.  Note.— Cited  in  Garvin  v.  Garvin,  55  S. 
C.  371,  33   S.   E.  458. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  5S2 ;    Dec.  Dig.  <S=>144.] 

Before  Dunkin,  Cli.,  at  Barnwell,  February, 
1S51. 

Dunkin,  Ch.  The  complainant  is  tlie  wid- 
ow and  administratrix  of  Josiah  Dickin- 
son, deceased.  In  October,  1849,  the  defend- 
ant, Richard  Way,  being  indebted  to  her  as 
administratrix  in  a  considerable  amount,  con- 
fessed a  judgment  thereon,  upon  which  judg- 
ment execution  has  been  issued,  but  the  com- 
plainant has  been  unable  to  realize  any  part 
of  the  amount  due  thereon,  inasnuicli  as  the 
whole  of  the  property  of  her  debtor  has  been 
taken  to  satisfy  an  execution  of  the  defend- 
ant, 11.  B.  Rice ;  that  the  property  thus  seiz- 
ed consists  of  three  slaves,  several  liorses, 
cattle,  provisions,  &c.  The  execution  in  favor 
of  H.  B.  Rice  was  entered  on  the  11th  Feb- 
ruary, 1848,  for  the  sum  of  one  thousand 
seven  hundred  and  seventy-six  dollars,  eiglit 
cents.  The  judgment  was  confessed  on  two 
notes,  each  for  the  sum  of  $885.44.  One 
note  bears  date  14th  February,  1848,  payable, 
with  interest,  one  day  after  date.  The  other 
is  dated  lltli  February,  1848,  payable,  with 
interest,  six  monihs  after  the  date  thereof. 
The  charge  is  that  this  judgment  was  fraud- 
ulently confessed,  for  a  much  larger  amount 
than  was  due,  and  with  a  view  to  cover  the 
whole  property  of  the  defendant,  Way,  from 
his  bona  fide  creditors.  The  debt  to  the  com- 
plainant was  of  some  years'  standing  before 
slie  obtained  judgment  thereon.  Many  of  the 
remarks  which  might  be  made  in  this  case 
have  been  anticiiiated,  in  the  judgment  of 
the  Court  in  the  cause  of  Bowie  v.  Free  & 
Rice,  heard  at  this  Term.  Quoting  Roljerts, 
(page  490)  it  is  there  said,  "though  the  debt 
be  bona  fide  due,  the  judgment  quoad  other 
creditors   may  be  mala  fide  confessed,   i.   e, 

*413 
may  be  confessed  with  intent  to  delay,  *hin- 
der  and  defraud  others  of  their  just  and  law- 


170 


^=^For  other  cases  see  Siuiie  lopic  auU  KEY-NUMBER  in  all  Key-Numbered  Digests  aud  Indexes 


DICKINSOX  V.  WAT 


*41.= 


fill  nctimis.  and  such  iutont  is  to  be  collected 
from  the  circuiiistaiices  of  each  c-ase."  The 
4|uestion  is  not  whether  any  thinj;  was  due, 
liut  (as  ursed  in  that  case)  "whether  the  act 
done  was  a  bona  tide  transaction,  or  a  con- 
trivan<e  to  defeat  creditors."  It  is  added 
that  the  insertion  of  a  false  consideration 
in  the  deed  or  in  the  jnd|i;nient  is  an  indica- 
tion that  the  transaetion  was,  in  some  dej^ree, 
cohtrable. 

It  appears,  from  the  testimony,  that  the 
defendant,  Kichard  Way,  i^*  an  i;:;norant 
man.  knows  little  abont  bnsiness.  and  (as 
the  witness  said)  cannot  write.  The  answer 
of  the  defendant,  II.  li.  Rice,  adnnts  that  the 
judirment  of  11th  February,  1S4S,  was  for  a 
much  laruer  sum  than  was  due.  Indeed,  it 
is  very  dear,  from  the  statement  tiled  with 
his  answer,  that  one  of  the  n«>tes,  on  which 
the  judfiment  was  confes.sed.  to  wit,  that  of 
the  1-Ith  February,  1S4S,  included  every  dol- 
lar that  was  at  that  time  between  the  par- 
ties. The  other  note  is  for  exactly  the  same 
amount,  and  is  payaiile,  with  interest,  six 
months  after  date.  The  inciuiry  is,  for  what 
purpose  was  this  note  jiiven.  and  why  for 
this  precise  amount  V  The  defendants  differ 
very  materially  in  their  statements.  Rice 
.says  that,  at  the  time  of  the  confession,  he 
ajj;reed  to  take  up  a  debt  of  !?.'!()0,  due  by 
Way  to  Edward  Hayes,  secured  by  a  mort- 
gage of  two  nesroes,  and  that  the  second 
note  was  intended  to  include  this  debt,  as 
also  AVay's  account  with  him  f(»r  the  current 
year,  (1S4.S.)  "  and  for  any  further  i)ecuniary 
accommodation  the  said  llicliard  Way  might 
require  of  the  defendant  (Hicei  in  the  mean 
time."  Richard  Way's  account  of  the  trans- 
.•iction  is,  that  at  the  time  of  confessing  the 
.pidgment  to  his  co-defendant,  he  was  nnicli 
emiiarrassed,  and  owed  more  tlnin  he  was 
worth — that  his  co-defendant  was  well  in- 
formed of  his  embarrassed  situation,  and, 
"assuming  to  act  a  friendl.v  part  towards 
him.  suggested  the  propriety  of  confessing  a 
judgment  for  double  the  amount  the  defend- 
ant was  due  him,  assigning  for  a  reason 
therefor  that  such  an  act  wimld  prevent  the 
other  creditors  of  this  defeiulant  from  suing 
him.  and   that  therel)y  this  defendant   might 

*414 
be  able  to  save  a  con*siderable  portion  of 
his  propert.v — that,  not  knowing  what  to  do, 
he  adt>pte(l  the  suggestion,"  &c.  Rut  that  his 
c«Hdefendant  afterwards  proceeded  to  pur- 
chase up  outstanding  claims  against  him,  «&c. 
The  testimony  of  Edward  Hayes  as  to  the 
conduct  of  both  the  defendants  in  relation  to 
this  mortgage  debt,  creates  a  strung  doubt 
whether,  at  the  time  of  confessing  the  judg- 
ment, the  defendant,  II.  B.  Rice,  had  assum- 
ed to  pay  this  debt  to  Hayes.  It  is  also 
very  clear  that  some  of  the  demands  now 
claimed  by  Rice,  were  not  in  existence  at  the 
date  of  the  judgment — for  instance,  the  note 
to  Freeman,  given  l.'4tb  Aiiril,  1S4!>.  and  the 
note  to  Kittrell,  dated  liOth  February.  l.S4!t. 
The  evidence  of  Kittrcll  in   relation   to  this 


matter  is  very  pregnant.  He  says  that  he 
had  a  demand  against  Richard  Way.  for  .$1S0 
— that,  on  the  ."d  July,  1S4S,  he  had  a  ci>n- 
ver.sation  with  the  defendant,  II.  H.  Rice,  in 
relation  to  the  judgment  which  he  held 
against  Richanl  Way.  Rice  said  the  debt 
was  all  just,  and  lu'  did  not  know  how  Wa.v 
could  object.  The  witness  offered  his  claim 
to  Rice  for  .$ll.'.">.  Rice  declined  it,  and  wit- 
ness emidoyed  Mr.  McKenzie  (a  member  of 
the  bar,  since  decea.sed.)  to  set  aside  this 
judgment.  He  enipkiyed  him  to  sue  Way 
for  the  money,  and  to  put  Rice  on  his  oath 
about  the  judgnu'Ut.  He  told  him  if  it  had 
to  go  to  the  Court  of  E(|uit.v.  to  carry  it 
there.  Witness  afterwards  received  a  mes- 
sage from  Rice,  and  bad  an  interview  with 
him.  It  was  at  (Jraham's  Turn-Out.  where 
Rice  lived.  Rice  told  witness,  that  if  he 
(witness)  and  Way  could  agree  about  an.v 
proi»e^t.v  of  Way,  to  be  taken  in  payment  of 
his  debt,  he  (Rice)  would  make  it  good  to 
him,  as  he  held  the  eldest  judgment.  Wit- 
ness got  four  head  of  cattle  and  ten  head  of 
sheep.  It  seemed  to  be  understood  that  he 
(witness)  was  to  be  paid  if  he  would  take 
property,  and  stop  the  case  that  he  had  <li- 
rected  to  be  brought.  Witness  wrote  to  Mr. 
McKenzie  to  droj)  the  suit.  Afterwards  wit- 
ness took  a  receipt  from  Rice  for  forty  dol- 
lars, b.v  note  on  Way.  dated  L'Oth  February, 
1S45).  This  note  now  makes  part  of  Rice's 
demand.s. 

On  the.  IJlth  .Tune.  ls41).  the  defendant, 
*415 
Rice,  made  out  a  *statement  of  the  amount 
due  by  Way  to  him,  on  account  of  Hayes's 
debt,  Kittrell's  note,  .$44,  and  Freeman's,  as 
well  as  Way's  account,  for  the  .vear  1S4S, 
and  interest  thereon,  the  whole  amounting  to 
.$r)!l.~)..'"»7,  ft)r  which  aggregate  sum  he  took  a 
note  from  Way  of  that  date,  and  gave  him 
a  receipt.  All  the  circumstances  lead  to  the 
conclusion  that,  at  the  time  of  the  confes- 
sion of  judgment,  11th  February.  I.s4s.  only 
one  note  was  due,  by  Way  to  Rice,  anil  that 
the  other  note  was  given,  and  the  judgment 
confessed,  on  double  the  amount  really  due; 
for  the  purp()se,  as  averre<l  in  Way's  answe", 
of  covering  all  his  property,  and  preventing 
his  other  creditors  from  sueing  him.  and 
thereby  enabling  him  to  save  a  portion  of  his 
l)ropert.v.  Thi.s.  at  least,  was  his  view. 
There  are  many  didiculties  in  adopting  the 
version  of  II.  R.  Rice.  Why  was  no  writ- 
ten statement  prepared  at  the  time,  setting 
forth  the  object  of  the  judgment?  Why  was 
the  second  note  taken  for  exactly  the  amount 
of  the  other  note,  but  payable,  with  interest, 
six  months  after  date,  and  judgment  con- 
fessed six  months  before  the  note  was  due? 
How  is  the  statement  now  made,  b.v  Rice, 
reconcileable  with  his  asseveration  to  Kittrell, 
in  July,  1S4.S,  that  the  whole  amount  of  the 
judgment  was  justly  due  to  him  and  he  did 
not  know  how  Way  could  say  to  the  con- 
trary':' Courts  should  afford  little  encourage- 
ment  to   contracts   such   as   that    alleged    by 

171 


*415 


3  RICHARDSON'S  EQUITY  REPORTS 


the  defendant,  H.  B.  Rice.  His  co-defendant, 
embarrassed  beyond  the  means  of  extrica- 
tion, confessed  a  judgment  to  him.  not  only 
for  what  is  due,  but  for  double  that  amount. 
"This  was  done,"'  says  tlie  defendant,  Rice, 
"to  include  the  store  account  of  the  defend- 
ant. Way,  for  the  then  current  year,  which 
had  just  commenced,  (11th  Februai'y,  1S4.S.) 
and  for  any  furtlier  pecuniary  accommoda- 
tion the  said  Richard  Way  miglit  require  of 
his  co-defendant  in  the  mean  time."  And  all 
this  was  to  depend  on  an  understanding  be- 
tween the  parties,  was  to  be  kept  to  tliem- 
selves,  and  the  judgment,  for  a  fictitious 
amount,  was  to  stand  as  a  security  to  the 
plaintiff,  and  a  scai'ecrow  to  tlie  otlier  credi- 
tors of  the  defendant.  The  debt  to  the  com- 
plainant, Jane  C.   Dicljinson,   was  due  long 

*416 
before  the  judgment  to  Rice ;    *so  was  tlie 
debt    to    Kittrell.      Rice's   own    demands,    in 
February,  1S4S,  amounted  to  more  than  half 
the  value  of  the  defendant.  Way's,  property. 

If,  under  these  circumstances,  a  judgment 
of  thife  character  could  be  sustained,  it  would 
afford  an  irresistible  inducement  to  the  insol- 
vent debtor  to  avail  himself  of  such  sugges- 
tions as  Way  says  were  made  to  him ;  and, 
to  a  creditor  in  Rice's  situation,  not  only  to 
obtain  security  for  his  debt,  which  other 
creditors  had  not,  but  to  keep  his  debtor  in 
his  power,  and  put  other  creditors  at  defi- 
ance. 

Good  faith  and  public  policy  unite  in  con- 
demning agreements  of  this  character. 

But  the  intrinsic  evidence,  arising  from  the 
papers  themselves,  not  less  than  the  parol 
testimony,  confirm  the  answer  of  Way,  to 
wit,  that  no  more  was  due  to  Rice  than  the 
amount  of  the  first  note,  and  that  the  second 
note  was  executed,  and  the  judgment  confess- 
ed, for  the  aggregate  amount  of  both  notes, 
for  the  purpose  of  covering  the  whole  prop- 
erty of  Way,  and  thereby  enabling  him  to 
hinder,  delay  and  defeat  his  l)ona  fide  credi- 
tors. 

The  sheriff  testified  that,  under  the  several 
executions  in  his  office,  of  which  the  defend- 
ant. Rice,  held  the  eldest  he  had  sold  out  the 
defendant,  Richard  Way,  in  December,  1849, 
and  January,  1850;  that  the  amount  of  the 
sales  was  $1592.  Part  of  the  property  sold 
was  the  two  slaves  mortgaged  to  Edmund 
Hayes. 

The  Court  is  of  opinion  that  the  judgment 
of  the  11th  February,  1848,  nuist  be  declared 
void ;  but  that  the  defendant.  Rice,  is  en- 
titled, inider  Hayes's  mortgage,  to  receive  the 
amount  due  on  the  note,  to  secure  which  the 
same  was  given. 

It  is  ordered  and  decreed,  that  the  judg- 
ment of  the  11th  February,  1848,  be  set 
aside;   that,  after  payment  to  the  defendant, 

172 


Henry  B.  Rice,  of  the  sum  of  three  hundred 
dollars,  with  interest  from  the  19th  June, 
1846  the  surplus  of  the  sales  made  by  the 
sheriff  be  paid  over  by  him  to  the  execution 
creditors  of  Richard  Way,  according  to  their 

*417 
resi)ective    legal    *priority.      Costs    of    these 
proceedings  to  be  paid  by  the  defendants. 

The  defendant,  Henry  B.  Rice,  appealed, 
and  submitted  that  the  decree  of  the  circuit 
Court  ought  to  be  reformed,  so  as  to  permit 
the  judgment  at  law,  mentioned  in  the  plead- 
ings, to  stand  as  a  security  for  the  amount 
really  and  bona  fide  due  to  the  said  defend- 
ant,   from    his    co-defendant,    Richard    Way. 

Patterson,  for  appellant. 
Owens,    contra. 

DUNKIX,  Ch.,  delivered  the  opinion  of  the 
Court. 

The  principles  involved  in  this  case  are 
precisely  the  same  as  those  discussed  in 
Bowie  V.  Free  and  Rice,  ante,  p.  403,  heard  at 
these  sittings.  The  evidence  is  still  more  di- 
rect and  abundant;  and  this  Court  is  well 
satisfied  with  the  conclusions  both  (»'■  law 
and  fact.  The  only  ground  of  app  al  pre- 
sented by  the  brief  is  that  considered  and 
disposed  of  in  Bowie  v.  Free.  But  it  has 
been  suggested  in  this  Court  that  the  proper- 
ty of  the  defendant,  Way,  is  more  than  suf- 
ficient to  satisfy  the  complainant  and  his 
other  judgment  creditors,  and  that  the  judg- 
ment of  his  co-defendant,  H.  B.  Rice,  should 
not  be  absolutely  set  aside,  but  that  he  should 
have  the  advantage  of  it  after  the  other  judg- 
ments have  been  satisfied.  One  of  the 
grounds,  on  which  the  judgment  of  Rice  was 
set  aside,  was  its  tendency  to  prevent  the 
otlier  creditors  of  Way,  by  simple  contract  or 
otherwise,  from  pressing  their  demands  to 
judgment,  and  so  far  as  creditors  are  con- 
cerned, he  cannot  be  permitted  to  derive  any 
advantage  from  his  lien,  but  must  stand  on 
the  original  indebtedness  and  come  in  rate- 
ably  with  the  other  existing  creditors  of 
Way.  But,  as  between  Way  and  Rice,  the 
validity  of  the  judgment  was  not  put  in  issue 
by  the  pleadings,  nor  was  any  thing  intend- 
ed to  be  concluded.  These  remarks  are  made 
in  deference  to   the   suggestions  of  counsel, 

*418 
and  to  prevent  misaiiprehension ;    but  *none 
of  the  facts  are  before  us,  either  as  to  a  sup- 
posed surplus,  or  the  existence  of  any  other 
than  judgment  creditoi-s. 

It  is  ordered  and  decreed  that  the  appeal 
be  dismissed. 

JOHNSTON,   DARGAN   and   WARDLAW, 
CC,  concurred. 
Appeal  dismissed. 


COUNTS  V.  CLARKE 


*420 


3  Rich.  Eq.  418 

A.  J.  COrXTS  V.  JOSKI'II   CI.AKKK. 

(Columl)iii.     May  Tt'iin.   IS.")!.) 

{E  qui  til   ®=>n4u.l 

Wiiattvfr  may  be  tlio  impn-ssiijiis  of  the 
Court  as  to  tlip  niorits  of  the  case,  if  the  an- 
swer is  (•■mtraclicted  by  hut  one  witness,  the  bill 
must  Im"  dismissed. 

IKd.  Note.— For  other  cases,  .see  E(|uity,  Cent. 
Diu:.  S   ~---    l'e<-.   I»ij:.  C=3:'A7).] 

I{»'f(»re  Duiikin.  Ch.  at  UaniwcU.  February, 
ISol. 

Duiikin.  Ch.  This  is  n  petition  to  coiuikjI 
the  specific  perfornuince  of  an  a;:reenient  for 
the  sale  of  three  lots  in  the  town  of  Clinton, 
fcn-nierl.v  Klaekville.  It  is  clmr^'ed  that,  on 
the  Ulid  June.  184S,  defendant  aixreed  to  .sell 
the  three  lots  to  the  plaintiff  for  one  hundred 
and  twenty-tive  dollars.  That  the  defendant 
drew  a  written  obligation  to  that  effect, 
which  he  placet!  in  the  hands  of  Luder  F. 
Beliliug,  to  be  delivered  to  the  plaintiff 
wiienever  he  should  pay  him  for  the  defend- 
ant the  sum  of  tifty  dollars.  The  plaintiff 
and  Behling  both  lived  in  Ulackville.  The 
defendant  is  a  carpenter;  was  employed  on 
the  Hail  Koad,  and  resided  at  the  time,  some 
three  miles  from  (Jraniteville. — I'laintiff  al- 
leges that  he  took  possession  of  the  lots, 
put  a  fence  around  them,  and  dug  a  well. 
That  the  improvements  thus  made  are  worth 
forty  dollars.  That  in  August  or  September, 
1S49.  plaintiff  informed  Behling  that  he  was 
ready  to  pay  the  purchase  money  and  re- 
ceive a  title  for  the  lots,  and  reiiuested  him 
to  write  to  defendant  to  come  t<)  lilackville, 
receive  the  money,  and  make  him  titles  for 
the  lots ;  but  that  defendant  refused  to 
comply.  The  answer  of  the  defendant  ad- 
mits, that  he  agreed  to  sell  two  (not  three) 
lots  to  plaintiff  for  $125,  the  plaintiff  pay- 
ing $50  in  cash,  and  giving  his  note  for  $75. 
That  plaintiff,  not  being  able  at  the  time  to 

*419 
pay  the  cash,  defendant  agreed  to  give  *him 
a  few  days  to  do  so.  and,  as  defendant  was 
leaving  Blackville.  he  placed  in  the  hands 
of  L.  F.  Behling.  an  agreement  to  make  titles 
to  plaintiff  on  ivceiving  his  n()te.  for  $75 — 
that  this  agreement  was  to  be  delivered  to 
plaintiff'  on  payment  of  the  $50:  that  this  pa- 
per was  signed  only  by  himself;  was  placed 
in  the  hands  of  defendant's  auent,  and  was 
never  in  the  i)ossession  of  the  plaintiff';  that 
the  agreement  with  him  was  altogether  in 
parol,  and  defendant  relies  on  the  statute  of 
frauds;  that  some  three  months  afterwards, 
having  ascertain»'d  that  the  plaintiff"  had  not 
complied,  defendant  withdrew  the  papt'r  from 
Behling's  possession,  and  eonsideri'd  the  mat- 
ter at  an  end:  that  plaintiff  was  not  then  in 
possession  of  the  lots,  and  if  he  ever  took  pos- 
session, it  was  not  with  the  consent  of  de- 
fendant, or  un(U'r  any  contract,  but  as  a  tres- 
passer; that  defendant  never  heard  any 
thing  more  on  the  suli.ject.  until  eiglit  or 
nine  months  after  he  had  withdrawn  the  pa- 


per, and  when  the  lots  had  risen  in  value; 
that  the  plaintiff  then  wished  to  renew  the 
contract,  but  avowed  his  inability  to  pay 
any  money;  that  it  was  not  until  eighteen 
m<»nths  after  he  had  withdrawn  the  paper 
that  any  money  was  offered  to  him.  and  after 
the  lots  had  greatl.v  risen  in  value,  and  that 
he  refused  then  to  renew  the  agreement. 
The  witness.  Luder  F.  Behling,  proves  the 
contract  as  alh'ged,  and  that  a  note  or  agree- 
ment to  make  titles  was  left  by  ih'fendant 
with  the  witness,  to  be  delivered  to  the  plain- 
tiff on  payment  of  .f50.  This  was  in  June, 
1S4S.  That  it  remained  in  witne.ss's  po.sses- 
sion  until  April  or  May,  1S40;  that  defend- 
ant then  came  to  Clinton,  asked  to  see  the 
paper,  read  it  and  kept  it. — That  the  plain- 
tiff' let  the  witness  have  money  to  pay  for  the 
lots,  but  whether  this  was  before  or  after  he 
had  given  up  the  agreement  to  the  defendant, 
he  cannot  say;  that  two  or  three  months 
after  the  agreement,  plaintiff  fenced  in  the 
lots  and  dug  a  well ;  he  has  put  thirty  or 
forty  dollars  worth  of  work  on  them. 

It  appeared  from  the  evidence  of  this  wit- 
ness, and  others,  that  the  real  estate  in  Clin- 
ton had  risen  in  value  one  hundred  per  cent, 
within  the  last  two  years.  These  lots  are 
now  worth  .$250  to  $300 ;    the  annual  rent  is 

*420 
worth  $20.     The  evidence  is  all  in  *writing, 
and  has  only  been  partially  incori)orated  into 
the  statement. 

It  is  difficult  to  maintain  on  this  testimony, 
that  there  was  any  such  written  agreement 
between  the  jiarties  as  is  recpiired  by  the 
provisions  of  the  statute.  Assuming  the  con- 
struction insisted  on  by  the  plaintiff,  there 
was  a  parol  agreement  on  the  22d  .lune,  184S, 
that  on  the  payment  of  tifty  dollars  within 
a  reasonable  time,  he  was  to  receive  the  writ- 
ten engagement  of  the  defendant  to  make 
titles,  on  payment  of  the  balance.  Until  pay- 
ment of  the  lifty  d()llars  all  was  in  parol. 
After  the  tender  of  the  lifty  doUar.s,  and  the 
refusal  of  the  defendant  to  give  his  obliga- 
tion to  make  titles,  there  was  the  breach  of 
a  parol  ct)ntract — no  more.  Suppose  the  de- 
fendant had  agreed  to  make  him  a  title  on 
payment  of  $125,  and  in  order  to  be  ready 
had  preiiared  and  executed  a  conveyance, 
which  he  put  in  his  desk,  and  three  or  si.x 
months  afterwards,  tinding  that  the  plaintiff' 
had  not  called  to  comply,  he  took  out  the 
deed  and  put  it  in  the  tire,  ("ould  the  plain- 
tiff', on  afterwards  tendering  the  money,  al- 
lege that  there  was  any  written  agreement, 
t)r  give  any  strength  to  his  claim  in  conse- 
(pience  of  the  execution  of  the  conveyance".' 
But  it  is  scarcely  urged  by  the  plaintiff  that 
the  evidence  establishes  any  concluded  writ- 
ten agreement  between  the  parties.  It  is 
said,  however,  that  there  are  acts  of  part 
performance  which  take  the  case  out  of  the 
statute.  The  retpiisites  which  will  authorize 
the    interposition    of   a    Court    of   Equity,   to 


©=3For  other  cases  see  same  topic  aud  KEY-NUMBEH  iu  all  Key-Numbered  Uigesls  aud  Inde.ves 


173 


•420 


3  RICHARDSON'S  EQUITY  REPORTS 


compel  the  performance  of  a  parol  contract 
for  the  sale  of  lands,  are  enumerated  in 
Thomson  v.  Scott,  (1  McC.  Ch.  38).  It  is 
there  said,  that  when  the  plaintiff  relies  on 
part  execution,  he  must  show  that  the  part 
execution  was  by  mutual  consent.  If  the  pur- 
chaser took  possession,  that  he  was  put  in 
possession  by  the  vendor,  or  that  he  went 
in  by  his  consent.  If  this  is  not  shown,  that 
then  his  entry  partakes  more  of  the  nature 
of  a  trespass  than  a  part  execution  of  the 
contract.  The  party  seeking  the  perform- 
ance of  the  contract  must  also  make  out.  by 


lutely  necessary  for  Courts  of  Equity,  in  those 
cases,   to  make  a   stand  and  not   carry   tlu> 

*422 
decisions  further.  The  im*proTements  made 
by  the  plaintiff  are  worth  thirty  or  forty 
dollars,  and  the  annual  rent  of  the  lots  is 
worth  twenty  dollars ;  any  injury,  there- 
fore, done  to  the  plaintiff  in  conse(iuence  of 
taking  possession,  not  only  "admits  easily 
of  compensation,"  but  the  remedy  is.  per- 
haps, in  his  own  hands. 

It  is  ordered  and  decreed  that  the  petition 
be    dismissed,    each   party   to    pay    his    own 


proof,  that  he  has  done  all  that  good  faith  re-  |  costs. 
quired  of  him.    The  appeal  to  this  Court  is  to        ~' 
make  an  exception  to  the  statute,  and  can 

*421 
*only    be    successfully    invoked    in    favor    of 
good  faith,  as  well  as  diligence,  and  to  pre- 
vent fraud. 

The  evidence  leaves  great  doubt  in  some 
important  points.  The  agreement  was  made 
in  June,  184S.  The  fifty  dollars  was  to  be 
paid  within  a  reasonal)le  time,  says  the 
plaintiff.  This  payment  seems  to  have  been 
intended  as  well  to  bind  the  bargain,  as  to 
secure  the  defendant  in  the  balance. 

It  is  rather  apparent  that,  in  April  or 
May  of  the  following  year,  the  plaintiff'  had 
not  paid  the  fifty  dollars,  or  offered  to  do  so. 
If  he  had,  Behling  would  have  delivered 
him  the  note  or  obligation  to  make  titles,  for 
up  to  that  time  it  was  still  in  his  i)Ossession 
for  that  purpose.  But  the  plaintiff  does  not 
allege  or  aver  that  he  offered  to  comply  un- 
til August  or  September.  1849.  and  it  is  very 
certain,  from  Behling's  testimony,  that  four 
months  before  that  time,  the  defendant  had 
withdrawn  the  paper  from  his  possession. 
In  the  interim,   since  the   contract  of  June, 

1848,  real  estate  had  risen  greatly  in  value. 
Then  as  to  the  possession:  Clarke  says  there 
was  no  contract  that  the  plaintiff  should 
take  possession ;  that  if  taken,  it  was  not 
with  his  consent,  and  that  the  plaintiff  was 
not  in  possession,  to  his  knowledge,  when 
he   withdrew    the    paper    in    April    or    May, 

1849.  It  is  not  easy  to  infer  from  any  part  of 
the  testimony  that  the  plaintiff  took  posses- 
sion or  was  in  possession,  with  the  consent 
or  even  with  the  privity  of  the  defendant. 
Behling  says  that,  "defendant  knew  plain- 
tiff was  in  possession  when  he  refused  to  de- 
liver up  the  paper,  and  long  before."  But 
this  is  very  indefinite.  "It  is  necessary," 
says  Mr.  Sugden,  "that  the  act  (of  taking 
possession)  should  unequivocally  refer  to, 
and  result  from  the  agreement,  and  such  that 
the  party  would  suffer  an  injury  amounting 
to  fraud,  by  the  refusal  to  execute  that 
agreement." — (Sugden,  118).  He  then  shows 
that,  if  the  act  be  such  as  easily  admits  of 
compensation  without  executing  the  agree- 
ment, the  provisions  of  the  statute  must  be 
maintained,  and  refers  to  2  Sch.  &  Lef.  6, 
in  which  Lord  Redesdale  thought  it  was  abso- 


The  petitioner  appealed,  on  the  following 
grounds. 

1.  Because  there  was  sufficient  writing,  and 
sufficient  evidence  of  it,  to  take  the  case  out 
of  the  statiite  of  frauds. 

2.  Because  there  was  sufficient  performance 
on  the  part  of  the  plaintiff,  in  taking  posses- 
sion, (by  at  least  the  implied  consent  of 
the  defendant.)  and  offering  to  pay  the  mon- 
ey, even  before  demand  made,  to  autliorize 
the  Court  to  compel  a  specific  performance 
of  the  contract  on  the  part  of  the  defendant. 

Owens,  for  appellant. 
Bellinger,  contra. 

JOHNSTON,  Ch.  delivered  the  opinion  of 
the  Court. 

There  was  but  one  witness  to  contradict 
the  answer,  in  any  of  the  particulars  to 
which  it  relates: — either  as  to  the  parol 
agreement,  or  as  to  the  terms  of  the  written 
agreement, — or  the  conditions  upon  which 
it  was  placed  in  the  hands  of  Behling :  or 
as  to  the  fact  of  the  possession  being  taken 
under  the  agreement  (whetlier  considered  as* 
parol  or  written).  The  rule  of  evidence  in 
this  Court,  therefore,  necessarily  compelled 
it  to  dismiss  the  bill :  whatever  might  lie 
its  impressions  as  to  the  merits  of  the  case. 

It  is  ordei'ed  that  the  decree  be  affirmed 
and  the  appeal  dismissed. 

DFNKIN,  Ch.  concurred. 
Appeal  disniissed. 


3  Rich.  Eq,  *423 
♦ISAAC  KINARD  v.  STEPHEN  HIERS. 

(Columbia.     May  Term,  18.51.) 

[Frauds,  ^tatiiie  of  ©=^119.] 

Plaintiff  having  an  equitable  interest  in 
land,  of  which  he  wa.s  iu  possession,  and  which 
was  about  to  be  sold  at  a  judicial  sale,  agreed, 
by  parol,  with  defendant,  that  he,  defendant, 
should  purchase  it  for  the  benefit  of  plaintiff's 
wife  and  children  :  defendant  stated  the  agree- 
ment to  several  persons,  and  his  statements 
were  calculated  to  stifle  competition  among  bid- 
ders, and  actually  did  prevent  one  person  from 
attending  the  sale  and  bidding:  defendant  pur- 
chased the  land  at  aliout  half  its  value,  and 
then    refused    to    comply    with    his    agreeor'nt : 


174 


<®=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


KIXARD  V.  IIIERS 


*425 


Uchl.  that  defendant's  conduct  was  frauduleut;  t 
and   ho  was  not  allowed  to  retain  the  land.  I 

|Kd.  Note.— (^"ited  in  Lee  v.  Lee.   11    Uicli.  K<i.  i 
58;?;    Conev  v.  Tinimons,  Itj  S.  ('.  .'{s,");    Lamar 
V.   Wright, ■.•51  S.  C.  71.  T.'i.  9  S.   K.   VM\    Ja- 
.•(.l)s  V.   Mutual   Ins.   Co..  56   S.  C.   501,  35  S.  1 
E.  lilJl.  I 

For  other  cases,  see  Frjuids,  Statute  of,  Cent. 
Dig.  S  1270;    Dec.  Dig.  (©=»11!>.1 

Before  Duukiu,  Ch.  at  llaiinvcll,  Fchni- 
ary,  1851. 

Dunkin,  Ch.  In  1S4:],  a  tract  of  land,  l.e- 
lon.ixiiii,'  to  the  ooniplaiiiaiit.  and  containing 
aliout  tlnve  hundred  acres,  was  sold  b.v  the 
>sheriff.  and  hid  off  h.v  James  I'attersoii.  Esq.  ! 
for  sixty  dollars.  It  is  alleged  that  Patter- 
son took  and  held  the  title  under  an  aj^ree- ! 
nient.  that  the  complainant  ''should  have  the  • 
rifiht  to  redeem  on  the  payment  of  the  i)ur-  j 
<hase  money  and  interest."'  The  complain- 1 
ant  retained  po.ssession  of  the  prenuses  hut 
the  sheriff's  title  was  made  to  James  Patter- 
son. In  January.  184(5,  James  I'atterson 
conveyed  the  premises  to  Georjie  Kinard.  the 
hrother  of  complainant,  for  seventy-nine  dol- 
lars sixty  cents,  which  seems  to  have  heen 
the  amount  paid  hy  James  Patterson  in  184;}, 
includinj;  the  interest  and  exjtenses.  The 
testimony  is  very  full  and  satisfactory,  that 
(Jeorse  Kinard  took  the  conveyance  upon  the 
a.L'reement  that,  when  the  complainant  paid 
him  the  amount,  with  interest,  he.  George 
Kinard.  was  to  make  titles  to  the  wife 
and  children  of  the  comi)lainant.  George 
Kinard  died  hefore  the  money  was  paid. 
.Vdarn  Kinard  and  Hansford  Kinard  were 
the  two  sons  of  George  Kinard.  and  ad- 
nnnistered  on  his  estate.  They  pnn-ed  the 
repeated  acknowledgments  of  their  father  as 
to  the  agreement ;  and.  after  his  decease, 
they  consulted  with  A.  P.  Aldrich.  Esq.  as  to 
the  mode  hy  which  they  could  carry  out  the 
agreement  between  their  father  and  uncle. 
He  advised  that  the  land  should  lie  sold  by 
the  ordinary,  and  he  bid  oft"  for  the  amount 
paid   by   George    Kinard.    with    interest    and 

*424 
the  expenses  of  sale.  The  land  was  *ac- 
cordingly  sold  under  the  order  of  the  ordi- 
nary, on  the  7th  August.  1848.  Mr.  Aldrich 
testilies  that,  the  ordinary  being  sick,  he 
conducted  the  sale  for  him.  A  calculation 
was  made  of  the  amounts  due  and  the  ex- 
I'-enses,  and  the  administrators  were  advised 
to  run  the  land  to  a  few  dollars  over  the 
amount. 

The  land  was  set  down  by  the  auctioneer 
to  the  complainant;  but  when  the  return 
was  made  to  witness,  tlu'  land  was  set  down 
to  the  defendant,  Iliers.  All  the  paities 
were  present — rhe  adnunistrators,  I.  Kinard 
and  Hiers.  The  nnitter  was  freely  talked 
over,  and  they  all  aiipearcd  to  have  the 
.same  general  understanding  as  relati'd  by 
the  two  Kinards,  who  were  sworn  as  wit- 
nesses, and  were  the  administrators.  One 
of  these  witnesses.  Adam  Kinard.  say.s.  "the 
land  was  ordered  to  be  sold  by  the  ordinary, 


for  i)artition,  and,  when  witness  was  coming 
up  to  the  sale,  the  defendant.  Steidien  Iliers. 
riding  with  him.  told  him  there  was  an  un- 
derstanding between  him.  Hiers.  and  the 
complain.mt.  ft)r  Hiers  to  bid  off  the  land: 
but  Hiers  told  witness  not  to  let  the  land  go 
lor  h'ss  than  the  annamt  due  to  George  Kin- 
ard. That  the  bargain  was,  that  Stephen 
Hiers  was  to  bid  oft"  the  land  for  Isaac  Kin- 
ard, and  that  if  Isaac  Kinard  paid  the 
bid  and  expenses  of  sale  and  interest,  by 
the  first  of  January.  1850.  he,  Hiers,  was 
to  settle  the  land  on  Isaac  Kinard's  wife 
and  children;  and,  if  he  did  not,  the 
land  was  to  be  Hiers's."  The  amount 
dut'.  with  interest  and  exi>enses  of  sale,  was 
about  -Sllo.  Iliers  bid  oft  the  land  at  .$110. 
Isaac  Kinard.  comi)lainant.  was  living  on  the 
land  at  the  death  of  (ieorge  Kinard.  and 
at  the  time  of  the  sale  by  the  ordinary.  "It 
was  generally  known  (says  the  witness)  in 
the  neighboi'bood  how  the  land  was  held 
by  (Jeorge  Kiinird  for  his  brother  Isaac,  ami 
that  the  children  and  widow  of  George  Kin- 
ard desired  that  Isaac  Kinard  should  have 
the  benefit  of  said  agreement.  He  (witness) 
said  the  land  was  worth  more  than  it 
brought  at  the  ordinary"s  .sale."  Hansford 
Kinard  was  in  the  company,  riding  \\y\  to 
attend  the  ordinary's  sale,  and  confirms,  in 
ever.v  particular,  his  brother's  statement  as 
to  what  passed,  and  especially  as  to  the 
agreement  between   the  defendant   and   coni- 

*425 
plainant.  This  witness  said  he  *was  not 
well  acciuainted  with  the  land— that  at  the 
time  of  the  sale,  other  men  said  they  would 
have  given  more  for  the  land  if  it  was  not 
that  Iliers  was  going  to  befriend  Kinard. 

Michael  Hiers  proved,  among  other  things. 
that  the  agreement  between  the  comidainant 
and  defendant  was  generally  luiderstood  in 
the  neighborhood  at  the  time  of  the  sale — 
that  the  witness  intended  to  be  a  bidder  at 
the  sale,  and  would  have  given  nn)re  than  the 
land  brought ;  but  in  consetiuence  of  the  un- 
derstanding betwi'en  Hiers  and  I.  Kinaril. 
he  did  not  attend  the  sale:  as  Kinard  was  a 
poor  man,  he  did  not  wish  to  interfere  witli 
him. 

It  was  fully  proved,  and.  indeed,  is  adnnt- 
ted  in  the  answer,  that,  on  the  first  Saturday 
of  January.  184J>,  the  complainant  tendered 
to  the  defendant  the  full  annanit  due  under 
the  agreenu'ut.  and  denninded  a  title,  or  a 
bond  for  titles,  which  was  refu.sed. 

The  principle  which  sc-ems  applicable  to 
this  case  is  stated  in  McDonald  v.  May.  (1 
Kidi.  Eq.  98.)  "If  purchases  be  nnide  by  one 
representing  himself  to  be  acting  under  an 
agreement  with  a  debtor,  and  for  his  benefit, 
when,  in  fact,  there  was  no  agreement,  the 
I  advantages  thus  obtained  shall  be  taken 
'  away  from  him  on  the  ground  of  fraud." 
That  was  a  case  in  which  the  alleged  agree- 
ment related  to  lands,  and  the  agreement. 
as  well  as  the  evidence  of  it,  was  in  parol, 

175 


*425 


3  RICHARDSON'S  EQUITY  REPORTS 


which  the  Court  deemed  inadmissible.  The 
principle  is  again  noticed  in  Schmidt  v. 
Gatewood,  (2  Rich.  Eq.  177.)  "A  party  who 
enables  himself  to  purchase  at  an  under  rate, 
by  representing  that  he  is  buying  for  an- 
other, is  liable  to  have  his  purchase  set 
aside  for  fraud."  If  there  be  no  agreement, 
that  "serves  only  to  enhance  the  fraud ;  .such 
cases  steer  entirely  clear  of  the  statute  of 
frauds. — The  evidence  of  the  purchaser's  rep- 
resentations is  received,  not  for  the  purpose 
of  substantiating  the  supposed  agreement, 
but  for  the  purpose  of  showing  the  means 
by  which  he  effected  his  fraudulent  design. 
and,  when  received,  it  is  employed,  not  for 
the  purpose  of  enforcing  the  contract,  but  for 
that  of  setting  it  aside."' 
*426 

*The  land  of  Isaac  Kinard  was  evidently 
worth  at  least  double  the  amount  at  which  it 
was  bid  off  by  the  defendant.  It  is  eipuilly 
clear  that  he  stated  to  several  persons,  and 
that  such  was  the  general  understanding, 
that  he  was  acting  for  the  complainant,  and 
with  a  view  to  befriend  him,  and,  in  conse- 
quence of  this  understanding,  one  person  in 
particular,  who  wonld  have  bid  more  for 
the  land,  was  prevented  from  attending  the 
sale,  "because  he  did  not  wish  to  interfere 
with  the  complainant,  who  was  a  poor  man." 
If,  then,  there  was  in  fact  (as  insisted  by  the 
defendant)  no  agreement  or  understanding 
that  he  was  bidding  for  anybody  but  himself, 
he  was  guilty  of  a  fraudulent  misrepresenta- 
tion to  the  several  witnesses  who  testified  on 
the  subject.  It  is,  therefore,  ordered  and 
decreed,  that  the  premises  described  in  the 
pleadings,  be  sold  by  the  Commissioner,  on 
a  credit  until  1st  January  next,  secured  by 
bond  bearing  interest,  with  personal  security, 
and  a  mortgage  of  the  premises — that  the 
defendant  account  for  the  rent  of  the  premis- 
es since  tirst  Saturday  in  January,  1849 — and 
tha.t  after  deducting  this  sum  from  the 
amount  of  his  bid,  $116,  with  interest  from 
7th  August,  1848,  the  difference  be  paid  to 
him  from  the  sales  to  be  made  by  the  Com- 
missioner, and  that  the  surplus  of  said  sales 
be  paid  over  to  the  complainant — costs  to  be 
paid  by  the  defendant. 

The  defendant  appealed,  on  the  following 
grounds. 

1.  Because,  if  there  was  fraud  in  the  con- 
duct of  tne  defendant,  it  arose  after  the  sale 
of  the  land  by  the  ordinary,  and  existed  in 
the  refusal  of  the  defendant  to  perform  his 
alleged  contract. 

2.  Because,  this  being  a  judicial  sale  for 
partition,  the  proceedings  cannot  be  set  aside, 
unless  for  fraud  in  procuring  it,  or  in  the 
manner  in  which  it  was  conducted. 

3.  Because  the  supposed  agreement  related 
to  lands,  and  parol  evidence  of  a  promise 
to  purchase  and  re-convey  should  not  have 
been  received,  and  that  complainant  had  no 
interest  whatever  in  the  land  at  the  time  of 
the  sale  by  the  ordinary. 

176 


4.  Because  there  was  no  promise  prcvud 
to   purchase   and   reconvey   the  land   to   the 

*427 
plaintiff,  but  the  promise  or  agreement  *was 
(as  proved)  that  the  defendant,  upon  certain 
conditions,  would  settle  the  land  on  complain- 
ant's wife  and  children.  There  was  no  proof 
of  any  demand  to  comply  with  this  agree- 
ment ;  but,  on  the  contrary,  it  is  in  proof  tliat 
Kinard  desired  the  laud  conveyed  to  him, 
in  order  that  he  might  make  a  speculation  by 
conveying  it  to  Chitty. 

5.  Because  Kinard  had  no  authority  to 
bring  this  suit  alone,  for  his  wife  and  chil- 
dren were  interested  and  should  have  been 
parties ;  whereas  his  Honor  has  ordered  the 
land  sold,  and  the  proceeds  paid  to  complain- 
ant. 

6.  Because  his  Honor  has  ordered  the  de- 
fendant to  account  for  the  rent  of  the  land 
since  the  first  Saturday  in  January.  1849; 
whereas,  it  appears  by  the  pleadings  and 
proof,  that  the  defendant  has  never  been  in 
possession  of  the  land,  but  has  been  kept  out, 
and  the  same  since  the  sale  has  remained  and 
the  use  thereof  has  accrued  to  the  complain- 
ant and  his  vendor,  Chitty,  who  is  now  in 
possession. 

Owens,  for  appellant. 
Patterson,  contra. 

WARDLAW,  Ch.  delivered  the  opinion  of 

the  Court. 

The  (luestion  in  this  case  is,  whether  the 
defendant  shall  avail  himself  of  the  statute 
of  frauds  to  protect  his  legal  title  to  a  tract 
of  land,  in  which  the  plaintiff  had  an  equi- 
table interest,  where  defendant  acquired  his 
title,  by  purchase  at  a  judicial  sale,  for  half 
of  the  value  of  the  land,  upon  his  represen- 
tations calculated  to  stitie  competition  among 
bidders,  and  actually  preventing  the  com- 
petition of  one  bidder,  that  he  was  buying 
for  the  benefit  of  the  plaintiff.  In  the  con- 
struction of  the  statute  of  frauds.  Courts  of 
Equity  have  adopted,  as  a  general  principle, 
that,  as  the  statute  is  designed  as  a  pro- 
tection against  fraud,  it  shall  not  be  set  up  as. 
a  protection  or  support  of  fraud.  1  Story 
Eq.  §  330.  These  Courts  will  not  execute, 
specifically,  contracts  concerning  lands  which 
are  not  manifested  in  writing  as  reipiired  by 
the  statute ;  but  they  will  cancel  conveyances, 
obtained  by  fraudulent  misrepresentations  in 

*428 
parol,  or  impose  upon  *the  legal  owners  the- 
character  of  trustees.  The  doctrine  on  this 
topic  is  expi'essed  with  force  and  discrimina- 
tion in  McDonald  v.  May,  (1  Rich.  E(p  95.) 
In  the  circuit  decree  of  the  Chancellor  in  that 
case,  it  is  said: — "The  statute  of  frauds,  it 
appears  to  me,  has  no  application  here.  This 
branch  of  the  case  does  not  proceed  upon  the 
contract, — does  not  look  to  an  execution  of 
the  contract,— but  founds  the  remedy  upon  a 
fraud,  by  the  practice  of  which  the  purcliaser 


KINARD  V.  IIIERS 


'430 


obtained  possession  of  the  plaintiff'.s  iirop- 
erty.  Can  it  admit  of  a  dt)iilit  that,  if  a  bid- 
der at  slieriff's  sale,  either  of  real  ttr  itcrsoiial 
property,  represents  that  he  lias  eontraeted 
to  purchase  in  the  property  for  the  delitor's 
benetit,  when,  in  fact,  there  never  was  such  a 
contract,  and  in  consequence  becomes  the  pur- 
chaser, he  shall  not  be  allowed  to  retain  the 
advantage  he  has  thus  unjustly  obtained V  It 
seems  to  follow  that  all  the  iiurchast-s  l»y  the 
purchaser  here,  must  be  deemed  liable  to  a 
trust  in  his  hands.  For  althou}.'h  it  appears 
that  no  proof  can  be  made  that  his  represen- 
tations drove  off  any  particular  competitor, 
and  it  is  proved  that  the  majority  persisted 
in  bidding,  and  made  the  property  bring  a 
pretty  full  price,  proof  of  actual  injury  is 
not  necessary  when  actual  fraud  is  establish- 
ed." The  Court  of  Appeals,  in  the  same  case, 
say:  "We  are  satisfied  with  the  view  taken 
by  the  Chancellor,  that,  if  purdiases  be  made 
by  one  representing  himself  to  be  acting  un- 
der an  agreement  with  a  debtor,  and  for  his 
benetit,  when,  in  fact,  there  was  no  agree- 
ment, the  advantages  thus  obtained  should  be 
taken  away  from  him  on  the  grounds  of 
fraud."  Again,  in  Schmidt  v.  (Jatewood. 
(2  Rich.  Eq.  lOL'.t  the  doctrine  is  reiterated, 
with  the  additional  remark,  that  where  com- 
petition is  fraudulently  destroyed  or  reduced, 
it  matters  not  whether,  in  fact,  there  was 
an  agreement  or  not  for  the  b<Mietit  of  the 
debtor. 

In  Meador  v.  Jackson,  (MS.  Col.  May.  1S.37.) 
the  conveyance  of  a  purchaser  was  set  aside, 
wlio  had  bought  lands  of  the  defendant  in 
execution  at  sheriff's  sale,  at  a  price  much 
under  their  value,  on  the  grounds,  that  the 
purchaser  had  urged  the  sheriff  to  make  the 
sale, — and,   by    his   assurances   that   he   was 

♦429 
♦buying  for  the  benefit  of  the  defendant  in 
execution,  liad  overcome  the  reluctance  of 
the  sheriff  to  sell  und(>r  the  circumstances 
of  the  case. — and  had  thus  been  enabled  to 
buy  at  a  great  sacrifice. 

The  case  before  lis  seems  to  be  completely 
within  the  scope  of  the  principles  announced 
in  the  cases  cited. 

It  is  argued  that  the  whole  fraud  of  the 
defendant  in  this  case,  consists  in  the  re- 
fusal to  execute  a  contract  of  which  the  evi- 
dence required  hy  the  statute  is  not  exhibit- 
ed. I  cannot  perceive  why  fraud  may  not 
consist  in  the  unconscientious  employment  of 
a  statute  to  protect  one  from  fulfilling  his 
agreement.  If  a  son  prevent  a  father  fiom 
making  a  devise  to  another,  by  verbal  assur- 
ances that  the  object  of  bounty  shall  receive 
without  the  devise  all  the  benefit  intended 
by  the  testator,  the  son  shall  not  be  allowed 
to  reap  any  reward  from  procuring  his  fa- 
ther to  onnt  the  requirements  of  the  statute. 
If  May  and  Jackson,  in  the  cases  quoted 
above,  had  fulfilled  their  contracts  for  the 
benefit  of  the  debtors,  their  conduct  would 
never  have  Itecome  the  subject  of  inve-stiga- 

3  Ku  II. Eli. —12 


tion  in  court ;  but  as  they  attempted  to  ac- 
(piire  advantage  to  themselves,  from  ju-ofes- 
sions  of  benevolence  to  the  debtors  in  the 
first  instance,  cajoling  others  from  the  genu- 
ine liberality  of  liuying  for  the  full  price, 
they  were  ousted  of  the  profits  of  their  de- 
ceitful sdiemes. 

It  is  objected  that  the  plaint itT  here  did 
not  have  the  legal  title  of  the  lands  purchas- 
ed by  defendant ;  and  that  the  heirs  of  plain- 
tiff's brother,  (Jeorg*  Kinard.  are  the  i»ers ms 
really  defrauded,  and  yet  are  not  parties  to 
the  suit.  No  objection  for  lack  of  parties  is 
made  by  the  pleadings,  and  the  Court  can 
hardly  be  expected  sua  sponte  to  dcnnir  for 
the  exemption  of  perpetrators  of  fraud.  And 
the  plaintiff,  although  not  the  legal  owner,  is 
in  possession  of  the  lands,  holding  them  sub- 
ject to  the  lien  of  a  debt  charged  upon  them 
for  the  purchase  money.  He  is  in  the  nature 
of  a   mortgagor  in  possession. 

Whether  the  wife  and  children  of  plaintift". 
in  a  contest  with  him,  may  not  maintain, 
successfully,  that  they  are  the  real  benefi- 
ciarii's  whom  defendant  has  attempted  to  dc- 

*430 
fraud,  is  a  question  *that  may  arise  hereafter 
when  fraud  is  fixed  upon  the  dt'feiidaut  by 
the  decree  of  this  Court.  It  is  not  for  him 
to  insist  now  upon  technical  defects  that  he 
has  waived  by  the  course  of  his  pleading. 

Whether. the  plaintiff  may  not  be  a  trustee 
for  his  wife  and  children  to  the  extent  of  his 
recovery  in  this  case,  will  be  best  settled  in 
a   suit   between   the   father  and   his   family. 

The  circuit  Cliancelhu",  in  re<i  'I'ing  de- 
fendant to  account  for  the  profits  of  the  land, 
overlooked  the  fact  that  plaintiff  had  re- 
mained, ever  since  the  purchast^  by  defend- 
ant, in  possession  of  the  land  and  in  receipt 
of  the  profits.  The  decretal  order  in  this  re- 
spect is  rescinded;  in  all  other  parti<'ulars. 
it  is  ordered  that  the  appeal  be  disnussed 
and  the  decree  be  afliriued. 

DT'NKIX    and    DAKGAN.    CC.    concurred. 

JOIIN8TU\,  Ch.  I  cannot  concur  in  the 
decree. 

If  the  defendant  had  comitiied  with  his 
agreement,  it  would  be  impossible  to  attrib- 
ute a  particle  of  fraud  to  him.  His  only 
fraud,  therefore,  consists  in  his  non-i)erform- 
ance  of  his  undertaking:  and  there  is  no 
more  reason  to  take  this  contract  out  of  the 
statute  of  frauds  than  any  other  i)arol  con- 
tract relating  to  land.  If  frau<l,  cimsisting 
in  the  mere  non-performance  of  an  agree- 
ment, or  the  injury  resulting  from  it,  be  suf- 
ficient to  take  it  out  of  the  statute,  every 
case  of  non-performance  is  taken  out  of  it, 
and  the  statute  is  a  nullity. 

I  feel  very  sure  that  this  case  does  not 
fall  within  the  principle  .stated  in  McI>onald 
V.  May  and  .Schmidt  v.  (Jatewood.  The  prin- 
ciple there  stated  is,  that  a  fraudulent  rep- 
resentation made  at  a  sale  of  land,  by  which 

177 


*430 


3  EICHARDSON'S  EQUITY  REPORTS 


the  purchaser  enables  himself  to  obtain  the 
land  at  an  under-value,  to  the  injury  of  its 
owner,  is  good  ground  for  setting  the  sale 
aside:  and,  then,  the  purchaser  must  be  di- 
rected to  deliver  up  his  deed,  or  re-convey 
the  property, — not  by  way  of  executing  an 
agreement,  but  by  way  of  restoring  the  prop- 
erty to  the  condition  it  was  in  before  the 
fraudulent  sale. 

If  we  apply  that  principle  here,  we  shall 
*431 
simply    vacate   the    *sale:      and   how    would 
that  benefit  the  plaintiff?     What  right  has 
he  to  a  conveyance? 

It  is  singular,  it  seems  to  me,  to  set  aside 
the  sale,  in  a  proceeding  to  which  the  legal 
owners,  the  heirs  of  George  Kinard,  are  no 
parties,  and  in  the  absence  of  any  complaint 
on  their  part.  And  I  am  of  opinion  that  it  is 
equally  singular  to  assume  in  the  absence  of 
these  parties,  that,  if  the  sale  were  set  aside, 
and  the  defendant  ordered  to  re-convey  to 
them, — they  would  be  bound  to  transfer  the 
title  to  the  plaintiff.  Resolved  into  its  ele- 
ments, the  decree  proceeds  upon  these  princi- 
ples ;  and  not  being  prepared  to  go  that 
length,  I  cannot  concur  in  it. 

It  is  a  mistake,  also,  to  assume  that  the 
sale  in  this  case  was  fraudulent.  The  sale 
was  fair,  and  no  complaint  is  made  that  it 
was  otherwise.  How,  then,  does  the  princi- 
ple of  ^McDonald  v.  May  apply:  in  which  the 
very  gist  of  the  case  was  that,  independently 
of  all  agreements,  the  sale  was  fraudulent? 

Decree  modified. 


3  Rich.  Eq.  431 

R.  W.  BROUGHTON  and  Others  v.  ROBERT 
TELFER  and  E.  WATERMAN. 

(Columbia.    May  Term,  1S51.) 

[Evidence  <©=^370.] 

Where  plaintift'  in  his  bill  alleges  the  execu- 
tion and  delivery  of  a  deed,  under  which  de- 
fendant claims,  and  calls  for  its  production, 
defendant,  up<«u  his  producing  it  at  the  trial, 
cannot  be  required  to  prove  its  exeeutiou  aud 
delivery. 

[Ed.    Note. — For    other    cases,    see    Evidence, 
Cent.  Dig.  §  1574  ;    Dec  Dig.  <S=^;370.J 

[Deeds  ©=351.] 

Where  one  by  his  will  recognizes  and  con- 
firms a  deed  he  had  previously  made,  he  es- 
tablishes the  seahng  and  delivery  of  it  against 
all  who  claim  as  volunteers  under  him. 

[Ed.    Note. — Cited    in    Carrigan    v.    Byrd,    23 
S.  C.  91. 

For  other  cases,  see  Deeds,  Cent.  Dig.  §  97 ; 
Dec.  Dig.  <S=^51.1 

[Slaves  <S=22.1 

A  conveyance  by  deed,  prior  to  the  Act  of 
1811,  of  slaves  in  trust  to  allow  the  slaves  to 
be  practically  free,  is  valid: — the  trustee  holds 
the  slaves  practically  discharged  from  the  trusts 
whether  they   be  legal  or  illegal. 

[Ed.    Note.— Cited   in    Ford   v.    Dangerfield,   8 
Rich.   Eq.    106. 

For  other  cases,  see  Slaves,  Cent.  Dig.  §  94 ; 
Dec.  Dig.   <g=>22.| 


[Glares  <©=37;    Trusts  <S==>153.1 

Where  a  party  executed  a  conveyance  of 
slaves  to  trustees,  for  the  benefit  of  the  slaves 
themselves,  and  died,  in  1839,  eight  years  after 
the  deed  bore  date,  leaving  a  will,  bearing  even 
date  with  the  deed,  by  which  he  ratified  the 
deed:  Held  (1)  that,  "if  under  the  deed  any 
interest  in  the  slaves  resulted  to  the  grantor, 
and  through  him  to  his  next  of  kin,  the  will 
amonnted  to  a  waiver  and  al)and(mment  of  such 
interest,  and  (2)  that  the  will  operated  to  pre- 
vent the  grantor  from  re-acquiring  title  to  the 
slaves  under  the  statute  of  limitations. 

[Ed.  Note. — For  other  cases,  see  Slaves,  Cent. 
Dig.  §  20;  Dec.  Dig.  €=>7 ;  Trusts,  Cent.  Dig. 
§  198;    Dec.  Dig.  <s=::>153.] 

*432 
[Judgment  <®=3570.] 

*Some  suggestions  upon  the  question, — when 
is  the  dismissal  of  a  prior  bill  a  bar  to  a  sec- 
ond suit? 

[Ed.  Note. — For  other  cases,  see  Judgment, 
Cent.  Dig.  §§  1028-1034,  103(j-1040,  1042- 
1045,   1105;     Dec.    Dig.    <©=o570.] 

[This   case   is  also   cited  in   Parris  v.   Cobb,   5 
Rich.  Eq.  470,  without  specific  application.] 

Before  Dargan,  Ch.  at  Charleston,  Febru- 
ary, 1850. 

On  the  6th  June,  1831,  William  Remley,  of 
Georgetown  district,  executed  a  deed,  by 
which,  after  reciting  that  he  was  the  father 
of  certain  slaves,  namely,  Elizabeth,  Cathar- 
ine, Ann,  Eliza,  Ciuda  and  Harriet,  and  that, 
being  unable  to  emancipate  them,  he  desired 
to  give  them  the  benefit  of  their  labor,  aud  to 
suffer  them  to  enjoy,  as  far  as  practicable, 
all  the  privileges  of  free  persons,  &c.  in  con- 
sideration of  the  love  and  affection  which 
he  bore  to  said  slaves,  and  of  the  sum  of  $5, 
and  'for  "divers  other  good  and  valuable  con- 
siderations," he  "granted,  bargaitied,  gave, 
conveyed  and  delivered"  unto  Thomas  J. 
Smith,  Thomas  L.  Shaw,  Eleazer  Waterman 
and  Robert  Telfer,  the  said  slaves,  in  trust, 
to  treat  them  with  kindness ; — protect  them 
in  their  just  rights ;  exact  from  them  no  wa- 
ges ;  permit  them  to  go  where  they  please, 
and  to  appropriate  to  their  own  use  the  pro- 
ceeds of  their  time  aud  labor:  and,  in  the 
further  Irust,  that,  if  any  attempt  should  be 
made  to  enslave  them,  to  convey  them  to 
some  nou-slaveholding    State,   t&c. 

On  this  deed,  which  was  recorded  in  the 
register's  ofhce  for  Georgetown  on  the  9th 
November,  1831,  was  indorsed  a  probate  by 
Solomon  Cohen,  the  subscribing  witness,  who 
swore  that  he  saw  "William  Remley  sign, 
seal  and,  as  his  act  and  deed,  deliver  the  fore- 
going deed  in  trust,  for  the  uses  and  purposes 
therein  expressed." 

On  the  same  day  the  deed  bore  date,  Wil- 
liam Remley  executed  his  last  will  and  testa- 
ment, in  which  he  referred  to  and  recognized 
the  deed,  and  by  which  he  bequeathed  his 
whole  estate  to  the  trustees  in  the  deed 
named,  in  trust  for  the  slaves  Elizabeth  and 
others  in  the  deed  named,  and  appointed  the 
trustees  executors. 

William    Remley    died    in    Charleston    (to 


^;=3For  oilier  cases  see  .same  lopic  auU  KEY-iN  UMBER  in  all  Key-Numbered  Digests  aud  Indexes 


17S 


BROUGIITON  V.  TELFER 


*4.T- 


which  place  he  removed  alumt  two  years  be- 
fore  his   death)    in    September,    l.*v}9. 

On  the  5th  June.  1S45,  the  phiintiffs,  as 
*433 
heirs  at  law  of  \Vil*liam  Remley.  filed  a  bill 
for  an  account  a;iainst  the  defendant,  Rob- 
ert Telfer,  in  which  they  stated  that  William 
Remley  was  the  owner,  at  the  time  of  his 
death,  of  the  aforesaid  slaves  and  their  is- 
sue and  other  property:  that  defendant  had 
taken  possession  of  the  personal  estate  of 
William  Remley,  as  executor  in  his  own 
wronj;;  and  charjred  that  defendant  pretend- 
ed to  hold  said  slaves  under  a  deed  of  trust 
from  William  Reudey  to  lumself  and  otliers. 
and,  also,  pretended  that  William  Remley 
left  a  will  by  which  he  disitosed  of  his  es- 
tate to  the  use  and  benefit  of  said  slaves,  &c. 

Defendant  answered  and  denied  that  he 
had  interfered  with  the  property  of  William 
Remley.  or  that  he  had  any  estate,  at  the 
time  of  his  death,  and  tiled  with  his  answer  a 
copy  of  the  will. 

On  the  ;jth  March.  ls4(i.  plaintifts's  bill 
was  tlismissed  by  an  ortler  as  follows: 

"It  appearing  in  this  case  that  the  defend- 
ant has  denied,  by  his  answer,  ever  having 
had  possession  of  the  property  claimed  by 
the  complainants,  and  there  being  no  evi- 
dence to  contradict  this  alleu'ation.  I  am  of 
the  opinion  that  the  bill  should  be  dismissed, 
and  it  is  so  ordered,  and  that  the  complain- 
ants do  pay  the  costs  of  suit." 

On  the  26th  August.  1S46.  Richard  W. 
Broughton.  one  of  the  plaintiffs,  tiled  a  peti- 
tion in  the  Ordinary's  oftice  for  Charleston, 
praying  that  the  executors  in  the  will  named, 
be  re«iuired  to  produce  and  prove  the  will, 
and  qualify  thereon,  or  renounce  their  exec- 
utorship. On  the  7th  September,  of  the  same 
year,  defendant  made  seizure  of  the  slaves 
under  the  Act  of  ISOO:  and  on  the  liiHh  .June. 
1847,  the  will  was  admitted  to  probate,  and 
the  defendant.  Robert  Telfer.  and  Eleazer 
Waterman,  ([ualified  as  executors. 

On  the  lilth  August,  1847.  plaintiffs  tiled 
their  present  bill  against  Robert  Telfer  iuid 
Eleazer  Waterman,  in  which,  alleging  their 
recent  discovery  of  the  will  and  de«Hl.  they 
charged  that  the  trusts  thereof  were  v;iid, 
and  prayed  an  account,  and  that  the  slaves  be 
decreed  to  belong  to  the  estate  of  William 
Remley. 

*434 

♦The  defendant,  Robert  Telfer.  answered, 
and  amongst  other  things  said,  that  William 
Remley,  soon  after  the  deed  was  recorded, 
informed  him  of  it:  that  ilefendant  accepted 
the  trust,  but  that  the  other  trustees  never 
accepted:  and  that  defendant,  until  his  s 'i- 
zure  of  the  slaves,  had  never  exercised  any 
decided  acts  of  ownership  over  them. 

Dargan.Ch.  The  complainants  have,  in  a 
manner  entirely  satisfactory  to  me,  proved 
themselves  the  nearest  of  kin,  and  the  dis- 
tributees of  William  Remley.  deceased.  They 
tiled  a  bill  against  these  defendants  on  the 


r»th  of  June,  1S4.J.  in  regard  to  the  same  sub- 
ject matter  of  controversy,  arising  in  the 
present  bill,  namely,  the  estate  of  William 
Remley,  and  the  slaves  alleged  by  them  to 
have  lieen  illegally  emancipated.  On  the  0th 
of  .March.  lS4(i,  by  a  decretal  order  of  the 
Court,  the  bill  was  dismissed  with  costs. 
On  the  19th  of  August,  1S47.  they  Hied  their 
present  iiill.  to  which  the  defendants  oppose 
as  a  bar  the  former  bill  and  the  decret'  there- 
on. I  am  far  from  l)eing  clear,  that  the  de- 
fence is  not  g<»od.  and  the  complainants  not 
concluded.  But  waiving  that  (iuestio:i.  I  pro- 
ceed to  consider  the  ca.se  on  its  merits. 

The  first  question  that  occurs,  relates  to 
the  due  delivery  of  the  deed  of  the  (itli  of 
June.  IS'il.  The  deed  piu'ports  to  have  been 
signed,  sealed  and  delivered  in  the  i)resence 
of  Solomon  Cohen.  And  in  the  probate  there- 
inito  iittached.  Cohen  makes  athdavit  that  he 
saw  the  grantor  sign.  seal,  and  as  his  act.  de- 
liver, the  foregoing  deed  in  trust  for  the  uses 
and  purjxtses  therein  expressed,  and  that  he 
subscribed  the  same  as  a  witness.  Tlie  deed 
was  recorded  on  the  9th  day  of  November, 
1831,  in  the  office  of  Register  of  Mesne  Con- 
veyances, in  (Jeorgetown  district,  where  Rem- 
ley and  Telfer  then  resided.  Soon  after  the 
execution  of  the  deed.  Remley  informed  Tel- 
fer that  he  had  made  a  deed  and  recorded 
the  same,  and  that  he.  (Remleyi  had  made 
the  defendant.  Telfer.  a  party  to  the  deed. 
Telfer,  in  his  answer  says,  tliat  he  accepted 
the  trust,  but  that  the  other  trustees  named 
in  the  deed  never  did  acc»'i»t  the  said  trust, 
nor  act  under  the  deed.     The  defendant.  Tel- 

*435 

fer.  had  possession  of  the  original  on  *this 
trial,  but  when  it  was  delivered  to  him.  or 
by    whom,    did    not   appear.      It    wnuld    seem 
that  it  had  never  been  deliveied  to  him  per- 
sonally before  its  registry.     Whether  it  liad 
been    delivered    to    any    person    before    that 
time,  for  the  defendant,  or  in  his  belialf.  did 
not  appear.     P>ut  that  it   was  done.   I  think 
probable,   from   the   import   of  the  tlei^d   and 
the  prol>ate  of  the  subscribing  witness,  who 
was  a  g(Kid  lawyer,  who  knew  lu)W  to  advise, 
and  was  not  likely  in  his  probate  to  have  fal- 
len into  the  inadvertence  of  swearing  to  the 
delivery  if  it   had  not  actually  taken  place. 
Rendey,   himself,   in   his   will,   spe.iks  of  the 
deed  as  a  valid  subsisting  and  effectual  deed, 
by    which   he   acknowledges   himself   to   have 
I  disposed  of  the  slaves  mentioned  in  it.    These 
!  are  the  facts   mentioned   as  bearing   on  the 
!  <iuestion  of  delivery.     I  think  they  are  sufH- 
I  ciint    to   estalilish    the   due   delivery    of   the 
i  deed. — The  «piestion  of  delivery  is  always  a 
]  <iuestion   of    intention.      Was   a   delivery   In- 
I  tended  and  consunnnated?     Did  the  grantor 
I  mean  to  do  an  irrevocable  act?     If  the  per- 
sons provided  fin-  in  this  deed  of  trust  had 
been  Rendey's  legitimate  children,  could  there 
be  a  doubt  that  the  delivery  of  the  deed  was 
sufHcientV    I  think  uot. 

17V) 


*435 


3  RICHARDSON'S  EQUITY  REPORTS 


Havin,?  arrived  at  tlie  couclnsiou  that  the 
delivery  of  the  deed  is  sufficiently  proved,  the 
next  question  is  as  to  the  validity  of  its  pro- 
visions. The  case  presents  a  perfect  parallel 
to  that  of  Carniille  v.  Carmille,  (2  McMull. 
454.)    It  cannot  be  distinguished  from  it. 

There,  as  here,  there  was  a  conveyance  by 
deed  to  trustees  of  slaves; — the  condition  of 
the  trust,  in  both  cases  was,  that  the  slaves 
should  enjoy  their  freedom.  In  this  case, 
as  in  that,  there  was  an  open  and  undisguis- 
ed attemi)t  to  evade  and  defeat  the  Act  of 
1820,  which  declares  "that  no  slave  shall 
hereafter  be  emancipated  but  by  Act  of  the 
Legislature."  I  liave  never  been  satistied 
with  the  decision  in  Carmille  v.  Carmille.  I 
cannot  pass  it  without  expressing  my  dissent 
and  disapprobation.  It  is  founded  upon  what 
I  conceive  to  be  a  very  erroneous  construc- 
tion of  the  Act  of  1S20.  That  Act  declares 
that  there  shall  be  no  emancipation  but  by 

*436 
the  Legislature.  But  the  deci*sion  in  Car- 
mille V.  Carmille  declares  that  the  emanci- 
pator has  only  to  be  secure  of  his  trustee  to 
effect  the  emancipation  of  his  slaves,  whom 
he  desires  to  manumit,  in  as  perfect  a  man- 
ner as  if  the  Act  of  1820  was  not  on  the  Stat- 
ute Book.  He  is  thus  enabled  to  do  by  indi- 
rection, and  througli  a  very  fiimsy  and  bare- 
faced evasion,  that  which  the  law  inhibits 
from  being  done  by  direct  means.  The  deci- 
sion is  not  in  harmony  with  tlie  spirit,  the 
policy,  or  even  the  language  of  the  Act.  It 
would  have  been  better  to  have  held  these 
evasions  a  fraud  upon  the  law,  and  to  have 
given  the  Act  a  construction  which  would 
liave  made  such  a  deed  as  this  simply  void 
and  inoperative,  not  only  as  to  the  trusts,  but 
as  to  the  title  which  it  was  intended  to  pass ; 
and  in  the  case  of  wills,  to  have  held  the  be- 
quest charged  with  such  trusts  void,  and  the 
slaves  distributable  as  residuary  or  intestate 
property.  But  Carmille  v.  Carmille  stands  in 
the  way  of  such  a  decision,  supported  as  it 
has  been  by  a  recent  case:  Carmille  v.  Car- 
mille, and  similar  cases,  led  to,,  the  Act  of 
1841.  But  in  the  case  before  me,  the  Act  of 
1841  does  not  operate.  Tlie  deed  and  the  will 
were  both  executed,  and  the  testator,  Wm. 
Remley,  died  before  the  passage  of  that  Act. 
The  case  nuist  be  decided  by  the  law  as  it 
.stood  before  the  Act  of  1841;  by  the  Acts  of 
1800  and  1820.  I  am  bound  to  submit  to  the 
authority  of  Carmille  v.  Carmille,  and  of  Mc- 
Leish  V.  Burch  &  Taylor,  [3  Strob.  l^q.  225] 
decided  by  the  Court  of  Errors,  at  May  Term, 
1849.  And,  according  to  these  decisions,  the 
complainants  have  no  right. 

There  is  another  aspect  in  the  case  unfa- 
vorable to  the  claims  of  the  complainants. 
Whether  we  consider  the  slaves  to  have  been 
illegally  manumitted  by  Remley  in  his  life, 
or,  which  is  the  same  thing,  to  have  been 
done  by  his  grantee  or  legatee  after  his 
death ;  in  either  case,  the  slaves  were  liable 
to  manucaption  under  the  Act  of  1800.     And 

ISO 


they  were  formally  seized  for  this  purjiose  by 
the  defendant,  Telfer,  previous  to  the  filing 
of  this  bill. 

If  either  tlie  deed  or  the  will  conferred  on 
*437 
him  a  title,  that  *title  was  discharged  of  the 
illegal  trust.  They  became  his  property  ab- 
solutely. If  he  attempted  to  execute  the  il- 
legal trust,  and  suffered  the  slaves  to  go  at 
large,  in  conformity  with  the  directions  of 
the  trust,  then  they  were  illegally  manumit- 
ted by  him,  and  were  liable  to  manucaption. 
But  he  had  a  right  to  capture  them  himself. 
Linani  v.  Johnson,  (2  Bail.  1.37,)  Mays  v.  Gil- 
lam,  (2  Rich.  160.)  And  if  he  was  the  first 
captor,  he  would  be  re-invested  with  a  good 
title  against  all  the  world.  This  the  defend- 
ant, Telfer,  did  in  the  most  formal  manner. 

The  bill  must  be  dismissed  with  costs,  and 
it  is  so  ordered  and  decreed. 

The   complainants  appealed. 

Northrop,  for  appellants. 
James  Simons,  contra. 

WARDLAW,  Ch.,  delivered  the  opinion  of 
the  Court. 

The  appellants  present  objections,  in  vari- 
ous forms,  to  the  evidence  of  delivery  of 
Remley's  deed  of  June  6,  18.31;  but  their 
course  of  pleading  in  the  suit  dispensed  with 
any  proof  of  this  fact.  In  their  bill,  they  ex- 
pressly state  the  execution  of  this  deed  and 
the  delivery  of  it  to  the  defendant,  Telfer, 
and  call  for  the  production  of  it  by  him. 
When  the  deed  was  produced  upon  this  de- 
mand no  proof  of  its  execution  was  needed ; 
and  it  seems  none  was  i-equired  on  the  trial. 
If  proof  of  the  deed  were  necessary,  it  is 
furnished  in  the  explicit  and  uneiiuivocal  rec- 
ognition of  the  deed  by  the  grantor  in  his 
will ;  and  the  will  is  admitted  by  both  par- 
ties. Our  cases  have  settled,  as  to  parol 
gifts,  that  from  the  declaration  of  a  donor 
that  he  has  given  a  chattel,  it  must  be  pre- 
sumed that  he  has  given  with  all  the  for- 
malities necessary  to  transfer  the  title.  So, 
whe're  one  by  his  will  recognizes  and  conlirius 
a  deed,  he  establishes  the  sealing  and  deliv- 
ery of  it  against  all  who  claim  as  volunteers 
under  him.  The  notions  suggested  in  some 
of  the  grounds  of  appeal, — that  a  deed  can- 
not be  delivered  where  the  grantee  is  igno- 
rant of  its  existence,  and  that  actual  deliv- 

*438 
ery  of  the  chattels  must  be  super*added  to 
their  symbolical  delivery  by  deed, — have  not 
sutiicient    plausibility   to    require   refutatit)n. 

If  the  execution  of  this  deed  be  estalilish- 
ed,  there  is  an  end  of  the  plaintiffs's  case. 
Several  decisions  by  the  ultimate  tribunal 
of  this  State,  (Carmille  v.  Carmille,  2  McM. 
454;  McLeish  v.  Burch,  3  Strob.  Eq.  225; 
Vinyard  v.  Passalaigue,  2  Strob.  536,)  leave 
us  no  right  to  question,  that  a  conveyance  of 
slaves  by  deed,  upon  such  trusts  as  are  here 
declared,  passes  the  title  to  the  grantee  prac- 
tically discharged  from  the  trusts,  whether 


TIIOMASSOX  V.  KENNEDY 


*440 


these  be  lejral  or  ill»'i.'al.  If  the  trusts  be 
legal,  as  tliey  were  held  to  he  in  cases  like 
the  present  not  governed  hy  the  Act  of  1S41, 
which  made  them  unlawful,  the  heneliciarit'S 
being  slaves  could  have  no  standing  in  Court 
to  compel  tlie  execution  of  the  trusts,  which 
were  thus  of  imperfect  obligation,  depending 
ni)on  the  benevolence  of  tlie  trustee.  If  the 
trusts  be  considered  illegal,  they  are  simply 
void,  and  do  not  impair  the  title  of  the  trus- 
tee as  owner. 

The  case  of  the  plaintiffs  would  not  be 
helped,  if  we  should  concede  the  doctrine  of 
these  cases  to  be  erroneous;  and  that  as  no 
beneticial  interest  was  ccaiferred  ui>on  the 
trustee,  there  was  a  resulting  trust  to  the 
grantor,  which  upon  bis  death  enured  to 
his  next  of  kin.  Kendey's  will,  which,  al- 
though executed  cotemporaneously  with  the 
deed,  sjieaks  at  the  death  of  the  testator  in 
Septemiier,  1S;>9.  ratities  the  deed;  and  this 
ratification  may  be  treated  as  amounting  to 
waiver  and  abandoinnent  by  the  grantor  of 
any  interest  resulting  to  him.  and  through 
him  to  his  next  of  kin.  The  Court  would  be 
inclined  to  lay  hold  of  any  such  defence, 
where  one  conies  to  be  relieved  against  his 
own  act  as  contrary  to  the  policy  of  the  law. 

This  recognition  of  the  deed  by  the  gran- 
tor in  his  will,  satisfactorily  disposes  of  the 
objection  to  the  decree,  that  the  grantor's 
possession  of  the  slaves  for  eight  years  from 
the  date  of  the  deed  until  his  death,  rein- 
vested him  with  title,  hy  operation  of  the 
statute  of  limitations.  It  is  impossible  to 
regard   that    possession   as  adverse,   and   ef- 

*439 

fectual  to  defeat  the  party's  former  *deed, 
when  he  declares  at  his  death  through  his 
will  that  the  possession  was  always  in  sub- 
ordination to  the  deed. 

If  the  title  to  the  slaves  was  in  Kemley 
at  his  death,  and  Telfer's  ownership  rested 
on  his  manucai)tiou  of  them  as  unlawfully 
manumitted,  there  would  be  nuich  force  in 
the  arginnent,  that  his  oMlce  of  executor, 
whensoever  he  (pialitied,  was  assumed  at  the 
death  of  the  testator;  and  that  his  nuuuicap- 
lion  was  in  his  character  as  executor,  and 
conseiiuently,  his  legal  title  impressed  with 
a  trust  for  the  legatees,  or  distributees,  ac- 
cordingly as  the  decea.sed  was  testate  or  in- 
le.state  as  to  these  slaves.  It  would  not 
he  ecpiitable  to  press  a  fiction  of  law,  such 
as  the  retroactive  oiieration  of  probate  of  a 
will  from  the  death  of  a  testator,  to  work 
injury  to  an  individual  against  the  right  of 
the  case ;  but  here  the  seizure  was  after  the 
institution  of  procei'diugs  to  compel  the  ex- 
ecutor to  make  probate  of  the  will,  and  the 
tictirm  wowld  lead  to  no  unconscientious  re- 
soltv.  It  is  unnecessary,  however,  to  deter- 
mine any  thing  on  this  point,  as  we  hold  the 
dt^ed  to  bar  the  plaintiffs. 

Eor  the  same  reason,  we  avoid  expressing 
the   judgment   of   the   Court   on   the  questirm 


as  to  the  bar  of  the  former  decree;  but 
some  suggestions  on  this  point  may  be  al- 
lowed. A  former  decree  between  the  same 
parties,  or  their  privies,  as  to  the  same  sub- 
ject matter,  is  a  bar  to  further  litigation,  al- 
though it  be  merely  a  decree  disnussing  the 
hill,  unless  it  be  expressed  that  the  disnnss- 
al  is  without  prejudice;  2  Story  Eii.  §  l.")li.'). 
In  this  case,  the  parties  are  the  .same  as  in 
the  former  suit ;  the  subject  of  ctmtroversy 
is  the  same,  exceiit  that  plaintiffs  allege  their 
discovery  of  the  existence  of  tlu'  deed  since 
the  termination  of  tlu>  former  suit,  and  the 
decree  disnussing  the  Fiill  is  absolute  in  its 
terms,  although  pnx-eeding  on  the  ground 
that  there  was  no  evidence  of  Telfers  having 
ever  had  possession  of  the  slave.s.  The  rea- 
sons on  which  the  Court  proceeds  in  its  judg- 
ment, usually  do  not  control  the  extent  of 
the  judgment,  which  is  conclusive  as  to  all 
nmtters  that  should  then  he  brought  into 
litigation.  Does  the  discovery  of  new  evi- 
dence of  itself  remove  the  bar  of  a  former 
decree,  or  only  serve  as  a  basis  for  a  bill  of 

*440 
review?     Is  the   ^evidence  in  question  here, 
in  fact  newly  discovered,  or  such  as  proiier 
diligence  on  their  part  would  have  enabled 
the  plaintiffs  to  use  on  the  former  trial'.' 

The  plaintifis  must  have  had  some  inkling 
of  the  deed  when  they  filed  their  bill  in  the 
former  suit,  for  that  contains  various  charg- 
es concerning  such  a  deed  ;  and  in  the  prog- 
ress of  the  cause,  they  might  have  obtained 
fuller  information  concerning  the  deed,  for 
a  copy  of  the  will  was  filed  with  defendants 
answer  to  the  first  bill,  and  the  will  has  ex- 
plicit reference  to  the  deed.  It  is  more  sat- 
isfactory to  the  Court,  however,  to  decide 
against  the  plaintiffs  on  the  merits  of  their 
case  as  now  presented,  than  to  estop  them 
by  a  technical  bar. 

It  is  ordered  and  decreed  that  the  ap- 
l)eal  be  disnussed,  and  the  circuit  decree  be 
afhrmed. 

.JOHNSTON,  DUNKIN  and  DAlUiAN,  CC. 

concurred. 

Appeal  disniissed. 


3  Rich.  Eq.  440 

W.    r.    TIIOMASSON    v.    K.    E.    KENNEDY. 
Adm'r,  and  Others. 

J.   M.  COOPEU  V.   W.   P.  TIIOMASSON  and 

Others. 

(ColiMuliia.    May  Term.  1S51.) 

[EjrcciHion  <S=>.'ir);i ;  Sheriffs  ami  Cnnsiahles 
C=3ll20,  1212.] 
Where  a  sheriff  sells  land  midor  fi.  fas. 
and  executes  titles  to  the  bidder,  the  eldest 
li.  fas.  to  which  the  mon<\v,  if  received  by  the 
sheriff,  would  he  api)licabl('.  are  satistiod  to  the 
extent  of  the  hid,  although  the  money  be  not, 
in  fact,  paid  to  the  sheriff,  and  the  i)laintiffs  in 
s\ieli  exinutions  must  look  to  the  sheriff";  and 
the    facts,    that    such    executions    were    marke<l 


<3=;:jI'"or  other  cases  see  same  lopic  auU  KEV-NUMBEK  iu  all  Key-Numberetl  Digests  and  Indexes 


181 


HiO 


3  RICHARDSON'S  EQUITY  REPORTS 


'wait  orders,'  that  the  sale  had  been  agreed  on 
between  the  defendant  in  execution,  who  re- 
ceived the  amount  of  the  bid,  and  the  pur- 
chaser, and  was  a  mere  formal  sale  to  perfect 
the  title  of  the  purchaser,  and  that  defendant 
in  execution  had  sufficient  property,  at  the 
time,  to  satisfy  all  judgments  against  him,  will 
not  exonerate  the  sheriff  from  his  responsibility. 
[Ed.  Note. — For  otlier  cases,  see  Execution, 
Cent.  Dig.  §  1076;  Dec.  Dig.  <©=>353 ;  Sher- 
iffs and  Constables,  Cent.  Dig.  §§  205,  225; 
Dec.  Dig.  (S=5l20,  122.] 

[Sheriffs  and  Constables  <g=>122.] 

If  the  defendant  in  execution  himself  ap- 
plies the  amount  of  the  bid  to  the  eldest  exe- 
cutions according  to  the  priority  of  their  liens, 
that  will  excuse  the  sheriff;  but  the  onus  of 
showing  that  is  upon  the  sheriff. 

[Ed.  Note. — For  other  cases,  see  Sheriffs  and 
Constables,  Cent.  Dig.  §  224;  Dec.  Dig.  (©=> 
122.] 

[Appeal  and  Error  (©=3104.] 

Where  a  Chancellor,  directing  an  issue  at 
law,  ordered  that  the  depositions  of  certain  wit- 
nesses, who  had  been  examined  by  commission 
or  before  the  Commissioner,  be  read  on  the 
trial  of  the  issue — Jteld,  that  an  appeal,  on  the 
ground  that  the  witnesses  were  incompetent, 
would  not  lie  from  the  act  of  the  law  court  al- 

*441 
lowing  the  ^depositions  to  be  read, — the  appeal 
should  have  been   from  the  order  of  the   Chan- 
cellor. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,   Cent.   Dig.   §   711;     Dec.   Dig.   <§=^104.] 

[Equity  <g=>383.1 

The  principles  stated  upon  which  new  trials 
of  issues  at  law  will  be  directed. 

[Ed.  Note. — Cited  in  Shaw  v.  Cunningham,  9 
S.  C.  273;  Ivv  v.  Clawson.  14  S.  C.  273;  Wool- 
folk  V.  Graniteville  Mfg.  Co..  22  S.  C.  336; 
Rynerson  v.  Allison,  30  S.  C.  537,  9  S.  E.  656. 

For  other  cases,  see  Equity,  Cent.  Dig.  §  787 ; 
Dec.  Dig.  ®=:j383.] 

[Witnesses  <©=:3l05.] 

A  witness  who,  if  liable  at  all,  is  liable  no 
matter  which  way  the  decision  goes,  is  com- 
petent. 

[Ed.  Note. — For  other  cases,  see  Witnesses, 
Cent.  Dig.  §  210;    Dec.  Dig.  <S=:5l05.J 

[Eridence  <g==>271.] 

The  question  was,  whether  a  judgment  at 
law  was  satisfied,  and  plaintiff  in  the  judgment 
died  after  subptrna  served  and  before  his  an- 
swer was  put  in  :  Held,  that  the  answer  of  the 
plaintiff  in  the  judgment,  to  a  rule  at  law  to 
show  cause  wh.v  satisfaction  should  not  be  en- 
tered on  the  judgment,  could  not  be  read  as  evi- 
dence for  his  administrator. 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent.  Dig.  S  1102;    Dec.  Dig.  <S=>271.] 

[Eridence  (®=157.] 

Where  the  issue  between  creditors  is,  wheth- 
er the  judgment  of  one  is  satisfied,  the  testi- 
mony of  the  defendant  in  the  judgment  is  not 
higher  evidence  of  satisfaction,  than  that  of 
other   witnesses. 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent.  Dig.  §  463  ;    Dec.  Dig.  <©=:j157.] 

\Equitii  ©=380.] 

[Cited  in  Sloan  v.  Westfield,  11  S.  C.  450, 
to  the  point  that  issues  to  courts  of  law  are 
directed  by  courts  of  equity  for  the  purpose 
uf  informing  the  conscience  of  the  chancellors; 
and.  if  this  juirpose  be  achieved,  a  court  of 
equity  will  not  narrowly  examine  the  process 
of  the  law  court.  Collisions  between  the  two 
courts   should   be   discouraged,   and   minute   dis- 


agreements as  to  principle  or  procedure  will  not 
be  noticed.] 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.  §  809;    Dec.  Dig.  <©=3380.] 

[Sheriffs   and   Constables   <S=>120.] 

[A  sheriff  who  sells  laud  under  execution 
and  executes  title  to  the  purchaser,  is  liable 
to  the  execution  plaintiff  as  for  money  had  and 
received,  thouiih  the  amount  of  the  bid  was  not 
in  fact  paid  to  him.] 

[Ed.  Note. — For  other  cases,  see  Sheriffs  and 
Constables,  Cent.  Dig.  !?  205;  Dec.  Dig.  iS=> 
120.] 

Before  Diinkin,  Ch.  at  York,  June,  1849. 

Duiikin,  Ch.  Daniel  Thomas,  a  debtor, 
much  embarrassed,  left  the  State  some  years, 
since. — His  property  was  sold,  partly  by  the 
sheriff  of  York,  (the  complainant,  Thomas- 
son,)  partly  by  R.  Macbeth,  former  sheriff  of 
Union,  and  partly  by  B.  Johnson,  the  present 
sheriff'.  It  seems  by  the  report,  that  part  of 
the  funds  realized  from  the  sales,  are  in  the 
hands  of  the  commissioner  of  Y'ork,  part  in 
those  of  the  commissioner  of  Union,  and  part 
is  due  by  sheriff'  Johnson.  The  commissi in- 
er  was  ordered  to  publish  a  notice  for  the 
creditors  of  D.  Thomas  to  estal)lish  their  de- 
mands before  him,  and  that  he  should  report 
them,  and  also  upon  the  assets  to  be  marshal- 
led. The  cause  was  heard  upon  the  commis- 
sioner's report,  and  exceptions  thereto.  Sev- 
eral exceptions  embrace  the  same  matter. 
The  Court  will  proceed  to  consider  the  princi- 
pal points  made.  The  exceptions  on  the 
other  points  seem  to  the  Court  sufficiently 
answered  by  the  report  of  the  connnissioner 
thereon,  or  are  otherwise  untenable,  and  are, 
therefore,  overruled. 

The  claim  of  the  administrator  of  Allen 
DeGraffenreld,  deceased,  has  been  sent  to  a 
jur.v,  and  no  further  remark  upon  it  is  now 
necessary  or  proper. 

The  first  exception  of  the  junior  creditors,, 
relative  to  the  ten  dollars,  is  sustained. 

The  second  and  third  exceptions  are  over- 
*442 
ruled ;     the   sheriff"    *probably   advanced   the 
money  to  the  creditors  before  he  received  it 
from  the  defendant. 

The  fifth  exception  relates  to  this  state  of 
facts,  viz: — at  April  sales,  1842,  sheriff"  John- 
son sold  to  J.  A.  Stevenson,  a  tract  of  land 
under  executions  again.st  D.  Thomas.  The  bid 
was  $2,205,  and  the  sheriff  executed  and  de- 
livered to  the  purchaser  a  conveyance  of  the 
premises.  The  commissioner  has  charged 
Johnson  w-ith  only  the  sum  of  -$735  as  receiv- 
ed on  this  sale.  It  is  said  the  land  was  sold 
by  Thomas  to  Stevenson  at  private  contract, 
and  that  the  balance  was  received  by  Thomas 
himself  from  Stevenson,  but  it  is  also  suggest- 
ed that  he  (Thomas)  applied  the  money  to- 
the  oldest  existing  unsatisfied  execution. 
When  the  sheriff'  made  the  sale  in  April,  1842, 
the  judgments  of  Wm.  Dawkins  and  of  A.  W. 
Thomson,  amounting  to  some  .$4,500,  were 
open  and  yet  unsatisfied.     The  principles  o'.i 


182 


(g:::3For  other  eases  see  same  l.opic  aud  KEY-NUMBER  iu  all  Key-NuiubereJ  Ui^esis  and  iiK 


TIIOMASSON  V.  KENNEDY 


*445 


"Which  fhf  exociition  insists  are  well  sustain- 
ed by  the  MUthorifit's  cited  in  tlie  nr>:unient. — 
Davis  V.  Hunt,  (2  Itail.  41-')  ruled,  that  the 
sheriff  having  sold  the  land  under  executions 
and  executed  titles  to  purchaser,  acknowledy- 
insj  l).v  his  deed  the  receipt  of  tlie  purchase 
money,  is  liable  as  for  money  had  and  receiv- 
ed, althou^'h  in  fact  the  money  may  not  have 
Iteen  paid  to  him.  The  eldest  jud^rment  credi- 
tor is  entitled  to  tlie  action,  and  the  money; 
for  it  is  also  held,  in  O'Neall  v.  Lusk.  (1  Hail. 
l.'*_'0,l  that  a  payment  to  the  sheriff  after  ti.  fa. 
lodged,  discharged  the  defendant,  althou^'h 
the  sheriff'  nc;rlect  to  i»ay  over  the  money,  or 
to  credit  it  on  the  execution. — and  also  in 
Terry  v.  Williams,  (Dud.  44,1  that  when  the 
sheriff's  sale  is  perfected,  the  oldest  execu- 
tions in  his  ofHce  are  satisfied  to  the  amount 
of  the  sale.  The  only  matter  oi)en  for  inquiry 
is.  whether  the  whole  amount  of  the  sales 
were  in  fact  applied  to  the  oldest  .iud^ments 
flien  in  existence  a^'ainst  the  defendant.  D. 
Thomas.  This  does  not  appear  from  the  re- 
port, and  the  difference  between  $~'.\~}  and  $2,- 
I'Oo,  ouirht  to  be  deducted  as  of  April,  1S41', 
from  the  oldest  executions  reported  to  be  uii- 
r^atisfied. — liiit  if  sheriff  .Johnson  can  prove 

*443 
that  this  difference  was  in  *fflct  applied  by 
Thoma.s,  as  he,  Johnson,  ouj^ht  to  have  ap- 
plied it,  he  is  entitled  in  eijuity  to  the  benefit 
of  such  proof,  and  the  commissioner  may  en- 
quire and  amend  his  report  accordinjily.  The 
inipiiry  will  also  embrace  the  matter  in- 
cluded in  the  Gth,  7th,  8th  and  Hth  exceptions. 

It  is  ordered  and  decreed  that  the  report 
of  the  commissioner  be  re-committed  for  the 
purpose  of  reforniinf;  the  same  according;  to 
the  principles  herein  stated  and  tlu>  testimony 
to  Ite  submitted. 

The  issue  ordered  liy  Chancellor  Dunkin 
was  tried  at  October  Term.  ls4!l.  and  a  mo- 
tion for  a  new  trial  of  the  issue  at  law  was 
made  in  .Tune,  is.'O,  before  his  Honor.  Chan- 
cellor Darwii,  who  pronounced  the  followlni^ 
ilecree. 

Darj-'an,  Cli.  These  cases  were  tried  to- 
iiether  at   the  present   term. 

Allen  DeCJratfenreid,  deceased,  the  inte.s- 
tate  of  the  defendant,  Richard  K.  Kennedy, 
had  two  .judi-'ments  a;:aiMst  Daniel  Thomas; 
one  fi>r  $:!()(»t>.!»."i,  and  the  other  for  .1:Tsl'.(K» — 
upon  both  of  which  executions  were  lodged  in 
is::;  I. 

Thomas  liavin.L,'  proved  insolvent,  and  his 
property  haviii};  been  sold  by  the  sheriff,  sini- 
dry  of  the  creditors  of  the  said  'l  nomas  have 
tiled  their  bills  for  the  purpose,  aiuon^  other 
thirifrs.  of  having  the  exi'cutions  of  DeCJrnf- 
fenreid,  which  were  senior  to  theirs,  declared 
.satisfied.  The  case  came  on  to  1k^  heard  at 
June  Term,  1S4!),  and  the  pr«>siding  Chancel- 
lor ordered  an  issue  at  law  to  be  made  up 
to  try  the  (piestion.  whether  anythin;;  be  due 
on  the  two  executions  of  A.  DeCJratTenreid  v. 
D.  Thomas,  in  which  the  junior  execution 
<'reditors  shall  be  plaintiffs,  and  tlie  adminis- 


trator of  DeOraffenreid.  defendant,  and  that 
at  law,  the  depositions  of  the  witnesses  ex- 
andned  before  the  comnussioner,  whose  testi- 
mony was  taken  by  connnission,  be  received 
in  evidence. 

An  issue  at  law  was  aciordin^ly  made  up, 
and  said  issue  was  tried  at  the  Court  of 
Common  Pleas  for  Tnion  district,  at  October 
Term,  ls4M.  when  the  jury  chart,'i'd  with  the 
Lssue,   returned   the   followin;;   verdict: — "We 

*444 
Hnd  for  the  plaintiffs  in  *the  issue  that  there 
is    Mothint;   cUu'   n|ion    the   executions    within 
mentioned." 

The  present  is  a  motion  to  set  aside  the  ver- 
dict, and  for  a  new  trial,  on  various  i^rounds. 
I  shall  not  enter  into  the  consideration  of  the 
varioiis  jirounds  in  detail. 

The  first  relates  to  the  competency  of  the 
witnesses.  Johns(»n  and  Satterwhite.  The 
last  named  witness  was  surety  to  1).  Thomas. 
They  were  sued,  and  jud;;ment  obtained 
against  them  both.  Satterwhite  paid  the 
debt,  and  he.  in  that  way,  is  a  creditor  of 
Thomas.  Hut  the  Court  having  published  an 
order  for  the  execution  creditors  of  Thomas 
to  jnesent  and  prove  their  demands — Satter- 
white has  presented  no  claim.  I  incline  to 
think  he  is  competent.  Johnson's  competency 
is  questioned,  on  the  followinj;  state  of  facts. 
As  sheriff",  he  sold  land  of  Thomas  for  about 
$2200.  S(iven  hundred  dollars  of  this  sum  he 
ai)plied  to  the  payment  of  a  debt  or  debts  in 
his  office,  and  the  balance,  secured  by  notes, 
he  transferred  to  Thomas,  who  passed  them 
off  to  third  persons.  The  execution  creditors 
of  Thomas  are  seeking  in  these  proceedings 
to  make  Johnson,  (who  is  also  a  jmrtyl  liable 
for  the  misaiqilication  of  the  amount  which 
he  transferred  to  Thomas  from  the  pro- 
ceeds of  the  sale  of  his  land.  It  is  .said  that, 
on  this  account,  he  is  interested,  and,  there- 
fore incompetent.  Hut.  on  the  contrary,  it 
appears  that  whether  the  Deiiraffenndd  ex- 
ecutions are  removed  or  not,  by  a  decree  of 
satisfaction,  the  demands  of  the  prior  execu- 
tion <reditors  are  sufficiently  laige  to  ab.sorb. 
not  only  the  funds  on  hand,  and  now  sul>ject 
to  distribution  by  the  Court.  Imt  also  an.v 
amount  of  liability  which  sheriff  Johnson 
jnay  have  incurred  by  the  misapplication  of 
the  lu'fore  mentioned  fund,  which  he  is  alleg- 
ed improperly  to  have  paid  to  Thomas.  From 
this  state  of  facts,  it  nnist  seem  that  John- 
.son,  if  liable  at  all,  is  liable  at  all  events,  aial 
his  liability  does  not  dejx'nd  uiion  the  tjues- 
tion,  whether  the  DeCJraffenreid  executions 
are  satisfied  or  not.  He  is.  therefore,  indif- 
ferent, and  is  not  incomp»'tent  from  interest. 

The  deposition  of  iioth  these  witnesst's  had 
been    taken    before   the    last    Court,   and    the 

*445 
Chancellor   ordered    the   depositions    *of  the 
witnesses,  that  had  been  exanniied  before  the 
conniiissioner  (u*  taken  by  commission,  to  be 
received  in  evidence  on  the  trial  of  the  i.ssue 

1S3 


*445 


3  RICHARDSON'S  EQUITY  REPORTS 


at  law.  This  was  accordingly  doiip. — And 
were  I  less  strongly  impressed  that  the  wit- 
nesses were  competent,  I  should  not  feel  at 
liberty  to  modify  the  order  of  the  Chancel- 
lor who  ordered  the  issue,  or  to  reverse  his 
decision  as  to  the  competency  of  those  wit- 
nesses. 

As  to  the  other  grounds  relied  on  as  suffi- 
cient to  induce  the  Court  to  set  aside  the  ver- 
dict, I  am  of  the  opinion  that  they  are  insuffi- 
cient ; — I  am  entirely  satisfied  with  the  ver- 
dict of  the  jury.  I  have  come  to  the  same 
conclusion  that  they  did,  and  on  the  same 
evidence.     The   motion   is    refused. 

The  two  executions  of  A.  DeGraffenreid  v. 
D.  Thomas,  mentioned  in. the  foregoing  part 
of  this  decree,  are  hereby  declared  to  be 
satisfied,  and  it  is  so  ordered   and  decreed. 

From  the  two  circuit  decrees  and  the  ver- 
dict of  the  jury,  appeals  were  taken,  on  vari- 
ous grounds,  which  appear  in  the  opinion 
delivered  in  the  Court  of  Appeals. 

Thomson,  Herndon,  for  appellants. 
Dawkins,   Williams,  contra. 

WARDLAW,  Ch..  delivered  the  opinion  ot 
the   Court. 

These  cases  relate  to  the  marshalling  of 
the  assets  of  Daniel  Thomas,  an  insolvent 
debtor,  whose  property  was  sold  by  the  sher- 
iffs of  Union  and  York.  The  eases  were  first 
heard  by  Chancellor  Dimkin,  at  the  sitting 
for  Union,  in  June,  1849,  on  exceptions  to 
the  coni'uissioner's  report,  as  to  the  debts 
and  assets  of  Thomas. 

One  of  these  exceptions  is  as  to  the  extent 
of  the  liability  of  B.  .Tohnson,  sheriff  of  Un- 
ion, in  the  following  state  of  facts. — Thomas 
and  one  Stevenson  had  agreed  as  to  the  price 
of  a  tract  of  land  belonging  to  Thomas ;  and 
on  the  sale  day  in  April,  1842,  the  land  was 
sold  by  the  sheriff,  under  executions  in  his 
office  against  Thomas,  and  bought  by  Steven- 
son at  his  bid  of  .'?220.j.  Sheriff"  Johnson 
having  received  $73.5  from  the  purchaser, 
and  allowed   him    to   settle   for   the   balance 

*446 
($1,470)  *with  Thomas,  the  defendant  in  the 
executions,  conveyed  the  land  to  Stevenson. 
It  does  not  appear  that  the  creditors  of 
Thomas  were  consulted  about  this  arrange- 
ment. At  that  time,  there  were  in  the  sher- 
iff's office  two  executions  (fl.  fas.)  against 
Thomas,  open  and  unsatisfied,  both  marked 
"wait  orders,"  namely,  one  of  Wm.  Daw- 
kins,  for  about  $564  entered  October  31,  1840 ; 
and  one  of  A.  W.  Thomson,  entered  Feby.  27, 
1841,  for  about  $2823.  of  which  about  $485 
was  for  arrears  of  interest.  There  were  also 
in  the  sheriff's  office  many  executions  of  an 
older  date  against  Thomas,  standing  open, 
but  as  these  have  not  been  presented  to  the 
commissioner,  on  the  call  for  creditors,  they 
are  presumed  to  be  satisfied.  The  Chancel- 
lor decided  that  sheriff  Johnson  was  liable 
for  the  whole  sum  of   Stevenson's  bid,  and 

1S4 


that  to  the  extent  of  this  liability,  the  elder 
executions  were  extinguished.  Tliis  appeal, 
in  behalf  of  the  sheriff,  insists  that  he  is  not 
liable  beyond  the  money  actually  received 
by  him ;  and  it  is  urged,  tliat  the  sale  was 
merely  formal  to  perfect  Stevenson's  title ; 
that  no  creditor  was  injured,  inasmuch  as 
the  elder  executions  were  not  pressing  for 
collection,  and  junior  executions  were  not  in 
existence ;  and  that  other  property  of  Thom- 
as remained  sufficient  to  satisfy  all  the  exe- 
cutions against  him.  The  authorities  cited 
by  tlie  Chancellor  fully  sustain  the  principles 
of  law  asserted  in  the  decree ;  and  the  facts 
relied  upon  do  not  take  this  case  out  of  these 
principles.  The  sheriff  is  a  ministerial  of- 
ficer, required  to  execute  the  judgments  of 
the  Courts,  by  levy,  sale,  and  application  of 
the  proceeds  according  to  fixed  rules ;  and 
he  is  not  to  judge  what  circumstances  may 
justify  departures  and  exceptions  from  these 
rules.  To  allow  him  to  misapply  the  pro- 
ceeds of  his  sales,  upon  conjectures  as  to  the 
solvency  of  defendants  in  execution,  would 
furnish  room  for  much  fraud,  to  the  injury 
of  many  per.sons  whose  interest  in  particular 
cases  may  not  be  seen.  The  rights  of  the 
conuaunity  are  best  protected  by  the  rigid 
exaction  of  duty  from  public  officers.  Where 
the  sheriff"  ventures  to  constitute  an  interest- 
ed party  his  agent  for  the  disbursement  of 
the  funds  of  his  office,  he  must  be  responsible 

*447 
for  the  faithful  per*formance  of  the  agency. 
In  this  case,  if  Thomas  has  applied  the 
amount  intrusted  to  him  to  the  payment  of 
his  creditors  according  to  the  priority  of 
their  liens,  the  sheriff"  has  the  opportunity 
of  proving  this  fact  and  exempting  himself 
from  responsibility,  under  the  instructions 
of  the  Chancellor  in  re-conmiitting  the  report, 
and  this  is  treating  him  witli  much  liberality. 
A.  W.  Thomson,  one  of  the  judgment  cred- 
itors of  Thomas,  appeals  from  the  overruling 
of  his  exception  to  the  commissioner's  report 
—that  he  was  not  allowed  interest  from  the 
day  of  the  sherift'"s  sale,  on  the  aggregate  of 
principal  and  interest  due  to  him  on  that  day. 
Where  creditors  have  been  obstructed  in 
their  remedies  for  satisfaction,  by  the  act 
of  this  Court  in  assuming  the  administration 
of  the  assets  of  debtors,  the  Court  will  gen- 
erally preserve  the  proportion  of  the  debits 
to  the  assets  existing  at  the  time  of  the  ob- 
struction, so  as  to  secure  equality  among  the 
creditors,  and  prevent  undue  profit  to  some 
by  tlie  delay.  In  many  cases,  however,  where 
the  funds  in  the  custody  of  the  Court  have 
produced  no  interest,  from  a  proper  sacrifice 
of  productiveness  to  safety,  it  may  be  that 
none  of  the  creditors  .shall  receive  interest. 
In  the  case  before  us,  the  discussion  of  this 
difficult  doctrine  is  unnecessary,  after  the 
conclusion  we  have  attained  on  the  appeal  of 
sheriff"  Johnson.  The  sum  of  $1470,  applica- 
ble in  his  hands  to  the  payment  and  extin- 
guishment   of    the    executions    according    to 


TIIOMA.SSON*  V.  Ki:NNi:nY 


*4oO 


their  priority,  is  more  than  sutlicioiit  t<»  sat- 
isfy the  first  execution,  and  to  satisfy  all 
the  arrears  of  interest  on  the  seeoiul  exeeii- 
tion.  which  is  that  of  the  aititellant.  So,  that 
the  lialaiK-e  tlTen  reniaininj:  due  to  the  ap- 
pellant, is  net-essarily  principal:  as  the  pay- 
ment must  lie  lirst  ajipiied  to  the  extinj^uish- 
nient  of  interest.  Whether  this  creditor  may 
be  entitled  to  interest  afterwards  on  this 
balance  from  sheriff  Johnson  or  otlier  perscm. 
will  depend  on  facts  as  to  which  we  are  un- 
informed :  as  whether  prompt  demand  •>f 
payment  was  made,  and  whether  the  sheriff, 
or  other  custodier  of  the  funds,  has  made 
I)rofit  upon  them,  or  has  nuxed  them  with 
ins  private  funds.  These  remarks  may  Ik; 
applied  to  other  creditors,  and  to  all  the 
funds    now    in    controversy.     Tl^e    principles 

*448 
*may  he  more  inteliijrcntly  and  ni'irc  dctinlte- 
ly  settled,  when  we  have  tiie  furtlier  report 
of  the  commissioner  upon  the  facts. 

On  another  exception  to  tlie  conu^issioller'^< 
report,  as  to  two  judsmt'nts  of  Allen  De(Jraf- 
fenreid  against  Daniel  Tliomas.  the  Chan- 
cellor directed  an  issue  to  he  made  up  in  the 
Court  of  Connuon  I'leas  for  Inion  district, 
between  the  junior  judgment  creditors  of 
Thomas,  as  plaintiffs,  and  the  administrator 
of  DeGraffenreid,  as  defendant,  to  try  wheth- 
er any  thins  was  due  on  these  judgments ; 
and  he  further  directed,  tiiat  the  depositions 
of  the  witnesses  before  the  commissioner, 
whether  taken  by  him,  or  by  connuission, 
should  be  received  in  evidence  on  the  trial 
of  the  issue  at  law.  This  issue  was  tried  at 
October  Term,  1.S4!),  of  the  Court  of  Connnon 
Pleas  for  I'nion,  when  tlie  jury  returned  a 
verdict  for  the  plaintiffs  in  the  issue,  that 
nothing  was  due  upon  said  judgments.  At 
the  .sitting  of  this  Court  for  Union,  in  June, 
1S50.  a  motion  for  a  new  trial  of  this  issue, 
on  various  grounds,  was  made  before  Chan- 
cellor Dargan,  and  refused  by  him.  and  the 
same  grounds  are  now  pre.><ented  to  us  on  aji- 
peal. 

The  first  ground  is,  as  to  the  competency 
of  the  witnesses,   Satterwhite  and  Jolnison. 

The  testimony  of  these  witnesses  was  re- 
ceived by  the  connnissioner,  was  recognized  by 
the  Chancellor,  and  was  ordered  by  him  to  be 
received  at  law.  If  there  be  any  error  as  to 
their  competenc.v,  it  is  the  error  of  this  Court, 
and  not  of  the  law  court,  which  conformed  to 
the  request  of  the  Chancellor;  and  tlie  ap- 
peal should  have  been  from  the  order  of  the 
Chancellor,  and  not  from  the  verdict  of  the 
jury.  This  is  not  a  mere  nicety  as  to  pra<-- 
tice,  but  a  grave  matter  of  principle,  affect- 
ing the  comity  which  should  prevail  between 
co-ordinate   tribunals. 

Appeals  should  be  discourjigeii  whicli  are 
calculated  to  bring  the  courts  of  Law  and 
Eiiuity  into  collision.  Issues  to  the  court 
of  law  are  directed  by  this  court,  for  the  pur- 
pose of  informing  the  conscience  of  the  Chan- 
cellors ;    and  if  this  purpose  be  achieved,  we 


do  not  ex.-iniine  the  process  very  narrowly. 
If,  ui)on  a  particular  issue,  we  nnght  suppose 
that   tlie  law  court  was  in  some  error  as  to 

*449 
the  law.  we  should  not  grant  a  new  *trial  of 
the  issue  upon  this  express  ground  ;  for  this 
would  imply  the  arrogant  pretension  on  our 
part,  tliat  we  understood  the  law  better  than 
those  to  whom  its  administration  was  com- 
mitted by  the  polity  of  the  State.  Hut  we 
would  look  to  the  materiality  and  importance 
of  the  supposed  error.  If  the  verdict  were, 
upon  the  whole,  satisfactory,  no  notice  would 
be  taken  of  n)inute  departures  from  our  no- 
tions of  principle  or  proce<lure.  But,  if  we 
regarded  the  supposed  nustakes  of  the  court 
trying  the  issue,  to  be  so  material,  that  our 
consciences  were  not  satisfied  as  to  the  gen- 
eral result  of  the  trial,  while  we  should  not 
undertake  to  rectify  the  rulings  of  the  other 
court,  we  might  order  the  parties  to  try  tlu' 
issue  again,  and  recpiest  of  the  other  court 
that  a  particular  course  should  be  pursued 
as  to  the  points  on  which  we  were  dissatis- 
fie<l.  In  the  case  under  consideratioti,  there 
is  much  testimony  leading  to  the  .-^ame  con- 
clusion besides  that  of  the  witnesses  to  whom 
objection  is  made — the  result  attained  by  the 
Jury  is  in  conformity  to  the  opinion  of  the 
commissioner  who  first  heard  the  evidence, 
and  to  the  opinion  of  the  chancellor  on  the 
circuit,  to  whom  the  application  for  new  trial 
was  made.; — and  is  satisfactory  to  this  Court. 

Moreover,  if  the  (luestions  as  to  the.se 
witnesses  were  properly  before  us.  by  appeai 
from  the  order  of  the  Chancellor,  we  should 
disallow  the  applicant's  motion. 

Much  doubt  as  to  the  competency  of  Satter- 
wliite  might  have  been  entertainiMl.  if  his 
payment,  as  surety  of  the  judgment  against 
Thomas  and  himself,  had  been  made  after 
the  passage  of  the  Act  of  1840,  (11  Stat.  HuU.) 
hut  the  payment  was  antecedent  to  that  Act, 
and  the  Act  is  prospective  in  its  terms.  I'er- 
haps,  etiual  doubt  as  to  his  competency  inay 
arise — putting  the  statute  aside — from  the 
application  of  the  equitable  doctrine  of  sub- 
rogating a  surety  who  has  paid  the  debt  of 
liis  principal  to  the  riglits  and  remedies  of  the 
creditor.  There  is  force  in  the  vit>w  that 
Satterwhite  has  presented  no  claim  against 
Thcanas,  under  the  call  upon  creditors,  but 
it  is  not  clear  that  he  w'as  precluded  from 
claim  at  the  time  of  his  examination.  The 
appeal  as  to  Satterwhite  was  aliandoned.  and 

*450 
I»roperly,  for  the  *question  as  to  his  com- 
petency was  not  rai.^ed  in  time.  Tiie  objec- 
tion was  not  made  before  the  issuing  of  the 
connuission  to  take  liis  testimony,  nor  urged 
upon  the  trial  of  the  issue. 

As  to  Jolnison,  his  competency  is  clear 
enough.  His  liaiiility  f(n-  tlie  bid  of  Steven- 
son does  not  depend  upon  the  (lueslion  of 
satisfaction  of  DeGraftenreid's  judgments; 
for  if  these  be  removed,  those  of  Dawkins 
and  Thomson  remain,  more  than  suflicient  to 

185 


*450 


3  RICHARDSON'S  EQUITY  REPORTS 


absorb  tiie  wbole  sum  of  bis  liability.  If 
liable  at  all,  he  is  liable  at  all  events;  it 
makes  no  difference  to  him  whether  he  is  to 
pay  one  or  the  other  of  these  parties. 

Other  grounds  of  appeal  object  to  the  ver- 
dict of  the  jury,  because  the  answer  of  De- 
Graffenreid  to  a  rule  in  the  Common  Pleas 
to  show  cause  why  satisfaction  should  not  be 
entered  on  his  judgments,  was  not  received 
as  evidence  on  the  trial  of  the  issue.  It  is 
insisted  that  such  answer  to  a  rule  should  be 
treated  as  an  answer  to  a  bill,  where  the 
party  dies,  as  here,  before  putting  in  answer 
to  the  bill,  after  service  of  subpoena  upon 
him.  It  is  conclusive  reply  to  these  grounds, 
that  the  evidence  was  not  offered  before  the 
commissioner,  nor  to  the  Judge  on  the  trial 
of  the  issue.  Again,  an  answer  to  a  rule  is 
a  mere  declaration,  without  cross  examina- 
tion, of  an  interested  party  in  his  own  be- 
half ;  and  is  not  evidence  in  any  court  on  the 
trial  of  an  issue  between  adverse  parties. 
If  the  Court  of  Common  Pleas,  on  the  return 
of  the  rule,  had  directed  an  issue  to  the  jury 
as  to  the  satisfaction  of  these  judgments, 
surely  the  declaration  that  he  had  not  been 
paid,  by  the  plaintiff  in  execution,  although 
under  oath,  would  not  be  heard  on  the  trial 
of  the  issue.  An  answer  to  a  rule  has  little 
analogy  to  an  answer  to  a  bill.  In  the  former 
evasion  and  prevarication  are  quite  practi- 
cable ;  it  is  more  hazardous  and  dithcult  to 
frame  untrue  responses  to  the  searching 
interrogatories  of  a  bill. 

The  same  reasoning  disposes  of  the  ground, 
that  DeGraffenreid  by  his  indemnification  of 
the  sheriff,  declared  his  execution  to  be  unsat- 
isfied. 

Another  ground  objects,  that  the  best  ev- 
*451 
idence  of  the  satis*faction  of  the  judgments 
was  not  produced,  because  Thomas  himself 
was  not  examined  as  a  witness  by  the  plain- 
tiff. It  is  a  palpable  mistake  to  suppose  that 
the  testimony  of  Thomas  was  better  evidence, 
that  is,  of  a  higher  grade,  than  that  of  any 
other  witness  who  was  examined;  and  the  de- 
fendant In  the  issue  had  all  the  benefit,  in 
argument  on  the  effect  of  the  evidence,  of 
the  presumption  against  the  claim  of  the 
plaintiffs  arising  from  their  failure  to  pro- 
duce this  witness. 

Tile  other  matters  of  objection  to  the  ver- 
dict do  not  require  particular  notice. 

The  remaining  ground  of  appeal  is,  that 
the  estate  of  DeGraffenreid  sbould  be  re- 
imbursed for  the  costs  and  expenses  of  a 
suit  at  law,  by  the  children  of  Thomas  against 
the  sheriff  of  Union,  for  selling,  as  the  prop- 
erty of  Thomas,  certain  negroes  claimed  by 
these  children.  It  seems  that  DeGraffenreid 
indemnified  the  sheriff'  in  the  sale  of  these 
negroes ;  and  that  the  proceeds  of  sale  have 
increased  the  assets  of  the  debtor,  of  which 
the  estate  of  DeGi-aff'enreid  gets  no  portion. 
If  DeGraffenreid  were  to  be  regarded  merely 


as  a  volunteer  in  this  act  of  indemnity,  it 
would  be  difficult  to  demonstrate  that  he 
sht>uld  be  rewarded  for  the  offence  of  com- 
mon barratry.  But  he  is  worse  than  a  vol- 
unteer. By  holding  up,  as  subsisting  claims 
against  Thomas,  these  judgments,  which 
were,  in  fact,  satisfied,  he  has  attempted  a 
fraud  on  the  other  creditors,  and  has  stirred 
up  the  protracted  and  expensive  litigation 
in  this  court.  It  is  quite  as  reasonable  that 
his  estate  should  be  burdened  with  the  whole 
expenses  of  litigation  in  this  court,  as  that 
it  should  be  reimbursed  for  his  expenses  in 
another  tribunal,  quite  competent  to  regulate 
the  incidents  of  its  own  judgments.  Howev- 
er, directions  as  to  costs  are  reserved  until 
the  amended  report  of  the  commissioner  be 
made. 

It  is  ordered  and  decreed  that  the  appeal 
be  dismissed,  and  the  circuit  decrees  be 
affirmed. 

JOHNSTON,     DUNKIN,     and     DARGAN,. 
CC.  concurred. 
Appeals   dismissed. 


3    Rich.  Eq.   *452 

*E.    B.    WHEELER    and    JOSEPHINE    and 

SARAH  F.  LIVINGSTON  v.  W.  W.  DU- 

RANT  aud  S.  M.   STEVENSON. 

(Colimibia.    May  Term,  1851.) 

[Wills  <S=:jSS.] 

S.  C.  by  instrument  under  her  Iiand  and 
seal,  attested  by  three  witnesses,  (who  subscrib- 
ed without  an  attestation  clause,  aud  simply 
after  the  word  "witness,")  and  addressed  "to 
all  whom  it  may  concern,"  gave  "in  considera- 
tion of  the  natural  love  and  atfectiou  which  I 
bear  to  my  graud-childreu,  and  others  herein- 
after mentioned,  the  following  property ; 

"To  Josephine  aud  Sarah  L.,  I  give  all  the 
interest  I  have  in  the  estate  of  Joseph  L. — it 
consisting  principally  of  a  bond  for  the  pay- 
ment of  some  fourteen  or  fifteen  huudred  dol- 
lars,  secured  by  a  mortgage   of  nine   negroes. 

"To  Laura  and  Sarah  C,  viz :  to  Laura  a 
feather  bed  aud  furniture,  one  set  silver  tea- 
spoons, aud  one  silver  hoop  aud  chain  for  scis- 
sors,  and   to   Sarah,  &c. 

"To  my  daughter  P.  my  wearing  apparel 
and  my  books. 

"To  my  daughter  M.  one  feather  bed  and 
furniture. 

"Aud  I  hereby  appoint  S.  S.  and  E.  W.  trus- 
tees to  this  deed,  with  the  full  uuderstaudiug 
that  the  above  property  does  not  vest  in  an- 
other of  the  parties  until  my  death." 

Under  proceedings  in  equity  to  marshal  the 
assets  of  Joseph  L.,  S.  C.  purchased  some  of 
the  mortgaged  negroes,  and  the  proceeds  of  the 
sale  were  allowed  her  on  account  of  the  lien 
of  the  mortgage ;  S.  C.  executed  a  will,  which 
after  her  death  was  admitted  to  probate,  by 
which  she  revoked  the  instrument ;  the  negroes 
purchased  by  S.  C  went  into  the  possession  of 
defeudaut  as  agent  of  S.  C,  aud,  after  her 
death,  E.  AV.,  as  trustee,  aud  the  cestuis  que 
trust,  Josephine  and  Sarah  L.,  tiled  their  bill 
against  defeudaut,  without  making  the  personal 
representative  of  S.  C.  a  party,  claiming  the 
negroes  under  the  instrument;  at  the  trial  the 
instrument  was  not  produced,  and  to  prove  its 
execution,   delivery,   loss   and    contents,    O.    W.,. 


1S6 


(®=»For  other  cases  see  same  topiv;  and  KEY-NUMBER  in  aU  Key-Numbered  Digests  and  Indexes 


WHEELER  V    DURANT 


Hoj 


■one  <.f  tlio  attostiiiff  witnos.«os.  tostiii.'d.  that  ]  rt'nalii  i.oitinn  of  the  nezroos  inoit;.'awa  by 
ho  saw  the  instruniont  expciitod;  that  it  was  j,,.s^.j,li  Liviiij^ston  as  afoivsaid,  now  amouiit- 
8ul)s«M|iientl.v  flelivort-d  to  him  l)y  K.  W.  to  bo  .||^  ^^  soven,  wore  sold  to  satisfy  said  iiiort- 
!:;:^'trit^:me;;tJr';ha^a'day^.r{;^o'1X;:Ua.e  a.ul  the  <le.ua,..ls  of  all  of  his  .mlitors. 
tlio  trial.   K.  W.  tohl  him  it  was  lost,  and   K<>t  I  and  were  hid  off  hy  her.  and  are  now  in  the 


him  t<i  assist  him  to  soaich  fur  it.  which  soanli 
|)iovfd  iiiolTo.tual:  Held  that  plaintiffs  were 
not  ontitlod  to  recover. 

I  Ed.  N(.te.— Cited  in  Alexander  v.  Burnet,  5 
Rich.  l!ts:  Rahl)  v.  Harrison.  'J  Rich.  Eij.  110, 
70  Am.  Dec.  •_'():!. 

For  other  cases,  see  Wills,  Cent.  Dig.  §)i  "-OS- 
•J17  ;    Doc.  Dig.  <S=3NS.l 

[TnistH  <S=l.'4!t.| 

Jdhnsttin.  Ch..  doiihted  whether  the  nistrii- 
iiiciit  was  testamentary;  he  held.  1st.  that  the 
plaiiililTs's  reme<ly,  if  they  had  any,  was  against 
the  personal  representative  of  S.  (\  fnr  the 
money  collected  on  the  lumd  ;  I2d,  that  the  de- 
Uvery  and  loss  of  the  instrument  were  not 
proved. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent. 
Dig.  §  355;    Dec.  Dig.  <®=>249.1 

Wardlaw  and  Dunkin.  CC.  held  that  the 
instrument  was  testamentary,  and  had  been  re- 
v«)ked  :— they  thought  the  delivery  and  loss  suf- 
hcientlv  proved. 

Dargan.  Ch..  doubted  whether  the  instru- 
ment was  testamentary;  he  thought  the  delivery 
proved  prima  facie,  and  held.  1st.  that  the  jiroof 
nf  loss  was  iiisutlicient;  lid.  that  plaintilTs's 
remedy  was  a.i;ainst  the  personal  representative 
of  ^>.  C,  and  not  against  the  defendant. 

*453 

♦Before  Johnston,  Ch.,  at  Marion.  Febru- 
ary, 1851. 

Johnston,  Ch.  On  the  7th  of  October,  1S43, 
one  Sarah  Conner  executed  the  following  in- 
strument, to  wit: 

South  Carolina,  Marion  District. 

To  all  whom  it  may  concern,  I,  Sarah  Con- 
!\er,  do  hereby,  in  consideration  of  the  natu- 
ral love  and  affection  which  I  bear  to  my 
grandchildren,  and  otl>ers  hereinafter  men- 
tioned, give  the  following  property: 

To  Josephine  Livingston  and  Sarah  !■  rank- 
lin  Livingston,  I  give  all  the  interest  I  have 
in  the  estate  of  Joseph  Livingston, — it  con- 
sisting principally  of  a  bond  for  the  pay- 
ment of  some  fourteen  or  fifteen  hundred  dol- 
lars, secured  by  a  mortgage  of  nine  negroes. 

To  Laura  D.  Conner  and  Sarah  C.  Conner, 
viz:  to  Laura  a  feather  bed  and  furniture, 
one  set  silver  teaspoons,  and  one  silver  hoop 
and  chain  for  scissors,  and  to  Sarah.  .Sec; 

To  my  daughter  I'icket.  my  wearing  ap- 
parel and  my  books: 

To  my  daughter  Mary  Eliza  Ticket,  one 
feather  bed  and  furniture ; 

And  I  hereby  ai :p<dnt  Samuel  M.  Stevenson 
and  E.  B.  Wheeler,  trustees  to  this  deed, 
with  the  full  understanding  that  the  altove 
propi'rty  does  not  vest  in  another  of  the 
(probably  any  of  thei  parties  until  my  death. 

Witness  my  hand  and  seal  7th  of  Oct.  1S4:>. 
Sarah  Conner,     [L.  S.J 

Witness— M.  C.  Durant,  O.  1'.  Wheeler,  E. 
B.  Wheeler 


hanils  of  the  defendant,  Durant,  as  her  agent. 
The  bill  is  against  Durant,  setting  up  a 
claim  to  the  said  negroes,  under  the  afore- 
said instnuuent.  on  behalf  of  Josephine  and 
Sarah  F.  Livingston. 

♦454 
♦If  the  instrument  is  testamentary,  it  has 
not  been  admitted  t^t  probate;  and  besides, 
it  is  revoked  by  a  will,  executed  by  Sarah 
Conner  the  loth  of  July,  1S44.  which  has 
been  admitted  to  probale.  But  the  i)lai:UitTs 
contend  that  it  is  not  testamentary.  I'Ut  on 
the  contrary,  that  it  is  a  deed,  and  is  to  be  al- 
lowed as  su<-h,  under  the  authority  of  Daw- 
son V.  Dawson,  2  Rice  Eq.  ."M.  an<l  Jaggers 
V.  Estes,  2  Strob.  Eq.  34:5  (40  Am.  Dee.  074.) 
The  lirst  dithculty  of  the  plaintifls  is,  that 
the  deed,  if  it  be  such,  is  not  duly  proved. 
The  original  is  not  i)roduced ;  and,  in  order 
to  iet  in  .secondary  proof,  it  is  necessary  to 
prove  its  loss,  as  well  as  its  execution  and 
contents.  The  only  witness  to  this  point  is 
O.  I'.  Wheeler,  who  states  that  he  saw  it  ex- 
ecuted, and  that  it  was  subsctiuently  deliver- 
ed to  him  by  E.  B.  Wheeler  to  be  registered  ; 
and  he  refers  to  the  copy  on  record  for  its 
contents.  This  may  suthce  if  the  deed  is 
proved  to"  bo  lost.  But  all  that  the  witness 
can  say  on  that  subject  is,  that  a  day  or 
two  before  the  hearing,  E.  B.  Wheeler  told 
him  it  was  lost,  and  got  him  to  assi.st  him 
to  search  for  it,  which  search  proved  inef- 
fectual. The  proof  of  lo.ss  is  manifestly  noth- 
ing but  the  declaration  of  E.  B.  Wheeler. 

Suppose  this  ditliculty  overcome:  the  next 
thing  incumbent  upon  the  plaintiffs,  is  to 
snow  that  the  instrument  was  intended  as  a 
deed.  An  instrument  purporting  to  be  a  deed 
may  have  a  present  oiteration  to  i)ass  the 
right  to  property,  though  it  provided  tli.it  the 
enjoyment  of  the  property  shall  be  postponed 
to  a  future  time. 

In  Dawson  v.  Dawson  and  in  Jaggers  v. 
Estes.  it  was  held,  that  the  posti)oning  of 
the  enjoyment  till  the  death  of  the  donor 
does  not  render  the  instrument  testamentary, 
it,  upon  its  face,  or  fnun  the  circumstan<es, 
it  was  intended  to  oiierate  in  prescnti,  and 
not  to  reiiiaiii  ambulatory- 

The  difference  betwen  a  deed  and  a  will 
is  not  exactly  what  it  is  state<l  to  be  in 
Welch  and  Kinard,  Speers  Eq.  250.  It  is 
there  intimated,  that  the  proper  definition  of 
a  will  is,  the  declaration  of  a  party  as  to 
what  is  to  be  do!ie  with  his  jn-operty  after 

*455 
his  death.     But   ♦a   better  definition,   is  the 
declaration  of  a  party,   made  l)y  an  instru- 
ment intended  to  be  ambulatory  and  revoca- 


Sarah  Conner  is  now  dead;    but  during  her  i  ble,  as  to  tiie  disposition  of  his  property  aft- 
life  time,  under  proceedings  in  this  court,  a  I  er  his  death.     A  deed  may  declare  how  the 


<£=Kor  other  eases  see  same  topii;  and  KEY-NUMbEK  iu  aU  Key-Numbered  Digests  and  Indexes 


187 


*455 


3  RICHARDSON'S  EQUITY  REPORTS 


property  is  to  be  enjoyed  after  tlie  death  of 
the  grantor,  and  such  a  deed  is,  according 
to  our  decisions,  as  eft'ectuai  as  one  which 
gives  present  enjoyment.  It  is  a  deed  and 
not  a  testament,  if  the  instrument  is  intended 
to  have  a  present  and  not  a  future  opera- 
tion ;  if  it  is  intended  to  pass  tlie  right  in 
presenti ;  to  be  a  perfected  and  executed  con- 
tract,— and  not  revocable  or  ambuUitory. 

But  here  the  witness  says  he  heard  notli- 
ing  from  Mrs.  Conner  at  the  execution  of 
this  paper,  showing  her  intention  in  respect 
to  it.  He  saw  her  subscribe,  and  he  and  the 
other  witnesses  attested.  He  says  nothing 
about  tlie  delivery.  The  paper  itself  does  not 
contain  any  thing  on  the  subject  of  delivery. 

Then  the  provisions  of  the  instrument  are 
generally  of  a  testamentary  character.  It  is 
not  usual  for  persons  to  give  their  wearing 
apparel  while  yet  alive.  Besides,  the  idea 
that  a  right  to  the  property  is  to  pass  pres- 
ently is  expi-essly  negatived  on  the  face  of 
the  paper.  Again  ;  does  not  the  number  of 
attesting  witnesses  countenance  the  idea  that 
the  paper  was  regarded  as  a  will?  These  are 
not  all  the  difficulties  of  the  plaintiffs.  What 
Is'  given  by  this  instrument  is  not  the  ne- 
groes, but  the  bond  A^ith  the  collateral  se- 
curity of  the  mortgage:  a  debt  on  Livingston 
who  was  then  alive. 

The  most  that  can  be  made  of  the  paper  is, 
that  it  is  an  assignment  of  the  bond.  Mrs. 
Conner  subsequently  collected  the  debt ;  and 
if  the  plaintiffs  have  any  claims,  it  is  against 
her  personal  representative  for  money  receiv- 
ed to  their  use ;  and  perhaps  to  have  the 
slaves  declared  liable  as  collateral  security 
for  the  amount.  The  personal  representative 
is  not  before  the  Court,  and  it  is  not  neces- 
sary to  say  what  right  might  be  established 
against  iiim ;  but  I  doubt  whether  Mrs.  Con- 
ner's estate  could  be  made  liable  for  the 
debt  collected  by  her,  to  parties  who  claim  as 
mere  volunteers. 

It  is  ordered  that  the  bill  be  dismissed. 
*456 

*The  complainants  appealed,  on  the  follow- 
ing grounds: 

1.  Because  the  instrument  of  writing  was 
a  deed  and  not  a  will. 

2.  Because  O.  P.  Wheeler,  a  subscribing 
witness,  proved  that  it  had  been  executed  in 
his  presence ;  that  he  afterwards,  at  the  in- 
stance of  Edward  B.  Wheeler,  the  trustee, 
who  had  it  in  his  possession,  recorded  the 
same  in  the  Register's  Office  of  Marion,  which 
was  evidence  of  delivery. 

3.  Because  the  loss  of  the  instrument  was 
proved  by  O.  P.  Wheeler,  who  searched  with 
his  father,  Edward  B.  Wheeler,  amongst  his 
papers,  and  testified  that  it  could  not  be 
found ;  and  because  the  contents  were  fully 
proved  by  the  said  O.  P.  Wheeler. 

4.  Because  the  aforesaid  instrument  having 
conveyed  a  bond  and  mortgage,  wliicli  was 
paid  in  part  by  the  i)urchase  of  the  negroes 
sued  for  in  this  case,  the  negroes  stand  in 

188 


the  place  of  the  bond,  especially  as  they  were 
mortgaged  to  secure  its  payment,  and  may 
be  followed  in  this  Court  as  the  property  of 
the  complainants,  to  whicli  they  have  a  legal 
title,  having  been  purchased  with  their  funds 
and  under  the  mortgage  conveyed  to  them. 
Their  title  is  legal,  not  equitable  merely,  be- 
cause their  estate  in  the  aforesaid  bond  and 
mortgage  is  a  vested  remainder  after  the  life 
estate  of  Mrs.  Sarah  Conner  the  donor,  which 
life  estate  had  terminated  before  this  suit 
was  commenced. 

5.  Because  their  title  being  legal,  the  com- 
plainants had  a  right  to  sue  the  holder  of 
the  negroes  alone  for  them,  without  niaking 
the  person,  from  whom  or  under  whom  he 
holds,  a  party ;  and  because  there  was  no  ob- 
jection made  by  the  pleadings  to  v\-ant  of 
proper  parties. 

6.  Because  the  circuit  Chancellor  having 
indicated  that  the  remedy  of  the  complain- 
ants is  at  law,  against  the  personal  repre- 
sentative of  Mrs.  Sarah  Conner,  for  money 
liad  and  received  to  their  use,  in  case  the 
aforesaid  instrument  be  a  deed,  it  is  neces- 
sary, in  order  to  entitle  the  complainants  to 
proceed  at  law,  that  the  decree  of  the  circuit 

*457 
Chancellor  should  be  reversed  as  *to  the  tes- 
tamentary character  of  the  said  instrument; 
otherwise   such   decree  would   be    a   bar    at 
law,  as  res  judicata. 

Miller,   for  complainants. 
Phillips,  contra. 

JOHNSTON,  Ch.,  announced  the  judgment 
of  the  Court. 

I  must  acknowledge  that  I  am.  in  some  de- 
gree, shaken  in  my  impressions  as  to  the  tes- 
tamentary character  of  this  instrument:  but 
not  sufficiently,  to  enable  me  to  declare  the 
decree,  upon  that  point,  erroneous. 

But  the  other  grounds  upon  which  the  de- 
cree is  put  are  sufficient  to  show  its  correct- 
ness. 

The  gift  is  of  the  bond,  as  a  debt,  and  of 
the  mortgage, — as  an  incident, — to  enforce  its 
collection. 

If,  as  is  argued,  the  negroes  were  purchas- 
ed by  INIrs.  Connor  with  the  bond,  (which  is 
not  the  case,)  it  may  be  true  that  a  trust  re- 
sulted to  the  plaintiffs,  to  have  the  negroes 
declared  to  stand  as  a  substitute  of  the  cap- 
ital employed ;  or  to  have  the  capital,  itself, 
at  their  election:  but  such  a  decree  could  not 
be  made,  unless  upon  bill  dii-ectly  for  that 
purpose  against  the  party  who  converted  the 
capital,  or  her  legal  representative. 

The  ground  that  the  loss  of  the  instru- 
ment was  not  established,  so  as  to  let  in  sec- 
ondary proof  of  the  instrument,  is,  also,  quite 
satisfactory  to  me.  The  doctrine  is  not  mjvel 
or  doubtful.  All  our  decisions  are  one  way 
on  the  subject,  from  Sims  v.  Sims,  (2  Mill, 
225.)  to  Wardlaw  v.  Gray,  (Dud.  Kq.  S5.)  and 
even  down  to   the   last  term  of  this  Court, 


WIIEKLER  V.  rHKAXT 


*460 


as  may  bo  seen  In  the  case  of  Gibson  v.  Mc- 
Cully,  not  yet  rejiorted. 

The  loss  in  this  case  depends  exc-lusively 
Upon  the  assertion  of  K.  15.  Wheeler,  one  of 
the  plaintiffs  in  the  eause;  and  unless  the 
fact  of  loss,  unlike  all  other  facts,  is  to  be 
made  out  by  mere  statements,  there  was  no 
foundation  laid  for  li-ttint,'  in  secondary  evi- 
dence. The  frauds  that  may  be  accomplished 
by  withhnldintr  uriu'inal  papers,  and  resorting; 
to  secondary  jiroof,  need  not  l>e  suji;;ested. 
The  hardships  com[ilained  of,  of  shutting 
out  parol  evidence,  nidess  upon  n'.L'uIar  i)roof 

*458 

of  loss  of  written  instru*meiits.  would  soon 
be  transferred  to  the  shoulders  of  the  oppo- 
site party,  if  proof  of  the  loss  wen*  dispens- 
ed with. 

I  am  of  opinion  that  the  decree  should  be 
atiirmed.  and  the  api»eal  dismissed:  and  such 
being  the  opinion  of  the  majority  of  the 
Court.  (thou.u'h  upon  jrrounds  siimcwhat  dif- 
fering.) it  is  so  ordered. 

WARDLAW.  Ch.  I  concur  in  the  judg- 
ment of  the  Court  in  this  case,  on  the  ground, 
that  the  instrument  executed  by  Sarah  Con- 
nor was  revocable,  and  in  fact  revoked. 

It  is  settled  in  this  State.  l>y  the  deci.sion 
of  the  Court  of  last  resort,  that  personal  es- 
tate may  be  conveyed  by  deed,  even  without 
the  intervention  of  trustees,  after  a  life  es- 
tate reserved  by  the  grantor,  if.  upon  con- 
struction of  the  whole  instrument,  the  inten- 
tion be  manifested  to  transfer  the  title  pres- 
ently and  irrevocably,  and  to  postpone  noth- 
ing but  the  enjoyment.  In  the  question 
whether  a  particular  instrument  is  a  deed  or 
a  testament,  the  postponement  of  the  enjoy- 
ment of  the  estate  by  the  donee  until  the 
death  of  the  donor,  is  a  fact  no  longer  con- 
clusive, but  still  leading  to  the  conclusion. 
that  the  instrument  is  testamentary.  The 
force  of  this  fact  by  itself,  may  be  now  over- 
come by  the  context  and  general  frame  of  the 
instrument. 

The  instrument  has  the  frame  of  a  testa- 
ment, rather  than  of  a  deed.  It  is  divided 
into  separate  clauses,  by  the  lirst  four  of 
which,  distinct  articles  of  property  are  given 
to  diflerent  donees,  and  by  the  lifth  and  last, 
trustees  are  aiipointed  for  its  execution.  It 
has  the  number  of  witnes.ses  indispensable  in 
a  testament,  but  unnecessary  and  unusual  in 
a  deed.  It  contains  no  internal  evidenie  of 
delivery;  a  fact  necessary  to  the  exi.stence 
of  a  deed,  not  of  a  testament.  It  de.scril»es 
some  of  the  subjects  of  gift  in  such  general 
terms,  as  might  serve  to  pass  one  of  the 
class  in  a  testament,  but  not  to  give  present 
title  to  specific  articles,  as  'one  feather  Ijed," 
&c. ;  several  of  the  class  iH'ing  owned  by  the 
donor.  Aliove  all.  the  instrument  expressly 
declares  the  intention  of  the  donor,  "that  the 
above  property  (bn-s  not  vest  in  any  of  the 
parties  until  my  death."    The  terms  property 


*459 
and  *vest,  refer  more  directly  to  title  than 
to  enjoyment,  and  in  their  connexion  here, 
imply  strongly,  that  the  donor  did  not  mean 
to  part  with  any  right  beyond  recall  :  and 
the  implication  acquires  increased  vigor  from 
the  use  of  the  present  tense,  "docs  not  vest.' 
which  would  not  be  naturally  enqdoyed  in 
reference  to  the  future  event  of  enjoyment. 

The  sulijects  of  disposition  in  all  the  claus- 
es of  this  instrument,  except  the  tirst.  are 
more  appropriately  and  more  conunonly  giv- 
en by  testament  than  by  deed.  One  might 
give  by  deed  a  remainder  in  "wearing  ap- 
parel,"' aftt-r  a  use  for  life,  and  then  the 
donee  would  be  reipiired  to  distinguish  the 
specific  articles  given,  from  others  of  the 
same  kind  subseiinently  aciinirt'd  by  the  ten- 
ant for  life;  but  it  is  nuich  more  reasomible 
to  conclude,  that  the  donor  in  such  case  in- 
tends to  pass  all  projierty  of  this  (h'scription, 
with  all  its  changes  and  accunnUations.  as 
it  may  exi.st  at  his  death:  and  this  can  be 
effected  by  a  testament,  which  speaks  at  the 
death  of  the  donor. 

Against  all  these  circumstances  nothing  is 
opposed,  except  the  equivwal  fact,  that  the 
donor  denominates  the  instrument  a  deed. 
She  may  have  done  this  ignorantly.  or  be- 
cau.se  it  was  her  act,  or  because  it  had  a  seal; 
and  seals  are  commonly,  yet  unnecessarily, 
used  in  testaments. 

If  it  be  decided  that  this  insfrunient  is  tes- 
tamentary, the  bill  must  be  dismissed.  It  is 
only  on  the  concession  that  it  is  a  deed,  that 
the  question  of  delivery  can  arise,  or  the 
questions  as  to  loss,  and  as  to  the  operation 
of  the  terms  of  gift,  become  important. 

Considering  the  instrument  a  deed.  I  con- 
clude there  was  suUicient  evidence  of  deliv- 
ery. From  the  pos.session  of  the  instrument 
by  the  person  to  whom  the  delivery  should  be 
made,  and  the  custody  committed,  delivery 
sh«tuld  be  presumed,  in  the  absence  of  any 
countervailing  evidence. 

I  think  there  was  prima  facie  proof  v( 
loss.  Our  cases  determine,  contrary  to  the 
practice  of  some  of  the  States,  that  the  wit- 
nesses to  prove  loss,  as  preliminary  to  sec- 
ondary evidence  of  the  contents  of  an  in- 
strument,   must    be    disinterested;     and    the 

*460 
♦declaration  of  E.  B.  Wheeler,  a  plaintiff, 
that  he  had  lost  this  paper,  was  manifestly 
incompetent.  But  search  in  the  place  where 
a  missing  paper  ought  to  be  kept,  although 
this  place  may  be  amctng  the  papers  of  a 
party,  is  not  the  declaratitm  of  the  i>arty.  It 
is  a  substantive  and  material  fact.  Such 
.search,  if  made  with  diligence  and  in  good 
faith  and  without  success,  is  sutticient  ground 
for  the  presunqition  of  loss.  (,I»rake  v. 
liamey,  Rhodes  &  Co.,  3  Rich.  :!0 ;  1  (ireeul. 
Ev.  §  508;  1  Stark.  Ev.  .•!4'.l.)  From  the 
nature  of  the  fact  it  can  seldom  be  proved 
positively,  or  otherwi.se  than  by  circumstai>- 
tial   evidence.      Where   the   search   has   been 

189 


*460 


RICHARDSON'S  EQUITY  REPORTS 


slight  or  collusive,  or  where  there  is  reason  f 
to  susriect  the  suppression  of  tlae  original, 
to  gain  some  advantage  from  the  resort  to 
secondary  evidence  of  contents,  the  presump- 
tion of  loss  should  not  be  made.  Nothing  of 
this  sort  is  imputed  here.  Moreover,  conclu- 
sive proof  of  the  existence  and  contents  of 
the  paper  is  offered ;  and  the  l^arty  who 
seeks  to  establish  the  loss,  lias  no  interest  in 
the  property  in  controversy.  INIore  ample 
proof  of  loss  than  was  given  in  this  case,  is 
not  practicable,  except  in  rare  instances, 
where  witnesses  of  the  destruction  of  the  in- 
strument can  be  produced. 

I  express  no  tixed  opinion  as  to  the  effect 
of  the  terms  of  donation,  under  which  this 
claim  is  set  up.  "All  my  interest  in  the  es- 
tate of"  a  living  person,  may  include  all  my 
claims,  by  lien  or  otherwise,  on  his  property; 
and  a  gift  of  a  "bond,  secured  by  a  mortgage 
of  nine  negroes,"  may  not  only  transfer  the 
debt,  but  assign  tlie  mortgage.  The  mort- 
gagee at  law,  after  condition  broken,  is  the 
owner  of  the  chattels  mortgaged.  Wolf  v. 
O'Farrel,  (1  Tread.  151.)  Even  before  condi- 
tion broken,  he  may  maintain  trover  against 
any  person  except  the  mortgagor.  Spriggs  v. 
Camp,  (2  Speers,  181.)  In  this  court,  as  be- 
tween mortgagor  and  mortgagee,  the  mort- 
gage is  regarded  merely  as  security  for  the 
debt.  Bryan  v.  Robert,  (1  Strob.  Eq.  334.) 
But  as  between  mortgagee  and  his  assignee, 
if  the  former  take  the  chattels  in  satisfaction 
of  the  debt,  and  retain  possession  of  them  by 
his  agent,  as  in  this  case,  I  am  not  clear  that 
the   assignee   may   not   elect  to  proceed   for 

*461 
the  chattels  themselves.  *In  such  proceed- 
ing, the  mortgagee  or  his  representative  ought 
to  be  a  party,  as  materially  interested  in  the 
object  of  the  suit;  but  here  no  objection  was 
made  by  the  pleadings  to  the  want  of  prop- 
er parties. 

DUNKIN,  Ch.,  concurred. 

DARGAN,  Ch.  In  this  case  I  concur  in  the 
affirmation  of  the  decree,  and  feel  disposed 
to  express  tlie  grounds  of  my  concurrence. 

I  think  the  evidence  to  prove  the  loss  of 
the  deed,  was  insutiicient  for  that  purpose. 
Oliver  P.  Wheeler,  (the  son  of  the  complain- 
ant, Edward  B.  Wheeler.)  proves  that  he  was 
called  upon  by  his  father  to  assist  him  in  a 
search  for  the  instrument  among  liis  papers. 
He  complied  with  the  request,  and  the  search 
was  made.  The  instrument  was  not  found, 
and  E.  B.  Wheeler  said  it  was  lost.  This 
was  only  a  day  or  two  before  the  trial,  and 
was  evidently  a  preliminary  formula  for  the 
introduction  of  the  secondary  testimony. 
The  first  thing  that  strikes  the  mind  as  un- 
satisfactory in  this  testimony,  particularly 
in  the  instance  of  a  person  having  so  many 
papers  and  documents  in  his  possession  as 
this  complainant,  is  the  probability  that  the 
paper  was  misplaced  and  not  lost.  And  that 
190 


is  not  the  kind  of  loss,  I  apprehend,  whicli 
renders  proof  of  the  contents  admissible. 

But  it  is  obvious,  that  the  whole  proof  of 
the  loss  rests  entirely  upon  Edward  B. 
Wheeler's  declaration  to  that  effect.  How 
did  the  witness,  (O.  B.  Wheeler,)  know,  but 
that,  at  the  very  time  of  his  making  tlie 
search,  the  other  did  not  have  the  paper  in 
his  pocket,  or  in  some  other  secret  place  of 
deposite,  to  which  his  attention  was  not  in- 
vited? I  make  this  suggestion,  not  suspect- 
ing in  the  slightest  degree,  that  such  was 
the  fact  in  this  case ;  but  merely  for  the 
purpose  of  illustrating  a  general  principle. 
Such  chicanery  might  be  resorted  to  in  any 
case,  in  which  the  party  was  unwilling,  or 
deemed  it  unsafe,  to  exhibit  the  original. 
To  admit  such  testimony,  would  be  the  mer- 
est evasion  of  the  rule,  which  prohibits  a 
party  from  being  a  witness  in  his  own  cause. 
It  would  be  better  far,  to  admit  his  declara- 

*462 

*tion  by  affidavit,  or  his  examination  in 
Court,  with  the  right  of  cross  examination, 
than  to,admit  his  statement  out  of  Court  to 
a  third  party,  unsupported  by  oath  and  un- 
sifted by  cross  examination. 

I  admit  the  great  difficulty  of  proving;  the 
loss  of  a  paper  in  many  cases ;  and  that  the 
argument  for  relaxing  the  stringency  of  the 
proof  in  sucli  cases  is  very  strong.  But  to 
this  argument  it  may  be  replied,  that  the 
stringency  of  the  proof  in  such  cases  is 
greatly  relaxed,  and  that  very  slight  evidence 
of  the  loss,  after  satisfactory  proof  of  the 
existence  of  an  instrument,  is  sulhcient. 
But  that  is  not  the  point  here.  The  question 
is  simply,  whether  the  declarations  of  the 
party  to  a  third  person,  accompanied  by  a 
search  which  may  be  a  mere  sham,  shall  be 
admissible.  There  may  be  evils  and  incon- 
veniences growing  out  of  the  rule  as  I  un- 
derstand it  to  liave  been  settled  by  the  prac- 
tice of  the  Courts.  But  on  the  other  hand, 
the  mischiefs  which  would  result  from  allow- 
ing a  jiarty  to  manufacture  his  own  evidence, 
and  to  promulge  it  to  the  Court,  through  a 
witness  examined  on  the  stand,  and  to  be 
used  as  his  mouth-piece,  are  infinitely  great- 
er. After  all,  when  a  party  fails,  for  the 
want  of  the  very  slight  proof  necessary  to 
establish  the  loss  of  a  paper,  he  but  falls  in- 
to a  category  with  the  numerous  class  of  in- 
nocent and  unfortunate  persons,  who  have 
just  rights,  but  lack  the  necessary  proof  to 
sustain  them  in  Court. 

On  the  fourth  ground  of  appeal,  I  concur 
with  the  Chancellor  in  the  views  which  he 
has  expressed  in  his  circuit  decree.  If  the 
instrument  upon  which  the  complainants  rest 
their  claim,  were  to  be  construed  as  having 
the  operation  of  a  deed,  it  could  only  be 
considered  as  an  assignment,  (after  a  life  es- 
tate in  the  donor,)  of  the  debt  due  to  the 
donor  by  Joseph  Livingston ;  or  rather  of 
the  fund  secured  by  the  bond  and  mortgage 


WHEELER  V.  DURAXT 


nc'y 


executed  to  her  l).v  Liviiitrstoii.  She  eoiihl 
not  liave  intended  to  dehar  herself  from  the 
collection  and  use  of  the  money  in  her  life 
time.  The  mortj,'ai.'e  was  only  an  incident  of 
the  debt,  auxiliary  but  not  necessary  to  its 
enforcement.  Thi'  projierty  <if  .loseidi  Liv- 
inj^ston  was  afterwards  sold,  under  a  decree 

*463 
of  the  Court  of  *E(iuity,  with  the  view  of 
marshallin<;  the  assets.  The  nej^roes  mort- 
ga^'ed  to  Mrs.  Connor  were  s(dd  at  this  .sale, 
but  not  under  a  decree  of  foreclosure;  and 
Mrs.  Connor  became  the  iiurchaser.  In  mar- 
shalling the  assets,  the  proceeds  of  the  sale 
of  the  mortgaged  negroes  were  allowed  her 
on  account  of  her  prior  and  special  lien. 
Mrs.  Connor  is  dead,  and  the  negroes  have 
passed  into  the  possession  of  third  per.sons, 
against  whom  the  complainants  have  insti- 
tuted this  suit.  1  agree  with  the  Chancellor, 
that  if  the  complainants  have  any  claim,  it 
is  against  the  personal  representatives  of 
Mrs.  Connor,  (wlio  are  not  parties,)  for  so 
much  money  as  was  due  on  the  bond  of 
Livingston  at  the  time  of  its  supposed  as- 
signment. 

The  most  dilhcult  part  of  this  ca.se,  is  the 
construction  of  the  instrument  of  the  7th 
October.  1843.  Is  it  a  testament  or  a  deed".' 
And  first,  was  it  delivered/  E.  B.  Wheeler, 
who  was  one  of  the  trustees  nonnnated  by 
the  instnuntnt,  was  in  possession  of  it,  and 
had  it  recorded.  This  I  think,  according  to 
the  decisions,  amounted  to  prima  facie  evi- 
dence of  its  delivery.  But  is  it  a  testament 
or  a  deed?  When  by  the  terms  of  an  instru- 
ment, duly  executed  and  delivered,  it  appears 
that  the  party  who  executes  it,  intends  to 
transfer  a  present  irrevocable  right  in  a 
chattel  to  be  vested  in  possession  at  a  future 
time,  (a  present  right  to  a  future  enjoyment.) 
our  Courts  will  give  legal  ethcacy  to  such  in- 
tention. This  principle  is  now  too  st)lemidy 
adjudged  to  be  brought  into  question.  But 
the  question  here  is.  wiiether  thi*  instrument 
executed  by  Mrs.  Coinior  comes  within  the 
foregoing  definition.  This  is  a  point  which, 
in  my  judgment,  is  not  of  easy  stdntion.  The 
in.'Jtrument  is  Janus-faced.  It  has  two  as- 
l)ects.  When  I  look  at  it  in  one  aspect,  it 
•»eems  to  be  a  deed.  When  I  regard  it  in  an- 
other point  of  view,  it  looks  like  a  w'ill.  And 
it  cannot  be  both. 
i  When  an  instrument  is  propounded  as  a 
will,  there  are  three  modes  or  kinds  of  jiroof, 
by  which  its  testamentary  character  may  be 
tested.  One  of  these  is  to  look  to  the  de- 
clared intention  of  the  i)arty  executing  it,  as 
expressed  upon  the  face  of  the  paper.  By 
another  mode  or  test,  we  may  hear  the  parol 

*464 
declar*atioiis  of  the  supposed  testator,  wheth- 
er it  was  his  purpose  to  make  a  will.  The 
parol  declarations  must  be  a  part  of  the  res 
gestfe,  and  of  course  must  be  satisfactorily 
proved.  I'nder  this  class,  there  may,  and 
have  been,  cases,  in  which  an  instrument,  in 


the  form  of  a  peual  bond,  or  a  simple  promis- 
sory   note,   executed  according  to  the   forms 
prescribed  by  law,  have  bei'ii  proi»ounded  and 
e.stalilished    as    testamentary    papers.      And 
again,  we  may  look  to  the  nature  of  the  dis- 
positions of  the  property,  which   the   instru- 
ment affects  to  make,  to  asc»>rtain   wliftber 
the   party   executing   it,   intended   to   convey 
irrevo<ably    a    i)resent    right    or    estate.      In 
this  case,  there  are  no  parol  declarations  or 
attendant  circumstanc«'s.  to  throw  any  light 
upon    the   (luesllon.      When    we   look    at    the 
language  of  the  paper,  we  discover  that  Mrs. 
Connor  herself  calls  it  a  deeil.     It  professes 
upon  its  face  to  be  a  d«'ed.     This  is  a  strong 
point  in  favor  of  the  appellants.     It  is  the 
strongest,  and  in  fact  the  only  strong  point 
in  their  favor.     It  is  dilficult  to  get  over  it. 
When    looked    at   in    this   aspect,    the    paper 
appears    to    be    a    deed.      But    upon    a    fur- 
ther analysis,  there  are  cogent    reasons  for 
doubting   whether   ^Irs.   Connor  did   not    use 
the  term  '"deed"  in  a  loose  sen.se.  and  with- 
out regard  to  its  preci.sc  and  technical  sig- 
nification.    She  has   no  where  expressly   or 
impliedly    declared    a    i)urpose    to    convey    a 
present    right    or    estate,    except    so    far    as 
such  purpose  may  be  implied  from  her  call- 
ing the   instrument   a   "'deed.'     On    the  con- 
trary,   she    declares    it    to    be    the    full    un- 
derstanding,   that    the  property   was    not   to 
ve.st  in  the  donees  until  after  her  death.     If 
we  look  to  the  subjt?ct  matter  of  one  of  the 
donations,  -the  doubt  is  increased.     She  gives 
to  one  of  her  daughters  her  wearing  apparel. 
This    looks    as    if   she    was    making    a    will. 
These  were  articles  consumable  in  their  use. 
Did  she  intend  to  lay  asioe  the  wearing  ap- 
parel which  she  then  had  on  hand,  to  await 
the  remainder  which  she  had  created  therein, 
after  the  termination  of  the  life  estate  which 
she  had  reserved  to  herself.'     <  >r  did  she  in- 
tend   to    use   them,    and    wear   them    out.    if 
need  be,  and  leave  to  her  daughter  such  of 
her  wearing  apparel  as  she  had  on  hand  at 
lier    death,    whether    they    were    of    the    old 

*465 
stock,    or    subsetpiently    ac*qnired?      Subse- 
quently acquired  apparel  would  have  jiassed 
under  a  will,  but  could  not   have  passed  un- 
der a  deed. 

Such  are  the  various  .-ind  conflicting  as- 
pects which  this  paper  wears.  I  h;ive  been 
myself  unable  to  arrive  at  any  conclusion, 
satisfactory  to  my  own  judgment,  as  to  the 
true  construction  of  this  most  equivocal  in- 
strument. My  nnnd  as  to  this  (juestion  is  in 
a  state  of  etiuipoise.  The  appeal,  so  far  as 
m.v  individual  judgment  is  concerned,  ma.v  be 
decided  by  my  concurrence  in  the  decree  on 
the  other  grounds,  as  already  in(licate<l.  If 
forced  to  decide  this  (luestion  of  construc- 
tion. I  should  resolve  my  doubts,  by  adjudg- 
ing again.st  the  complainants  as  a<-tors  in  the 
case,  and  in  that  character  bound  to  estab- 
lish the  atfirniative  jtroiiosltiou  on  which 
their  alleged  rights  depend. 

Appeal  disndssed. 

191 


*465 


3  RICHARDSON'S  EQUITY  REPORTS 


3  Rich.  Eq.  465 

CHARLES    T.    BROWN   aud   Wife   v.   W.    S. 
SMITH,  PETER  CUTTINO  and  Others. 

BENJAMIN    F.    HUNT,    Assignee,    v.    W.    S. 
SMITH,   PETER  CUTTINO   and   Others. 

SAME  V.  HENRY  CUTTINO  and  Others. 

W.  C.  SMITH  and  Others  v.  BENJAMIN  F. 
HUNT  and  Others. 

BENJAMIN    F.    HUNT    v.    JAMES    SMITH 

and  Others. 

(Columbia,    May  Term,  1S51.) 

[Injunction  <©=>163.] 

Under  peculiar  circumstances,  and  after  a 
lapse  of  sixteen  years,  an  injunction,  to  stay 
proceedings  at  law,  dissolved,  irrespective  of 
any  consideration  of  the  merits  of  the  questions 
at  issue  between  the  parties. 

[Ed.  Note.— For  other  cases,  see  Injunction, 
Cent.  Dig.  §  3U8;    Dec.  Dig.  <S=5l63.] 

[Equity  <©=367,  75.] 

A  claim  may  be  too  stale  for  investigation 
in  a  Court  of  Equity,  even  where  it  may  not 
be  subject  to  the  bar  of  the  statute  of  limita- 
tions, or  to  those  presumpti(ms  which  arise  from 
the  lapse  of  twenty  years:  but  a  claim  will  not 
grow  stale,  under  the  action  of  the  Court,  and 
while  it  is  the  subject  of  hot  litigation. 

I  Ed.  Note. — For  other  cases,  see  Equity,  Cent, 
Dig.  §§  191,  227;    Dec.  Dig.  <©=»87,  75.J 

[Assignmenis  <@=>104;    Partnemhip  <g=>lS3.] 

An  assignee  of  one  copartner's  share  in  the 
property  and  assets  of  the  firm  is  liable,  even 
without  notice,  to  all  the  equities  of  his  as- 
signor growing  out  of  the  copartnership;  but 
a    decree    against    the    assignee    on    account    of 

*466 
such  equities,  is  a  decree  *in   rem, — it  operates 
upon   the    property  assigned,   aud   a   fi.  fa.   can- 
not be  issued  upon  it  against  the  assignee. 

[Ed.  Note. — For  other  cases,  see  Assignments, 
Cent.  Dig.  §  1S3;  Dec.  Dig.  (©=3104;  Partner- 
ship, Cent.  Dig.  §  323  ;    Dec.  Dig.  (©==3183.] 

[Interest  <®=22.] 

Upon  demands  bearing  interest  at  law,  the 
Court  of  Equity  is,  it  seems,  bound  to  allow  in- 
terest: but  where  the  demand  does  not  bear  in- 
terest at  law,  interest  will  or  will  not  be  al- 
lowed according  to  the  equity  of  the  case, 


[Ed.     Note. — For    other    cases,    see    Interest, 
ent.  Dig.  §  48;    Dec.  Dig.  <©=>22.] 


Ce 


[Interest  (©=^326.] 

Where  there  was  great  delay  in  prosecuting 
a  claim  not  bearing  interest  at  law,  the  Court 
refused  to  allow  interest. 

[Ed.    Note. — Cited    in    Pettus    v.    Clawson,    4 
Rich.  Eq.  104. 

For  other  cases,  see  Interest,  Cent.  Dig.  §  9; 
Dec.   Dig.   (©=^2(J.j 

[AtJpeal  and  Error  <®=>8.32.] 

There  are  but  two  grounds  upon  which  a 
petition  for  a  re-hearing  will  be  entertained, 
(1st.)  for  error  of  law  apparent  on  the  face  of 
the  decree :  and  any  part  of  the  record  may  be 
resorted  to  for  the  purpose  of  making  such  er- 
i-or  manifest:  (2)  fur  newly  discovered  testi- 
mony ;  and  this  testimony  must  be  important, 
and  must  materially  vary  the  case  made ;  it 
must  not  be  cumulative  as  to  the  evidence  which 
was  before  the  court  upon  the  trial ;  and  it 
must  be  such  as  the  party  petitioning  for  a  re- 
hearing was  not  aware  of  before  the  trial,  and 


could  not  by  proper  diligence  and  enquiry  have 
discovered. 

I  Ed.  Note.— Cited  in  Hill  v.  Watson.  10  S.  C. 
27();  Durant  v.  I'hilpot,  16  S.  C.  125:  Ex 
parte  Dunovant,  Id.,  302:  Yates  v.  (iridley, 
Id.,  .501 ;  Ex  parte  Carolina  National  Bank,  50 
S.  C.  19,  33  S.  E.  781. 

For  other  cases,  see  Appeal  and  Error,  Cent. 
Dig.  §  3215;    Dec.  Dig.  <©=>832.] 

[Appeal  and  Error  (®=:>S.32.1 

For  alleged  error  of  judgment,  on  the  part 
of  the  Court,  in  deciding  upon  an  issue  of  fact, 
a  petition  for  a  re-hearing  will  not  lie. 

[Ed.  Note. — Cited  in  Ex  parte  Dunovant,  IG 
S.  C.  302. 

For  other  cases,  see  Appeal  and  Error,  Cent. 
Dig.  §  3215;    Dec.  Dig.  <®=>832.] 

[This  case  is  also  cited  in  Ex  parte  Knox,  17 
S.  C.  212,  as  an  illustration  of  the  juris- 
diction of  Court  of  Equity  Appeals  on  peti- 
tion for  reopening  judgment.! 

The  original  proceeding  out  of  which  the 
above  causes  grew,  was  a  bill  filed  in  George- 
town, February,  1822,  by  C.  F.  Brown  and 
wife,  in  right  of  the  latter,  sole  heir  and  dis- 
tributee of  George  Smith,  surviving  partner 
of  George  aud  Savage  Smith  against  W.  S. 
Smith  and  Peter  Cuttino,  administrators  of 
George  Smith,  and  W.  'C.  Smith  and  others, 
heirs  and  distributees  of  the  other  partner. 
Savage  Smith,  claiming  an  account  of  the 
partnership  estate  from  the  administrators 
of  George  Smith,  the  surviving  partner — of 
the  demands  of  the  joint  estate,  and  of  the 
partners  one  against  the  other ;  and  particu- 
lariy  setting  up  a  demand  on  a  debt,  alleged 
to  be  due  for  advances  made  b.v  Josiah 
Smith,  said  to  have  been  intended  by  him  as 
so  much  advanced  for  his  daughter,  the  wife 
of  George  Smith,  aud  mother  of  ilrs.  Brown. 
For  this,  it  was  stated,  a  bond  was  to  have 
been  given  by  the  partners,  but  that  it  was 
never  executed. — This  bill  also  charged,  that 
certain  endorsements  of  G.  Smith  were  on 
account  of  the  firm ;  and  alleged  the  joint  es- 
tate to  consist  of  two  plantations  on  Pee 
Dee  ;  a  tan-yard  in  Georgetown  ;  from  three 
to  four  hundred  negroes ;  two  plantations  ou 
Goose  Creek ;  a  tract  of  land  on  Cat  Island, 
and  other  estates  of  less  value,  besides  the 
debts  due  the  concern,  &c.  To  which  bill  the 
administrators  put  in  their  answer,  plea  and 

*467 
demurrer — in*sisting  that  all  claim  on  ac- 
count of  the  debt  due  Josiah  Smith,  was  ex- 
aminable at  law — that  they  had  no  posses- 
sion or  interest  in  the  premises,  making  them 
answerable  for  the  tan-yard ;  aud  answered, 
admitting  the  partnership;  declaring  that 
they  were  ready  to  account,  but  that  there 
were  large  debts  due  by  the  concern ;  one 
of  which,  a  debt  due  Bird,  Savage  &  Bird, 
they  had  compromised  very  advantageously, 
and  would  aciiuiesce  in  a  decision,  if  the.v 
could  be  relieved  from  their  responsibility  to 
creditors.  They  further  denied,  that  the  lia- 
bility of  George  Smith,  as  endorser,  was  ob- 
ligatory on  the  joint  estate,  and  submitted  to 
the  order  of  the  court. 


192 


<g=»For  other  ca.ses  sec  same  tdpic  and  KEY-NUMBER  in  aU  Key-Numbered  Digests  and  Indexes 


BROWN   V.  SMITH 


*469 


In  February,  182r»,  a  consent  der-ree  was 
made  in  the  premises  hy  Cliaiicellor  De- 
Saussure,  ascertaining  tlie  riu'iits  of  tlie  par- 
ties as  far  as  its  provisions  extended,  in  the 
following  terms. 

DeSanssnre.  Cli.  "On  liearimr  the  report 
of  tlie  connnissioner : — It  is  ordered  and  de- 
creed that  tlie  plantations  on  I'ee  Dee.  the 
land  on  Cat  Island,  and  the  lands  on  (Joose 
Creek,  and  the  negroes  on  the  plantations  on 
Tee  Dee,  and  also  the  ne;;roes  now  hired  to 
Charles  T.  lirown,  be  adjudged  the  copart- 
nership jiroperty  of  Cieoi-fie  and  Savage 
Sniitli,  and  liable  to  the  payment  of  the  debts 
of  the  concern,  to  be  distributed  and  parti- 
tioned, the  one  moiety  to  the  heirs  at  law  of 
Savage  Smith,  and  the  other  moiety  to  the 
child  of  (Jeorge  Smith,  who  has  married  with 
Charles  T.  Brown.  As  the  administrators  of 
the  estate  are  not  entitled  to  the  real  es- 
tates of  the  dec«'ased  co-partners,  it  is  but 
right  that  the  same  should  be  forthwith  par- 
titioned, except  so  much  as  ma.v  be  neces- 
sary to  pay  the  debts;  and  as  the  negroes 
now  oiT  the  I'ee  Dee  plantations,  are  neces- 
sary to  their  cultivation — it  is  ordered  that 
the  said  plantations  and  negroes  be  partition- 
ed and  divided  between  the  complainants, 
and  tlie  heirs  and  distributees  of  Savage 
Smith,  and  they  are  respectively  decreed  to 
take  each  one  moiety  of  the  said  plantations, 
together  with  the  negroes,  crop  and  stock, 
the  same  to  be  equally  divided,  so  as  to  give 
to  each,  one  entire  plantation,  including  high- 
land and  marsh;  and  the  negroes  to  be  di- 
vided as  nearly  as  possil)le  into  two  gangs, 
and  distributed  in  families.     The  plantations 

*468 
*and  negroes  to  be  allotted  by  lot.  one  to  the 
complainants,  and  one  to  the  heirs  of  Sav- 
age Smith ;  the  part  or  share  of  each  to 
remain  liable  to  the  payment  of  any  ali- 
quot proportion  of  the  debts,  and  to  the 
linal  decree,  upon  the  mutual  demands  of 
tiie  complainants  and  defendants.  It  i.s 
further  ordered,  that  the  administrators  do 
apply  all  the  monies  they  have  now  on 
hand,  toward  the  payment  of  the  amount 
that  may  be  agreed  upon  as  a  compromise 
tor  the  claim  of  Bird,  Savage  &  Bird  ;  and 
to  insure  the  payment  of  that  claim,  it  is 
ordered  and  decrectl  that  the  commissioner 
shall  ap|ily  to  that  purpose,  the  tirst  monies 
that  may  be  made  from  the  debts  due  the 
estate,  and  the  .sales  of  property  hereinaft- 
er apinopriated  to  the  payment  of  the  debts 
of  the  estate.  In  relation  to  the  remain- 
ing di'bts  of  the  estate,  the  same  shall  be 
equally  divided,  as  near  as  may  be,  between 
the  complainants  and  the  heirs  of  Savage 
Smith,  and  the  property  liert'by  ordered  to 
be  delivered  to  each,  shall  stand  as  a  se- 
curity for  the  payment  of  an  eipial  portion 
of  the  debts.  And  to  enable  the  resi)ec- 
tive  jtarties  to  pay  the  same — it  is  ordered 
and  decreed,  that  the  commissioner  shall 
sell  the  lands  ou  Cat  Island,  for  such  pro- 
portion of  cash,  not  exceeding  one-third,  at> 
3  IticH.Eci.— 13 


he  may  judge  most  conducive  to  the  inter- 
est of  the  estate,  and  the  remainder,  upon 
such  credit,  not  exceeding  five  years,  as  he 
in  like  manner  may  think  prudent.  Also, 
the  lands  of  the  estate  on  Goose  Creek,  and 
the  remaining  negroes  of  the  estate.  lie 
shall  also  proceed  to  collect,  without  delay, 
all  the  debts  due  to  the  estate,  and  to  this 
end  shall  use  all  legal  process,  for  enforc- 
ing the  i)aynieiit  thereof;  and  alter  lirst 
paying  the  compromise  with  l?ird.  Savage 
&  Bird,  as  aforesaid,  shall  apply  the  funds 
.so  raised,  in  the  liciuidation  in  equal  pro- 
portions of  the  debts  adjudgi'd  to  be  paid 
by  the  complainants  and  tlie  defendants,  the 
heirs  of  Savage  Smith.  Tlie  surplus  shall 
be  retained,  subject  to  the  final  order  of  the 
Court,  in  relation  to  the  mutual  claims  of 
the  itarties.  It  is  further  ordered,  that  the 
commissioner  do  examine  and  report  on  the 
several  accounts  of  the  complainants  an<l  de- 
fendants with  the  estate.     It  is  ordered  and 

*469 
decreed,    that    *any    personal    lialtiiities    as- 
sumed  by  the  administrators   be  discharged 
by  the  distributees. 

"I  have  consented  to  this  decretal  order  for 
the  division  of  the  estate  before  the  payment 
of  debts,  and  directing  that  each  division 
shall  bear  its  aliquot  part  of  the  debts,  ou 
the  ground,  that  the  estate  is  very  large,  and 
the  property  reserved  for  the  payment  of 
debts  is  veiy  considerable,  and  greatly  more 
than  sutKcient   to  pay   the  debts." 

In  conformity  with  this  decree,  commis- 
sioners were  appointed  to  divide  and  allot 
the  plantations  and  negroes  on  I'ee  Dee,  be- 
tween the  distributees  of  the  two  partners. 
The  commissioners  made  their  division  and 
allotment ;  by  which  the  plantation  called 
Cripps,  with  negroes.  &c.  fell  to  the  heirs  of 
Savage  Smith;  and  that  called  Richfield, 
with  negroes,  &c.  fell  to  the  heir  of  Ceorge 
Smith.  They  submitted  their  report  accord- 
ingly, by  which  it  further  appeared,  that 
there  was  an  excess  of  value  in  the  portion 
assigned  to  the  heir  of  Ceorge  Smith,  amount- 
ing to  twenty-five  or  twenty-six  hundred  dol«- 
lars,  which  was  to  be  adjusted,  to  render  the 
portion  of  each  e<iual.  This  return  and  re- 
port was  confirmed  by  a  decretal  order,  in 
February,  1S12S.  by  which  it  was  directed  that 
the  portion  allotted  to  the  parties,  be  held 
by  them,  respectively,  in  severalty,  "subject, 
nevertheless,  to  the  specific  liens  contained  in 
the  former  decretal  order" — and  that  the  re- 
port and  documents,  &c.  be  enrolled  as  part 
of  the  decree. 

About  this  time.  Brown  and  wife,  by  lease 
and  release,  dated  10th  and  11th  February, 
1SL'.">.  conveyed  and  assigned  to  Benjamin  F. 
Hunt,  all  their  interest  in  the  plantation  al- 
lotted to  them;  also  all  their  claim  and  inter- 
est in  the  joint  estate  of  George  and  Savage 
Smith,  and  their  interest  in  the  demand  of 
Josiah  Smith  against  the  said  firm ;  subject, 
however,  to  "the  debts  due  and  owing  by  the 

193 


»469 


3  RICHARDSON'S  EQUITY  REPORTS 


said  firm,  and  to  the  accounts  between  the 
parties  interested  therein,  and  the  final  ad- 
justment of  the  co-partnership  and  accounts." 
The  deed  refers  to  and  recites  the  decree  of 
1825,  as  part  of  the  title,  and  provides  "that 
he,  the  said  Benjamin  E.  Hunt,  shall  hence-  i 

*470 
forth  stand  and  be  in  the  place  and  *stead  of  | 
the  said  Charles  T.  Brown  and  Sarah  E.  his 
wife,  in  the  adjustment  and  settlement  of 
said  co-partnership  estate  and  effects,  real 
and  personal,  the  said  Charles  T.  Brown  and 
wife  reserving  to  themselves  the  separate  in- 
dividual estate  of  the  said  George  Smith;" 
and  further,  that  the  "said  Benjamin  F. 
Hunt,  henceforth  standing  and  being  in  the 
place  of  the  said  Charles  T.  Brown  and  Sa- 
rah E.  his  wife,  and  of  each  of  them,  in  the 
settlement  and  adjustment  of  the  said  co- 
partnership estate  and  effects;  he,  the  said 
Benjamin  F.  Hunt,  in  the  said  settlement  and 
adjustment  of  the  said  co-partnership  estate 
and  effects,  real  and  personal,  and  in  rela- 
tion to  the  said  assignment  of  the  said  Josiah 
Smith,  being  entitled  to  all  the  rights,  privi- 
leges, demands  and  claims,  and  subject  to  all 
the  duties,  obligations  and  responsibilities  of 
the  said  Charles  T.  Brown  and  Sarah  E.  his 
wife,  and  each  of  them,  in  the  final  settle- 
ment, adjustment  and  division  of  the  said  co- 
partnership estates  and  eft"ects,  real  and  per- 
sonal." 

After  this,  the  assignee  of  Brown,  by  the 
order  of  the  commissioner,  received  from  W. 
S.  Smith  the  balance  admitted  to  be  in  his 
hands  as  administrator,  belonging  to  the  part- 
nership estate,  ($5,476.79);  also  from  the 
sheriff  of  Charleston,  another  sum  belonging 
to  the  said  estate  (.$40.3.56);  and  from  Rave- 
nel  &  Stevens,  another  sum  (.$.344.21)  then  in 
their  hands;  and  it  was  alleged  that  he  re- 
ceived other  sums  due  the  said  estate  from 
other  quarters.  On  the  26th  February,  1826, 
at  a  sale  made  by  the  commissioner,  of  the 
negroes  belonging  to  the  joint  estate,  ordered 
to  l)e  sold  by  the  Chancellor,  the  assignee,  B. 
F.  Hunt,  purchased  to  the  amount  of  $13,553, 
giving  his  receipt  as  assignee  of  Brown  and 
wife  for  one  moiety  (9,500)  of  the  whole  net 
amount  sales,  and  his  bond  to  the  commis- 
sioner, secured  by  mortgage,  for  the  balance 
of  his  purchase  (4,053).  This  bond  the  com- 
missioner assigned  to  the  representatives  of 
Savage  Smith's  estate,  as  cash,  for  so  much 
of  their  share  of  the  proceeds  of  the  sale. 

By  a  decretal  order,  April  Term,  1826,  the 
commissioner  was  directed  to  divide  the  oth- 

*471 
er  debts  due  by  the  partnership,  be*tween  the 
distributees  of  each  partner ;  and  to  provide 
for  the  compromise  debt  of  Bird,  Savage  & 
Bird,  by  loan  or  otherwise,  assigning  the  said 
debt  and  judgment  as  collateral  security; 
and  it  was  ordered  that  such  judgment,  when 
paid,  should  become  the  property  of  the  joint 
concern,  and  be  held  for  the  use  of  the  joint 
estate.  On  the  20th  April,  1826,  accordingly, 
194 


the  commissioner  reported  a  division  of  the 
other  debts  as  ordered,  and  the  report  was 
confirmed  by  the  Chancellor. 

By  a  decretal  order  of  the  6th  February, 
1828,  it  was  ordered  that  the  commissioner 
take  the  accounts  of  the  administrators,  with 
the  joint  estate,  and  the  estate  of  the  sur- 
vivor— that  W.  S.  Smith  have  leave  to  pass 
his  accounts  before  the  Master  in  Charleston, 
and  further,  "that  the  account  and  claims  of 
the  representatives  of  George  Smith  and  of 
Savage  Smith,  respectively,  on  eaili  other,  be., 
and  hereby  are,  referred  to  tlie  said  commis- 
sioner, to  examine  and  report  thereon."  The 
debt  of  Bird,  Savage  &  Bird  remaining  still 
unpaid,  and  execution  being  threatened  on  the 
same,  a  loan  was  eft'ected  (the  bond  of  the 
assignee,  Hunt,  being  assigned  as  collateral 
security,)  and  the  balance  of  that  debt  paid 
off  by  the  representatives  and  distributees 
of  Savage  Smith's  estate.  This  loan  was 
afterwards  paid,  and  the  bond  returned  tc 
them.  By  a  decretal  order,  dated  February, 
1832,  entitled,  Hunt,  assignee  of  Brown  v. 
Administrators  of  George  and  Savage  Smith 
and  the  heirs  of  Savage  Smith,  it  was  or- 
dered, that  no  claim  not  previously  rendered 
against  the  estate  be  deemed  valid,  as  the 
time  allowed  had  long  since  expired — that 
the  sheriff"  pay  over  the  surplus  in  his  hands, 
from  the  sale  of  the  Goose  Creek  lands,  to 
the  commissioner,  to  be  applied  according  to 
the  former  orders  of  the  Court,  and  that 
"creditors  be  compelled  to  make  any  de- 
mands they  may  have,  in  this  Court." 

In  February,  1833,  the  assignee  of  C.  T. 
Brown  and  wife,  filed  his  bill  of  supplement 
and  revivor,  and  purporting  to  be  in  substi- 
tution of  that  which  had  been  filed  by  Brown 
and  wife,  in  1S22.  This  bill  recited  the  pre- 
vious bill  filed  by  Brown  and  wife,  against 
the  surviving  partner,   George,  and  the  dis- 

*472 
tributees  *and  heirs  of  the  deceased  partner, 
Savage  Smith — and  the  charges  in  said  bill — 
the  partnership  of  George  and  Savage  Smith 
■ — that  large  advances  had  been  made  to  the 
firm  through  George  by  Josiah  Smith,  intend- 
ed for  the  benefit  of  his  daughter,  the  wife  of 
George — that  it  had  been  purposed  to  give  a 
bond  of  the  firm,  but  that  this  had  never 
been  executed — that  on  the  death  of  his  said 
daughter,  leaving  an  only  child,  Sarah,  mar- 
ried to  Brown,  the  said  Josiah  Smith  had  as- 
signed the  said  demand  to  the  said  Sarah,  his 
grand-daughter;  and  Brown  and  wife  had 
assigned  it  to  the  present  complainant — the 
partnership  and  residence  of  George  and  Sav- 
age— and  their  property — that  endorsements 
had  been  made  by  George  in  his  own  name, 
for  the  benefit  of  the  firm.  That  complain- 
ants had  prayed  a  full  settlement  of  the  af- 
fairs of  the  concern,  and  particularly  of  their 
demand  in  right  of  Josiah  Smith.  Tliis  bill 
further  recited  the  defence  made  by  the  ad- 
ministrators as  before  stated,  resisting  the 
claim   of  Josiah   Smith  denying  all  interest 


inioWN'  V.  SMITH 


»475 


and  coiitml  in  the  tan-yjinl — adiiiittiiisi  the 
partnership,  luit  deiiyin;;  tliat  tlie  paituership 
property  was  liable  for  tlie  iiidivithial  en- 
dorseun'iit  of  (Jeorjie  Sndth.  and  dt'i  hiring 
themselves  ready  to  account.  iVc 

This  supplemental  hill  further  ch:ir;:cd, 
that  the  idea  and  demurrer  of  tlie  adnnnis- 
t  raters  were  never  decided,  hut  that  a  decree 
was  made  in  the  case  by  consent,  (as  altove 
.set  forth.)  and  the  lands  and  nejrroes  on 
I'ee  iJee  divided  by  connnissioncrs  accord- 
ingly, an  account  directed  between  the  par- 
ties, and  a  sale  of  the  residue  of  tlie  partner- 
.<:hip  estate;  that  by  the  allotment,  the  plan- 
tation called  Cripps.  with  the  negroes,  was 
set  apart  to  the  distributees  of  Savage  Sndth, 
and  IJithficld.  with  the  nezroes,  to  ('.  T. 
r.rown  and  wife,  who  entered  upon  the  said 
plantation,  and  were  seized  of  it  in  severalty; 
and  refers  to  the  records,  reports  and  pro- 
ceedings of  the  Court. 

The  bill  further  t-harfies.  by  way  of  supple- 
ment, that  in  this  situation,  I?rown  and  wife 
conveyed  and  assigned  to  the  complainant, 
(B.  F.  Hunt.)  uot  only  the  said  plantation 
and  negroes,  but  all  their  interest  and  claims 

*473 
on  the  co-partnership  estate,  as  *well  in  their 
own  right,  as  what  they  had  by  assignment; 
and  claimed  that  the  said  assignee  was  "sub- 
stituted completely  in  the  place  and  stead  of 
tlie  said  complainants  in  the  said  bill  of 
complaint."  The  bill  further  sets  forth,  the 
sale  by  the  commissioner  of  the  partnershii* 
negroes,  the  purchase  by  the  complainant,  his 
receipt  given  for  one  half  of  the  purchase 
money  and  bond  for  the  residue;  that  his  ob- 
ject in  doing  so,  was  merely  to  enable  the  com- 
missioner to  close  his  sales,  in  the  confidence 
ttiat  what  was  due  to  him.  as  assignee  of  .losiah 
Smith,  and  of  the  share  of  Brown  in  the  es- 
tate, would  be  a  good  discount  to  the  said 
bond.  That  he  had  Hied  a  statement  of  his 
demand  with  the  commissioner,  and  endeav- 
ored to  procure  a  reiiort  on  that  claim  and 
the  accounts  geiieriilly.  Imt  had  not  succeed- 
ed. The  bill  again  states  the  assignment  of 
.Tosiah  Smith's  claim  to  the  complainant; 
that  a  balance  will  be  found  due  on  a  settle- 
luciit  of  accounts,  foi-  advances  made  by  the 
partnership  to  support  the  family  of  Savage 
Smith;  and  claims  the  benefit  of  the  amount 
due  on  .Tosiah  Smith's  claim,  as  a  set  oft' 
to  his  bond;  bill  furtlier  charges,  tint  this 
bond  has  been  sued  at  law.  by  IVter  (^ittino, 
administrator  of  Savage  Snnth.  That  com- 
plainant has  complied  with  th(>  decretal  or- 
der of  the  ("haiicellor.  by  assuming  a  moiety 
of  the  i)artnership  debts;  claims  the  beiielit 
of  the  decree  of  1X25,  "by  which  the  shares 
of  complainants  and  defendants,  were  de- 
clared to  be  mutually  liable  for  the  balance 
that  may  be  found  due  on  a  general  account 
of  the  partnership  estate." 

Prays  a  revival  of  the  ori-inal  suit: — 
That  the  adiuinistratcn-s,  Cuttino  and  Smith, 
and  the  distributees  of  Smith,  may   answer 


and  come  to  nn  nccount  of  the  iiartnership 
estate,  including  a  house  and  lot,  and  t;in- 
yard.  in  (Jeorgetown.  That  the  liahince 
found  line  complainant  may  be  paid  him, 
and  that  ruttino  may  be  enjoined  from  pro- 
ceeding at  law  in  the  meantime. 

Aftt'r  this  bill  was  tiletl,  and  before  any 
answer  was  put  in.  I'eter  ("uttino  died,  leav- 
ing Henry  ('uttino  his  executor;  and  in 
January.  1n.'!4.  the  assigmu'.  li.  1'.  Hunt, 
tiled  a  bill  against  Henry  Cuttino,  as  ad- 
ministrator  of    I'eter,    and   the    Bank   of   the 

*474 
♦I'nited  States,  to  whom  the  b(»nd  given  to 
the  commissioner  had  been  transferred,  by 
I'eter  Cuttino.  as  collateral  .security  for  a 
loan  to  pay  off  the  compromise  debt.  This 
bill  referred  to  the  previous  proceedings  and 
claims  of  comi»lainant — stated  that  IVter 
Cuttino  had  been  enjoined  from  putting  the 
bond  in  suit — but  that  he  was  dead,  and  it 
was  now  put  in  suit  by  the  United  States 
liank.  Prayed  a  revival  of  the  preieding 
causes  against  Henry  Cuttino.  to  make  the 
estate  of  his  intestate  liable  to  the  accounts 
which  had  been  prayed  against  him  in  his 
lifetime:  an  account  against  his  intestate, 
and  an  injunction  to  restrain  the  Bank  from 
suing  on  the  bond  of  complainant. 

On  the  death  of  Peter  Cuttino.  former  ad- 
ministrator of  Savage  Smith,  Wm.  C.  Smith 
had  administered  on  his.  Savage  Smith's, 
estate. 

In  September.  W.  S.  Smith,  surviving  ad- 
ministrator of  George  Smith,  and  the  dis- 
tributees of  Savage  Smith,  put  in  their  an- 
swer to  the  bill  of  the  assignee  Hunt  The 
former  admitted  the  hrst  bill  of  Brown  and 
wife,  as  stated  in  the  assignee's  bill ;  the 
defence  and  proceeding  under  it  iu»  there 
.stated — a  sale  by  lirown  and  wife  to  coni- 
l)lainant,  of  all  their  interest  in  the  partner- 
ship estate,  subject  to  the  debts,  &c. ;  the  di- 
vision of  the  property  on  I'ee  Dee;  refers 
to  the  decree  of  Lsl'5;  states  that  he  had  ef- 
fected an  advantageous  compromise  of  the 
debt  of  Bird,  Savage  and  liird;  and  insists 
that,  by  the  decree  of  IMio.  the  aftairs  of 
the  estate  were  wholly  taken  out  of  the 
hands  of  the  administrators,  and  placed  un- 
der the  direction  and  control  of  the  Court ; 
relies  on  the  clause,  ordering  the  distribu- 
tees to  discharge  any  pt'isoual  responsibili- 
ties assumed  by  the  administr.-itors.  States 
that  ever  .since  the  commissioner  has  acted 
as  receiver,  and  no  part  of  the  estate  has 
been  received  by  the  defendant.  That  the 
balance  which  remained  in  defendant's  hands. 
(.•<r»,lT('>.T".M  was,  on  LHith  November.  1S'_',"(,  paid 
to  the  complainant,  by  order  of  the  commis- 
sioner; that  defendant  then  exhibited  his 
account  with  the  estate,  to  conipbiinant,  and 
has  never  since  intermeddled  with  the  af- 
fairs of  the  estate;  and  tiles  a  copy  of  his 
last  act,  and  receipt  of  the  balance  appear- 

*475 
ing  thereby  from  eomplaiu*ant,  with  his  an- 

lt>5 


*475 


3  RICHARDSON'S  EQUITY  REPORTS 


swer.  Further  states,  that  since  their  as- 
signment by  Brown  and  wife  to  complain- 
ant, the  latter  has  had  the  chief  management 
and  control  of  the  estate  of  the  partnership, 
defendant  never  intermeddling  therewith, 
but  considering  himself  discharged  from  all 
further  liability  as  administrator;  that  since 
the  original  bill,  his  co-administrator,  Peter, 
has  departed  this  life,  &c. 

The  other  defendants,  children  and  dis- 
tributees of  Savage  Smith,  admit  the  part- 
nership and  the  death  of  their  uncle  and 
father,  without  division  or  settlement;  that 
they  have  heard  of  the  pretended  assignment 
made  by  Josiah  Smith  to  his  granddaughter, 
wife  of  C.  T.  Brown;  but  deny  that  said 
Josiah  had  any  claim  against  the  joint  es- 
tate of  George  and  Savage  Smith,  and  deny 
the  benefit  pretended  to  be  drawn  from  said 
assignment ;  that  on  the  contrary,  George 
expended  considerable  sums  belonging  to  the 
partnership  estate,  in  supporting  the  estab- 
lishment of  Josiah  Smith;  insist  that  if 
Josiah  Smith  did  advance  any  sums  to 
George,  it  constituted  a  personal  demand 
against  himself,  and  not  against  the  partner- 
ship, and  deny  all  liability  of  the  partner- 
ship to  Josiah  Smith  or  his  assignee,  the 
complainant;  and  for  themselves  and  their 
infant  co  defendants,  rely  upon  the  statute 
of  limitations  as  if  pleaded.  Admit  the  as- 
signment of  Brown  and  wife  to  complain- 
ant, of  their  claims  and  interests  in  the  part- 
nership estate,  but  subject  to  the  debts  and 
mutual  demands  of  the  parties,  &c.,  "mean- 
ing the  final  settlement  between  the  repre- 
sentatives of  the  said  George,  and  the  rep- 
resentatives of  the  said  Savage  Smith." 
That  thereby,  the  complainant  was  put  pre- 
cisely in  the  place  of  the  said  C.  T.  Brown 
and  wife,  and  bound  to  make  good  all  claims, 
which  those  representing  the  estate  of  Sav- 
age Smith  might  have  against  those  repre- 
senting the  estate  of  George  Smith,  by  rea- 
son of  the  partnership  property,  &c.  That 
from  the  time  of  the  assignment,  complain- 
ant has  had  the  chief  management  of  the  af- 
fairs of  the  estate,  &c.  Admit  the  division 
of  the  estate  in  1825,  under  the  decree,  pro- 
viding that  each  share  shall  remain  liable 
to  the  debts,  and  final  decree  upon  mutual 

*476 
demands ;  and  insist  *that  they  would  not 
have  consented  to  a  division  upon  any  other 
terms,  as  Brown  and  wife  had  previously  i*e- 
ceived  large  sums  of  money  from  the  part- 
nership estate,  for  which  he  was  bound  to 
account  on  a  final  division,  and  for  which 
complainant,  as  his  assignee,  is  bound  to 
account ;  that  said  sums  were  so  charged, 
in  the  administrator's  account  submitted  to 
complainant. 

Admit  the  sale  by  the  commissioner,  of 
the  reserved  negroes,  &c.,  but  state  that  the 
proceeds,  instead  of  being  applied  to  the 
debt  of  Bird,  Savage  &  Bird,  went  in  great 
part  into  the  hands  of  the  complainant. 
196 


State  that  while  it  was  supposed  the  compro- 
mised debt  would  be  paid,  the  renuiining 
debts  were  apportioned,  and  believe  the  same 
have  since  been  paid  or  arranged.  Further 
state,  that  on  account  of  the  delay  in  pay- 
ing the  compromised  debt  of  Bird,  Savage  & 
Bird,  their  agents  and  attorney  threatened 
to  issue  execution  for  the  whole  amount ; 
and  defendants  were  obliged  to  borrow  mon- 
ey to  pay  off  this  debt,  which  they  did  in 
1826,  to  the  amount  of  .$13,820.26;  and  state 
in  addition,  that  the  compromise  debt  was 
on  an  individual  debt  of  George  Smith,  being 
on  a  bond  which  only  bound  him,  and  his 
separate  share  of  the  estate;  defendants  fur- 
ther charge  liability  on  the  compUiiuant,  as- 
signee of  Brown,  for  large  sums  of  money 
received  by  him,  complainant,  belonging  to 
the  partnership  estate — particularly  an 
amount  due  the  partnership,  by  R.  F.  With- 
ers ;  also  for  a  tract  of  land  called  Michau's 
Point,  which  complainant  agreed  to  take  at 
^10,000 ;  a  tract  of  land  on  Cat  Island  pur- 
chased by  him ;  for  some  negroes  belonging 
to  the  partnership  reserved  for  sale,  retained 
by  complainant,  for  which  he  is  bound  to 
pay ;  the  sum  of  $.5,476.79,  received  by  com- 
plainant, from  W.  S.  Smith,  administrator ; 
the  sum  of  $1,142  in  the  hands  of  the  fac- 
tors, Kavenel  &  Stevens,  belonging  to  the 
estate,  which,  as  these  defendants  believe, 
complainant  also  received.  Defendants  refer 
to  accounts  filed  with  their  answer,  for  a 
statement  of  the  amounts  received  by  Brown 
and  wife,  and  by  complainant  as  assignee, 
for  which  he,  and  the  share  of  the  partner- 
ship in  his  hands,  is  liable. 

Defendants  further  allege,  that  on  a  final 
*477 
settlement  between  *the  representatives,  re- 
spectively, of  George  and  Savage  Smith,  the 
complainant,  as  representing  the  former,  will 
be  largely  indebted  to  the  defendants  in 
right  of  the  latter. 

Further  state,  that  the  bond  secured  by 
mortgage,  given  by  complainant  for  liis  pur- 
chase at  commissioner's  sale,  was  assigned 
by  commissioner  to  the  estate  of  Savage 
Smith,  as  part  of  their  moiety  arising  from 
said  sale;  that  said  bond  was  pledged  to  the 
U.  S.  Bank  to  raise  money  to  pay  the  com- 
promise debt,  and  this  loan  having  since  been 
paid  the  Bank,  the  bond  was  returned  to  Wm. 
C.  Smith,  representing  the  estate  of  Savage 
Smith ;  defendants  insist  that  complainant 
is  bound  to  paj'  this  bond,  and  as  it  was 
taken  for  cash,  defendants  ought  not  to  be 
compelled  to  await  a  final  settlement.  They 
insist,  that  on  such  settlement,  a  large  bal- 
ance will  be  found  due  to  them — that  they 
have  always  been  anxious  for  such  settle- 
ment. Two  of  the  defendants,  Thomas  P.  S. 
and  David  H.  S.,  say  they  are  infants,  and 
submit  their  rights  to  the  protection  of  the 
Court. 

In  January,  '35,  Henry  Cuttino  filed  his 
answer  to  the  bill  above  set  forth,  of  the 


BliOWX   V.  .SMI  111 


*48U 


assipnoo.  B.  F.  Hunt.  lie  aduilttod  the  ml- 
niiiiistratiuM  of  lii.s  testator,  and  the  former 
proceedings  un<ler  tlie  decree,  iJte.,  but  relied 
on  the  decree  of  l.'^LTi,  as  discliarping  his  tes- 
tator from  all  furtlier  acconntaltilitj-, — stat- 
ing that  since  tiiat  time,  he  had  never  Inter- 
fered with  any  iiortion  of  the  estate,  except 
what  was  assijincd  to  the  di.striluitees  of  Sav- 
age Smitli.  acting  as  tiieir  agent,  and  was 
only  accountable  to  tliem, — stating  that  the 
assignee  luul  the  chief  control  of  tlie  estate, 
&c. 

After  this,  some  referenc-es  were  held  in 
Georgetown  before  the  commissioner,  whetlier 
under  the  previous  orders  already  noticed, 
or  a  subsequent  one.  did  not  appear.  At  these 
references,  or  some  of  them,  tlie  solicitor  of 
the  di.'^tributees  of  Savage  Smitli.  and  the 
assignee  in  person,  attended — dt'inands  were 
specified — vouchers  offered  and  witnesses  ex- 
amined, but  it  did  not  appear  that  the  refer- 
ences were  ever  closed — and  no  report  was 
ever  made  by  the  Georgetown  commissioner. 

In  August,  1S;>S,  W.  S.  Smith  died,  leaving 
the   estate    of   G.    Smith   unrepresented— and 
his  own  estate  also  unrepresented. 
*478 

•In  November,  "."{s,  W.  C.  Smith,  and  tlie 
other  children  of  Savage,  his  distributees,  de- 
fendants in  the  former  cause,  filed  their 
cross  bill  against  B.  F.  Hunt,  assignee,  com- 
plainant in  the  former  bill.  In  this  bill,  ad- 
mitting and  setting  forth  the  previous  pro- 
ceedings, they  relied  upon  the  charges  set  up 
in  their  answer  to  the  former  bill,  and  called 
for  an  execution  of  the  decree  of  1S2."5,  claim- 
ing an  account  from  the  assignee,  for  all  the 
sums  which  Brown  would  have  been  accoun- 
table for  under  that  decree,  and  all  that  the 
assignee  had  become  accountable  for  siiic-e 
that  decree,  on  account  of  his  dealings  with 
the  partnership  property,  and  debts  of  the 
partnership  estate  paid  by  complainants. 
Tliey  relied  for  the  most  part  on  tlie  claims 
before  specified  in  their  answer,  and  some  ad- 
ditional items  in  the  same  right,  &c.  They 
persisted  in  their  former  denials,  and  called 
for  a  direct  account  (without  regard  to  the 
administration  accounts,)  as  being  each  di- 
rectly and  adversely  interested  under  the  de- 
cree in  the  .share  received  by  the  assignee. 

To  this  bill,  the  defendant,  B.  F.  Hunt, 
put  in  his  answer,  relying  on  his  former 
claims,  in  right  of  Josiah  Smith  and  C.  T. 
Brown  and  wife,  as  a  discount  to  all  claims 
against  him — reiterating  those  claims— deny- 
ing all  privity  with  comi)lainants,  and  that 
he  had  ever  impleaded  them  as  to  the  i>erson- 
al  estate;  insi.stlng  on  his  uninterrupted 
possession  of  the  property,  and  the  statutes 
of  limitations,  to  all  the  claims  urged  against 
liim.  and  .setting  up  claims  against  the  ad- 
ministrators for  professional  .services,  as 
giving  him  a  right  to  retain  some  of  the  prop- 
erty in  his  possession — urging  various  other 
claims  and  objections.  He  also  objected  to 
the  whole  bill  as  not  showing  any  riglit  to 


implead  him  in  this  Court,  and  prayed  the 
.same  benefit  as  if  he  had  demurred. 

Up  to  this  time,  all  the  proceedings  had 
been  in  (Jeorgetown,  but  on  listh  June.  1840. 
it  was  ordered,  that  all  the  causes,  pleadings 
and  proceedings  .should  be  transferred  to 
Charh'ston,  with  the  provision,  that  tlie  trans- 
fer was  not  to  affect  an.v  of  the  ipiestions 
made  by  the  parties.  On  the  11th  July,  1840, 
an  order  was  taken  out  by  the  solicitor  of 

*479 

William  C.  Smith,  and  others  •his  co-distribu- 
tees, that  the  case,  together  with  the  original 
bill  and  cross  bill  of  the  defendants,  be  re- 
ferred to  the  i-onimissioner,  to  take  and  re- 
port the  accounts  between  the  parties. 
Under  this  order,  references  were  held  before 
Mr.  Gray,  one  of  the  Masters,  twenty-one  or 
more  iu  number,  commencing  on  the  14th 
Oct.,  1840,  and  ending  on  the  7th  June.  184.'^. 
To  all  of  these,  the  assignee,  Benjamin  F. 
Hunt,  was  summoned,  and  at  most  of  them 
attended  in  person,  sometimes  objecting  to 
the  proceedings,  and  sometimes  objecting  to 
the  vouchers  offered,  and  offering  in  discount, 
the  claim  as  assignee  of  Josiali  Smith  and 
George  Smith's  individual  estate  as  unac- 
counted for. 

On  the  28th  of  June,  1.S4.3,  the  Master  tiled 
his  report.  In  this,  he  reported  that  it  liad 
been  satisfactorily  proved  before  him.  by 
vouchers  and  witnesses,  that  the  sums  re- 
ceived by  Brown,  from  the  administrator  of 
the  estate  of  George  and  Savage  Smith,  sums 
paid  by  said  administrator  on  account  of  the 
individual  estate  of  George  Smith,  and  mon- 
ies and  property  received  by  Mr.  Hunt,  be- 
longing to  the  partnership  estate,  amounted 
in  the  whole,  to  .^l^l'.nJKJ.OO.  for  the  one-half 
of  which,  the  assignee  of  Brown  would  have 
to  ac-count.  if  the  case  stopped  there,  but  that 
it  was  insisted  on  the  part  of  Benjamin  F. 
Hunt,  that  no  account  could  be  adjusted  be- 
tween the  parties  until  the  administrators 
accounts  of  George  and  Savage  Smith  had 
been  fully  audited  and  established,  and  it 
was  ascertained  that  Brown  and  wife,  «Stc. 
had  received  more  than  their  share.  Tlie 
Master  further  reported,  that  the  estates  of 
George  Smith  and  of  William  S.  Smith  were 
not  represented.  That  no  accounts  of  the  ad- 
ministration of  Gi'orge  and  Savage  Smith 
had  been  rendered  to  him.  and  that  he  could 
not  make  up  a  correct  acwunt  without  such 
accounts,  and  tiled  the  testimony.  The  causes 
were  called  on  the  docket  at  February  Term. 
1844,  for  hearing,  and  objections  were  made 
to  their  being  heard,  on  the  ground,  that  the 
two  tirst  had  abated  by  the  death  of  W.  S. 
Smith,  and  the  third  could  not  he  heard  on 
the  report.  The  question  was  argued  before 
his  Honor,  Chancellor  Johnston,  who  made  a 
decree,  recalling  the  order  of  reference  of 
July,    1840,    and    staying    proceedings    until 

•480 
•other  parties  were  made  to  the  cross  bill. 

197 


*48«/ 


3  RICHAr.DSON'S  EQUITY  REPORTa 


The  conclusion  of  his  Honor's  decree  is  as  |  to  restrain  the  defendant,  W.  C.  Smith,  and 
follows: 

"It  is  ordered,  that  this  cross  suit  be  stayed 
until  the  plaintiffs  make  parties  of  Brown, 
or  his  representative;  of  Cuttino's  represen- 
tative ;  of  the  representative  of  Wm.  S. 
Smith;  of  the  representatives  of  Josiah 
Smith,  and  of  the  representatives,  de  bonis 
lion,  of  George  Smith  and  Savage  Smith,  re- 
spectively; and  that  the  order  of  reference 
of  the  11th  of  July,  1810,  be  recalled. 

"A  proper  order  of  reference,  extending  to 
the  whole  of  the  accounts,  can  only  be  made 
when  the  pleadings  are  completed.  I  would 
suggest  such  an  amendment  of  the  pleadings, 
as  should  distinctly  call  for  an  account  and 
settlement  of  the  respective  estates  of  George 
Smith  and  Savage  Smith,  so  as  to  close  for- 
ever this  tedious  litigation." 

From  this  decree  an  appeal  was  taken, 
which,  at  March  Term,  1815,  was  dismissed. 

After  the  appeal  was  dismissed,  the  proper 
parties  were  brought  before  the  Court;  and 
at  March  sittings,  1816,  it  was  ordered,  that 
the  references  be  resumed  without  prejudice 
to  any  of  the  parties,  and  reserving  all  the 
equities,  &c. 

At  the  same  sittings,  (Marchv  1816,)  his 
Honor,  Chancellor  Johnson,  on  behalf  of  Col. 
Hunt,  made  the  following  order: 

"Order  that  an  injunction  do  issue  to  re- 
strain the  defendant,  W.  C.  Smith,  and  others, 
from  pursuing  their  judgment  at  law,  and 
levying  execution  at  law,  in  the  case  of 
Coachman,  commissioner  in  Equity,  against 
li.  F.  Hunt,  upon  the  complainant,  B.  F. 
Hunt,  entering  into  bond  with  security  to  be 
aiiproved  by  the  Master,  for  the  payment  of 
the  amount  due  upon  the  said  judgment,  with 
legal  interest  thereon  from  its  date,  whenever 
the  said  injunction  shall  be  dissolved,  or  until 
the  further  order  of  the  Court." 

During  the  summer  sittings  of  1846  and 
1S17,  applications  were  made  to  dissolve  the 
injunction  issued  under  the  above  order. 
The  applications  were  refused,  and  the  mo- 
tion was  taken  to  the  Appeal  Court,  where, 
in  February  Term,  1848,  the  following  opin- 
ion was  delivered  by 

*481 
*Dargan,  Ch.  There  is  much  complexity 
in  the  facts  of  this  case.  The  rights  of  the 
parties  have  been  further  complicated,  by  a 
course  of  litigation  protracted  far  beyond 
the  usual  period,  by  the  involved  state  of  the 
pleadings,  the  numerous  parties  thereto,  and 
the  various  orders  which  have  been  hereto- 
fore made.  As  the  Court  will  express,  and 
lias,  in  fact,  formed  no  opinion  as  to  the 
merits  of  the  questions  between  the  parties, 
I  will  here  advert  only  to  such  of  the  facts 
as  constitute  the  basis  on  which  the  decree 
of  tlie  Court  on  this  application  will  be  ren- 
dered. 

On  the  26th  of  March,  1816,  Chancellor 
Johnson  made  the  following  order  in  this 
case:    "Ordered  that  an  injunction  do  issue 


others,  from  pursuing  their  judgment  at 
law,  and  levying  execution  at  law,  in  the 
case  of  Coachman,  commissioner  in  Equity. 
V.  B.  F.  Hunt,  upon  the  complainant,  B.  F. 
Hunt,  entering  into  bond  with  security,  to 
be  approved  by  the  ^Master,  for  the  payment 
of  the  amount  due  upon  the  said  judgment, 
with  legal  interest  thereon  from  its  date, 
whenever  the  said  injunction  shall  be  dis- 
solved, or  until  the  further  order  of  the 
Court." 

At  the  succeeding  term  of  the  Court  of 
Equity  for  Charleston,  it  was  moved  before 
the  presiding  Chancellor,  that  the  injunc- 
tion be  dissolved,  when  the  following  order 
was  made: — "This  case  comes  up  on  a  mo- 
tion of  the  solicitors  for  the  administrator 
and  heirs  of  Savage  Smith,  to  dissolve  the 
injunction  granted  by  Chancellor  .Johnson. 
The  Court  is  of  opinion  that,  in  this  stage 
of  the  proceedings,  there  is  nothing  which 
can  warrant  its  interference  with  the  order 
of  the  Chancellor.  The  same  equities  sub- 
sist upon  the  allegations  of  the  parties,  and 
the  report  has  not  yet  ascertained  how  the 
account  stands.  An  interlocutory  order  dis- 
solving the  injunction  would  manifestly  then 
be  a  re-hearing  of  the  same  case  already 
considered  by  the  Chancellor  who  granted 
the  injunction.  It  is.  therefore  ordered  that 
the  motion  to  dissolve  the  injunction  be  dis- 
missed." 

The  motion  to  dissolve  the  injunction  was 
again  renewed  at  the  Summer  sittings  for 
Charleston,  and  was  again  refused.  And 
the  application  is  now  made  by  way  of  ap- 

*482 
peal   (on   the   *grounds    stated   in  the   brief) 
from   the   decision   of   the   two    Chancellors, 
who  rejected  the  motion  to  dissolve  the  in- 
junction as  aforesaid. 

The  ansAver  of  the  defendants  has  been 
put  in,  in  which  all  the  equities  of  the  com- 
plainant's bill  have  been  positively  denied. 
And  on  the  8th  of  June  last,  the  report  of 
the  Master  was  filed,  stating  the  accounts  be- 
tween the  parties,  and  in  which  a  large  bal- 
ance has  been  struck  against  the  complain- 
ant. In  addition  to  these  facts,  it  may  be 
remarked,  that  the  proceedings  in  this  case 
at  law,  were  first  arrested  by  an  order  of 
this  Court,  in  the  case  of  B.  F.  Hunt  v.  The 
representatives  and  heirs  at  law  of  Savage 
Smith,  made  by  Chancellor  De  Saussure,  in 
the  year  1832.  This  bill  having  abated  by 
the  death  of  some  of  the  defendants ;  on 
the  revival  of  the  same,  an  application  was 
made  to  Chancellor  Johnson,  that  a  writ 
of  injunction  formerly  granted,  would  be 
re-signed  and  directed  to  the  present  repre- 
sentatives of  Savage  Smith ;  and  an  order 
was  made  to  that  effect.  It  was  then  moved 
that  the  order  should  be  so  amended  as  to 
require  security,  which  was  refused.  On 
appeal,  it  was  held  that  a  complainant  ap- 
plying to  the  Court  of  Equity  for  a  writ  of 


198 


EKOWN  V.  SMITH 


*4S5 


in.iuiution  to  restrain  proceedings  upon  a 
Jiidsment  at  law.  was  Itound  to  give  securi- 
tyCrt).  On  a  sul)se(iuent  a|»|»lication  before 
riiancellor  Jolinson.  the  order  first  reeited 
In  tliis  statement  was  granted.  It  tlujs  ap- 
j.ears  that  the  proceedings  in  tlds  action  at 
law  liave  been  susjiended  by  the  interposi- 
tion of  tliis  Court  for  sixteen  years.  The 
simple  (piestion  now  sul)mitted  is,  whether, 
under  these  circumstances,  tlie  Injunction 
should  be  dissolved,  irrespectively  of  any 
consideration  of  tlie  merits  of  the  questions 
at  issue  between  the  parties.  It  is  cer- 
tainly tru^  that  an  application  for  an  injunc- 
tion to  .stay  proceedings  at  law  is  one  ad- 
dressed to  the  sound  discretion  of  this  Court. 
It  is  also  true,  that  after  the  answer  has  been 
put  in.  the  continuance  or  dissolution  of  the 
injiniction  is  equally  within  the  discretion  of 
the  Court.  "While  the  eiiuities  sworn  to  in 
the  bill  are  undenieil.  there  is  reason  that 
the    injunction     should    continue     in     force. 

*483 

*The  same  reason  applies,  when  the  answer 
admits  the  complainant's  eipiities.  lUit 
when  the  answer  positively  deiues  all  the 
complainant's  equities  set  forth  in  his  bill, 
if  the  latter  be  not  corroborated  by  other 
proofs,  the  presumption,  on  which  the  in- 
terposition of  the  Court  was  originally  bas- 
ed, in  a  great  measure  ceases  to  exist.  At 
this  stage  of  the  case,  if  the  complainant 
has  further  proofs  by  which  he  may  support 
the  allegation  of  his  bill,  he  should  present 
them  in  the  form  of  affidavits.  If  he  has 
none  such,  it  is  obvious  that  the  further  in- 
tervention of  Equity,  in  arresting  the  pro- 
ceedings at  law,  is  unnecessary,  and  may 
be  mischievous,  as  on  a  trial  upon  bill  and 
answer,  the  disnn.ssal  of  the  bill  must  fol- 
low as  a  necessary  conse<pience. 

By  the  5th  section  of  the  Act  of  1721,  it 
is  provided,  "that  no  injunction  shall  con- 
tinue of  force  longer  than  the  next  term 
after  the  defendant  has  put  in  his  answer, 
unless  the  Court  shall  see  fit  to  extend  it." 
The  plain  meaning  of  this  provision  is  con- 
ceived to  be,  that  after  the  answer  is  put 
in.  the  Court  may  extend  or  dissolve  the  in- 
junction, in  the  exercise  of  its  own  sound 
discretion.  There  is  no  impediment,  there- 
fore, in  entertaining  the  motion,  notwith- 
standing the  order  that  has  already  been 
made.  Indeed,  it  seems  to  be  but  a  provision- 
al order,  and  by  its  own  terms,  to  contem- 
plate a  possible  further  moditication  before 
the  hearing  of  the  cause. 

Since  that  order  was  made,  another  im- 
portant stage  in  this  protracted  litigation 
has  been  attained,  and  another  aspect  given 
to  the  case,  which  did  not  then  exist,  and 
which  has  a  strong  bearing  on  the  question 
now  submitted  to  the  Court.  The  Master 
has  tiled  his  report  on  the  accounts  between 
the  parties,  and  has  found  a  large  balance 


(o)  Hunt  V.  smith,  1  Rich.  Ea.  277. 


against  the  complainant.  The  judgmcirr  at 
law  (the  subjt'Ct  matter  of  the  injunction) 
is  not  include<l  in  that  balance.  It  is  true, 
that  many  exceptions  are  taken  to  this  re- 
port, and  it  may  be,  when  the  exceptions 
are  heard,  the  rejiort  may  be  set  asiiU'  in  the 
whole  or  part.  Doubtless,  the  merits  of  the 
controversies  between  the  parties  are,  in  a 
great    degree,    involved    in    that    report,    and 

♦484 
the   exceptions   thereto.      Hut    *tliis    apidica- 
tion  is  decided  (as  has  been  already  stated) 
without  any  reference  to  those  questions. 

The  Master's  report  thus  finding  a  large 
balance  against  the  complainant,  and  thus 
making  a  case  of  jirima  facie  indebtedness 
by  him  instead  of  the  defendant,  when  su- 
peradded to  the  denial  of  the  <-omplainant's 
ecpiities  by  the  answers,  constitutes  an  in- 
superable objection  to  tin-  further  interfer- 
ence by  this  Court  with  the  progress  of  the 
suit  at  law. 

This  Court  has  now  stayed  the  proceed- 
ings of  a  Court  of  law.  on  a  purely  legal 
demand,  for  sixteen  years.  And  it  has  been 
twenty-six  years  since  this  litigation  com- 
menced in  the  Court  of  Kquity.  Uoubtless, 
the  progress  of  the  cause  has  been  obstruct- 
ed by  many  unavoidable  accidents  and  de- 
lays. It  is  dillicult  to  avoid  the  conclusion, 
that  there  has  been  laches.  This  Court  has 
no  means  of  knowing  by  who.se  default  this 
extraordinary  delay  has  occurred.  The 
rules  of  Chancery  practice,  on  the  suliject 
of  injunctions,  require  that  the  conn)lainant 
should  use  a  high  degree  of  diligence,  and 
in  any  uncertainty  as  to  whose  default  has 
occasioned  the  delay,  he.  as  the  actor,  must 
share  a'large  proixn'tion  of  the  responsibili- 
ty, or,  at  all  events,  make  a  showing  that 
he  has  used  a  reasonable  degree  of  diligence 
in  pre|iaring  his  case  for  trial. 

Against  the  dissolution  of  the  injunction, 
it  is  urged,  that  it  might  occasion  the  com- 
plainant irreparable  mischief:  that  the 
heirs  of  Savage  Smith  are  utterly  insolvent; 
that  tlu'ir  share  of  the  joint  estate  which 
was  allotted  to  them  in  the  division,  has 
passed  by  sale  into  other  hands:  and  that, 
if  the  complainant  should  t>staiilisli  his 
claims  against  the  estate  of  Savage  Smith, 
he  would  have  no  means  of  enforcing  his 
demands,  while  the  defendants  possessing 
the  security  of  the  injunction  bond  can  suf- 
fer no  other  inconvenience  than  delay.  This 
argument  might  address  itself  strongly  to 
the  consideration  of  the  Court,  if  it  were  not 
clear  that  the  complainant  possesses  the 
most  ample  security  for  any  amount  that 
he  may  recover  from  the  defendants,  in  the 
final  adjustment  of  the  accounts.  The  de- 
cree for  partition  of  1S25  affords  this  protec- 
tion.      It     expressly     provides,     "that     each 

*485 
♦share  shall  remain  subject  to  the  final  de- 
cree, which  shall  be  made  upon  the  mutual 
demands   of   the   parties,   plaintiffs    and    de- 

191) 


*485 


3  RICHARDSON'S  EQUITY  REPORTS 


fendants."  And  the  shave  of  the  heirs  of 
Savage  Smith  purchased  pendente  lite,  and, 
therefore,  witli  notice,  cannot  by  sucla  sale 
be  divested  of  the  lien  which  that  decree 
thiis  imposes  upon  it. 

For  the  foregoing  reasons,  it  is  the  opinion 
of  the  Court,  that  the  injunction  should  be 
dissolved,  and  it  is  accordingly  so  decreed. 

JOHNSTON,  DUNKIN  and  CALDWELL, 
CC,  concurred. 

Under  the   order   of   reference   of   March, 
1846,    the    Master,    (Mr.    Gray),    on    the    9th 
June,  1817,  filed  his  report  as  follows. 
"To   the   Honorable   the   Chancellors   of   the 

said  State: 

"Since  my  report,  filed  28th  June,  1843, 
with  the  testimony  to  which  it  referred, 
Chancellor  Johnston,  on  the  13th  INIarch,  1846, 
made  the  following  order. — "New  parties 
having  been  made,  in  pursuance  of  the  Ap- 
peal Decree ;  it  is  ordered  that  the  referenc- 
es be  resumed  in  these  causes,  without  preju- 
dice to  any  of  the  parties,  and  reserving  all 
the  equities  in  the  same  manner  for  the 
hearing  as  though  the  present  order  had  not 
been  entered.  It  is  further  ordered,  that 
evidence  be  taken  by  any  party  to  the  cause 
or  any  matter  involved  in  the  pleadings,  to 
be  used  in  the  causes  as  may  be  required ; 
this  order  made  with  consent  of  the  solicitor 
of  B.  F.  Hunt."  I  respectfully  report,  that 
in  pursuance  of  the  said  order,  many  ref- 
erences have  been  had  before  me  by  the 
solicitors  of  the  parties,  up  to  the  25th  May 
last,  inclusive,  the  day  fixed  by  me  for  clos- 
ing all  references  in  litigated  causes,  by  a 
notice  published  in  my  oflice  on  the  1st  day 
of  the  last  April.  I  beg  leave  to  file  here- 
with ruy  notes  of  these  references,  and  all 
the  testimony  submitted  to  me  from  time  to 
time  by  the  several  parties.  The  represen- 
tatives of  the  several  estates  of  George  and 
Savage  Smith,  have  each  filed  their  claims, 
and  I  proceed  to  state  the  results  at  which 
I  have  arrived,  after  considering  the  testi- 
mony submitted  to  me: 

"First,  as  to  the  claim  of  B.  F.  Hunt,  the 

*486 

assignee  of  C.  *T.  Brown  and  wife,  or  the 
representatives  of  the  estate  of  George 
Smith,  viz:  that 

"First,  an  account  of  the  co-partnership  of 
George  and  Savage  Smith,  under  its  various 
names,  should  be  taken,  and  the  share  of 
each  brother  ascertained.  The  testimony 
shows,  that  with  the  exception  of  a  few 
house  servants,  and  some  other  property  of 
inconsiderable  value,  owned  by  George  and 
Savage  Smith  in  their  individual  rights,  all 
the  rest  of  their  lands,  negroes  and  assets 
were  owned  and  employed  by  them  jointly, 
in  the  various  uses  to  which  they  were  ap- 
plied ;  so  that  after  deducting  whatever  was 
strictly  applicable  to  their  joint  liabilities, 

200 


the  remainder  was  to  he  equally  divided  be- 
tween the  brothers. 

"2nd.  That  Josiah  Smith  made  consider- 
able advances  to  the  firm  of  George  and 
Savage  Smith,  on  account  of  his  daughter, 
the  wife  of  George,  which  ought  to  be  cred- 
ited to  the  estate  of  (ieorge,  and  allowed  Mr. 
Hunt,  who  is  the  assignee  of  the  claim.  I 
do  not  find  any  testimony  in  support  of  this 
claim,  but  that  of  Mr.  Josiah  Smith,  the 
alleged  creditor  himself,  supported  by  entries 
in  the  book  called  his  Petty  Ledger  in  evi- 
dence ;  but  there  is  no  proof  that  Savage 
Smith  ever  recognized  the  claim,  and  it  seems 
from  the  testimony  of  Henry  Cuttino,  that 
George  Smith  himself  stated  to  him,  that  he 
was  not  aware  how  Mr.  Josiah  Smith  had 
made  such  advances. 

3d.  The  excess  of  the  private  expenditures 
of  Savage  over  George,  from  1783  to  1817, 
which  it  is  alleged  would  leave  $45,000  to 
equalize  the  partnership  expenses;  it  is  in 
evidence,  that  George  Smith  during  that  time 
resided  in  the  family  of  Josiah  Smith,  at^d 
that  his  private  expenses  were  small,  hav- 
ing only  a  wife  and  one  child ;  while  Savage 
Smith  had  a  large  family  of  children,  and 
lived  in  Georgetown  handsomely  at  an  ex- 
pense of  from  $2,000  to  $2,500  per  annum. 
But  it  is  also  in  evidence,  that  during  this 
long  series  of  years,  the  brothers  never  came 
to  an  account  with  each  other,  or  had  any 
settlements  of  transactions,  but  appeared  to 
treat  their  interests  as  identical,  and  to  use 
their  estates  as  if  it  were  the  proi>erty  of 

*487 
each,  and  employed  *for  their  mutual  ad- 
vantage ;  so  that  it  would  be  impossible  to 
adjust  their  accounts  after  such  a  lapse  of 
time.  This  answer  applies  also  to  all  the 
other  incidental  claims  under  this  head,  such 
as  the  title  to  "Crips"  Plantation,  having 
been  taken  in  the  name  of  George  Smith, 
while  that  of  "Richfield"  was  taken  in  the 
name  of  George  and  Savage.  The  payments 
made  by  George  Smith  for  negroes,  as  per 
bills  of  sale,  «&c. 

"4th.  The  next  claim  is,  that  the  adminis- 
trators should  account  for  the  estate.  I  find 
that  the  accounts  of  W.  S.  Smith,  one  of  the 
administrators,  from  1818  to  1825,  have  been 
vouched  before  me,  and  the  balance  appearing 
in  his  last  account  paid  to  the  order  of  Mr. 
Heriot,  commissioner  in  Equity  for  George- 
town district.  Mr.  Hunt  has  submitted  his 
objections  to  these  accounts,  and  filed  a 
statement,  which  I  have  marked  X.,  which 
he  claims  as  a  proper  account,  shewing  a 
balance  of  $10,799.12  in  his  hands  in  1825, 
instead  of  $5,576.79,  the  balance  paid  by  him/. 
In  this  connexion,  Mr.  Mitchell,  for  the  rep- 
resentatives of  Savage  Smith,  has  submitted 
a  statement,  marked  Z,  by  which  it  appears, 
that  comparing  the  sums  received  and  dis- 
bursed by  Messrs.  Ravenel  &  Stevens,  the 
factors  of  the  estate,  with  those  actually  re- 
ceived and  disbursed  by  the  said  administra- 


BROWX  V.  SMITH 


♦490 


tor,  thero  results  a  sum  of  $l.(>.'i7.G9,  over- 
char-^t'd  fur  coniniissioiis.  whidi  addtnl  to  the 
lialame  stated  by  Mr.  Siuith,  woidd  aii!t>niit 
to  $7,114.48,  the  correct  bahince  due  in  1S25; 
and  it  appears  to  nie  that  this  is  the  correct 
view  of  tlie  matter. 

".">th.  Tlie  next  is  a  (hiiiu  <>f  the  estate  as 
per  the  inventory. 

"It  appears  to  nie,  that  the  property  con- 
tained in  the  partition,  and  allotted  in  ISL*'), 
top'ther  with  the  sales  made  by  connnission- 
er  Ileriot,  satisfactorily  account  for  the 
property. 

"(Ith.  The  debts  due  the  tinn  in  ISIS,  when 
(ieorge  Smith  died:  which  ought  to  have 
Wen  collected,  unless  the  insolvency  of  the 
debtors  can  be  shown. 

"The  responsibility  for  these  debts  seems 
to  be  shared  between  the  administrators,  and 
comnnssioner  Ileriot,  viz:  from  ISlS  to  18125 
by  the  administrators,  and  afterwards  by 
the  commissioner  in  Iviuity.   who  was  then 

*488 

authorized  to  collect  them,  and  then  ♦receiv- 
ed for  collection  from  Mr.  Cuttino,  the  ad- 
ministrator, such  as  had  not  been  realized 
under  the  decree. 

"The  testimony  of  Mr.  Iluiriiins  specifies 
such  of  them  as  he  tlioauht  might,  from  the 
circumstances  of  the  debtors,  have  been  col- 
lected :  and  he  adds,  that  many  of  them  were 
solvent  in  1825,  and  it  appears  to  me,  that 
there  nnist  have  been  a  want  of  proper  dili- 
gence in  making  the  collections ;  but  the 
representatives  of  both  estates  have  suffered 
e4iually  from  the  acts  of  their  agents,  and 
ought  to  share  the  losses,  if  any  have  oc- 
curred; this  embraces  the  cases  of  W.  R. 
Theus  and  of  Richard  F.  Withers,  the  debtors 
referred  to,  the  particulars  of  wliicb  are  de- 
tailed in  the  testimony  of  Mr.  J.  \.  Davis 
and  Mr.  Iluggins. 

"7th.  The  next  claim  is,  that  the  lot  in 
Ilampstead  is  part  of  the  joint  estate.  And 
I  lind  that  it  is  so,  as  appears  by  the  tax 
returns  of  W.  S.  Snuth.  the  adnnnistrator, 
as  late  as  181G;  and  this,  therefore,  ought 
to  be  brought  into  division  between  the  par- 
ties. 

"Sth.  That  the  land  on  which  the  tan- 
yard  was  in  Georgetown,  and  the  other  real 
estate  in  that  town,  was  joint  estate.  I  find 
that  the  tan-yard  lot  was  a  part  of  the  joint 
estate,  and  was  sold  by  Henry  Cuttino  in 
1835,  for  .$110  V  that  after  the  death  of 
Savage  Smith,  George  Smith  transferred  his 
interest  in  it  to  his  nei»hew,  George  S.  Smith. 
And  I  find  that  the  house  and  lot  of  Savage 
Smith,  where  he  resided,  was  not  the  proper- 
ty of  the  estate,  but  of  Mrs.  Savage  Smith, 
derived  from  her  father,  Wm.  Cuttino. 

"9th.  Is  a  claim  for  a  negro,  Isaac,  and 
others  attached  to  the  tan-yard.  I  find  from 
the  testimony  of  Mr.  Henry  Cuttino.  that 
Isaac  was  the  property  of  Savage  Smith: 
that  at  the  death  of  Savage  Smith,  the  busi- 


ness of  the  tau-yard  was  very  inconsiderable ; 
that  of  the  10  negroes  then  attached  to  it. 
all  died  except  live,  which  were  sold  in  1S.S5, 
and  broui-'ht  .'«;!!t7.5()  altogether. 

"lOth.  Claims  that  the  accounts  of  Peter 
Cuttino  should  be  vouched:  I  find  that  these 
accounts  were  vouched  before  the  (udinary  ; 
but  the  vouchers  havt-  not  iieen  subnutted  to 
me;    and  that  for  all  the  items  of  .said  ac- 

♦489 
Counts,  except  for  monies  *adndtti'tl  to  have 
been  received  by  either  of  the  represt-ntatives 
of  the  two  estates,  the  parties  are  entitled  to 
have  a  decree  against  the  said  administrator. 

"I  proceed  now  to  the  claims  of  the  repre- 
.•<entativi's  of  Savage  Smith.  sui)nntted  by  Mr. 
Mitchell,  whicb  are  to  be  reimbursed  by  Mr. 
Hunt,  the  assignee  of  C.  T.  Rrowu  and  wife, 
in  conformity  to  the  decree  of  l>>-5.  for  all 
sums  received  by  him,  or  expendivl  for  him, 
out  of  the  joint  estates,  over  his  equal  share. 

"Ist.  Is  contained  in  .Sclu'dule  A.  filed  with 
said  claim,  which  contains  the  items  of  por- 
tions of  the  joint  estate  applii-d  to  the  private 
debts  of  (Jeorge  Smith  gn-ati-r  than  were  ap- 
plied to  the  private  debts  of  Savage  Snntb.  I 
find  the  items  of  this  claim  to  Ix^  correctly  es- 
tal)lished  by  the  testimony,  with  the  exception 
of  the  sum  of  .$l."i.SL'0.:2G,  paid  on  the  comiiro- 
mise  debt  of  Hird,  Savage  &  Rird.  which  1  con- 
sider to  be  a  good  charge  on  the  joint  estate. 
The  debt  originally  seems  to  have  lieen  one  of 
(ieorge  Smith,  sen'r.  (the  father  of  George 
and  Savage  Smith,)  and  of  .Tosiah  Snnth,  and 
the  judgments  upon  it  in  the  Federal  Circuit 
Court  are  entered  against  Josiah  Smith  indi- 
vidually, George  Smith  as  executor  of  (ieorge 
Smith,  and  Josiah  Smith  as  executor  of 
George  Smith  :  the  particulars  of  v.hich  judg- 
ments are  stated  in  my  notes  of  the  referenc- 
es of  the  !)th  of  February  last.  The  name  of 
Savage  Smith  does  not  appear  in  the  pro- 
ceedings; but  that  of  his  brother,  George, 
appears  only  as  executor  of  his  father,  and 
as  they  held  and  enjoyed  jointly  their  fa- 
ther's estate,  there  is  every  reason  to  infer 
that  this  was  regarded  as  a  joint  debt  by 
(ieorge  and  Savage  Smith.  Resides,  the  debt 
was  compromised  at  the  instance  of  the  rep- 
resentatives of  both  estates,  and  the  decree 
directed  it  to  be  paid  out  of  the  funds  of  the 
joint  estate,  and  the  above  payment  was 
accordingly  so  made.  The  result  of  this 
Schedule  shews,  after  striking  out  this  item, 
that  the  amount  paid  for  the  estate  of  George 
Smith,  exceeds  that  paid  for  the  estate  of 
Savage  Smith,  after  allowing  interest  to  the 
present  time,  by  .$lil,()SG.:}l.',  which  ought  to  be 
paid  by  the  assignee  of  C.  T.  Hrown  and  wife. 
2d.  This  claim,  contained  in  Schedule  B, 
*490 
Nos.  1  and  2,  is  for  *the  excess  of  payments 
made  out  of  the  joint  estate  to  C.  T.  Brown 
and  wife,  over  those  made  to  the  distributees 
of  Savage  Smith.  Exception  was  taken  to 
the  character  of  many  of  the  receipts  given 

201 


3  RICHARDSON'^  EQUITY  REPORTS 


!)y  Mr.  Brown  to  W.  S.  Smith,  as  indicating 
receipts  of  money  from  Mr.  Smith  individual- 
ly, and  not  as  administrator,  from  which  it 
was  inferred,  that  they  related  to  private 
transactions  not  connected  with  the  estates; 
but  the  testimony  of  Thomas  Lehre  convinces 
me  that  the  money  came  from  the  joint  es- 
tates. And  I  find  that  there  is  due  by  the  as- 
signee of  C.  T.  Brown  and  wife,  to  the  dis- 
tributees of  Savage  Smith,  on  this  account, 
$11, 521. .56,  including  interest  to  the  present 
time. 

"3d.  Schedule  C  contains  the  claim  for  the 
amount  due  from  C.  T.  Brown,  for  the  hire 
of  the  negroes  of  the  estate,  from  January, 
1820,  to  January,  1825.  I  find  this  claim  to 
be  established  by  the  letter  of  C.  T.  Brown  to 
the  administrator,  of  the  1st  August,  1819, 
and  also  by  the  examination  of  C.  T.  Brown 
before  me,  annexed  to  my  former  report,  and 
I  find  that  there  is  due  by  the  assignee  on 
this  account,  $13,542.50,  including  interest  to 
the  present  time. 

"4th.  Schedule  P  is  the  claim  of  the 
amount  due  to  the  heirs  of  Savage  Smith, 
for  equality  of  partition  on  the  division  of 
the  estate  in  1825.  This  claim  is  established 
by  the  return  of  the  commissioners  in  parti- 
tion in  1825,  and  the  report  of  commissioner 
Heriot,  February  3,  1827,  and  I  find  the 
amount  due  by  Mr.  Hunt  to  be  $3,262,  includ- 
ing interest  to  the  present  time. 

"5th.  Schedule  E  is  a  claim  for  the  amount 
paid  by  the  administrator  and  heirs  of  Sav- 
age Smith,  in  full  of  the  balance  due  on  the 
compromise  debt  of  Bird,  Savage  and  Bird. 
This  claim  is  fully  established  by  the  tes- 
timony, especially  that  given  by  Mitchell 
King,  Esq.,  and  I  find  the  amount  due  by 
Mr.  Hunt  to  the  heirs  of  Savage  Smith,  to  be 
$14,768.16,  including  interest  to  the  present 
time. 

"6th.  Schedule  F  is  a  claim  for  certain 
funds  and  property,  alleged  to  have  been  re- 
ceived by  Mr.  Hunt,  after  the  decree  of  1825, 
for  which  the  heirs  of  Savage  Smith  did  not 
receive  an  equivalent,  or  which  were  not  ap- 

*491 

plied  to  the  partnership  debts;  *of  the  items 
of  this  claim,  I  find  that  the  item  of  $.344.20, 
received  from  Ravenel  &  Stevens,  and  the 
item  of  $403.56,  received  from  sheriff  Steed- 
man,  were  accounted  for  by  Mr.  Hunt  to  com- 
missioner Heriot,  who.se  agent  he  was  in  the 
receipt  of  them.  And  they  are  disallowed. 
Another  item  in  this  Schedule,  viz:  the 
amount  due  for  the  purchase  by  Mr.  Hunt  of 
Michau's  or  Clegg's  Point,  $10,000,  appears 
to  me  not  to  be  sustained  by  the  testimony. 
The  property  was  bid  off  by  Mr.  Hunt,  at  $8,- 
000,  and  he  paid  $776.50  of  the  purchase  mon- 
ey; but  he  never  received  titles  for  the  prop- 
erty, and  it  was  afterwards  sold  under  the 
decree  obtained  by  S.  Pedrieau  and  wife,  (re- 
ported in  Riley's  Chancery  Cases,  page  88,) 
and  was  lost  to  Mr.  Hunt,  the  former  pur- 
202 


chaser.  This  item  is  therefore  disallowed. 
And  I  find  the  amount  due  by  Mr.  Hunt  to  the 
heirs  of  Savage  Smith,  on  the  remaining 
items  of  this  Schedule,  to  be  $1,468.00,  includ- 
ing interest  to  the  present  time. 

"In  addition  to  the  foregoing  claims,  there 
is  one  for  the  bond  given  by  Mr.  Hunt  to  com- 
missioner Heriot,  for  $4,053.00,  with  interest, 
for  the  purchase  of  negroes  of  the  joint  es- 
tate, on  which  a  judgment  has  been  obtained 
at  law,  but  which  has  been  enjoined  by  this 
Court,  to  abide  the  decree  in  this  case. 

"The  Schedule  G  annexed,  will  exhibit  a 
sunmiary  of  the  several  balances  found  as 
above  to  be  due  ))y  Mr.  Hunt  to  the  rei)re- 
sentatives  of  Savage  Smith." 

The  cases  were  heard,  on  exceptions  to 
the  above  report,  at  February  sittings,  1848, 
before  his  Honor,  Chancellor  Johnston,  who 
pronounced  the  following  decree: 

Johnston,  Ch.  I  had,  at  the  close  of  the 
argument,  pretty  satisfactory  impressions  of 
the  general  principles  ui)on  which  this  liti- 
gation must  turn;  and  though  they  have  been 
in  some  decree  obscured,  they  have  not  been 
materially  altered  by  the  immense  and  heter- 
ogeneous mass  of  documents,  which  I  have 
been  required  to  read  and  examine. 

In  deciding  the  case,  I  will  introduce  what 
I  huve  to  say,  by  remarking,  that  the  prin- 
cipal litigation  has  palpably  arisen  in  con- 
sequence  of   Mr.    Hunt's   having   substituted 

*492 

his  bond,  in  place  *of  the  money,  for  part  of 
his  purchases  from  Mr.  Commissioner  Heriot. 
By  the  report  of  the  3d  February,  1827,  it 
appears  that  the  commissioner  has  sold,  of 
property  belonging  to  the  copartnership  es- 
tate, and  of  property  mortgaged  to  it,  to  the 
amount  of  $21,.5i98,  (of  which  there  was  pur- 
cha.sed  by  Col.  Hunt  to  the  value  of  $13,553.) 
Part  of  this  sum,  to  wit:  $19,069.42,  was  di- 
vided between  the  distributees  of  the  respec- 
tive parties,  in  the  proportion  of  $9,500.00 
to  Col.  Hunt,  and  $9,56.9.42  to  the  distributees 
of  Savage  Smith ;  and  upon  the  principles 
of  that  report,  it  is  pretty  clear,  that  if  Col. 
Hunt  had  paid  the  whole  amount  of  his  pur- 
chases, instead  of  giving  his  bond  for  $4,053, 
a  part  of  them,  an  equal  division  would  have 
been  made  of  the  whole  of  this  fund,  (the 
$21,598.)  That  is,  the  amount  covered  by 
Hunt's  bond,  ($4,053,)  if  it  had  been  paid  in, 
and  had  existed  in  cash,  in  the  commission- 
er's hands,  would  have  been  apportioned  by 
allotting  to  Hunt  .$2,061.21,  and  to  the  distrib- 
utees of  Savage  Smith  $1,991.79,  of  that  por- 
tion of  the  fund,  which  would  have  equalized 
the  difference  of  $69.42  between  the  drafts 
upon  the  whole  $21,598. 

The  early  contest  was  in  relation  to  this 
fund,  and  has  been  enlarged,  by  the  one  par- 
ty looking  up  claims  to  sustain  him  m  the 
right  to  retain  it,  and  the  other  seeking  for 
counter  claims  to  meet  these  and  compel  him 
to  give  it  up ;    and  I  am  persuaded,  froiu  the 


BROWN  V.  S>UTU 


*495 


facts  to  wliidi  I  have  nllmlt'il,  touiiU'd  with 
the  precediuj,'  and  sucfi't'diii;;  hiclu's  of  tlu' 
parties  in  lehitioii  ti»  these  extrinsic  chiinis 
that  tliey  are  more  plausible  than  n-al,  and 
that  the  marrow  of  this  litijiation  is  the  bond 
of  Hunt.  Nothinj;  heytaid  this  was  claimed 
l>y  him,  until  his  hill  in  IKVA.  nor  liy  the  oth- 
er parties,  until  their  cn»ss  bill  in  ls;!S,  for 
altlu)Uj,'h  they  did  tish  up  sonu'  few  thin;.'s  in 
their  answer  to  his  bill,  they  never  earnestly  j 
proceeded  to  urge  any  claim  beyond  the  bond, 
until  they  tiled  their  cross  bill,  as  I  have 
stated. 

My  i)ersuasion  is,  therefore,  that  (.with  the 
exception  of  matters  in  the  report  not  except- 
ed to,  which  must  of  course  stand,  if  there  be 
any  such,)  the  decree  nnist  be  lonlined  to  the 
sum  for  which  Hunt's  bond  was  !.;iven,  with 

♦493 
interest,  and  that  it  should  *be  divided  as  I 
have  stated  ;  the  .iu(lt,'ment  obtained  on  it  to 
stand  as  a  security  for  the  amount  to  be  de- 
creed, and  to  be  enjoined  for  all  beyond  that 
amount.  My  opinion  is,  also,  that  all  the  oth- 
er claims  are  too  stale  or  obscure  to  be  made 
the  subject  of  a  decree. 

If  we  were  to  go  lx\von(l  the  point  I  have 
intimated,  and  enter  into  the  consideration 
of  the  other  claims  set  up  by  the  different 
parties,  we  nuist  be  governed,  throughout 
the  investigation  of  tliem,  by  one  leailing 
principle.  There  is  no  privity  between  these 
parties,  but  through  the  decree  of  l<s:25.  No 
claim  can  be  recognized  that  does  not  come 
within  the  purview  of  that  decree.  l*]\ery 
claim  anterior  to  it,  and  not  embraced  in  it, 
is  lost.  Every  claim  that  falls  within  it, 
nuist  be  governed  by  its  provisions.  And 
every  claim  arising  under  it  must  be  regard- 
ed with  special  reference  to  the  rights  of 
the  parties,  as  established  by  the  decree  it- 
self. 

This  decree  of  1825  nuist  be  construed  with 
reference  to  tlie  pleadings.  Resides  the  two 
matters  of  Josiah  Smith's  claim,  and  the  en- 
dorsement for  Waring,  which  are  specially 
mentioned  in  the  pleadings,  there  is  no  otlu'r 
claim  set  up,  but  the  demand  of  a  general 
account  of  the  i»artnershii>.  The  latter  would 
necessarily  be  sul)ject  to  reciprocal  claims, 
incidentally  arising  from  the  account.  IJy 
the  phrases  in  the  decree,  "mutual  demands 
of  the  complainants  and  defendants,"  •'mu- 
tual claims  of  the  jiarties."  and  '"the  several 
accoinits  of  the  complainants  and  defenilants 
with  the  estate,"  the  Court  umst  be  intended 
to  allude  to  the  "demands,"  "claims"  and  "ac- 
counts" embraced  by  the  record ;  and  these 
are  such  as  I  liave  stated. 

Let  us  assume,  therefore,  that  these  are 
embraced  in  the  decree  of  IJSL'o.  No  other 
claims  are  embraced  in  it. 

That  di'cree,  according  to  the  view  I  have 
taken,  entitled  the  parties  to  an  inciuiry  into 
Josiah  Smith's  claim,  and  into  the  indorse- 
ment lor  Waring.  I?esides  this,  the  plaintilf. 
JJruwn,    was    entitled    to   u    general    utcouut 


of  the  jiartnershiit   from   the  administrators, 
under  which  all  matters  proper  to  be  urged 

♦494 
by    the    dif^fereiit    parties,    as    incidentaJ    to 
the  accounting,  might  be  brttught  \ip  and  con- 
sidered. 

Now,  from  the  date  of  rhat  decree,  until 
very  recently,  the  parties  have  not  availed 
themselves  of  the  rights  thus  given  them, 
nor  attemi)ted  to  take  the  account  :  and  at 
this  late  day,  they  come  forwaril.  not  only 
with  the  demands  which  they  nnght  long  ag«> 
have  urged  under  this  decree,  but  with  oth- 
»'rs  entirely  foreign  to  it,  all  stanii>ed  with 
obscurity,  and  ask  the  Court  to  redress  the 
conseiiuences  of  their  own  neglect. 

If  it  were  proper  to  imiuire  into  Josiah 
Smith's  claim,  I  entirely  concur  in  the  con- 
clusion of  the  conunissioner  in  relation  to  it. 
It  is  in  no  view  sustainable.  The  bond  was 
never  executed.  The  denunid  remains  a 
simple  contract,  and  was  barred  beft)re  the 
bill  was  tiled.  For  tlie  monies  atlvanced  by 
Josiah  Smith,  he  .still  remained  the  creditor; 
as  nuich  after  his  a.ssignment  as  iM'fore :  for 
certainly  the  assignment  of  a  blank  carries 
nothing.  He  was  not  before  the  Court  in 
1H22.  Again,  who.se  creditor  was  he'/  Did 
he  advance  the  money  to  George  Smith  or  tu 
the  tirm'/  If  to  George,  then  he  was  his- 
creditor;  and  George,  by  contributing  the- 
money  to  the  firm,  was  the  real  creditor  of 
the  firm.  But  he,  according  to  Cuttino,  made 
no  such  claim.  But  waive  all  these  objec- 
tions, and  assume  that  Josiah  Smith  advanc- 
ed directly  to  the  firm,  that  the  bond  was 
executed,  and  the  demand  not  barred;  still 
Mrs.  Brown  took  nothing  by  the  assignment,, 
which  vested  the  whole  interest  in  her  moth- 
er, who  was  neither  a  claimant  nor  rejire- 
sented  in  the  suit. 

The  endor.^ement  for  Waring  stands  upon 
testimony  entirely  too  obscure  to  ground  any 
decree  upon  it. 

We  ct)me  now  to  the  general  account.  But 
before  we  enter  upon  it,  it  may  t)e  useful  to 
exanune  the  general  features  of  the  decree. 
The  decree  looked  to  a  speedy  settlement. 
The  impediments  to  the  partition  sought  by 
Brown,  (and  possibly  by  the  distributees  of 
Saviige  Smith.)  were  the  existence  of  out- 
standing partnership  debts,  (among  which 
the  demand  of  Bird,  Savage  &  Bird  was  tlu' 
largest  and  most  pressing.)  and  the  express 
engagements  made  by  the  administrators  with      ^ 

♦495 
the  creditors.  ♦The  administrators  said, 
"I'ree  us  from  the  liabilities  existing  against 
us,  in  virtue  of  assets  in  t)ur  hands,  en- 
hanced in  some  instances,  by  our  personal 
and  positive  contract  with  the  creditors,  and 
take  the  estate  into  your  own  hands;  but 
we  cannot  part  from  it  until  we  are  imlenmi- 
rted."  The  decree  meets  these  (lil!i<ulties,. 
(1)  by  reipiiring  the  distributees  of  the  part- 
ners to  discharge  the  liabilities  assumed  by 
the  administrators;    (lij  by  providing  a  fund 

203 


*495 


3  RICHARDSON'S  EQUITY  REPORTS 


for  the  payment  of  the  partnership  debts; 
and,  (3,)  by  limiting  tlie  property  to  be  par- 
titioned to  a  certain  portion  only,  and  in  al- 
lotting this  to  the  distributees,  imposing  a 
condition,  that  "the  share  of  each  remain 
liable  to  the  payment  of  an  aliquot  proportion 
of  debts,"  as  well  as  "to  the  final  decree 
upon  the  mutual  demands  of  the  complain- 
ants  and   defendants." 

The  fund  provided  for  the  payment  of 
debts  was  three-fold;  (1,)  the  monies  in  the 
hands  of  the  administrators ;  (2,)  the  partner- 
ship choses,  which  the  commissioner,  (taking 
the  place  of  the  administrators,)  was  forth- 
with to  collect  by  legal  process;  and,  (3,) 
the  proceeds  of  Cat  Island  and  other  prop- 
erty, which  the  commissioner  was  directed  to 
sell. 

The  administrators  were  directed  to  apply 
the  monies  in  their  hands  to  the  demand  of 
Bird,  Savage  &  Bird;  and  the  commissioner 
was  ordered  to  complete  the  payment  of  that 
debt  out  of  his  first  collections.  The  remain- 
ing debts  were  thrown  into  two  classes,  cor- 
responding to  the  two  sets  of  distributees ; 
and  the  commissioner  was  to  discharge  these 
classes,  pari  passu,  out  of  the  residue  of  his 
collections,  and  retain  whatever  surplus 
might  remain  in  his  hands,  '"subject  to  the 
final  order  of  the  Court  in  relation  to  the 
mutual  claims  of  the  parties." 

Then  "the  several  accounts  of  the  com- 
plainants and  defendants,  with  the  estate," 
were  referred  to  the  commissioner, — which 
I  have  interpreted  to  mean,  the  general  ac- 
count, (which  is  the  only  one  spoken  of  in 
the  record,)  and  those  incidentally  connected 
with  it. 

There  is  no  doubt  about  the  meaning  of  the 
general  account.    What  claims  are  incidental 

*496 
to  it?  When  a  general  account  is  *  decreed, 
I  suppose  the  proceedings  must  be  so  far 
reciprocal,  that  the  accounting  party  may 
shew  payments  or  advances  made  to  the  par- 
ty calling  for  the  account,  or  set  off  debts 
due  by  him  to  the  fund  or  to  the  trustee. 
Whether  in  relation  to  debts  of  the  latter 
character,  or  where  he  insists  upon  a  balance 
in  his  favor,  the  trustee  must  not  support 
himself  by  pleading,  it  is  not  necessary,  in 
the  view  I  shall  take,  to  consider.  Again, 
I  suppose,  that  when  the  account  is,  as  in 
this  case,  of  a  partnership — where  the  object 
||  is  to  ascertain  the  dry  balance  to  w^hich  the 
respective  partners  are  entitled — it  is  strictly 
incidental  to  the  proceedings,  to  enquire  not 
only  what  debts  are  outstanding  against  the 
concern,  whether  held  by  strangers  or  by  one 
of  themselves — but  what  choses,  constitut- 
ing assets,  are  due  to  the  firm,  either  by  third 
persons,  or  by  the  individual  partners. 
Whether  in  relation  to  debts  due  to  or  owing 
by  the  partners,  pleading  is  necessary,  or 
whether,  if  pleading  is  required,  there  is  no 
distinction  as  to  the  necessity  of  it,  between 
the  accounting  party  and  the  party  demand- 

204 


ing  the  account,  are  questions  in  my  view  of 
no  importance  here. 

I  think  the  right  of  the  general  account 
has  been  waived  or  lost  by  laches ;  or  that 
the  account  has  been  informally  given  to  and 
accepted  by  the  parties  entitled  to  it  by 
the  decree.  And  as  to  the  incidental  claims, 
even  if  they  did  not  fall  with  the  general 
account,  but  stood  upon  independent  ground, 
I  am  of  opinion,  that  every  one  of  them  upon 
both  sides  has  been  forfeited  by  negligence ; 
and  that  many  of  them  are  not,  in  themselves, 
entitled  to  consideration. 

Let  us  look  to  the  general  account.  Has 
there  been  no  laches  here?  The  decree  shews 
that  the  administrators  were  to  be  speedily 
exonerated.  The  only  condition  of  this  ex- 
oneration was,  that  they  pay  out  the  mon- 
ies in  their  hands ;  deliver  over  the  choses ; 
and  come  to  the  account ;  the  performance 
of  two  of  which  conditions  depended  on  them- 
selves, the  third  depended  upon  the  other 
party,  unless  in  so  far  as  the  administrators 
might  have  counter  claims  to  set  up,  as  for 

*497 
instance  if  they  desired  to   *make   reclama- 
tions for  excessive  advancements  to  the  dis- 
tribvitees,   «S:c. 

Now,  did  the  administrators  pay  out  all  the 
monies  in  their  hands  to  Bird,  Savage  & 
Bird?  If  this  was  not  done,  or  what  was 
equivalent  and  equally  satisfactory,  why  did 
not  the  distributees — pressed  as  they  were 
on  all  hands  by  that  debt — take  the  account, 
at  least  so  far  as  to  shew  the  amount  of 
money  in  the  administrators's  hands,  and  by 
rule  or  attachment  compel  the  performance 
of  that  part  of  the  decree? 

Then  the  choses  were  to  be  delivered  to 
the  commissioner. — This  oSicer  was  made  the 
agent  of  the  distributees.  He  was  not  the 
agent  of  the  administrators,  though  he  was 
interposed  for  their  protection,  and  required 
to  apply  the  assets  to  the  demands  for  which 
they  were  responsible.  The  distributees 
tooK  them  with  the  tangible  property,  out  of 
the  hands  of  these  trustees  at  their  own  risk ; 
and  all  that  the  administrators  were  bound 
for,  so  far  as  the  heirs  were  concerned,  was 
the  delivery  of  them  to  the  commissioner. 
Did  they  do  it?  If  not,  why  did  the  dis- 
tributees delay  to  compel  them? 

Then,  it  is  said,  the  complaint  is  not  so 
much  that  they  were  not  delivered,  as  that, 
when  delivered,  they  were  comparatively 
worthless ; — rendered  so  by  the  laches  of  the 
administratoi's ; — and  they  should  account  for 
that.  The  commissioner,  in  his  report,  ex- 
presses an  opinion  that  there  was  negligence 
somewhere;  either  in  the  administrators  or 
in  the  commissioner,  Heriot.  Well,  if  it  was 
in  the  administrators,  was  not  that  fact 
known  when  the  assets  were  delivered? — and 
was  it  not  more  capable  of  being  investigated 
by  proof  and  counter  proof  then  than  now? — 
and  why  did  not  some  one  of  these  distribu- 
tees, importuned  from  day  to  day  by  the  co- 


BllOWX  V.  SMITH 


*50U 


partnership  creditors,  demand  the  acccnint, 
and  establish  the  fact?  The  list  of  copart- 
nership securities,  now  used  for  establishing 
the  default  of  the  administrators,  was  par- 
cel of  the  record  in  IJrown's  case,  and  was 
accessable  to  any  party  for  the  puri)ose  of 
sliewinf;  whether  there  was  a  full  delivery, 

*498 
or  whether  the  negligence  *now  imputed  to 
the  administrators  really  existed.     What  im- 
pi'diment,  tlien,  hindered  the  invt'stigation? 

Kxcept  the  money  and  these  securiries, 
which  have  been  disposed  of,  what  remained 
to  be  accounted  for  but  the  ii\come  which  the 
administrators  may  have  received  while  in 
the  custody  of  the  estate?  Whatever  of 
this  remained  as  money  in  their  hands  has 
been  already  considered.  As  to  whatever  por- 
tion of  it  was  paid  out  in  the  course  of  ad- 
ministration, or  to  distributees,  if  there  was 
any  dissatisfaction  as  to  the  disposition  of 
it.  why  did  not  the  discontented  distributees 
or  other  party  call  for  the  account? 

I  see  no  reason  for  the  delay  from  1825  to 
1S.T..  So  far  as  the  administrators  are  con- 
cerned, this  account  could  have  been  as  well 
taken  in  1825  as  at  any  time  after,  and  far 
better.  I  have  said  nothing  of  the  laches 
since  1833;  of  the  demanding  an  account  and 
not  making  proper  parties;  or,  (if  all  neces- 
sary parties  were  before  the  Court)  not  pro- 
ceeding; nor  of  the  procrastinations  by 
which  evidence  that  might  have  been  pro- 
duced, or  explanations  that  might  have  been 
given,  may  have  been  lost ;  nor  of  the  evi- 
dence actually  existing  on  the  commissioner's 
notes,  and  in  the  record  of  transactions  pur- 
porting to  be  an  execution  of  the  decree. 

The  same  laches  exists  as  to  the  incidental 
claims.  The  inetpiality  in  the  partition;  the 
inequality  in  the  payment  of  debts;  the  rec- 
lamations and  counter  charges  set  up  for  hire 
of  negroes  and  for  monies  paid  to  Brown; 
why  were  these  so  long  neglected  ?  The  sub- 
sistance  account  between  the  brothers  from 
its;;  to  1817 ;  is  it  not  apparent  from  the  cir- 
cumstances referred  to  by  the  commissioner 
that  these  brothers  never  intended  to  raise 
such  an  account?  They  knew  their  business, 
and  may  have  supposed  that  the  superintend- 
ance  of  the  large  plantations  in  his  neigh- 
Ixirhood  entitled  Savage  to  a  greater  provi- 
sion from  the  .loint  property,  if,  in  fact,  he 
drew  his  provision  from  that  property.  But 
if  it  was  otherwise;  still,  why  was  not  the 
di-mand  pressed?  The  attempt  to  shew  that 
the  debt  to  lUrd,  Savage  &  Bird  was  properly 
chargeable  to  one  of  the  partners  instead  of 

*499 
the  *tirm,  was  in  the  teeth  of  the  decree  of 
1825,  and  badly  supported  by  evidence. 

On  the  whole,  I  can  attribute  the  protract- 
ed silence  of  these  parties  on  all  sides,  and 
their  long  abstinence  from  taking  effectual 
steps,  to  nothing  but  a  consciousness  that  the 
claims  were  doubtful,  or  satisH(>d:  and  that 
substantial  justice  did  not  require  them  to 


procetHl:  unless  I  adopt  the  supposition  that, 
suffering  under  injustice,  they  neglected  to 
proct'cd. 

It  is  dangerous,  when  claims  have  become 
.stale,  and  the  evidences  of  them  obliterated 
or  obscured  by  time,  to  take  judicial  cogniz- 
ance of  them;  and  it  is  better  they  should 
remain  wliere  the  negligence  of  the  claimants 
has  placed  them,  than  to  meddle  with  them 
at  the  risk  of  perpetrating  error  and  injustice 
in  their  adjudication. 

It  is  ordered  tliat  the  report  be  re-commit- 
ted, to  be  reformed  agreeably  to  the  fore- 
going opinion ;  and  that  he  report  the  sum 
lor  which  the  decree  should  go,  including  in- 
terest. Counsel  will  then  propose  a  decree. 
Hunt  to  pay  the  costs. 

A  motion  was  made,  that  the  bond  and 
other  securities  taken  by  the  commissioner, 
on  issuing  the  injunction  against  the  suit  or 
judgment  on  Col.  Hunt's  bond,  be  delivered 
out  to  be  sued  on  by  the  plaintiff  in  that  ac- 
tion. It  is  ordered  that  they  be  delivered 
accordingly. 

Wm.  C.  Smith  and  others,  heirs  distribu- 
tees and  representatives  of  the  estate  of 
Savage  Smith,  deceased,  appealed  from  so 
much  of  the  above  Decree  as  dismissed  their 
claims  against  Benjamin  F.  Hunt,  reported 
by  the  Master,  and  so  much  as  enjoined  the 
judgment  at  law  and  abridged  their  rights 
ac(iuired  under  the  same,  on  the  following 
groinids : 

1.  Because  his  Honor  has  erred  in  deciding 
that  the  said  claims  are  too  stale  and  obsi-ure 
to  receive  the  aid  of  this  Court,  whereas  it  is 
submitted  that  they  come  fairly  within  the 
purview  of  the  Decree  of  1825,  and  the  plead- 
ings and  proceedings  had  in  these  cases  be- 
fore and  since  that  time ;  were  fully  support- 
ed by  evidence  in  the  Master's  othce,  and 
ought  to  have  been  enforced  by  a  Decree  of 
this  Court. 

*500 
*2.  Because  his  Honor  has  erred  in  decid- 
ing that  these  appellants  had  forfeited  their 
right  to  enforce  the  said  claims  by  laches, 
whereas  it  is  submitted  that  there  has  been 
no  such  laches  as  would  forfeit  the  right,  and 
that  the  delays  have  been  owing  either  to  un- 
avoidable causes,  growing  out  of  the  course  of 
proceedings  in  this  Court,  or  the  obstacles 
thrown  in  the  way  of  a  speedy  adjustment 
by  the  Assignee. 

'  3.  Because  his  Honor  has  erred  in  deciding 
that  the  claims  of  these  appellants  were  bar- 
red, by  lapse  of  time,  although  some  of  them 
were  infants  at  the  time  of  the  Decree  in 
l,s25.  and  continued  S(^  for  a  long  time  after- 
wards; and  it  is  submitted  that  this  would 
prevent  their  rights  being  prejudiced  by  the 
lapse  of  time. 

4.  Because  his  Honor  has  erred  in  deciding 
that  these  appellants  were  not  entitled  to  be 
reimbursed  for  the  amount  paid  out  of  their 
funds  or  estate,  or  by  their  agents,  in  satis- 
factiou  of  the  debt  of  Bird,  Savage  &  Bird; 

205 


•500 


3  RICnARDSOX'S  EQUITY    REPORTS 


Whereas  it  is  submitted  that  by  the  Decree 
of  1825,  the  compromise  became  a  specific 
charge  or  lien  on  the  whole  joint  estate,  and 
they  were  entitled  to  be  reimbursed  for  any 
amount  beyond  one  moiety  paid  by  them  or 
out  of  their  funds,  in  discharge  of  said  debt ; 
and  that  by  the  proceedings  of  the  cause 
and  the  acts  of  the  parties,  any  persons  ad- 
vancing this  money,  or  paying  the  debt,  were 
entitled  to  the  benefit  of  this  lien,  and  to  have 
it  enforced  in  this  Court. 

5.  Because  his  Honor  has  erred  in  deciding 
that  these  appellants  should  be  enjoined  from 
recovering  more  than  one  half  of  the  judg- 
ment on  bond ;  whereas  it  is  submitted,  that 
according  to  the  very  principles  of  the  De- 
cree, they  were  entitled  to  the  whole  of  it,  as 
the  bond  on  which  it  was  recovered  was  given 
for  a  part  of  the  moiety  to  which  they  were 
entitled  and  which  was  assigned  to  them. 

6.  Because  his  Honor  has  erred  in  rein- 
stating an  injunction  which  had  already  been 
dissolved  by  the  Decree  of  the  Appeal  Court. 

7.  Because  his  Honor's  Decree  is  in  other 
respects  erroneous  and  contrary  to  law  and 
equity. 

*501 
*At  January  Term,  1850,  the  appeal  was 
heard    and    the    following    opinion    thereon 
delivered  by 

DARGAN,  Ch.  All  these  cases  are  substan- 
tially between  the  same  parties,  and  relate 
to  the  same  subject  matter,  and  are  but  the 
different  phases  in  the  way  of  pleading  which 
the  controversy  has  assumed  in  the  progress 
of  the  protracted  litigation. — In  a  case  like 
this,  so  complex  and  multiform  in  its  points 
of  controversy,  it  will  be  a  most  fortunate 
result  if  the  judgment  of  the  Court  shall  at- 
tain any  near  approximation  to  perfect  jus- 
tice between  the  parties;  clouded  and  ob- 
scured as  are  the  facts,  by  lapse  of  time,  and 
by  the  death  of  the  witnesses  and  the  per- 
sons who  were  the  actors  in  the  transactions 
which  are  the  subject  of  investigation.  No 
earthly  tribunal,  guided  solely  by  human 
sagacity  and  skill,  can  claim  for  itself  in- 
fallibility of  judgment,  or  entire  exemption 
from  error.  And  I  will  not  undertake  to  say 
that  the  Court  may  not,  at  any  stage  of 
this  case,  have  evinced  something  of  the  in- 
firmity of  all  human  institutions. — But  I 
think  it  very  obvious,  that  a  large  proportion 
of  the  difficulties  now  to  be  encountered,  and 
the  consequent  shortcoming  of  the  Court  in 
its  present  attempt  to  administer  justice,  are 
the  result  of  the  unnecessary  delays  and  de- 
faults of  the  parties  themselves,  and  of  the 
persons  by  whom  they  have  been  represented. 
The  original  bill  was  filed  in  1822.  And  now, 
28  years  afterwards,  the  case  is  for  the  first 
time  brought  before  this  Appeal  Court,  for  a 
hearing  upon  its  merits ;  nor  yet  for  a  final 
hearing  upon  all  the  matters  involved.  For 
this  extraordinary  delay,  unexampled,  I  hope, 
in  the  judicial  annals  of  South  Carolina,  the 

206 


parties  on  both  sides  are  more  or  less  re- 
sponsible. And  if,  in  consequence  of  these 
causes,  the  Court  should  fall  short  of  the 
truth  and  the  right,  in  the  judgment  which  it 
is  about  to  render,  the  reproach  must  in  a 
large  measure  be  shared  by  the  parties  them- 
selves, and  those  who  acted  as  their  solici- 
tors. It  is  difficult  to  conceive  of  impedi- 
ments in  this  country,  which  with  proper  dil- 
igence, could  have  bafHed  justice  for  so  long 
a  period.  And  when  it  is  remembered  that 
some  of  the  matters  of  controversy  were  old 
at  the  commencement  of  the  litigation,  now 

*502 
28  *years  ago,  the  nature  of  the  difficulties 
which  have   been  experienced  by  the  Court 
may  be  appreciated. 

There  is  a  clear  admitted  misapprehension, 
on  the  part  of  the  Chancellor  who  tried  the 
cause,  on  one  branch  of  the  case.  This  mis- 
take is  carried  into  the  decree,  and  is  so 
apparent,  that  it  was  not  seriously  controvert- 
ed from  any  quarter.  I  refer  to  the  bond  of 
Benjamin  F,  Hunt,  to  the  commissioner  in 
Equity,  for  $4,053.  The  Court,  by  its  decree 
at  February  Term,  1825,  had  ordered  the  sale 
of  certain  lands  and  negroes,  for  the  pay- 
ment of  the  debts  of  the  joint  estate.  The 
debts,  (except  that  of  Bird,  Savage  &  Bird,) 
so  far  as  then  known,  had  been  divided  be- 
tween the  parties  representing  the  two  es- 
tates in  equal  shares.  The  decree  contem- 
plated that  the  proceeds  of  the  sale  ordered, 
should  be  applied  to  the  payment  of  the  debts 
thus  assumed  by  each  of  the  parties.  And  I 
think  the  decree,  by  a  fair  construction,  also 
contemplated  that  the  commissioner  should 
pay  over  the  nett  proceeds  of  the  sales  order- 
ed, in  equal  moieties  to  the  two  parties,  to 
be  by  them  applied  to  their  share  of  the 
debts  which  they  had  respectively  assumed. 
But  whether  the  decree  would  beirt-  that 
construction  or  not,  the  parties  had  under- 
taken to  give  it  that  interpretation,  and  with 
the  consent  of  the  commissioner,  eft"ected 
their  object.  By  his  report  of  the  3d  Febru- 
ary, 1829,  lie  states,  that  out  of  the  proceeds 
of  the  sale  he  had  made,  in  pursuance  of  the 
previous  order  of  the  Court,  he  had  paid  the 
sum  of  $9500  to  B.  F.  Hunt,  and  the  sum  of 
$9569  to  Peter  Cuttino,  the  agent  of  the  de- 
fendants. But  Col.  Hunt  had  been,  through 
his  own  bids  and  those  of  Charles  T.  Brown, 
the  principal  purchaser  at  the  sale.  The  sale 
amounted  in  gross  to  $19,356,  and  he  was  the 
purchaser  to  the  amount  of  $13,553.  For  the 
excess  of  his  aggregate  purchases  over  his 
moiety,  he  gave  his  bond  to  the  conunissioner 
with  a  mortgage  of  16  negroes.  And  this 
bond  was  paid  over  to  the  agent  of  the  heirs 
of  Savage  Smith,  as  so  much  cash,  in  part  of 
their  moiety,  for  which  the  commissioner 
took  their  receipt  in  full,  having  paid  them 
the  balance  in  cash.  They  are,  and  have  been 
since  Feb.  1827,  the  assignees  of  this  bond. 

*503 
They  received  it  as  so  much  *cash,  on  their 


BKOWX  V.  SMITH 


share  of  tbe  proceeds  of  those  sales,  while 
Col.  Hunt  tiieii  received,  and  has  ever  siuce 
liad  the  enjoyment  of  his  share.  This  bond 
has  been  the  subject  of  various  orders  of 
injunction  issuing  out  of  chancery  in  this 
case.  At  February  Term,  1S4.S,  on  an  appeal 
heard  by  this  Court,  it  was  ordered,  that  the 
injunction  be  dissolved,  and  that  tiie  as- 
signees of  the  bond  have  leave  to  proceed  at 
law  upon  it.  An  action  was  brought  at  law 
ui)on  the  bond,  and  judgment  has  been  recov- 
ered thereon.  But  in  the  circuit  decree,  which 
is  now  the  subject  of  appeal,  it  was  ordered, 
that  this  judgment  "stand  as  security  for  the 
amount  tnat  shall  be  decreed,  and  to  be  en- 
joined for  all  beyond  that  amount,"'  the  Chan- 
cellor deciding,  from  a  misapprehension  of 
the  facts  as  before  stated,  that  in  no  event 
were  the  defendants  entitled  to  more  than 
half  of  the  amount  purporting  to  be  due  upon 
the  bond. 

Whatever  heretofore  may  have  been  the 
grounds  upon  which  the  assignees  have  at 
various  times  been  enjoined  from  proceeding 
at  law  upon  this  bond,  now  when  the  mists 
that  enveloped  and  obscured  the  complicated 
facts  of  this  case  have  been  dissipated,  by 
a  searching  investigation,  it  appears  to  be 
a  plain  legal  demand,  against  which  it  does 
.seem  that  there  is  at  present  no  subsisting  or 
outstanding  equity.  To  say  the  least,  there 
is  no  longer  any  ground  for  this  Court  fur- 
ther to  interfere  in  the  prosecution  of  their 
legal  rights  by  the  assignees,  upon  the 
judgment  which  they  have  recovei-ed.  It 
is  therefore  ordered,  that  the  injunction 
ordered  by  the  presiding  Chancellor  in  his 
tlecree,  be  dissolved,  and  that  the  assignees 
of  the  bond,  (who  are  plaintiffs  in  the  judg- 
ment at  law,)  have  leave  to  prosecute  their 
legal  rights  under  the  same.  It  is  also  or- 
dered, that  the  master  of  this  Court,  whose 
duty  it  was  to  take  the  injunction  bond,  do 
deliver  over  the  injunction  bond  to  the  plain- 
tilf  in  said  judgment  at  law,  together  with  all 
other  securities  he  may  have  taken  as  col- 
lateral to  said  injunction  bond,  or  in  lieu 
thereof ;  to  be  used  by  the  said  plaintiff  in 
the  suit  at  law,  in  the  manner  they  deem 
most  expedient:  provided,  however,  that  the 
said  parties  shall  not  be  obliged  to  receive 
from  the  master  any  securities  collateral  to 

♦504 
or    *in   lieu   of   the    injunction    bond,    unless 
they  think  proper  so  to  do. 

I  come  now  to  consider  other  branches  of 
this  case.  And  here  I  will  observe,  that  there 
is  nothing  in  the  general  reasoning  of  the 
circuit  decree  which  is  exceptionable.  The 
general  principles  of  e«iuity  juri.sjjrudence, 
which  the  Chancellor  asserts,  are  forcibly 
discussed  and  clearly  expressed.  They  com- 
mand ray  unqualified  assent.  This  Court  has 
adjudged  the  case  on  those  principle.s,  so  far 
as  they  apply.  If  parties  having  dealings 
and  transactions  together,  and  intending  to 
charge  each  other,  will  fail  to  keep  accounts 


>  in  the  i»roper  form,  together  with  the  neces- 
I  sary  documents  and  evidence,  by  which  these 
accounts  are  to  be  authenticated  and  sup- 
ported;  if  having  rights,  they  will  slumber 
'  over  them,  until  time  has  thrown  around  them 
an  impenetraljle  veil  of  oliscurity  and  luicer- 
tainty ;  if  they  will  not  bring  their  claims 
to  the  judicial  cognizance  of  Courts  until 
some  of  the  witnesses  are  dead,  and  the 
memory  of  the  surviving  has  become  dim  and 
faded,  it  is  clear  that  they  have  no  right  to 
emiiarrass  those  who  administer  justice,  with 
their  stale,  obscure  and  antiquattnl  claims. 
In  the  adjuilication  of  such  claims,  every 
step  that  is  taken  is  one  of  doubt,  and  there 
can  be  no  a.ssurance,  that  any  judgment  that 
is  rendered  may  not  be  founded  in  error, 
and  fraught  with  injustice.  The  Court  is  not 
obliged  to  descend  into  the  catacomits  and 
ciiarnel  houses,  and  amidst  the  bones  of  the 
forgotten  dead,  and  by  tlie  dim  phosphor- 
escent light  w'hich  they  emit,  to  adjudge 
matters  of  right,  ai)pertaining  to  this  living 
and  l»reathing  world. 

The  doctrine  that  a  claim  may  l)e  too  stale 
for  investigation  in  this  Court,  even  where  it 
may  not  be  subject  to  the  bar  of  the  statute, 
or  to  those  presumptions  which  arise  after 
the  lapse  of  20  years,  is  not  disputed.  And 
it  will  be  applied  in  this  case  with  rigour  in 
those  branches  of  the  controversy  to  whicii 
it  is  applicable.  But  I  will  here  remark, 
that  in  the  opinion  of  the  Court,  a  claim  will 
not  grow  stale  under  the  action  of  the  Court, 
and  while  it  is  the  subject  of  hot  litigation. 
I  will  now  proceed  to  make  some  other 
*505 
preliminary  observa*tions.  The  Chancellor 
in  his  decree  observes,  "that  no  claim  can 
be  recognized,  that  does  not  come  within  the 
perview  of  the  decree  of  1825.  Every  claim 
anterior  to  it,  and  not  embraced  within  it,  is 
lost.  Every  claim  that  falls  within  it.  must 
be  governed  by  its  provisions."  "This  decree 
of  1S25,"  he  says,  "must  be  construed  witn 
reference  to  the  pleadings."  The  Chancellor, 
in  his  construction  of  the  decree,  includes 
nothing  within  it  but  the  claun  set  up  on 
account  of  the  endorsement  for  Morton  War- 
ing, the  Josiah  Smith  claim,  and  a  general 
account  of  the  partnersiiip.  Construing  the 
decree  by  its  own  terms,  and  that  too  in  ref- 
erence to  the  pleadings,  it  does  not  forbid  or 
e.x<-lude  from  investigation  any  liranch  of  the 
case  whicli  has  been  the  subject  of  discus- 
sion before  this  Court.  In  reference  to  the 
property  ordered  to  be  divided,  it  exi)ressiy 
declares,  that  "the  part  or  share  of  eacii  is  to 
remain  liable  to  the  payment  of  an  aliquot 
portion  of  the  debts,  and  to  the  final  decree 
upon  the  mutual  claims  of  the  parties."  The 
mutual  claims  of  the  complainant  and  de- 
fendant, I  apprehend,  would  be  a  moiety  of 
the  joint  estate  to  each,  after  every  just  and 
existing  claim  upon  it  was  satisfied,  due 
either  to  the  estates  of  the  deceased  copart- 
ners   themselves,    or   to    any    third   persons. 

£02 


*505 


3  RICHARDSON'S  EQUITY  REPORTS 


After  satisfying  the  individual  claims  of  the 
partners,  against  the  joint  estate,  and  those 
of  the  creditors,  the  balance  would  be  the 
joint  estate  to  be  divided,  a  moiety  to  each. 
And  this  and  the  other  equities  which  arose 
between  tlie  parties,  after  the  death  of  the 
partners,  were  "the  mutual  claims"'  of  the 
parties,  complainant  and  defendants.  Still, 
notwithstanding  the  decree  does  not  close  the 
door  against  the  investigation  of  any  of  the 
claims  whicli  have  been  discussed,  that  will 
not  prevent  some  of  them  from  being  obnox- 
ious to  the  objection  of  being  too  old  and  stale 
to  be  recognized  by  the  Court  as  valid  and 
subsisting  claims:  as  will  be  hereafter  more 
particularly  explained. 

A  great  deal  has  been  said  about  Col. 
Hunt's  position  in  this  case,  and  his  relation- 
ship, as  the  assignee  of  Charle.s  T.  Brown, 
to  the  heirs  of  Savage  Smith.  And  the  deed 
of  Brown  and  wife  to  him,  has  been  the  sub- 

==506 
ject  of  mueli  comment  and  discus*.sion.  I  am 
of  the  opinion,  that  the  deed  warrants  the 
construction  which  has  been  contended  for 
on  the  part  of  the  defendants,  and  that  by 
the  terms  of  the  deed,  Col.  Hunt  was  to  oc- 
cupy the  same  position  in  relation  to  the  par- 
ties interested  in  the  joint  estate,  which 
Brown  and  wife  had  done.  And  I  further 
thinli,  that  by  his  bill  of  supplement  and  re- 
vivor, filed  by  hiiu  in  Feb.,  lSo3,  he  did  ac- 
tually place  himself  as  a  party  before  the 
Court,  in  the  relation  to  the  defendants, 
which  his  stipulations  with  Brown  required 
him  to  do.  And  that  must  liave  been  the  un- 
derstanding of  all  the  parties  at  that  time, 
which  some  of  them  may  have  forgotten 
since. 

But  all  this  is  entirely  immaterial.  If  his 
deed  from  Brown  contained  no  such  stipula- 
tions— if  he  had  filed  no  such  bill  as  has 
been  alluded  to — still,  as  the  simple  assignee 
of  Brown  and  wife,  his  position  would  be 
precisely  the  same  as  the  stipulations  of  the 
deed  obliged  him  to  occupy,  and  which  by 
his  bill  he  proceeded  to  assume.  His  rights 
under  a  simple  assignment  would  be  the 
same  with  those  of  Brown,  neither  more  or 
less.  Brown  could  not  convey  more  than  he 
himself  possessed.  And  his  assignee  would 
be  subject  to  all  the  equities  in  relation  to 
the  interest  assigned,  that  Brown  himself 
would,  even  though  there  had  been  no  notice 
of  those  equities.  For  it  is  a  case  where 
the  assignee,  at  his  own  peril,  is  bound  to 
take  notice  of  the  equities.  Col.  Hunt  must 
be  considered  as  occupying  Brown's  position 
as  to  the  joint  estate,  so  far  as  the  transac- 
tions of  the  latter  extended,  at  the  time  of 
the  assignment.  There  is  but  one  conceiv- 
able difference  which  does  not  exist  under 
the  circumstances  of  this  case.  If  Brown 
had  received  more  than  his  share,  I  do  not 
say  that  Hunt  would  be  liable  to  the  defend- 
ants for  the  excess,  whatever  his  liability 
might  be  to  Brown  under  the  terms  of  their 
208 


contract.  The  equities  against  Brown  would 
attach  only  against  the  remainder  of  the 
share  in  the  hands  of  his  assignee ;  and  it 
his  assignee  himself  has  received  in  excess, 
he  is  liable  to  refund,  and  that  is  a  person- 
al liability. 

Having  thus  discussed  and  laid  down  the 

*507 
principles'  upon  *which  the  decree  of  the 
Court  will  be  based,  I  will  proceed  to  apply 
them,  to  the  different  matters  which  are  the 
.subjects  of  investigation.  In  regard  to  the 
claims  set  up  in  behalf  of  the  estate  of 
Josiah  Smith  for  moneys  advanced  by  him  to 
George  and  Savage  Smith ;  in  regard  to  the 
claim  set  up  by  the  heirs  of  Savage  Smith 
against  the  joint  estate,  on  account  of  the  in- 
dorsement of  George  Smith  for  Morton  War- 
ing ;  and  in  re,gard  to  the  claim  for  the  ex- 
cess of  expenditures  by  Savage  over  George 
Smith,  from  ITSo  to  the  dissolution  of  the 
partnership,  by  the  death  of  Savage  in  1S17, 
the  Court  is  of  the  opinion,  that  these  vari- 
ous claims  are  too  stale,  obscure,  and  insuf- 
ficiently proved.  Some  of  the  transactions  at- 
tempted to  be  brought  into  review  relate  to 
the  last  century.  And  some  of  them,  though 
of  a  much  later  date,  are  too  antiquated  and 
shadowy  for  this  Court  to  form  any  satisfac- 
tory judgment  about  them.  AVe  ai-e  content 
with  the  disposition  which  the  circuit  decree 
has  made  of  them,  and  this  is  the  judgment 
of  this  Court.  The  Chancellor  was  also  cor- 
rect in  the  decree  which  he  made  in  refer- 
ence to  the  administration  accounts  of  W.  S. 
Smith  and  Peter  Cuttino.  The  administra- 
tion was  taken  from  them  in  February,  1825, 
by  an  order  of  this  Court.  They  had  account- 
ed regularly  before  the  Ordinary,  as  by  law 
required,  and  their  accounts  vouched.  W. 
S.  Smith  had  a  settlement  with  Col.  Hunt  in 
1825,  as  the  agent  of  the  Commissioner,  and 
was  directed  to  receive  the  assets  from  him. 
The  Commissioner,  Gray,  does  report  a  bal- 
ance against  Peter  Cuttino,  but  it  is  on  the 
ground,  that  his  accounts  were  not  vouched 
before  him.  But  Peter  Cuttino's  house  was 
burned,  and  his  papers  all  consumed.  He  al- 
so reports  a  small  balance  on  the  account  of 
W.  S.  Smith,  in  consequence  of  some  sup- 
posed overcharge  of  commissions.  I  incline 
to  think  that  the  administrator  was  entitled 
to  the  commissions,  the  charge  for  which 
was  overruled.  The  Court  is  of  the  opinion, 
that  after  this  lapse  of  time  the  accounts  of 
both  administrators  must  be  presumed  to  be 
correct,  and  that  there  has  been  no  malversa- 
tion or  devastavit  committed  by  them.  They 
have  both  long  since  paid  the  great  debt  of 
nature ;    but  if  they   were  now  living,   and 

*508 
*parties  before  the  Court,  they  would,  after 
this  lapse  of  tinie,  be  protected  from  liabil- 
ity to  account.  It  is  also  the  opinion  of  this 
Court,  that  the  assets  mentioned  in  the  in- 
ventory must  be  presumed  to  have  been  prop- 
erly  disposed   of.     More   than   thirty   years 


BROWX  V.  SMITH 


ilO 


have  olapscd  since  the  Inventory  was  taken. 
And  it  is  too  late  now  to  go  into  a  minute 
and  strict  investigation. 

I  approach  now  wliat  I  consider  much  tlie 
most  important  part  of  the  case.  I  mean  tlie 
que.'^tion,  wliether  the  debt  of  I>ird.  Savage 
&  Bird  is  a  debt  of  the  joint  estate  and 
chargeal)le  thereon  :  who  has  paid  the  bal- 
ance due  on  the  debt ;  and  whether  the  par- 
ty who  has  paid  said  balance  has  a  right  to 
charge  the  share  of  the  other  part.v,  in  the 
way  of  contribution.  In  the  tirst  place,  are 
these  questions  open  for  discussion?  are  they 
concluded  by  the  decree  of  ISL'5,  or  any  de- 
cree heretofore  made  between  the  parties,  or 
are  they  barred  by  the  presumptions  arising 
from  the  lapse  of  time?  While  the  Chancel- 
lor has  decided  that  they  are  not  concluded 
by  this  decree,  he  has  held  that  the  claim  is 
too  old  and  .stale  to  be  considered,  and  has 
placed  it  in  the  same  category  with  those 
which  I  have  just  disposed  of. 

I  am  of  the  opinion  that  this  claim  is  es- 
pecially recognized  and  adjudged  as  a  part- 
nership debt  of  George  and  Savage  Smith,  b.v 
the  decrees  of  1825  and  isiiO.  As  to  wheth- 
er it  is  a  partnership  debt,  the  parties  are 
concluded  by  those  dtK-rees.  It  is,  as  to  them, 
res  judicata.  The  decrees  made  special  pro- 
vision for  it  as  a  partnership  debt.  It  is  so 
treated  by  the  parties  in  the  i)leadings,  and 
admitted  in  substance  by  C'ul.  Hunt  in  his 
letter  of  ISth  July,  1S2G.  It  seems  to  me. 
that  if  it  was  possible  to  go  behind  the  de- 
crees before  referred  to,  on  the  (pu'stion 
whether  the  claim  of  Bird,  Savage  iV  Bird 
was  a  joint  debt  of  George  and  Savage  Smith, 
there  is  sufficient  eviderK-e  before  the  Court 
to  justify  the  conchision  that  it  was.  In 
1826  this  claim  aniounted  to  the  enormous  fig- 
ure of  ^70.000.  It  was  agreed  to  be  compro- 
mised for  .'?20.000.  provided  payment  should 
be  made  within  a  given  period.  It  became 
an  object  of  great  moment  that  this  condition 
should  be  complied  with.  Hence  the  decretal 
orders  of  Chancellor  DeSaussure.  looking  to 

*509 
its  immediate  *payment.  and  making  iirovi- 
sion  for  that  object.  The  answer  of  the  de- 
fendants to  the  original  bill  had  stated  this 
as  an  outstanding  claim  against  the  joint  es- 
tate, and  tliat  it  was  proposed  to  be  compro- 
mised by  the  payment  of  $20,000  within  a 
specified  time.  And  by  the  decree  of  1825, 
Inter  alia,  "it  is  ordered,  that  the  adnunis- 
trators  do  apply  all  the  moneys  they  have  in 
hand,  towards  the  iiayment  of  the  amount 
which  has  or  may  be  agreed  on.  as  a  com- 
promi.se  of  the  claim  of  Bird,  Savage  &  Bird  ; 
and  to  insure  the  payment  of  that  claim,  it  is 
ordered  and  directed,  that  the  Connnissioner 
shall  apply  to  that  purpose  the  tirst  moneys 
that  may  be  made  from  the  debts  due  the  es- 
tate, and  the  sales  of  property  hereinafter 
appropriated  to  the  payment  of  debts  of  the 
estate."  In  a  subseiiuent  part  of  the  same 
decree,    making   an    appropriation    of    funds 

3  Rich. Eq.— 14 


contemplated  to  be  raised  by  sales  of  proper- 
ty, the  decree  provides  as  follows:  "After 
first  paying  the  amount  of  the  compromise 
with  liird.  Savage  &  Bird,  as  aforesaid."  the 
Connnissioner  "shall  appl.v  the  funds  so  rais- 
ed in  liquidation  in  eijual  portions  of  the 
debts  adjudged  to  be  paid  b.\  the  complain- 
ants and  the  defendants." 

The  decree  of  1820.  in  reference  to  this 
claim,  provides  as  follows:  "Whereas,  cash 
sufficient  to  pa.v  the  amount  of  the  two 
compronuses  of  the  debt  due  to  Bird.  Sav- 
i  age  and  Bird,  has  not  been  received,  and  it 
is  highly  important  to  all  parties,  that  the 
same  shall  be  closed,  it  is  therefore  order- 
ed iind  decreed,  that  the  Connnissioner  may 
raise  the  money  necessary  to  pay  what  re- 
mains due  upon  that  compromise  from  any 
Bank  or  other  source.  And  as  the  said 
judgment  will,  upon  the  i)aymep.t  of  the 
said  compromise,  become  the  property  of 
the  joint  estate  of  George  and  Savage 
Sniirh.  the  Commissioner  shall  take  an  as- 
signment of  it.  to  hold  the  same  for  the  use 
of  the  said  estate :  and  to  secure  more 
perfectly  any  loan  made  for  the  purpnse  of 
|)aying  said  compromise,  the  Connnissioner 
may,  by  way  of  collateral  security,  assign 
.'^aid  judgment  to  the  lender;  and  to  pro- 
vide for  the  Sinn  .so  borrowed,  shall  more- 
over apply  the  first  moneys  received  by  him 
from  debts  due  the  estate  of  Genrire  and 
Savage    Smith    as   heretofore   ordered.      .\nd 

*510 
any  mode  devi.sed  by  the  *parties  respec- 
tively to  raise  the  sum  necessary,  may  be 
adopted,  and  the  .said  judgment  be  assign- 
ed, and  the  repayment  be  secured  r»y  allow- 
ing the  lender  the  benefit  of  the  decretal 
order,  made  in  this  case  to  secure  the  cred- 
itors." It  seems  to  me  that  sophistry  itself 
cannot  distort  these  decretal  provisions  in- 
to any  other  construction  than  a  ju<licial 
recognition  of  the  claim  of  Bird,  Savage  & 
Bird  as  a  joint  debt  of  George  and  Savage 
Smith.  But  it  was  asked,  if  such  was  the 
judgment  of  the  Court,  whence  the  provi- 
sion that  after  its  payment  an  assignment 
of  it  should  be  taken  b.v  the  Connnissioner 
for  the  benefit  of  the  estate:  an  assign- 
ment, it  was  contended,  that  would  be  in- 
effectual, because  the  payment  of  the  judg- 
ment would  extinguish  it.  Such,  it  is  con- 
ceded, would  be  the  effect  at  law,  but  not 
necessarily  in  equity.  And  the  answer  is 
obvious  and  two-fold.  One  of  the  means 
contemplated  b.v  the  decree  to  raise  the  mon- 
ey necessary  to  pay  the  balance  due  on  the 
debt  of  Bird.  Savage  &  Bird,  Aas  to  assign 
the  judgment  to  any  person  who  might  ad- 
vance his  money  to  pay  that  balance,  and 
to  subrogate  the  lender  to  the  lien  of  the 
plaintiff  (in  the  judgment)  upon  the  prop- 
erty of  the  estate.  It  was  certaiidy  within 
the  competency  of  the  Court  to  give  such 
lien  upon  the  property  then  under  its  con- 
trol   aifd    management. 

Another  object  which  the  Court  may  have 

209 


'610 


3  RICIIARDSON-S  EQUl-r  REPORTS 


(■(iiileniiilatpd  by  taking  an  assignment  of 
the  judgment,  does  not  appear  upon  the  face 
of  the  decree ;  but  it  is  rendered  quite  prob- 
able from  the  facts  that  are  in  evidence. 
The  debt  of  Bird.  Savage  &  Bird,  was  origi- 
nally a  debt  of  Smith,  Darrell  &  DeSaus- 
sure,  of  Charleston.  To  this  firm  belonged 
Josiah  Smith,  and  George  Smith,  the  fa- 
ther of  George  and  Savage.  After  the  death 
of  George  Smith,  the  elder,  George  Smith, 
the  younger,  his  executor,  gave  liis  bond 
to  Bird.  Savage  &  Bird  for  the  amount  of 
the  debt  then  due.  The  estate  of  George 
Smitli,  the  elder,  was  divided  among  the 
lieirs  and  distributed  by  private  arrange- 
ment among  themselves,  and  funds  were 
doubtless  provided  for  the  payment  of  all 
outstanding  liabilities.  As  early  as  1807, 
we  find  George  and  Savage  Smith  recogniz- 
ing the  claim  as  a  joint  obligation  upon 
themselves  by  payments  to  T.  Parker,  Esq., 

*511 
the  attorney  *of  Bird,  Savage  &  Bird.  Co- 
temporaneously  with  the  execution  of  the 
bond  of  George  Smith,  the  executor  of 
George  Smith,  the  elder,  Josiah  Smith,  one 
of  the  firm  of  Smitlis,  DeSaussure  »fc  Darrell. 
executed  his  bond  to  Bird.  Savage  &  Bird, 
for  tlie  same  debt.  He  was  then  also  li- 
al)le.  and  if  the  other  obligor  paid  the  debt, 
Josiah  Smith  was  prima  facie  liable  for 
contribution.^ — And  as  it  was  known  that 
he  set  up  large  claims  against  tlie  joint  es- 
tate of  George  and  Savage  Smith  for  mon- 
eys advanced  to  that  firm,  the  assignment 
ordered  by  the  Court  to  be  taken  for  the 
joint  estate  may  have  contemplated  a  prose- 
cution of  a  claim  for  contribution  against 
Josiah  Smith,  or  a  set  off  against  the  de- 
mand which  was  set  up  on  his  account. 
But  whether  the  one  or  the  other  of  these 
explanations  be  sufficient  to  account  for 
the  meaning  of  the  Court,  in  ordering  an 
assignment  of  the  judgment  for  the  benefit 
of  the  joint  estate  after  it  should  have  been 
paid  by  the  funds  of  the  same,  there  is  one 
thing  too  clear  for  doubt,  and  that  is,  that 
the  Court  has  adjudged  the  claim  of  Bird, 
Savage  «fe  Bird  to  be  a  joint  obligation  of 
George  and  Savage  Smith,  and  chargeable 
upon  their  joint  estate.  If  it  should  appear 
that  this  debt  has  been  paid  by  any  of  the 
parties  out  of  their  own  funds,  can  there  be 
any  doubt  of  their  equitable  right  to  a 
contribution  from  the  other  party?  Though 
more  than  twenty  years  have  elapsed  since 
the  payment,  the  party  who  has  paid  is 
not  precluded  from  setting  up  his  claim 
for  contribution.  The  matter  has  been  sub 
judice  ever  sin:-e.  And  as  I  have  before 
said,  a  claim  cannot  grow  stale  while  un- 
der the  action  of  the  Court. 

The  question  of  fact  now  arises,  who  has 
paid  this  debt?  Col.  Hunt  paid  a  portion 
of  it.  But  the  payments  made  by  him  were 
of  funds  confessedly  derived  from  a  com- 
mon source,  namely,  assets  lielonging  to  the 
joint  estate.  The  balance  remaining  due 
210 


(after  the  payment  from  the  joint  funds) 
was.  on  the  16th  day  of  December.  1826, 
twelve  thousand  one  hundred  and  forty- 
four  dollars,  fifty  cents.  The  ^Master  so 
reports.  He  also  reports,  that  this  balance 
was  paid  by  funds  borrowed  from  tlie  Bank 
of  the  United  States,  on  the  notes  of 
Cliarles   T.    Brown    and   the   distributees    of 

*512 
the  estate  of  Savage  Smith,  and  *that  the 
notes  in  Bank  were  finally  taken  up  b,v 
funds  belonging  to  the  estate  of  Savage 
Smith.  Upon  a  careful  examination  of  the 
evidence  on  tliis  subject,  the  Court  is  en- 
tirely satisfied  with  the  Master's  report  in 
this  respect.  It  therefore  follows,  that  the 
defendants,  the  distributees  of  Savage 
Smith,  are  entitled  to  a  contribution  from 
Col.  Hunt  for  one-half  of  the  amount  thus 
paid,  with  interest  thereon,  from  the  day 
of  payment.  So  much  of  the  Chancellor's 
decree  as  disallows  this  claim  is  reversed, 
and  the  Master's  report,  in  relation  to  the 
same,  is  confirmed,  and  made  the  judgment 
of  this  Court.  But  there  is  another  matter 
to  be  considered  in  connexion  with  this 
subject.  The  decree  of  1825,  wliich  ordered 
a  partition  of  certain  lands  and  negroes, 
provided,  expressly,  that  the  part  or  share 
of  each  should  remain  liable  to  the  payment 
of  an  aliquot  portion  of  the  debts,  and  to 
tlie  final  decree  upon  the  mutual  claims  of 
the  complainants  and  defendants.  And  the 
decree  of  1826,  before  quoted,  ordered  the 
judgment  of  Bird,  Savage  and  Bird,  to  be 
assigned  to  any  person  who  might  advance 
the  funds  to  pay  the  balance  due  thereon, 
as  collateral  security,  and  to  secure  more 
perfectly  any  loan  made  for  the  purpose  of 
paying  the  amount  due  on  the  compromise. 
And  contemplating  a  failure  to  obtain  the 
funds  from  any  other  source,  and  that  the 
parties  themselves  (on  account  of  the  magni- 
tude of  their  interests  involved  in  the  imme- 
diate payment  of  the  amount  due  on  the  com- 
promise) might  be  induced  to  raise  the  money 
for  that  important  object,  the  decree  pro- 
ceeds to  provide  especially  for  their  security 
in  such  an  event.  It  declares  that  "any 
mode  devised  by  the  parties,  respectively,  to 
raise  the  sum  necessary,  may  be  adopted, 
and  the  said  judgment  assigned,  and  the  re- 
payment secured,  by  allowing  the  lender  the 
benefit  of  the  decretal  order,  made  in  this 
case  to  secure  the  creditors."  On  the  force 
and  effect  of  these  orders,  it  is  the  opinion 
of  this  Court  that  the  sum  hereby  adjudged 
to  be  due  to  the  heirs  of  Savage  Smith  fov 
the  sum  paid  by  them  on  the  balance  of  the 
debt  of  Bird,  Savage  &  Bird,  as  aforesaid, 
with  interest  on  the  same  as  aforesaid,  i.* 
a  charge,  and  has  a  lien,  upon  the  share  of 

*513 
the  joint  estate,  real  *and  personal,  of 
George  and  Savage  Smith,  assigned  and  al- 
lotted in  the  partition  thereof  to  the  said 
Benjamin  F.  Hunt,  and  the  share  of  the 
said   Benjamin  F.   Hunt  is  especially  liable 


BROWN  V.  SMITH 


to  satisfy  the  debt  hereby  adjiul.L'ed  to  be 
due  to  the  heirs  and  distributees  of  Savape 
Smith,  as  the  subroj^ated  creditors  of  (Jeorjje 
and  Savage  Smith. 

Sc'liedule  A.  of  the  coiiimissli>iier  s  reiiort, 
contains  a  statement  of  the  private  debts  of 
(Jeorge  and  Savage  Smith,  paid  out  of  the 
funds  of  tlie  joint  estate.  This  Court  is  of 
the  opinion,  tliat  such  an  empiiry  i.s  not  im- 
proper, nor  conchuh'd  by  any  decree  hereto- 
fore made,  nor  iiy  presumptions,  or  any  other 
imjiedinient  tliat  would  <  lose  the  door  against 
investigation.  Tliougli  tlie  property  and  in- 
terests of  the  brothers  \ve;e  Idended  to  an 
almost  unprecedented  degree,  yet  it  could 
.scarcely  be  (ttherwlse,  tlian  that  they  should 
owe  some  individual  debts;  and  those  con- 
tracted after  tlu'  death  of  Savage  by  (Jeorge, 
and  the  funeral  expenses  and  ph,vsician"s 
bill,  &c.  of  each,  were  necessarily  several  and 
individual.  These  must  be  charged  of  course 
as  individual  debts,  and  accounted  for  ac- 
cordingly. In  reference  to  the  debts  due  by 
either,  previous  to  the  dissolution  of  the  co- 
partnership by  the  death  of  Savage,  and  pur- 
porting  to  be  individual,  this  Court  will  lay 
down  one  rule  api)licable  to  them  all.  From 
the  great  degree  of  intimacy  and  confidence 
between  the  brother.s.  and  the  perfect  amal- 
gamation of  their  property  and  Interests,  the 
in'inia  facie  presumption  must  be,  that  every 
debt  contracted  by  either  of  them,  whether 
in  their  joint  or  individual  names,  should 
be  regarded  as  a  joint  debt,  until  the  con- 
trary be  satisfactorily  shewn ;  the  burden 
of  proof  to  rest  ujion  the  party  who  aftirms 
the  debt  to  be  individual  and  personal.  The 
establishment  of  this  rule,  by  which  the  fu- 
ture investigations  on  this  subject  are  to  be 
directed,  is  as  far  as  the  Court  will  go  at 
present  on  this  part  of  the  case.  As  this 
branch  of  the  litigation  has  not  been  examin- 
ed by  the  Circuit  Court,  (the  Chancellor  con- 
sidering himself  precluded  from  the  inves- 
tigation by  the  lapse  of  time,  and  the  stale- 
ness  of  the  claim,)  it  is  deemed  advisable  that 

*514 
the  transactions  embraced  in  *schedule  A. 
of  the  commissioner's  reinnt,  be  remanded 
back  to  the  Circuit  Court,  for  a  hearing  there 
upon  the  merits  under  the  principle  herein- 
before expressed.  After  the  death  of  George 
and  Savage  Snnth,  Charles  T.  Brown,  whose 
wife  was  the  sole  distributee  of  (Jeorge  Smith, 
had  some  of  the  negroes  of  the  joint  estate 
on  hire.  The  commissioner,  in  his  report, 
has  cliarg«'d  this  amount  on  the  share  of  the 
estate  which  has  been  assigned  by  Brown  to 
B,  F.  Hunt.  The  administrators  also  paid 
to  Charles  T.  Brown,  before  the  assignment, 
various  sums  on  account  of  the  estate,  as 
rhey  also  did  to  the  heirs  of  Savage  Smith. 
The  commissioner,  in  schedule  B.  (No.  1  and 
2  of  his  report*  has  set  forth  these  various 
matters  in  a  parti<ular  manner.  This  Court 
is  of  the  oi)inion  (as  has  betVire  been  express- 
ed) that   the   assignee  of   Brown,   as   to   the 


property  assigned,  Is  subject  to  the  same 
etiuitios  that  would  attach  upon  Brown's 
share,  if  he  was  still  the  owner,  and  a  party 
Ix'fore  the  Court.  And  no  reason  is  perceiv- 
ed why  this  account  should  not  be<ome  the 
subject  of  investigation.  But  from  the  views 
which  the  presiding  Chancellor  took,  this 
branch  of  the  case  has  never  been  adjudged 
upon  its  merits  by  the  Circuit  Court  :  for 
this  reason  it  is  remanded  to  that  Court  for 
a   hearing. 

For  the  same  reason,  so  much  of  the  con- 
troversy as  relates  to  the  negroes  which  have 
been  sold  by  Col.  Hunt,  and  so  nmcb  thereof 
as  relates  to  the  account  ot  Col.  Hunt  for 
professional  services,  antl  likewise  so  much 
thereof  as  relates  to  the  purchase  by  B.  F. 
Hunt  of  Clegg's  Point,  and  his  accountability 
for  the  same,  are  remanded  to  the  Circuit 
Court  for  a  hearing.  And  it  is  ordered  that 
B.  F.  Hunt  have  leave  to  go  before  the  Mas- 
ter and  offer  evidence  in  regard  to  his  ac- 
count for  professional  services.  The  question 
as  to  costs  is  reserved. 

It  is  ordered  and  decreed  that  the  decree 
of  the  Circuit  Court  be  reformed  in  the  par- 
ticulars hereinbefore  stated,  so  that  it  is 
made  couformable  to  this  appeal  decree.  In 
all  other  respects,  it  is  ordered  and  decreed 
that  the  Circuit  decree  be  a(tirn)ed.  and  the 
appeals  be  dismissed. 

DUXKIN  and  CALDWELL.  CC.  concurred. 
*515 

*At  June  sittings  of  the  Circuit  Court  for 
Charleston,  the  cases  were  lieard,  on  the  mat- 
ters referred  back  to  the  Court,  by  his  Honor 
Chancellor  Dunkin,  who  made  the  following 
decree : 

L>uukin.  Ch.  These  causes  were  heard  un- 
der the  decree  of  the  Appeal  Court,  pronounc- 
ed in  Februai-y  la.st.  It  is  imifortant  that 
the  decree  then  made  should  be  tirst  read, 
presenting,  as  it  does,  not  only  a  succinct 
history  of  the  case,  but  the  principles  of  ad- 
judication, as  well  as  the  particular  subjects 
thereby  adjudicated  and  settled. 

I'reliminary  to  the  consideration  of  the 
matters  referred  back  to  the  Circuit  Court, 
it  is  proper  to  state  that  the  defendant  pro- 
posed to  open  the  inquiry  in  relation  to  the 
debt  of  Bird,  Savage  &  Bird.  I  was  of  opin- 
ion that  this  was  one  of  the  points  on  which 
the  judgment  of  the  Appeal  Court  was  clear, 
tinal  and  conclusive.  But  as  it  was  strenu- 
ously and  repeatedly  urged,  it  is  due,  as  well 
to  the  counsel  as  the  Court,  to  advert  to  so 
much  of  the  judgment  of  the  apiK»al  tribunal 
as  seemed  to  me  to  consider  and  determine 
this  (piestion.  At  page  7  of  the  decree,  the 
Chancellor,  after  premising  that  he  "consid- 
ered this  as  much  the  most  important  part 
of  the  case,"  adjudicated  it  to  be  a  partner- 
ship debt  of  George  and  Savage  Smith. 
Then  at  page  9.  "'If  it  should  appear  that  this 
debt  has  been  paid  by  any  of  the  i)arties  out 
of  their  own  funds,  can  there  be  any  doubt 


*515 


3  RICHARDSON'S  EQUITY  REPORTS 


of  their  eqnitnble  right  to  a  contribution 
from  the  other  party?"  Thus  far  the  prin- 
ciple had  l)eeu  announced.  The  Cliancellor 
then  proceeds :  "The  question  of  fact  now 
arises,  who  has  paid  tliis  debt?"  He  adverts 
to  the  Master's  report  as  making  the  balance, 
(after  deducting  certain  payments  from  the 
joint  funds,)  on  the  16tli  December.  1826, 
twelve  thousand  one  hundred  and  forty-four 
50-100  dollars,  (.?12,144.50  cents.)  "The  Mas- 
ter reports,"  says  the  decree,  "'that  this  bal- 
ance was  paid  by  funds  borrowed  from  the 
Bank  of  the  United  States,  on  the  notes  of 
Charles  T.  Brown  and  the  distributees  of  the 
estate  of  SaA'age  Smith ;  and  that  the  notes 
in  Bank  were  finally  taken  up  by  funds  be- 
longing to  the  estate  of  Savage  Smith.  Upon 
a  careful  examination  of  the  evidence  upon 
this  subject,   the  Court   is  entii'ely  satisfied 

*516 
with  the  *Master's  report  in  this  respect. 
It  therefore  follows  that  the  defendants,  the 
distributees  of  Savage  Smith,  are  entitled  to 
a  contribution  from  Col.  Hunt  for  one  half 
of  the  amount  thus  paid,  with  interest  there- 
on from  the  day  of  payment.  So  much  of  the 
Chancellor's  decree  as  disallows  this  claim  is 
reversed,  and  the  Master's  report  in  relation 
to  the  same  is  confirmed,  and  made  the  judg- 
ment of  this  Court."  The  question  is  then 
considered  whether  this  sum  constituted  a 
lien,  and  after  discussing  the  subject,  the 
Chancellor  announces,  "as  the  opinion  of  the 
Court,  (p.  11,)  that  the  sum  hereby  adjudged 
to  be  due  to  the  heirs  of  Savage  Smith,  for 
the  sum  paid  by  them  on  the  balance  of  the 
debt  of  Bird,  Savage  &  Bird,  as  aforesaid, 
with  interest  on  the  same  as  aforesaid,  is  a 
charge,  and  has  a  lien,  upon  the  .share  of  the 
joint  estate,  &C.,  assigned  and  allotted  to  the 
said  Benjamin  F.  Hunt,"  &c. 

It  is  not  too  much  to  say,  tliat  no  point  of 
the  case  was  so  thoroughly  investigated,  so 
matiu'ely  considered,  and  none  could  be,  as  I 
thought,  more  distinctly  and  conclusively  ad- 
judicated. 

It  seemed  to  be  conceived  that  some  sub- 
sequent orders  of  the  Chancellor  on  the  Cir- 
cuit might  bring  into  question  the  conclusive- 
ness of  this  judgment  of  the  Appeal  Court. 
I  can  perceive  no  grou.nd  for  such  impression, 
if  it  exists.  Several  oth^r  matters  were  re- 
manded to  the  Cii'cuit  Court  for  consideration. 
That  Court  was  held  innnediately  after  the  ad- 
journment of  the  Court  of  Appeals,  and  the 
cause  was  not  ripe  for  hearing.  It  might  be 
that,  in  the  investigation  of  the  matters  re- 
served. Col.  Hunt  would  obtain  a  decree ;  and 
the  Chancellor,  in  the  exercise  of  his  discre- 
tion, thought  proper  to  susi>end  proceedings 
under  the  fi.  fa.  of  the  distributees  of  Savage 
Smith,  although  he  gave  them  leave  to  lodge  it 
to  bind.  That  such  was  the  understanding  of 
the  Chancellor  seems  clear  enough,  from  his 
remark  in  refusing  an  order  previously  pro- 
posed by  Mr.  Mitchell.  "It  is  refused."  says 
he,    "on    the   ground   that    it    would    be    im- 

212 


proper  to  grant  it  until  the  final  accounting 
is  had  upon  the  matters  of  controversy  re- 
served  by  the  Appeal   Decree." 

The  first  matter  in  controversy  reserved 
*517 
by  the  Appeal  Decree  *"is  Schedule  A  of  the 
Master's  report."  This  relates  to  the  in- 
dividual debts  of  the  partners,  said  to  have 
been  paid  by  the  administrators  out  of  the 
joint    estate.     Savage    Smith    died   in    April, 

1817.  George  Smith  survived  until  Septem- 
ber, 1818.  On  this  subject,  the  Court  of  Ap- 
peals say,  "It  could  scarcely  be  otherwise 
than  that  thej-  should  owe  some  individual 
debts ;  and  those  contracted  after  the  death 
of  Savage,  by  George,  and  the  funeral  ex- 
penses and  physician's  bill,  &c.,  of  each,  were 
necessarily  several  and  individual.  These 
must  be  charged,  of  course,  as  individual 
debts  and  accounted  for  accordingly."  In 
reference  to  those  due  previous  to  the  death 
of  Savage,  and  purporting  to  be  individual, 
the  Court  declare  that,  from  the  peculiar 
manner  in  which  their  property  was  held, 
and  their  bu.siness  conducted,  "the  prima 
facie  presumption  must  be,  that  every  debt 
contracted  by  either  of  them,  whether  in 
their  joint  or  individual  names,  should  be 
regarded  as  a  joint  debt,  until  the  contrary 
be  satisfactorily  shown  :  the  burthen  of  proof 
to  rest  upon  the  party  who  affirms  the  debt 
to  be  individual  and  personal." 

George  Smith  lived  in  Charleston  and 
transacted  all  the  business  of  the  firm  with 
the  Banks  here.  The  evidence  left  the  im- 
pression on  my  mind  that  the  notes  of  George 
Smith,  paid  by  the  administrators,  December, 

1818,  were  not  original  transactions,  but  re- 
newal of  debts  contracted  during  the  exist- 
ence of  the  copartnership.  The  decree  of 
Ann  Pursell,  the  judgment  of  Susannah  For- 
ester, and  the  acknowledgment  to  T.  Smith, 
jun..  for  the  State  Bank  Shares,  (dated  1802,) 
all  fall  within  the  rule  prescribed  by  the 
Court ;  so  far  as  can  be  perceived,  the  cause 
of  action  or  contract  existed  during  the  co- 
partnership, and  prima  facie  was  a  joint 
debt.  On  the  other  hand,  the  subscriptions 
to  the  Dorchester  Church,  and  bond  to  the 
Free  School,  were  evidently  individual ;  so 
of  the  note  of  James  C.  Hourin,  (called  II. 
Hourin  in  the  printed  report.)  On  reference 
to  the  administrator's  accounts,  this  appears 
to  have  been  a  note  of  James  C.  Hourin, 
dated  1818,  and.  endorsed  by  George  Smith, 
which  the  administrators  were  obliged  to 
pay,  together  with  costs  of  protest.  The 
whole  amount  of  the  debts  properly  payable 

*518 
by  George  *Smith,  amount  to  five  hundred 
and  sixty-one  dollars;  those  payable  by  the 
representatives  of  Savage  Smith,  to  one  hun- 
dred and  seventy-eight  dollars  and  seventy- 
five  cents. 

The  next  matter  ordered  by  the  Appeal 
Court  to  be  considered  was  so  much  of  the 


BROWN  V.  SMITH 


*520 


MasterV  ReiM.rt,  and  the  exc(n'ti<ins  thereto,  !  stniction  of  the  decree  as  far  as  was  practie- 
as  relates  to  the  sums  advanced  by  the  ad-  j  aMe.  Admittins  that  only  then  existing  mu- 
niinistrators  to  C.  T.  Brown  and  wife,  and  I  tual  claims  were  to  be  included,  the  Court  say 
to   the  heirs  of   Sa\r.j,'e    Smith,   previous   to 


the  assi;:nment,  and  also  to  the  accdunt  of 
ne;,'ro  hire  after  the  death  of  (leor.ue  Smith. 
These  matters  are  embraced  in  the  schedule 
(B)  No.  1  and  2,  and  in  schedule  (C)  of  the 
Master's  Report. 

On  these  subjects  the  lauRuaue  of  the  Ap- 
peal Court  is,  "this  Court  is  of  the  opinion 
(as  has  been  before  expressed)  that  the  as- 
signee of  Brown,  as  to  the  property  assigned, 
is   subject    to    the    same    equity   that    would 


the  mutual  claims  of  the  complainants  and 
defendants  would  be  a  moiety  of  the  joint 
estate  to  each,  after  every  claim  due  to  the 
estates  of  the  decea.sed  partners,  or  to  third 
persons,  was  satisfied  ;  after  satisfying  cred- 
itors, and  the  indl\idual  claims  of  the  part- 
ners again.st  the  joint  estate,  the  balance 
would  be  the  joint  estate  to  be  divided,  a 
moiety  to  each ;  and  this,  and  the  other 
eciuities,  which  arose  between  the  parties  aft- 
er the  death  of  the  partners,  were  the  mutual 


attach   upon   Brown's  share,  if  he  was  still  I  claims  of  the  parties,  complainants  and  de- 


the  owner  and  a  party  before  the  Court 
Some  objection  was  made  as  to  the  form  of 
some  of  the  loose  receipts  given  by  C.  T. 
Brown  to  the  administrators,  J.  and  S. 
Smith.  The  various  payments  made  to  C.  T. 
Brown  run  through  a  series  of  years  from 
ISIS  to  1825  inclusive :  these  sums  were  j 
regularly  charged  in  the  accounts  kept  by  | 
the  administrator,  and  annually  passed  by 
the  Ordinary.  These  accounts,  down  to  Oc- 
tober, 182.*?,  were  filed  as  an  Exhibit  in  W. 
S.  Smith's  answer  to  the  bills  of  Brown  and 
wife,  filed  in  1S22.  The  admiiustration  ac- 
count was  clo.sed  in  182.").  and  the  admin- 
istrator. William  S.  Smith,  has  been  many 
years  dead.  It  is  not  doubted  that  the  mon- 
ey was  paid  to  Brown,  and  it  is  quite  too 
late  now  to  suggest  that  the  payments  may 
have  been  made  on  account  oi  other  trans- 
actions ;  some  sixty-seven  negroes,  belonging 
to  the  joint  estate,  went  into  the  possession 
of  Charles  T.  Brown  some  time  after  the 
death  of  his  father-in-law,  George  Smith,  for 
which  he  agreed  to  allow  an  annual  hire  of 
two  thousand  dollars.  This  agreement  with 
the  administrator  is  established  by  his  letter 
making  the  proposal,  as  well  as  by  his  tes- 
timony at  p.  Ill  of  the  Master's  report.  He 
kept  the  negroes  1820.  21,  22,  2:i  and  1824; 
they  were  then  sent  from  his  place  to  be  sold 
by    the    Commissioner,    in    February,    1825 ; 

*519 

♦they  are  referred  to  particularly  in  the 
order  of  that  date  as  "the  negroes  now  hired 
to  C.  T.  Brown." 

The  matters  embraced  in  schedules,  A,  B 
and  C,  were  mutual  claims  existing  between 
the  complainants,  C.  T.  Brown  and  wife, 
and  the  defendants,  heirs  and  (li.<tributees 
of  Savage  Smith,  in  reference  to  which  the 
decree  of  "1825  ordered,  in  relation  to  the 
mutual  claims  of  the  parties,  the  Connnission- 
er  do  examine  and  report  upon  the  several 
accounts  of  the  conu'lainants  and  defendants 
with  the  estate;"  and  the  share  allotted  to 
each  was  declared  "to  remain  H.nble  to  the 
final  decree  upon  the  mutual  claims  of  the 
complainants  and  the  defendants."  When 
this  decretal  order  was  made,  the  greater 
number  of  Savage  Smitli's  heirs  were  minors. 
The  Court  of  Appeals  have  settled  the  con- 


fendants."  What  were  the  "other  equities" 
subsisting  in  18'_'5,  and  which  had  arisen  be- 
tween the  parties  after  the  death  of  the  part- 
ners, which  ought  properly  to  have  been  ad- 
justed before  partition,  and  for  the  security 
of  which  this  provision  was  made?  Brown 
had  received  payments  from  the  administra- 
tors on  account  of  his  interest  or  share  every 
year  since  the  death  of  George  Smith,  the 
surviving  partner.  He  had  also  hired  sixty- 
seven  negroes  for  five  years  of  that  period 
at  a  fixed  rate.  In  the  same  manner,  the 
heirs  of  Savage  Smith  had  received  sums 
from  the  administrators  during  the  same 
time,  on  account  of  their  share.  These 
should  have  been  settled  before  a  partition 
was  made.  This  being  waived  in  consequence 
of  the  anxiety  to  have  immediate  partition, 
an  order  of  reference  was  made,  and  a  spe- 

*520 

*cific  lien  was  declared  in  order  to  secure 
the  satisfaction  of  the  final  decree  on  the 
Connnissioner's  report.  This  was  the  only 
mode  left  of  securing  to  each  a  moiety  of 
the  joint  estate  after  payment  of  debts.  Reg- 
ularly each  party  should  have  accounted  for 
what  he  had  received,  and  taken  only  the 
balance  of  his  moiety.  It  was  thought  well 
enough  to  let  each  take  a  moiety  and  be 
accountable  for  any  surplus  by  a  specific 
lien  on  the  shares  received.  But  an  inquiry 
still  remains,  whether,  in  accounting  for  the 
sums  thus  received  by  them  respectively,  the 
parties  are  liable  for  interest.  I  considered 
the  negro  hire  on  the  same  footing  as  any 
other  payment  made  to  Brown.  It  was  not 
understood  that  he  was  to  pay  the  hire  to  the 
administrators,  but  was  to  account  for  it  as 
so  nuich  received  by  him.  Their  omission 
to  make  any  annual  requisition,  or  even  to 
take  a  note,  evince  the  understanding  of  the 
parties.  In  matters  of  accounting,  the  al- 
lowance of  interest  is  governed  by  no  fixed 
or  established  rules — no  rules  can  be  made 
which  should  be  applied  arbitrarily  in  all 
cases. 

Thus,  on  the  bond  given  to  Robert  Ileriot, 
in  February,  182G,  he  was  probably  charge- 
able with  interest  by  the  concession  of  all 
parties.  So  in  regard  to  the  compromised 
debt  of  Bird,  Savage  &  Bird,  for  which  both 

213 


*520 


3  RICTTARDSON'S  EQUITY  REPORTS 


were  liable,  but  wliich  was  paid  by  the  heirs 
of  Savage  Smith  by  a  loan  made  from  the 
United  States  Bank ;  in  making  the  decree 
for  contribution,  ihe  Court  ordered  the  pay- 
ment of  interest  on  acknowledged  principles 
of  the  Court.  But  the  sums  received  by 
Brown  and  wife,  and  by  the  representatives 
of  Savage  Smith,  from  the  administrators, 
were  received  by  the  parties  as  their  own, 
and  they  were  entitled  to  receive  them.  They 
were  not  expected  to  refund ;  they  were  in 
no  default  for  not  refunding.  Even  where 
a  legatee  has  been  erroneously  paid,  in  re- 
calling that  payment  the  general  rule  is  not 
to  charge  interest ;  Gittins  v.  Steele.  1  Swant. 
199.  But  these  were  not  erroneous  pay- 
ments. The  parties  were  mutually  entitled 
to  an  account  of  what  had  been  paid.  But 
in  the  allowance  or  disallowance  of  interest, 
all  the  circumstances  are  properly  taken  into 
consideration,     and    the    character    of    the 

*521 
claims,  *as  well  as  the  vigilance  or  laches  of 
the  party  insisting  on  the  payment  of  inter- 
est, are  always  prominent  features  in  direct- 
ing the  judgment  of  the  Court.  It  is  not  pro- 
posed to  attempt  a  narration  of  this  litiga- 
tion. It  is  not  inappropriate,  however,  to 
remark,  that  one  of  the  Chancellors,  who 
heard  the  cause  at  the  Circuit,  refused  any 
investigation  of  these  matters  in  consequence 
of  the  staleness  of  the  claims  and  the  laches 
of  the  parties  in  prosecuting  them.  It  is 
not  to  be  denied,  that  great  and  almost  un- 
precedented delay  took  place  in  prosecuting 
the  litigation.  In  no  inconsiderable  measure 
this  was  attributable  to  the  parties ;  al- 
though the  claims  have  been  preserved,  the 
demand  of  interest  upon  them  seems  obnox- 
ious to  many  of  the  principles  which  in- 
fluence the  Court.  After  a  careful  considera- 
tion of  all  the  circumstances,  I  think  no  in- 
terest should  be  charged  on  the  sums  thus 
received  by  the  parties  respectively ;  nor  do 
I  think  it  should  be  charged  on  the  balance 
which  may  be  found  due  in  schedule  (A.) 

Schedule  (F.,)  page  109,  and  Mr.  Hunt's  ac- 
count for  professional  services,  (p.  163,)  may 
be  considered  together.  The  Report  on  this 
subject  is  at  p.  9G ;  the  princii)al  of  the  sums 
charged  by  the  Master  to  the  defendant, 
amounted  to  twelve  hundred  and  seventy  dol- 
lars. These  were  for  the  value  of  a  negro 
retained  by  the  defendant  in  February,  1825, 
and  for  sums  received  from  the  auctioneers, 
who  sold  two  other  negroes  of  the  estate,  and 
for  an  amount  collected  on  Theus's  bond. 
These  charges  seem  well  sustained  by  the 
proof.  Mr.  Hunt's  account  against  the  es- 
tate amounts  to  fourteen  hundred  and  forty- 
nine  50-100  dollars.  This  was  referred  back 
by  the  Appeal  Court  in  order  that  an  op- 
portunity might  be  afforded  for  vouching  and 
investigating  the  same.  Mr.  Hunt  was  joint- 
ly interested  with  the  heirs  of  Savage  Smith ; 
and  after  the  decree  of  1.S25,  any  suit  against 
the  joint  estate  was  defended  by  him.     This 

214 


is  apparent,  from  the  records  produced,  as 
well  as  from  the  oral  testimony  taken  by  the 
Master.  The  accounts  filed  is  from  1825  to 
1828,  inclusive ;  all  the  items,  except  those 
for  professional  services,  strictly  appear  to 
have  been  sustained  by  proper  vouchers.     In 

*522 
reference  *to  those  for  professional  services, 
the  records  wei-e  adduced,  which  sb.owed  the 
character  of  the  cases.  In  the  litigation 
which  appears  under  various  titles  of  Hugh 
Fraser,  executors  Josiuh  Smith,  and  execu- 
tors Clegg,  very  important  services  were  cer- 
tainly rendered,  and  the  joint  estate  was  pro- 
tected from  the  payment  of  a  large  demand, 
which  was  pressed  through  the  several  tri- 
bunals, with  a  reasonable  pi'ospect  of  success, 
but  which  was  ultimately  dismissed.  At  this 
distance  of  time,  it  is  not  to  be  expected  that 
very  positive  testimony  should  be  adduced  as 
to  the  value  of  services  rendered  in  each 
particular  case.  The  accounts  seem  to  me 
sufficiently  well  sustained ;  and  that  Col. 
Hunt  is  entitled  to  credit  for  that  amount. 
Deducting  the  twelve  hundred  and  seventy 
dollars  with  which  he  is  chargeable,  a  bal- 
ance remains  of  one  hundred  and  eighty  dol- 
lar.s,  for  one-half  of  which,  the  representa- 
tives of  Savage  Smith  would  be  liable  to  him. 
The  demand  in  relation  to  Clegg's  Point, 
(strictly  speaking,  "Michau's,"'  for  it  is  be- 
low the  point,  though  originally  part  of  the 
same  tract,)  alone  remains  to  be  considered. 
Every  fact  concerning  this  matter  is  either 
of  record  or  undisputed.  The  proceedings  in 
Perdriau  and  wife  v.  B.  F.  Hunt  et  al.  (Riley's 
Eq.  Cases,  88,)  were  put  in  evidence.  Among 
the  debts  due  to  the  copartnership  estate  of 
George  and  Savage  Smith,  was  a  demand 
against  Paul  Michau,  deceased.  Clegg's  Point 
was  the  inheritance  of  Lydia  Clegg,  who  had 
married  Paul  Michau,  and  had  died,  leaving 
her  husband  and  five  children  surviving,  one 
of  whom  afterwards  died.  In  1795,  Michau 
mortgaged  Clegg's  Point  to  George  Butler, 
and  in  1801,  he  mortgaged  the  same  to  George 
and  Savage  Smith.  In  1820,  a  bill  was  filed 
by  the  creditors  of  Paul  Michau,  to  foreclose 
these  mortgages.  In  addition  to  his  own 
share,  Michau  had  purchased  the  interests 
of  two  of  his  children.  A  decree  of  foreclo- 
sure was  made,  and  the  land  ordered  to  be 
sold,  and  by  a  decree  of  the  Appeal  Court  in 
1822,  ten-fifteenths  of  the  proceeds  of  sale 
were  ordered  to  be  paid  to  the  creditors  of 
Michau,  three-fifteenths  to  Buford  and  wife, 
and  two-fifteenths  to  Perdriau  and  wife.    Un- 

*523 
der  the  decree,  *Clegg's  Point  was  sold  by 
the  Commissioner  in  Eiiuity,  in  1822,  to  Rob- 
ert Francis  Withers,  for  twenty-two  thou- 
sand dollars.  R.  F.  Withers  paid  off  the  debt 
of  George  Butier,  which  was  the  eldest  lien 
on  Michau's  share,  and  he  bought  up,  and 
thereby  extinguished  the  right  of  Buford  and 
wife.  He  also  made  several  other  payments 
on  account  of  his  purchase  to  the  Commis- 


BROWX  V.  SMITir 


*52r 


»i(>nor  in  Equity,  who  jiaid  ovor  the  sovonil 
Diiiouhts  to  those  ropivaMitiiig  the  rlaiiii  of 
(Ifor-'i-  and  Ssivji;;*'  Smith.  lUit  in  April, 
Isi'T.  U.  F.  Withns,  luivin;,'  faikd  to  couijily 
A\  itli  tlie  tfrni>  of  salt'.  (■|f;,';;'s  Toint  was 
sold  jiiK'cr  an  oriior  of  Court,  at  tho  risk  of 
the  former  purrhaser.  and  was  hid  off  hy  B. 
r.  Hunt,  for  the  sum  of  ei;:ht  thousand  and 
ten  dollars.  Tiie  report  of  sales  was  made 
to  the  Court  hy  the  Conmnssioner,  at  the 
Winter  Sittings,  ISliS.  in  whiih  the  order  of 
<.ile  is  recited,  preserildni;.  among  other 
things,  that  the  '•purchase  money"  (not  paid 
in  cash.)  "'should  he  secured  hy  honds  so  di- 
vided, a.s  to  he  paid  over  to  the  parties  in  the 
pioportions  to  wliieli  they  are  entitled,  with 
good  personal  security  if  reijuireil.  and  a 
mortgage  of  the  prenuses." 

Ihe  title  deed  was  not  to  he  delivered,  un- 
til all  the  instalments  were  fully  paid.  It  i.s 
stated  in  the  case  in  Kih-y.  that  H.  V.  Hunt 
l)aid  $770  in  cash,  and  gave  his  hond  for  the 
halance  with  interest  on  the  whole  amount, 
payable  ainiually,  and  a  mortgage  of  the 
jMoperty.  Mr.  Heriot,  the  Comnnssioner.  in 
Ids  report  of  182S.  ju.st  mentioned,  states, 
among  other  things,  that  Samuel  I'erdrieau 
had  made  a  "claim  on  the  fund,  on  account 
of  the  payments  made  hy  the  former  pur- 
chaser— that  this  was  resi.sted,  and  he  had 
heen  ordered  to  proceed  hy  Bill  and  Answer." 
He  stated  also,  "that  Hen.i.  1'.  Hunt,  the  pur- 
chaser, claimed,  as  the  assignee  of  a  moiety 
of  the  estate  of  George  and  Savage  Smith,  an 
interest  in  one-lialf  of  eleven-fifteenths  of  the 
amount  of  sales." 

Perdrieau  and  wife  did  proceed  hy  Bill 
and  Answer.  The  amoxnit  due  to  them  was 
lixed  and  established,  "and  this  RiU,"'  say  the 
Court,  (at  p.  01  Hiley,)  was  tiled  hy  "the  com- 
plainants,   (Perdrieau  and   wife.)    to  enforce 

*524 
the  payment  of  Mr.  Hunt's  hond.  *or  the  fore- 
closure of  the  mortgage,  and  to  ohtain  that 
share  of  the  proceeds  to  which  they  are  en- 
titled. The  Chancellor  has  decreed  accord- 
ingly." 

The  amount  which  had  been  foinid  due 
I'erdrieau  and  wife,  including  interest,  was 
(.'S.!..")'.»4.S7,)  three  thousand  five  hundred  and 
ninety-four  .S7-1(J0  dollars. 

The  decree  of  the  Chancellor  was  alhrnied, 
and  it  was  ordered,  that  unless  the  amount 
reported  to  be  due  Perdrieau  and  wife  was 
palil  on  the  first  Monday  in  April  next,  (is;!7,) 
the  land  should  be  sold  in  pursuance  of  the 
<lecree,  hy  which,  after  paying  Perdrieau  and 
wife,  the  proceeds  were  to  he  held  subject  to 
the  further  order  of  the  Court.  The  defend- 
aid  had  taken  possession  of  Clegg's  Point 
tnider  his  purchase  in  April,  ISL'7,  and  had 
held  and  cultivated  the  same.  Failing  to 
comply  with  the  decree  in  the  ca.se  of  I'erd- 
rieau and  wife,  the  land  was  sold  by  the 
Comnnssioner,  and  purchased  by  a  third  per- 
son. 

It  is  difficult  to  iiercei\e  ui>on  what  ground 


the  defendant  phould  he  excused,  or  released, 
from   the  payment  of  this  purcha.se.     When 
the  facts  are  understood,  he  is  just  as  plaia- 
l.v  n'sponsible  as  for  the  bond   given   to   the 
connnissitMier  for  $4,0.>5.  on  the  purchase  of 
negnx's,  in   isj.").  which  has  already  been  the 
subject  of  adjudication.     It  is  said  as  a  rea- 
son, that  "he  did  not   receive  titles  for  the 
propert.v,  and  it  was  afterwards  sold  under 
the  decree  of  Perdrieau  and  wife,  and  was 
lost  to  Mr.  Hunt,  the  former  piu-chaser."     By 
the  terms  of  sale  the  title  deed  was  not  to  he 
delivered  until  the  purchase  money  was  ful- 
j  ly  paid.     As  to  the  rest,  it  is  precisely  as  if 
j  one  had  purchased  at  the  comuussioner's  sale 
i  on  a  credit  of  ten  years  or  more,  and  given 
'  bond  and  mortgage  to  secure  the  payment. 
I  He  holds  for  ten  years,  pays  a  tritle  or  noth- 
I  ing  on  the  debt,  and  at  the  expiration  of  the 
credit,  the  premises  are  sold  for  less  tlian  the 
amount  due.    The  purchaser  is  to  he  exempt- 
ed from  the  payment  of  the  balance  because 
the  land  was  sold  under  a  decree  of  ft>reclo- 
sure,    and    "lo.st   to   the    former    purchaser." 
That  is  this  case.     The  defendant,  as  a  pur- 
chaser, had  nothing  to  do  with  the  claim  of 
I'erdrieau  and  wife.     He  should   have  com- 

*525 
plie<l  *with  the  terms  of  sale.  Suppose  a 
third  person  had  bid  off  the  land,  in  April, 
1S27,  under  the  terms  of  the  sale  prescribed, 
had  paid  $77(5  of  the  purchase  money,  and 
taken  possession,  what  concern  had  he  with 
the  claim  of  Perdrieau  and  wifeV  As  Mr. 
Heriot  states  in  his  report  of  1S2S,  the  claim 
of  I'erdrieau  was  "on  the  proceeds"  of  the 
sale.  It  could  be  nothing  else:  and  is  so 
set  forth  in  the  proceedings  afterwards  in- 
stituted hy  him.  His  claim  on  the  land  was 
only  under  the  lien  created  by  the  terms  of 
sale,  according  to  which  the  defendant  pur- 
chased. 

Why  then  should  the  third  person  so  pur- 
cliasing,  be  excused  from  paying  his  bid? 
And  in  what  manner  does  the  defendant's 
situation  constitute  a  difference?  The  de- 
fendant insists,  too,  as  will  be  shewn  in  the 
secjuel,  that  the  purcha.se  was  on  account 
of  himself  alone,  as  his  individual  transaction, 
and  for  his  own  benefit.  Although,  as  a  pur- 
chaser, the  defendant  was  not  authorized  to 
inquire  about  the  claim  of  Penlrieau  and 
wife,  yet,  as  a  litigant,  as  a  person,  in  the 
language  of  Mr.  Heriot's  rei)ort.  clainung 
a  moiet.v  of  so  much  of  the  proceeds  as  he- 
longed  to  the  estate  of  (Jeorge  and  Savage 
Snnth,  he  might  contest  the  amount  due  Per- 
drieau and  wife  out  of  the  proceeds  of  sales; 
whatever  was  not  due  to  Perdrieau  and  wife, 
belonged  to  the  estate  of  (Jeorge  and  Savage 
Snuth,  and  for  a  moiety  of  that  he  was  enti- 
tled to  an  e(iuitable  discount  on  his  bond  to 
the  conunissioner.  The  other  moiety  belong- 
ed to  the  heirs  of  Savage  Snnth.  The  de- 
fendant contested  the  amount  claimed  by 
Perdrieau  and  wife.  He  alone  tiled  an  an- 
swer to  the  bill.    The  issue  was  against  him. 


3  RICITARDSON'S  EQUITY  RErORTS 


In  April,  1827,  when  Clet^l;■s  Point  was  pur-  > 
cliased  by  the  defendant,  tlie  amount  due 
Perdrieaii  was  less  tlian  three  thousand  dol-  | 
lars,  (the  exact  amount  is  easily  to  be  ascer- 
tained from  the  record  in  the  case  which  was 
put  in  evidence).  If  a  third  person  had  pur- 
cliased  and  paid  the  .fSOlO  on  that  day,  the 
amount  due  to  Perdrieau  and  wife  being  de- 
ducted, the  surplus  would  have  been  divided 
between  the  defendant  and  the  heirs  of  Sav- 
age .Smith.  And  on  tlie  same  principle  it 
should  now  be  adju.sted.  Tlie  defendant  is  re- 
sponsible for  liis  purchase,  .%S()10,  Imt  he  is 
equitably  entitled  to  a  credit  for  the  sum  due 

*526 

*Perdrieau  and  wife  at  the  time  of  tlie  sale, 
and  for  the  sum  of  $775.50  cts.  paid  to  the 
commissioner.  P^'or  one  moiety  of  the  bal- 
ance, with  interest  from  the  16tli  April,  1S27, 
he  is  Indebted  to  the  complainants.  But  this 
is,  I  think,  a  personal  debt  and  does  not  fall 
within  the  purview  of  the  decree  of  1825. 
The  comphiinaiits,  liowever.  insist  that,  as 
between  them  and  the  defendant,  he  should 
be  charged  with  the  purdiase  of  Clegg's 
Point  at  ten  thousand  dollars,  instead  of  eight 
thousand  and  ten  dollars.  It  will  be  remem- 
bered, that  five  years  previously,  this  planta- 
tion had  been  sold  to  Robert  F.  Withers,  for 
twenty-two  thousand  dollars.  The  allegation 
is  something  of  this  kind,  that  when  the  de-  i 
fendant  bid  off  Clegg's  Point  at  $8,010,  it 
was  understood  between  tlie  defendant  and 
Peter  Cuttino,  who  represented  the  complain- 
ant's interest,  that  the  land  should  be  re-sold 
for  the  benefit  of  the  copartnership  estate; 
that  immediately  after  the  sale  to  the  de- 
fendant, an  unexeeptionable  purchaser  was 
found,  at  ten  thousand  dollars — and  that  "it 
was  finally  agreed  that  the  complainant,  as 
between  himself  and  the  defendants,  should 
hold  the  plantations  on  his  own  account,  at 
ten  thousand  dollars."  The  evidence  on  this 
subject  is  derived  from  the  coteniporaneous 
correspondence  between  the  defendant  and 
Peter   Cuttino. 

It  will  be  observed,  that  the  object  is  to  set 
up  a  new  and  distinct  contract  from  that 
made  between  the  defendant  and  the  commis- 
sioner. 

Tlie  defendant  relies  on  that — insists  that 
he  purchased  for  his  individual  benefit,  and 
that  there  was  no  privity  or  understanding 
between  himself  and  any  other  person.  A 
.serious  obstacle  to  the  consideration  of  this 
claim,  is  the  late  period  at  which  it  was 
brought  forward.  The  defendant  purchased 
from  the  commissioner,  on  the  16th  April. 
1827.  It  constituted,  therefore,  no  part  of 
the  matters  originally  referred  for  investiga- 
tion. In  accounting  for  the  assets  of  George 
and  Savage  Smith,  the  debt  due  by  Paul 
Michau  would  be  properly  a  subject  of  In- 
quiry, and  the  proceedings  in  relation  to  it. 
But  this  alleged  agreement  is,  for  the  first 
216 


*527 

time,  brought  to  the  notice  of  the  *Court  in  aa 
answer  filed  by  tlie  representatives  of  Savage 
Smith,  on  the  25tli  September,  1834,  more 
than  seven  years  after  the  purchase,  and 
their  cross  bill  was  not  preferred  until  No- 
vember, 1838,  nearly  eleven  years  after  the 
purchase  from  the  commissioner,  and  the  al- 
leged new  agreement  between  the  parties; 
neither  in  the  answer  of  1834,  nor  in  the 
cross  bill  of  1838,  is  it  alleged  that  there  ex- 
isted any  written  agreement  between  the  par- 
ties; and  the  correspondence  on  which  the 
complainants  now  rely,  was  not  in  any  man- 
ner exhibited  or  put  in  evidence  until  the 
meeting  before  the  Master,  in  August,  1842, 
(see  page  116).  I  think  the  sequel  of  that  cor- 
respondence was  well  calculated  to  put  Mr. 
Cuttino  on  his  guard,  and  to  advise  him 
that  he  and  the  defendant  did  not  place  the 
same  understanding  on  what  had  passed  be- 
tween them.  The  inactivity  of  M:-.  Cuttino 
for  the  several  ensuing  years,  may,  in  some 
measure,  be  accounted  for,  in  the  relations 
which  the  defendant  professionally  occupied 
towards  the  joint  estate.  But  when  parties 
having  a  supposed  right  to  establish  a  trust 
of  this  character,  and  thereby  to  vary  the 
terms  of  a  judicial  sale,  lie  by  for  fifteen 
years  with  the  evidence  of  the  trust  in  their 
possession,  they  can  have  no  cause  to  com- 
plain, if  the  Court  regards  them  as  having 
waived  such  a  right,  and  restricts  them  to  the 
benefit  of  the  public  sale,  about  which  there 
exists  neither  doubt  nor  controversy.  I  am 
not  at  all  satisfied  that,  in  this  matter,  full 
justice  has  been  done  to  the  complainants; 
but  in  the  language  of  the  Court  of  Appeals, 
"if,  in  conseiiuence  of  these  extraordinary 
delays,  the  Court  should  fall  short  of  the 
truth  and  the  right  in  the  judgment  which 
it  renders,  the  reproach  must,  in  a  large 
measure,  be  shared  by  the  parties  themselves, 
and  those  who  acted  for  them."  I  am  of 
opinion  that  the  measure  of  the  defendant's 
liability,  is  the  price  at  wdiich  he  bid  off 
the  land  at  the  commissioner's  sales. 

The  report  of  the  Master,  and  the  account 
submitted  therewith,  must  be  reformed  ac- 
cording to  the  principles  of  this  decree.  But 
it  is  manifest  that,  "upon  the  matters  reserv- 
ed by  the  appeal  decree,"  the  defendant  is 

*528 

largely  indebted  to  the  com*plainants,  and, 
as  the  proceedings  under  the  fieri  facias  were 
only  suspended  with  a  view  to  that  inquiry, 
and  "until  the  further  order  of  the  Court," 
the  complainants  now  have  leave  to  enforce 
the  execution  issued  under  the  appeal  decree, 
and  which  they  had  leave  to  lodge  to  bind 
under  the  order  of  March  last. 

Wm.  C.  Smith  et  al.  heirs  and  distributees 
of  Savage  Smith,  deceased,  appealed  from  so 
much  of  the  above  decree  as  decided  that  in- 
terest is  not  to  be  charged  on  the  amounts  re- 
ceived by  Brown  and  wife,  and  debts  due  by 


BROWN  V.  SMITH 


*530 


tliom,  i!i  taking  the  accounts  against  tlie 
ussiKiiee,  to  ascertain  what  said  comphiinaiits 
are  entitled  to  receive  from  the  assijiued  es- 
tate in  liis  liands,  as  erroneons;  and  snlmiit- 
ed  that  they  are  well  entitled  to  have  the 
interest  so  charged,  either  from  the  time  of 
the  receipts,  respectively,  or  from  the  division 
iiiKler  the  decree  in  IfSlir),  on  the  halance 
wiiich  was  then  dne  to  them. 

Hen.iamin  F.  Hunt  also  ai)pealed  from  the 
above  decree,  on  the  grounds. 

First.  The  decree  of  the  Court  of  Ai)peals 
establishes,  that  the  defendant,  Hunt,  as  as- 
signee of  Brown,  is  liable  for  one-lmlf  the 
joint  note  of  C.  T.  Brown  and  Elizabeth 
.Smith,  discounted  at  the  United  States  Hank, 
December  16.  1S26,  for  $lL>,r>()0.  wherewith 
the  debt  to  Bird,  Savage  &  Bird  was  dis- 
charged, to  the  amount  of  $12,144.50,  and  that 
the  representatives  of  Savage  Smith  are  lia- 
ble for  the  other  half.  And  this  being  a  final 
adjudication  of  a  principle  by  the  highest 
Court,  is  conclusive  upon  the  parties,  and  no 
attempt  or  pretence  is  set  up  to  re-open  the 
same.  But  the  circuit  decree  adjutlicated  a 
matter  of  account,  (and  is  warranted  some- 
what, it  is  conceded,  by  the  words  of  the  ap- 
peal decree,)  and  thereupon  awards  and  ad- 
judges that  the  distributees  of  Savage  Smith 
have  paid  the  whole  amount  of  said  sum  of 
!<llM44.oO,  and  are  entitled  to  be  repaid  one- 
half  thereof,  with  interest,  at  the  rate  of 
seven  per  cent.,  from  the  IGth  December,  1S26, 
and  directs  the  payment  to  be  levied  and  en- 
forced out  of  the  property  of  Col.  Hunt,  by  ex- 
ecution of  tiei'i  facias — and  there  is  error  in 
this  as  follows. 

*529 

*1.  Because  there  is  no  evidence  whatever 
to  show,  or  raise  the  presumption,  that  the 
heirs  of  .Savage  Smith  ever  did  pay  said  joint 
note,  more  than  the  following  sums  in  part 
payment  thereof,  to  wit: — March  15,  l.s:>4, 
5H820(J.  June  5.  1S:54,  .$50:{;J.  Bill  of  costs  to 
Mr.  Orimke,  $88.91  cents.  In  all,  $8,327.91; 
which  sum,  at  that  date,  tlie  interest  being 
correctly  calculated  at  six  per  cent,  is  less 
than  one-half  of  said  note,  and,  therefore, 
less  than  the  share  to  be  paid  by  the  estate 
of  Savage  Smith;  and  this  averment  the  ap- 
pellant is  ready  to  prove  and  maintain,  and  it 
will  appear  manifest  upon  inspection  of  the 
Master's  report,  and  the  evidence  therewith 
referred  to  by  th(>  appeal  decree,  and  to  all 
the  other  evidence  in  the  cause  and  before 
the   Court. 

2.  Because  there  is  manifest  error  in  charg- 
ing tlie  appellant  with  interest,  at  the  rate 
of  seven  per  cent.,  from  December  lOth  is-_'(i, 
to  .Tune.  1834,  the  heirs  of  Savage  Smith 
never  having  made  any  payment  till  the  last 
date,  and  prior  thereto,  interest  was  charged 
at  six  per  cent. 

.'{.  Because  the  execution  allowed  to  be  en- 
forced by  the  circuit  Court,  is  a  general  lien, 
and  against   all  the  property  of  Col.   Hunt, 


1  whereas,    the   appeal    decree   establishes   the 
I  claim  only  against  the  specific  property  as- 
signed by   Brown  and  wife  to  Hunt,  which 
was  a  part  of  the  joint  estate  of  (ieorge  and 
Savage  Snuth. 

Second.  Because  the  decree  is  al.so  errone- 
ous, in  charging  against  the  share  of  George 
Smith,  the  claims  mentioned  in  schedule  A. 

Third.  Because  there  can  be  no  decree  to 
refund  the  aniovnits  paid  by  the  administra- 
tor of  George  and  Savage  Smith,  to  Charles 
T.  Brown  the  distributee,  inasnuich  as  there 
was  no  proof  of  an  original  deficiency  of  as- 
.sets,  and  until  such  proof,  a  legatee  or  dis- 
tributee cannot  be  called  upon  to  refund,  and 
a  large  portion  of  the  same  may,  from  the 
character  of  the  receipts  and  proof,  be  prop- 
erly referred  to  and  chargeable  in  the  large 
and  continuous  private  account  between 
Brown  and  Wm.  S.  Smith. 
*530 

♦Fourth.  Because  the  decree  is  erroneous, 
in  charging  against  Col.  Hunt  the  amount 
due  by  Charles  T.  Brown,  for  negro  hire,  in- 
asmuch as  this  claim  must  be  regarded,  either 
as  a  voluntary  payment  to  Brown,  and, 
therefore,  subject  to  the  same  rule  as  is  set 
forth  in  the  last  ground,  or  it  must  be  re- 
garded as  included  in  and  l)eIonging  to  the 
private  account  between  Brown  and  William 
S.  Smith,  and  also  subject  to  the  objection 
made  on  the  score  of  defective  proof,  and 
the  presumption  of  i)ayment  from  the  lapse  of 
time  betw^een  the  date  of  tlie  hiring  and  the 
first  evid^'nce  of  claim. 

Fifth.  Because  the  claim  for  Clegg's  Point 
should  have  been  dismissed,  inasmuch  as  it 
is  for  a  subject  matter  entirely  distinct  from 
those  for  which  the  defendant  is  impleaded, 
and  not  properly  embraced  in  the  pleadings; 
and,  furthermore,  because  it  is  neither  suf- 
ficiently proved,  nor  taken  out  of  the  pre- 
sumptions arising  from  delay  of  claim. 

[For  subsequent  opinion,  see  11  Rich.  Eq. 
2(iU.] 

Mr.  Mitchell,  Mr.  Yeadon,  for  W.  C.  Smith, 
and  otners. 

Mr.  Memmiuger,  :\Ir.  Hunt,  for  Col.  Hunt. 

DAKGAX,  Ch.  delivered  the  opinion  of  the 
Court. 

It  falls  to  my  lot,  for  the  third  time,  to  an- 
nounce the  judgment  of  this  Court  upon 
ipiestions  growing  out  of  the  cases  above 
stated.  My  present  duties  are  greatly  abridg- 
ed by  the  labors  and  adjudications  of  this 
Court  and  of  the  circuit  Court,  at  preceding 
.stages  of  the  cause. 

It  is  supererogative  to  travel  over  ground 
that  has  been  already  exten.sively  and  thor- 
oughly explored,  or  to  remark  upon  questions 
that  have  been  already  discussed  and  ad- 
judged by  the  Court. 

In  reference  to  the  claim  of  Bird,  Savage 
&  Bird,  which  is  a  branch  of  the  cause  which 
seems  to  liave  called  forth  the  most  serious 

217 


*530 


3  RiriTARDSOX'S  EQUITY  REPORTS 


efforts  at  the  recent  hearing  on  the  part  of 
the  appehant,  (Col.  Hunt),  it  may  not  be  in- 
appropriate, although  it  may  be  unnecessary, 
to  offer  some  connuents.  Alluding  to  this 
branch  of  the  controversy,  and  the  judgment 
of  the  Court  of  Appeals  thereon,  the  Chan- 
cellor who  presided  at  the  last  circuit  trial, 

*531 
*uses  the  following  language.  "It  is  not  too 
much  to  say,  that  no  part  of  the  case  was 
more  thoroughly  investigated,  so  maturely 
considered,  and  none  covdd  be,  as  I  thought, 
more  conclusively  and  distinctly  settled." 
This  is  strong  language  ;  and  to  it  I  may  add, 
that  there  was  uo  part  of  the  case,  in  refer- 
ence to  which  the  Court  of  appeals  arrived 
at  a  conclusion  more  unanimously  adopted,  or 
more  entirely  satisfactory  to  itself. 

I  will  not  now  pause  to  con^iider  the  ques- 
tion, whether  the  claim  of  Bird.  Savage  & 
Bird  was  a  debt  due  by  the  partnership  estate 
of  George  and  Savage  Smith.  That  is  made 
sufficiently  manifest  by  the  decree  of  1825, 
in  which  provision  was  made  for  its  pay- 
ment out  of  the  effects  of  the  partnership 
estate ;  by  the  letter  of  Col.  Hunt,  of  the  ISth 
July,  1826,  in  which  he  explicitly  admits  the 
liability  of  the  partnership  estate  for  the 
debts, — and  by  other  circumstances,  not  nec- 
essary to  be  particularly  noticed. 

That  the  balance  of  this  debt,  charged  in 
schedule  E,  of  the  Master's  report,  as  hav- 
ing been  paid  by  the  heirs  of  Savage  Smith, 
was  so  paid  by  them,  or  from  funds  belonging 
to  them,  is  equally  clear.  The  fact  is  sus- 
ceptible of  demonstration  beyond  any  ration- 
al doubt.  The  circumstances  on  which  this 
conclusion  rests,  are  manifold,  all  tending  to 
the  same  result. 

The  debt  has  been  paid ;  and  must  be  sup- 
posed to  have  been  paid  by  some  of  the  par- 
ties interested  in  its  extinction.  Col.  Hunt 
does  not  profess  to  have  paid  it.  Nor  is  it 
pretended  that  Charles  T.  Brown  paid  it, 
except  in  the  way  of  hypothetical  suggestion. 
It  is  contended  that  Brown  may  have  paid 
it,  but  there  is  not  a  tittle  of  proof  that  lie 
did  pay  it,  or  any  part  of  it.  In  fact,  it  does 
not  appear  that  Brown  had  any  direct  inter- 
est in  the  payment  of  this  debt  after  his  as- 
signment of  his  share  of  the  estate  to  Col. 
Hunt,  by  his  indenture  of  the  11th  February, 
1825.  Brown  and  wife,  by  this  instrument, 
assigned  their  moiety  of  the  estate  to  Col. 
Hunt,  "subject  to  the  debts  of  the  .said  firm, 
and  the  account  between  the  parties  interest- 
ed in  the  same."  Again  ;  it  was  recited  that 
Col.  Hunt  was  to  have  all  the  rights,  priv- 
ileges   and   claims    of   the    said    Brown    and 

*532 
wife  in  *the  partnei'ship  estate,  and  to  be 
"subject  to  all  the  duties,  oldigations  and  re- 
sponsibilities of  the  said  Charles  T.  Brown 
and  Sarah  E.  his  wife,  or  either  of  them,  in 
the  final  settlement  and  adjustment  and  divi- 
sion of  the  said  copartnership  estate,  real 
and  personal,"     And  after  this  and  other  re- 

218 


citals,  Charles  T.  Brown  and  wife  proceed 
by  the  indenture  to  assign  to  Col.  Hunt,  all 
their  lands,  negroes,  &c.  in  the  partnership 
estate,  (which  had,  about  the  date  of  the  in- 
denture, been  assigned  to  them  by  proceed- 
ings in  partition);  also,  all  the  interest  of 
Brown  and  wife,  in  a  claim  set  up  by  Josiah 
Smith  against  the  partnership  estate,  and 
which  had  previously  been  assigned  to  Brown 
and  wife;  also,  all  the  share  of  Brown  and 
wife  in  the  surplus  of  the  undivided  estate, 
if  any  there  should  be,  after  the  payment  of 
debts ;  "subject,  nevertheless,"  as  the  deed 
goes  on  to  declare,  "to  the  payment  and  dis- 
charge of  the  judgments,  executions,  debts, 
claims  and  demands,  now  due,  owing  and  pay- 
able by  the  aforesaid  late  firm  of  George  and 
Savage  Smith ;  and  to  the  accounts  between 
the  parties  interested  in  the  said  copartner- 
ship estates."  The  claim  of  Bird.  Savage  & 
Bird  was  then  an  acknowledged  liability  of 
the  copartnership  estate,  for  the  payment 
of  which,  then  in  judgment,  a  provision  had 
been  made  by  a  previous  decree  of  the  Court. 
Can  any  one  doubt  that,  by  the  obligations 
arising  out  of  the  deed  of  assignment  of  the 
11th  February,  1825,  and  as  between  Hunt 
and  Brown,  it  was  the  duty  of  the  former, 
and  not  of  the  latter,  to  pay  the  one-half  of 
this  debtV  Brown  had  no  interest  in  the  ex- 
tinguishment of  the  debt ;  for  if  the  execu- 
tion in  favor  of  Bird,  Savage  &  Bird  had  been 
pressed,  and  a  portion  of  the  estate  assigned 
by  Brown  and  wife  had  been  sold  to  satisfy 
it,  I  cannot  perceive  that,  under  the  condi- 
tions of  the  assignment.  Brown  would  have 
been  in  any  way  responsible  to  Hunt  on  that 
account.  Af»d  this  seems  to  have  been  Col. 
Hunt's  own  views  when  he  wrote  his  letter  to 
Peter  Cuttino  of  the  date  ISth  July,  1826. 
Peter  Cuttino  represented  the  heirs  of  Sav- 
age Smith,  and  the  letter  was  written  with 
the  view  of  urging  upon  him  the  necessity  of 
immediately  raising  a  sufficient  sum  of  mon- 

*533 
ey  to  pay  off'  the  balance  of  the  *debt  due  to 
Bird,  Savage  &  Bird.  Brown,  it  must  be  re- 
membered, was  then  in  affluent  circumstances 
and  good  credit.  Yet  Col.  Hunt  did  not  then 
say,  that  Brown  was  under  any  obligation 
to  step  forward  for  his  relief  in  the  payment 
of  any  part  of  the  debt.  But  he  proposes  to 
unite  with  Mrs.  Smith,  the  widow  of  Savage 
Smith,  in  borrowing  the  necessary  amount ; 
or,  says  he,  "I  will  borrow  one-half,  if  she 
will  the  other."  He  again  says: — "I  think  it 
very  likely,  that  the  money  can  be  procured, 
and  without  some  such  measure,  the  most 
disastrous  consequences  will  follow.  The 
amount  of  each  share  would  be  five  or  six 
thousand  dollars.  This  would  close  the  es- 
tate, as  to  its  debts: — all  then  would  be,  to 
settle  the  accounts  and  adjust  a  final  de- 
cree. Should  we  not  be  able  to  get  the 
amount  through  the  Bank,  we  may,  perhaps, 
by  gi\"ing  a  premium,  get  it  from  some  indi- 
vidual.    I  do  not  like  to  do  so,  but  it  would 


BROWN  V.  SMITH 


1»e  nuuh  better  tliiin  to  have  a  debt  of  $70,- 
000  hautriiig  over  us."  It  .seems  to  lue,  that 
this  would  have  been  a  very  proper  occasiou 
to  have  hiid  chiiui  to  Brown's  assistance,  if 
Brown  liad  l)een  interested  in  tlie  extinction 
of  the  debt.  But  no  allusitm  of  that  kind  is 
made. 

The  proposal  of  Col.  Hunt,  in  the  letter 
above  cited,  seems  not  to  have  been  adopt- 
ed. And  by  the  assistance  of  Mr.  King,  a 
negotiation  was  effected  with  the  I'nited 
States  Bank  for  the  requisite  amount,  ($12,- 
500)  on  the  joint  and  several  note  of  Mrs. 
Smith,  the  administratri.x;  of  Savage  Smith, 
and  Charles  T.  Brown,  with  a  deposit,  (as 
collateral  .security)  of  specialties  to  the 
amount  of  !?19,(i(;7.0S.  The  money  thus  rai.s- 
ed,  beyond  all  controversy,  was  applied  to 
the  satisfaction  of  the  balance  then  due  on 
the  debt  of  Bird,  Savage  &  Bird.  Which 
of  the  parties  paid  this  debt  thus  contract- 
ed with  the  United  States  Bank?  Two  wit- 
nesses were  examined  as  to  this  point, 
namely: — Mr.  M.  King  and  Mr.  Henry  Cut- 
tino.  There  is  some  confusion  in  the  notes 
of  this  testimony.  Mr.  King  is  represented 
as  having  said,  in  reference  to  certain  notes 
and  securities  there  mentioned,  that  "he 
l)aid  the  balance  due  on  the  notes,  from  the 
funds   of   Savage   Smith,   and   then   such   of 

*534 
the  collateral  securities,  *which  had  been 
assigned  to  the  Bank,  as  were  uncollected, 
together  with  the  letter  now  produced  in 
evidence,  were  returned  to  the  witness,  and 
witness  delivered  them  up  to  the  estate  of 
Savage  Smith."  The  collateral  securities 
lodged  with  the  Bank  to  assure  the  pay- 
ment of  the  note,  were  the  assets  of  the  es- 
tate of  Savage  Smith.  Upwards  of  two 
thousand  dollars  were  collected  by  the  Bank 
on  these  securities,  and  applied  as  payments 
on  the  note  of  Mrs.  Smith  and  Charles  T. 
Brown.  Again,  this  witness  saj's, — "the  bal- 
ance which  witness  paid  the  Bank,  was  for 
the  note,  or  renewals,  on  which  the  loan 
for  .$12,500  had  been   made." 

The  debt  had  been  reduced  by  payments 
to  $7,700;  and  Mrs.  Smith  having  died,  the 
note  in  Bank  was  renewed  by  a  note  of 
Charles  T.  Brown  and  George  S.  Smith,  pay- 
able to,  and  endorsed  by,  Peter  Cuttino, 
and  this  renewal  note  was  confessedly  sat- 
isfied by  funds  of  the  estate  of  Savage 
Smith. — When  Mr.  King  speaks  of  having 
paid  the  balance  of  the  note,  or  renewals, 
he  was  understood  by  the  Master,  before 
whom  his  testimony  was  taken,  to  have 
meant  the  balance  of  the  note  after  the  ap- 
plication of  the  money  collected  by  the 
Bank  upon  the  collateral  securities.  Mr. 
King  further  says,  that  he  was  the  friend 
and  counsel  and  confidential  adviser  of  the 
heirs  of  Savage  Smith,  and  was  intimately 
acijuainted  with  the  transaction.  And  that, 
although  he  did  not  attend  to  putting  the 
renewals   in    Bank,    he    was   constantly    con- 


sulted about  them  as  they  progressed.  He 
was  also  the  professional  advi.ser  of  Charles 
T.  Brown,  after  the  .sale  to  Col.  Hunt,  and 
was  repeatedly  consulted  by  him.  And  it 
is  worthy  of  remark,  that  in  the  evidence  of 
this  witness,  so  cognizant,  as  he  was.  of 
the  loan  from  the  Bank,  from  its  beginning 
to  its  extinction,  there  is  not  the  sliglitest 
intimation  that  Charles  T.  Brown  had  made 
any  payments.  If  Brown  had  made  pay- 
ments, is  it  not  probable  that  he  would 
have  sought  reclamation  from  Col.  Hunt? 
Henry  Cuttinu  testified,  in  so  many  words, 
that  the  debt  contracted  with  the  Bank  was 
paid  by  the  heirs  of  Savage  Smith.  In  his 
cross-examination,    he    say.s,    "from    his   per- 

*535 

sonal  knowledge,  he  does  not  know  *that 
Charles  T.  Brown  and  some  of  the  family  of 
Savage  Smith  did,  or  did  not,  raise  money, 
but,  from  papers  he  lias  seen,  he  has  reason 
to  believe  that  they  did:  the  jiapers  he  has 
reference  to.  are  an  account  current  of  Mr. 
Mitchell  King  and  a  note  fm*  money  tor- 
rowed  from  the  Bank  in  (Georgetown,  by 
Charles  T.  Brown  and  Klixabeth  Smith:  the 
money  so  borrowed,  was  applied  to  the  pay- 
ment of  the  debt  of  Bird.  Savage  &  Bird," 
&c.  Whether  this  witness  intended,  in  his 
cross-examiiuition,  to  qualify  his  state- 
ment to  the  effect,  that  he  had  derived  the 
whole  of  his  information  on  the  subject 
from  the  papers  that  he  had  seen,  does  not 
very  clearly  appear.  He  may  not  have  per- 
sonally known  ot  the  negotiation  with  the 
Bank,  and  the  application  of  the  money  to 
the  debt  of  Bird,  Savage  &  Bird,  and  yet, 
being  the  brother  of  the  administrator  of 
the  widow  of  Savage  Smith,  he  may  have 
|)ersonally  known  that  the  debi;  due  to  the 
Hank,  (which  was  but  a  substitute  for  the 
()alance  of  that  which  had  been  due  to  Bird, 
Sa\age  &  Bird),  had  been  paid  by  the  as- 
sets of  the  estate  of  Savage  Smith. 

The  Master  has  found,  and  so  states  dis- 
tinctly in  his  report,  that  the  whole  amount 
of  the  debt  contracted  with  the  Bank  has 
been  paid  by  the  heirs  of  Savage  Smith. 
This  report  bears  date  Sth  January,  1846. 
The  decision  of  the  Master  on  this  point, 
was  then  pronuilged,  together  with  the  evi- 
dence on  which  it  was  ba.sed.  He  refers 
expressly  to  Mr.  King's  evidence  as  support- 
ing his  judgment.  If  the  .Master  had  so 
widely  misinterpreted  Mr.  King's  evidence, 
in  the  interval  which  has  elapsed  from  Jan- 
uary, lcS46,  to  the  trial  of  the  cause,  why 
were  not  steps  taken  for  the  re-examination 
of  Mr.  King'^  Col.  Hunt  knowing  that  the 
Master  had  reported  the  debt  with  the  Bank 
to  have  been  paid  by  the  heirs  of  Savage 
Smith,  in  his  exceptions  to  that  report  did 
not  controvert  the  fact.  He  does  not  deny, 
(in  his  exceptions.)  that  the  heirs  of  Savage 
Smith  did  jiay  the  whole  of  the  Bank  debt, 
as   found   by   the   Master,     lie  does  not   as- 

21U 


»535 


3  RiniARDSON'S  EQUITY  REPORTS 


sert  that  Charles  T.   P.rown   paid   any   part 
thereof. 

For  the  foregoing  reasons,  this  Court,  at 
the  former  heai'ing,  (Cliarleston,  January 
Term,    1850,)    was   satisfied    that   the    report 

*536 
*of  the  Master  was  right  in  this  particular. 
And  the  appeal  decree  confirmed  the  report 
(as  to  this  matter)  in  language  unmistak- 
ably clear  and  distinct.  If  the  question 
were  now  res  Integra,  this  Court  would 
come  to  the  same  conclusion.  And  indeed, 
it  is  difficult  to  perceive  how  such  a  conclu- 
sion could  be  avoided  upon  the  evidence  be- 
fore us. 

I  have,  in  deference  to  the  zealous  and 
apparently  sincere  argument  offered  in  be- 
half of  the  appellant,  travelled  over  the 
grounds  which  have  led  the  Court  to  its 
judgment  in  reference  to  this  branch  of  the 
case.  And  it  is  satisfactory,  upon  a  re- 
examination of  the  facts,  to  perceive  that 
there  has  been  no  error  committed,  as  was 
broadly  asserted  at  the  bar.  But  the  ques- 
tion is  not  open.  It  is  conclusively  and 
finally  adjudged  by  the  appeal  decree.  And 
though  an  error  of  judgment,  as  to  the 
facts,  had  been  made  manifest,  the  Court 
could  not  have  corrected  it.  As  to  facts, 
a  bill  of  review,  or  a  petition  for  a  rehear- 
ing, would  not  lie,  except  upon  evidence, 
not  coimulative,  discovered  subsequent  to 
the  trial. 

In  reference  to  the  other  questions,  rais- 
ed and  discussed  on  behalf  of  Col.  Hunt,  it 
is  deemed  unnecessary  to  add  anything  to 
that  which  has  been  stated  in  the  Circuit 
Decree.  This  Court  concurs  with  the  Chan- 
cellor who  heard  the  cause,  except  as  to 
one  matter  which  will  be  hereinafter  con- 
sidered. 

The  question,  as  to  interest,  made  in  the 
appeal  which  has  been  taken  on  behalf  of 
the  heirs  of  Savage  Smith,  is  interesting 
from  its  not  having  been  heretofore  much 
discussed.  Upon  demands  bearing  interest 
at  law,  this  Court,  I  conceive,  would  be 
bound  to  allow  interest.  But,  as  to  non- 
bearing  interest  demands,  the  claim  of  in- 
terest will  be  allowed  or  disallowed  in  this 
Court,  according  to  the  equity  of  the  case. 
It  Is  a  matter  of  discretion.  It  is  rare- 
ly disallowed  in  the  adjustment  of  accounts, 
for  it  is  rarely  otherwise  than  an  equitable 
claim.  Where  parties  from  laches,  or  from 
other  similar  causes,  fail  for  a  long  time 
to  prosecute  their  claims  to  a  final  settle- 
ment, and  suffer  them  to  lie  still  until  the 
interest  account  has  swelled  to  an  enormous 
magnitude,  (as   in  this  case,)   the  claim   for 

*537 
interest    does    not    pre*sent    itself,    in    this 
Court,  in  a  favorable  light.     It  would  be  a 
premium    for    delay.      This    Court    concurs 
with  the  Chancellor  on  this  point  also. 

This  disposes  of  all  the  questions  raised 
in  the  appeals  which  have  been  taken  from 
220 


the  circuit  decree  of  June  Term,  IS.jO. — But 
there  are  other  matters  yet  to  be  considered. 

On  the  seventh  of  March,  1850,  the  Solici- 
tor of  the  heirs  of  Savage  Smith  sued  out  be- 
fore the  Register  in  Equity  a  fieri  facias  on 
the  decree  of  the  Court  of  Appeals,  which 
had  been  rendered  in  the  cause  at  the  pre- 
ceding term  of  the  Court.  A  motion  was 
submitted  by  Mr.  Campbell,  acting  for  Col. 
Hunt,  that  the  execution  be  recalled.  This 
motion  was  refused.  Mr.  Campbell,  acting 
on  the  behalf  of  Col.  Hunt,  submitted  a  mo- 
tion, that  proceedings,  under  the  execution, 
be  suspended  until  the  further  order  of  the 
Court ;  and  that  the  complainants  have  leave 
to  lodge  the  execution  to  bind. 

The  issuing  of  a  fl.  fa.  could  only  be  upon 
the  ground  that  the  decree  had  an  operation 
in  personam  against  Col.  Hunt  and  upon  his 
estate  generally.  The  appeal  decree  of  1850 
is  a  decree  in  rem.  It  operates  only  on  the 
property  of  the  partnership  estate  of  George 
and  Savage  Smith,  which  was  allotted  in 
the  division  to  Charles  T.  Brown  and  wife, 
and  which  has  come  into  the  possession  of 
Col.  Hunt  by  assignment  from  them.  The 
appeal  decree  of  1S50  creates  no  personal  lia- 
bility against  Col.  Hunt.  It  is  expressly  so 
declared.  And  so,  the  circuit  decree  of  June 
Term,  1850,  creates  no  personal  liability 
against  Col.  Hunt,  except  as  to  the  amount 
decreed  against  him  on  account  of  the  pur- 
chase of  Clegg's  Point.  A  writ  of  fieri  facias, 
to  operate  on  the  property  of  Col.  Hunt  gen- 
erally, would  be  improper.  The  fi.  fa.,  which 
has  been  issued,  must  be  recalled,  and  so 
much  of  the  circuit  decree  of  June  Term, 
1850,  as  allows  the  complainants  to  proceed 
on  said  fi.  fa.,  (which  had  been  suspended 
by  a  previous  order  of  the  Court,)  must  be 
reversed. — The  complainants  will,  of  course, 
have  a  right  to  proceed  to  enforce  the  pay- 
ment of  the  debt  decreed  to  be  due  on  ac-- 

*538 
count  of  *the  purchase  of  Clegg's  Point,  by 
any  process  which  the  practice  of  this  Court 
allows. 

It  is  ordered  and  decreed,  that  the  fieri 
facias  issued  in  this  cause  on  the  7th  day 
of  March,  1850,  be  recalled  and  set  aside,  and 
so  much  of  the  circuit  decree  of  June  Term, 
1850,  as  allows  the  complainants  to  proceed 
under  the  said  fieri  facias,  be  reversed.  In 
all  other  respects,  the  decree  of  this  Court  is, 
that  the  said  circuit  decree  be  affirmed,  and 
the  appeals  therefrom  be  dismissed. 

At  the  February  Term  of  the  Circuit 
Court,  the  Solicitors  of  the  heirs  of  Savage 
Smith  moved  the  Court  to  grant  an  order 
nisi  for  the  sale  of  so  much  of  the  estate  of 
George  and  Savage  Smith  as  had  been  allot- 
ted in  partition  to  Charles  T.  Brown  and 
wife,  and  by  them  assigned  to  Col.  Hunt,  as 
should  be  necessary  to  satisfy  the  d<?bt  to 
which  the  said  property  was  declared  to  be 
liable  by  the  appeal  decree  of  January  Term, 
1850.    This  order  was  refused  by  the  presid- 


r:i()\VN  V.  .SMITH 


*640 


in?  ClmiKollor,  on  the  srouml  that  it  would 
be  improper  to  grant  it  initil  the  tinal  ac- 
counting was  had  upon  tlie  matters  of  con- 
troversy reserved  hy  the  appeal  decree. 
From  this  decision  of  the  Circuit  Court  an 
appeal  has  aLso  been  taken. 

It  is  not  perceived,  that  there  was  any 
error  in  the  decision  under  the  circumstances 
that  then  existed.  And  the  appeal  is  dismis.s- 
ed.  The  matters  of  controversy  reserved  by 
tlie  api)eal  decree  have  since  all  been  adjudg- 
ed. And  it  is  now  proper  that  the  complain- 
ants should  have  an  order  for  the  enforce- 
ment of  tlie  lien  which  has  been  declared  by 
the  decree  of  the  Court. 

It  is  therefore  ordered  and  decreed,  that 
unless  the  said  lienjamin  F.  Hunt  shall  on 
or  before  the  first  day  of  November  next 
pay  to  the  heirs  of  Savage  Snuth.  or  their 
legal  representatives,  the  sum  adjudged  and 
decreed  against  him  l)y  the  api)eal  decree 
of  February  Term,  Is.'tO.  being  the  sum  of 
six  tiidusand  and  seventy-two  dollars  and 
twenty-five  cents,  with  interest  thereon  from 
the  loth  day  of  December.  1S20,  to  the  time 
of  payment,  James  \V.  (iray,  one  of  the  Ma.s- 
ters  of  the  Court  of  Eiiuity  in  Charleston, 
shall,  after  two  weeks's  notice  in  one  of  the 

*539  • 
news*papers  publislied  in  Charleston,  and 
one  of  the  newspaiiers  published  in  George- 
town, proceed  to  sell  for  cash,  before  the 
Court  House  door  in  (ieorgetown,  first  the 
negroes,  and  then,  if  necessary,  the  lands, 
which,  in  the  partition  of  the  partnership 
estate  of  George  and  Savage  Smith,  were 
assigned  to  Chas.  T.  Urown  and  wife,  and 
by  them  assigned  to  Benj.  F.  Hunt,  for  the 
purpose  of  satisfying  the  aforesaid  sum  of 
$G,07l.'.l.'.5,  and  interest  thereon,  together  with 
the  costs  and  commissions  on  the  sale. — And 
it  is  also  ordered  that  the  said  Master  do 
pay  over  the  said  monies,  so  collected  and 
raised,  to  the  parties  entitled  to  receive  the 
same. 

It  is  also  ordered  that,  in  the  event  the 
said  B.  F.  Hunt  shall  fail  to  pay  the  .said 
sum  on  or  before  the  first  day  of  November 
next,  as  herein  before  ordered  and  directed, 
the  said  B.  F.  Hunt  do  deliver  into  the  hands 
of  the  .said  James  W.  Gray  the  said  proper- 
ty, or  so  much  as  may  be  necessary  to  raise 
the  said  sum  of  money,  whenever,  after  the 
first  day  of  November  next,  he  shall  be  re- 
quired to  do  so  by  the  said  James  W.  Gray. 

DUNKIN  and  WAUDLAW,  CC.  concurred. 

JOHNSTON.  Ch.  I  am  of  opinion  that  the 
questions  in  relation  to  the  demand  of  Bird. 
Savage  &  Bird,  are  concluded  by  the  api)eal 
decree  of  IS.'K);  (and  I  am.  now,  pretty  well 
satisfied,  upon  pretty  clear  evidence  actual 
and  presumptive). 

I  agree  with  the  Court  upon  the  subject  of 
interest. 

I  am  not  dissatisfied  with  its  judgment  in 
relation  to  Clegg's  Point. 


In  relation  to  the  advances  to  Brown  and 
the  negro  hire,  though  these  were  ruled  by 
the  Court  of  Appeals  to  fall  within  the  pur- 
view of  the  decree  of  1825,.  yet  I  think  the 
evidence  on  the  subject  is  too  obscure,  and 
the  transactions  too  antiquated,  to  allow  of 
a  sjitisfnetory  adjudication:  and  that  after 
the  administrators  have  been  discharged,  the 
heirs  of  Savage  Smith,  who  had  no  direct 
right  of  reclamation,  should  not  be  allowed 
to  reclaim  through  the  administrators, — at 
least  without  clear  jtroof  that  the  adminis- 

*540 

trators  could  reclaim.  The  only  ground  *is 
the  subse<iuent  depreciation  of  assets,  in  the 
hands  of  the  adnnnistrators,  or  of  the  Court: 
and  neither  adnnnistrators,  or  other  heirs, 
have  a  right  of  reclamation  from  such  a  cii'- 
cumstance. 

After  the  hearing  in  the.se  causes  at  this 
Term,  and  before  the  above  decision  was 
pronounced,  Benjamin  F.  Hunt  presented  a 
petition  for  a  re-hearing,  upon  grounds  which 
surticiently  appear  in  the  following  opinion 
of  the  Court,  delivered  by 

DARGAN,  Ch.  This  is  a  petition  for  a  re- 
hearing. The  first  ground  assumes  that  the 
petitioner,  B.  F.  Hunt,  has  by  the  decree  of 
this  Court,  been  held  jointly  and  personally 
liable  for  the  debt  of  Bird,  Savage  &  Bird. 
This  is  an  erroneous  inference.  The  decree 
of  the  Api>eal  Court  of  January  Term,  1850, 
declares  no  personal  liability  against  the  pe- 
titioner, but  establishes  a  lien  upon  the 
property,  which,  in  the  partition  of  the  part- 
nership of  George  and  Savage  Smith,  had 
been  allotted  to  Charles  T.  Brown  and  wife, 
and  by  them  assigned  to  the  i)etitioner.  The 
decree  adjudges  that  the  balance  of  this 
debt  had  been  paid  by  the  heirs  of  Savage 
Smith,  as  reported  by  the  Master;  and  gives 
a  lien  for  one-half  of  that  amount  on  the 
property  in  the  possession  of  the  petitioner, 
derived  from  the  partnership  estate  of 
George  and  Savage  Smith. 

The  petitioner  also  states,  as  a  ground  for 
a  re-hearing,  that  the  decree  of  June  Term, 
1850,  allows  the  complainants,  the  heirs  of 
Savage  Smith,  to  proceed  by  a  writ  of  fieri 
facias  for  the  enforcement  of  their  claim. 
This  has  been  made  a  ground  of  appeal  from 
that  decree.  It  has  been  considered  by  the 
Court,  and  so  much  of  the  said  decree,  as 
is  complained  of  in  this  particular,  has  been 
leversed  by  the  decree  of  this  Court,  ren- 
dered during  this  Term. 

In  reference  to  the  error  alleged  in  the  pe- 
tition, as  apparent  on  the  face  of  the  decree 
of  the  Court  of  Api)eal.s,  in  resiiect  to  the 
amount  paid  by  the  heirs  of  Savage  Smith, 
on  the  debt  of  Bird,  Savage  &  Bird,  it  would, 
perhaps,  be  sufficient  to  refer  to  what  has 
been  said  in  the  appeal  decree  which  has 
been    rendered    during   the   present   Term. 

221 


*541 


3  RICHARDSON'S  EQUITY  REPORTS 


*541 

*A  bill  of  review  and  a  motion  for  a  re- 
hearing are  entertained  on  similar  grounds. 
There  are  but  two  grounds  on  which  either 
of  those  proceedings  will  lie.  First ;  they 
will  be  entertained  on  account  of  error  of 
law  apparent  upon  the  face  of  the  decree: 
and  any  part  of  the  record  may  be  resorted  to 
for  the  purpose  of  making  such  error  of  law 
in  the  decree  manifest.  This  petition  sets 
forth  no  error  of  law  in  the  decree,  and  this 
Court  perceives  none. 

The  other  ground  upon  which  a  bill  of  re- 
view, or  a  motion  for  a  re-hearing,  will  be 
entertained,  is  newly  discovered  testimony ; 
that  is  to  say,  testimony  discovered  since  the 
trial.  This  testimony  must  be  important  and 
must  materially  vary  the  case  made;  it 
must  not  be  cumulative  as  to  the  evidence 
which  was  before  the  Court  upon  the  trial: 
and  it  must  be  such  as  the  party,  petitioning 
for  a  re-hearing,  was  not  aware  of  before 
the  trial,  and  could  not  by  proper  diligence 
and  enquiry  have  discovered.  To  which  it 
may  be  added,  that  many  of  the  authorities 
declare  that  it  must  be  written  testimony. 
As  to  the  grounds  upon  which  a  re-hearing 
will  be  ordered,  see  Hinson  v.  rickett,  2  Ilill 
Eq.  351. 

The  ground  set  down  in  this  petition  for  a 

222 


re-hearing,  is  nothing  more  than  alleged  er- 
ror of  judgment  on  the  part  of  the  Court,  in 
deciding  upon  an  issue  of  fact.  This  is  a 
very  good  ground  of  appeal,  if  well  founded, 
where  an  appeal  is  taken  from  a  lower  to  a 
higher  tribunal,  but  I  am  not  aware  of  any 
precedent  for  such  cause  being  considered  a 
ground  for  a  re-hearing  after  a  cause  has 
been  finally  adjudicated.  And  more  particu- 
larly is  this  assertion  true,  where  the  Court 
has  had  evidence  before  it,  though  that  evi- 
dence might  be  doubtful.  For  it  was  held  in 
Johnson  v.  LeA^is,  (1  Rich.  Eq.  390.)  that  a 
petition  will  not  be  allowed  for  supposed  er- 
ror in  the  conclusion  of  the  Court  drawn 
from  doubtful  or  equivocal  evidence.  The 
rule  was,  in  this  case,  unrelentingly  applied, 
where  the  cause  was  decided  by  two  Chan- 
cellors in  opposition  to  the  opinion  of  one 
of  the  Court  and  of  the  absent  Chancellor 
who  presided  on  the  circuit. 

*542 

*But,  as  has  been  before  intimated,  the 
Court  perceives  no  error.  It  is  satisfied  with 
its  conclusions  as  to  the  matter  complained 
of.     The  petition  is  dismissed. 

JOHNSTON,  DUNKIN  and  WARDLAW, 
CC.  concurred. 


IN  THE  COURT  OF  ERRORS 


COLUMBIA— DECHMDER,  1850. 


All  tiik  Judcks  and  ChaxcivLi.ors  Preskn'T. 


3    Rich.  Eq.  *543 

•JS.    f.    and    J.    K.    M.    TK.MI'LKTON   v.   W>L 

and  .TOIIN  WAl-KKK. 

(rohiml)ia.     Doc.   IS.IO.) 

[Deeds  (©=3105.1 

A  father  by  the  same  deed  made  separate 
gifts  of  negroes  to  liis  three  (hiughters :  the 
gift  to  P.  wa.s  to  her  "and  her  future  heirs  of 
her  body:"  and  the  (h'cd  further  provided,  that, 
"if  either  of  the  aliove  named  jiirls  shuukl  die 
without  any  lawful  heirs  of  tlii-ir  body,  her 
property  shall  go  to  the  surviving  children :" 
1'.  died  leaving  issue,  two  children,  and  two 
grand-ehildren,  issue  of  a  deceased  daughter : — 
Jlcld.  (li  that  the  issue  of  I*,  took  as  purchas- 
ers, and  (2)  that  they  took  per  stirpes, — not 
per  capita. 

[Ed.  Note.— Cited  in  Xix  v.  Bay.  r»  Rich.  4li(!; 
Collier  V.  Collier,  .".  Kich.  E<i.  557 ;  Perdriau 
V.  Wells,  5  Kich.  E«i.  28;  Evans  v.  Uodbold, 
(i  Rich.  Eq.  .".5:  Rarksdale  v.  Macbeth,  7  Rich. 
Eq.  i:]3,  134:  Rembert  v.  Vetoe,  89  S.  C.  211, 
21.3.   71   S.   E.  J)50. 

For  other  cases,  see  Deeds,  Cent.  Dig.  §§  278- 
2!n.  372-374,  420;    Dec.  Dig.   ©=3105.] 

IWiUs  <s=:352.5.1 

A\'lienevcr,  by  the  terms  of  description,  in  a 
devise  or  grant,  resort  must  be  had  to  the  stat- 
'ite  of  distributions  for  the  purpose  of  ascer- 
taining the  objects  of  the  gift,  resort  must  also 
be  had  to  the  statute  to  ascertain  the  propor- 
tions in  wiiich  the  donees  shall  take,  unless  the 
instrument  making  the  gift  indiiates  the  inten- 
tion of  the  donor  that  a  different  rule  of  dis- 
tribution   shall   be  pursued,  (a) 

[Ed.  Note.— Cited  in  Evans  v.  Codbold.  G 
Rich.  Eq.  31);  Allen  v.  Allen.  13  S.  C.  531, 
.'{(j  Am.  Rej).  71(j ;  Kerngood  v.  Davis,  21  S. 
C.  207;  Dukes  v.  Faulk,  37  S.  C.  2(54,  205, 
267,  16  S.  E.  122.  34  Am.  St.  Rep.  745; 
Kitchen  v.  Southern  Rv.,  (i8  S.  C,  561.  48  S. 
E.  4;  Rembert  v.  Vetoe.  S!)  S.  C.  210,  71  S. 
E.  !»5<.l:    (Jardner  v.  llorton,  80  S.  E.  6.38. 

For  other  cases,  see  Wills,  Cent.  Dig.  §  1133; 
Dec.    Dig.    <©=.525.] 

Rofore  Dargan.  Cli.  at  Barnwell. 

Strplien    rinlllps.    on    the    17th   December, 

(a)  Freeman  v.  Knight,  (2  Iredell's  Eq.  72.) 
If  a  bequest  of  personal  jiroperty  be  to  heirs 
simi>ly.  they  take  in  the  proportions  prescribed 
by  the  statute  of  distribution*:  but  as  the  tes- 
tator directs  the  property  "to  be  e<iually  divid- 
ed" among  them,  the  division  must  be  per 
capita,  the  children  of  the  deceased  daughter 
taking  each  an  e(|ual  share  with  the  children 
of  the  testator.  R. 


1815,  e.vecuted  a  deed  in  the  followins  words, 
to  wit. 

"Know  all  men  by  these  presents,  that  I, 
Stephen  Phillips,  of  the  said  State  and  dis- 
trict, do.  of  my  o\vn  free  will,  and  for  love 
to  my  children,  as  follows,  viz.:  my  daugh- 
ter, Polly  Phillips,  I  do  give  unto  her.  and 
her  future  heirs  of  her  body,  two  negro  girls, 
Darkes    and    Sealey.      1    do    give    unto    my 

*544 
daughter,  Flower  *I'hillips.  one  negro  boy. 
ntimed  Peter.  I  do  give  unto  my  daughter, 
Elizabeth  Nix,  one  negro  boy.  named  Jefifree. 
Also  I  do  give  unto  my  three  alxive  mention- 
ed daughters,  one  negro  woman.  Abiirail.  and 
her  future  increase;  which  said  negro  woman 
and  increase,  if  any,  after  the  death  of  my 
wife  and  myself,  is  to  be  equally  divided, 
among  my  above  mentioned  daughters.  It 
is  to  l)e  under.stood.  that  the  above  mention- 
ed property  is  to  remain  in  my  ijossession,  or 
my  wife's,  till  after  our  deaths,  then  to  go 
as  above  mentioned — the  above  propm't.v  is 
to  my  said  daughters  and  the  heirs  of  their 
body.  No\v,  if  either  of  the  above  named 
girls  .should  die  without  any  lawful  heirs  of 
their  bod.v.  her  propertj-  shall  go  to  the  sur- 
viving children,  and  so  on." 

Polly  Phillips  intermarried  with  Alexander 
Templeton,  and  upon  the  death  of  Stei»hen 
I'hillips  and  his  wife,  the  property  given  by 
the  deed  to  Polly  Phillips,  passed  into  the 
possession  of  her  husband. 

In  1847,  Polly  departed  this  life,  leaving 
surviving  her,  her  said  husband,  and  two 
children,  (who  are  the  complainants,)  and  two 
griuul-children,  the  issue  of  a  deceased 
daughter,  (who  are  the  defendants). 

On  the  2d  of  August.  1840.  the  negroes 
given  by  the  deed  to  Polly,  had  increased  to 
twenty  in  number,  and  on  that  day.  .Vlexan- 
der  Templeton.  supiiosing  the  limitation  in 
the  dee<l  to  be  too  remote,  and  that  his  mari- 
tal rights  had  attached,  executed  a  deed, 
whereby  he  relea.sed  all  his  interest  in  the 
negroes,  to  the  complainants  and  the  defend- 
ants, to  be  divided  amongst  them  in  the  fol- 
lowing proportions,  that  is  to  say,  one-third 


©==>Kor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  lnde.xes 


223 


*544 


3  RICHARDSON'S  EQUITY  REPORTS 


to  tlie  comiilaiuant,  Stephen  P.  Templeton. 
one-third  to  the  comphiinant,  John  E.  M. 
Templeton.  and  the  reniauiing  third,  to  be 
equally  divided  between  the  defendants,  Wil- 
liam and  John  Walker,  who  were  Infants. 

The  bill  was  for  partition  accordinj;:  to  the 
terms  of  the  deed  of  Alexander  Templeton. 

The  an!<wer  stated  the  infancy  of  the  de- 
fendants, and  submitted  that  Alexander  Tem- 

*545 
pleton  had  no  interest  in  the  negroes  *after 
his  wife's  death,  and  that  the  title  to  the 
said  negroes  should  be  determined  according 
to  the  provisions  of  the  deed  of  Stephen  Phil- 
lips, under  which,  (as  they  were  advised)  the 
heirs  of  the  body  of  Polly  Phillips  took  per 
capita  and  not  per  stirpes. 

Dargan,  Ch.  After  holding  that,  under  the 
deed  of  Stephen  Phillips,  the  limitation  over 
'to  the  surviving  children"  was  good,  and  that 
the  'heirs  of  the  body'  of  Mrs.  Templeton  took 
as  purchasers,  after  a  life  estate  in  their 
mother:  added:  "If  this  be  so,  then  the  deed 
of  Alexander  Templeton  can  have  no  elfect  in 
varying  their  rights,  and  the  next  question 
occurs,  do  the  issue  of  Polly  Templeton  take 
per  stirpes  or  per  capita?  On  the  authority 
of  Campbell  v.  Wiggins,  Lemaks  v.  Glover, 
and  Keitt  v.  Ilouser,  I  hold  that  the  children 
and  grand-children  take  per  capita,  and  in 
equal  shares.  A  case  involving  this  point, 
(Collier  v.  Collier)  has  recently  been  referred 
by  the  Court  of  Equity  to  the  Court  of  Er- 
rors. Of  course,  the  ultimate  decision  in  the 
case  before  me,  mu.st  depend  upon  the  deci- 
sion in  the  Court  of  errors.  For  the  pres- 
ent, I  decide  in  conformity  with  my  own 
views." 

"It  is  ordered  and  decreed,  that  the  com- 
plainants and  defendants  are  entitled  to  the 
estate  mentioned  in  the  pleadings,  to  be  di- 
vided among  them  per  capita.  It  is  also  or- 
dered, that  the  parties  have  leave  to  apply  at 
the  foot  of  this  decree  for  such  orders  as  may 
be  necessary  to  carry  it  into  effect." 

The  complainants  appealed,  on  the  grounds, 

1.  That  his  Honor  should  have  decreed 
that  the  limitation  over,  in  the  deed  of  Steph- 
en Phillips,  is  too  remote,  and  that,  there- 
fore, the  defendants  take  the  proportions  giv- 
en them  by  the  deed  of  A.  Templeton. 

2.  That  even  if  the  said  limitation  over  be 
good,  nevertheless,  his  Honor  should  have 
decreed,  that  the  estate  mentioned  in  the 
pleadings,  be  divided  per  stirpes  and  not  per 
capita. 

At  :May  Term,  1S50,  the  appeal  was  heard 

*546 

at  Columbia,  by  *the  Equity  Court  of  Ap- 
peals, and  the  following  opinion  thereon  pro- 
nounced. 

PER  criHAM.— This  Court  is  satisfied 
with  the  decree  that  the  heirs  of  the  daugh- 
ters took  as  purchasers,  which  is  drawn  in 
question  by  the  first  ground  of  appeal:  and 
224 


it  is  ordered,  that  the  decree  on  that  point 
be  affirmed,  and  the  appeal  dismissed. 

It  is  further  ordered,  that  this  cause  be 
sent  to  the  Court  of  Errors  (and  docketed) 
for  its  judgment  upon  the  question  involved 
in  the  second  ground  of  appeal ;  and  to  be 
heard  in  connexion  with  Collier  v.  Collier. 

JOHNSTON,  DUNKIN  and  DARGAN,  CC. 
concurring. 

Upon  the  question  involved  in  the  second 
ground  of  appeal,  the  case  was  now  heard 
in  the  Court  of  Errors. 

J.  T.  Aldrich  for  complainants.  The  ques- 
tion is,  do  the  heirs  of  Mrs.  Templeton  take 
per  capita,  or  per  stirpes'?  What  mode  did 
the  grantor  intend?  Clearly  the  proportions 
of  the  statute,  because  he  describes  them  as 
"heirs  of  the  body,"  without  repudiating  the 
proportions  of  the  statute ;  the  description 
"heirs  of  the  body,"  compels  a  resort  to  the 
statute  to  ascertain  its  meaning.  This  ex- 
press adoption  of  the  objects  of  the  statute, 
unaccompanied  by  a  repudiation  of  its  pro- 
portions, amounts  to  an  implied  adoption  of 
its  proportions.  When  a  person  uses  lan- 
guage which  compels  us  to  go  to  the  statute 
for  its  interpretation,  the  inference  is,  that 
such  person  points  to  the  statute  as  the  ex- 
ponent of  his  meaning,  except  in  so  far  as  he 
expressly  repudiates  it.  The  intention  of 
the  grantor  was,  that  the  heirs  of  Mrs.  Tem- 
pleton should  take  in  the  same  way  as  the 
issue  of  an  intestate.  Why  should  not  this 
intention  prevail".'  "Because,"  says  Lord  El- 
don,  in  Lady  Lincoln  v.  Pelham,  (10  \  esey, 
175,)  "it  is  better  to  adhere  to  a  settled  con- 
struction, than  to  come  to  a  decision,  having 
a  tendency  to  shake  that  which  forms  a  rule 
of  construction,  and  which  may  in  practice 
have  been  acted  upon  in  many  cases."  But 
there  is  no  such  "settled  construction"  iu 
South  Carolina.     The  presence  of  this  case 

*547 
in  *the  Court  of  Errors,  is  alone  sufficient  to 
show  that  the  question  is  still  unsettled.  The 
true  rule  is,  whenever  the  persons  intended 
to  take  under  a  grant  or  devise,  are  so  de- 
scribed as  to  compel  a  resort  to  the  statute, 
to  a.scertain  who  they  are.  the  statute  must 
also  furnish  the  proportions  in  which  they 
are  to  take,  unless  the  grantor  or  testator  in- 
troduces into  the  grant  or  devise,  some  ex- 
pression or  expressions  expressly  repudiating 
the  proportions  of  the  statute.  (2  Jarman  on 
Wills,  47.)  But  the  operation  of  this  rule 
ceases,  where  the  language  employed  creates 
no  necessity  for  resorting  to  the  statute  for 
its  interpretation.  Thus  where  the  gift  is 
to  "children,"  "grand-cliildren,"  "sons," 
"daughters,"  &c.,  there  is  no  necessity  for  a 
resort  to  the  statute,  and  therefore  no  refer- 
ence to  the  statute  is  to  be  implied  from  their 
use.  The  legal  construction  of  these  terms 
accords  with  their  popular  signification.  But 
when  the  objects  are  described  as  heirs,  iieii-s 


TEMPLETOX  v.  WALKER 


*549 


of  the  body,  issue,  and  the  like,  a  resort  to 
tlie  statute  becomes  ne<vssary.  for  these  are 
teclinical  expressions,  differing  fmin  their 
popular  sitinificatioii.  The  followiuK  eases 
are  exani'/les  of  expressions  repudiating  the 
proportitins  of  the  statute.  Thomas  v.  Hole, 
(Cases  Temp.  Talbot,  L'")!.)  is  a  leading  ease. 
There  the  words  of  the  will  are,  "to  the  rela- 
tions of  Elizabeth  Hole,  to  Ih'  divided  e<iual- 
ly  between  them."  Lord  Kinj;  cU'termined, 
"that  as  the  testator  had  directed  the  £500 
to  ue  divided  e(iually  aui(>ii.L,'st  them,  he  could 
not  direct  an  uneciual  tlistribution,"  (tovvit, 
the  distribution  of  the  statute,)  "and  he  ac- 
c<>rdinj,'ly  decreed  them  to  take  per  capita." 
The  same  n^marks  are  applicable  to  the  case 
of  Leifih  V.  Norbury,  (i:{  Ves.  .'{."tn.) 

No  per.sons  takini;  as  heirs  of  the  body, 
can  take  otherwise  than  as  the  statute  ^ives 
it  to  heirs  of  the  body,  viz:  per  stirpes,  un- 
less the  instrument  under  which  they  take 
points  out  a  different  mode  of  distribution; 
Rowland  v.  Gorsuch,  (2  Cox.  187.) 

Bellinger  &  Hutson,  contra. 

WARDLAW,  Ch.,  dellvcM-ed  the  opinion  of 
the  Court. 

Stephen  Phillips,  by  voluntary  deed,  gave 
*548 
to  his  daughter,  *rolly  IMiillips,  afterwards 
I'olly  Temiileton,  "and  her  future  heirs  of  her 
body,  two  negro  girls,  Darkes  and  Sealey;" 
to  his  daughter  Flower  I'hillips  a  negro  boy 
named  Peter;  to  liis  daughter  Elizabeth  Nix 
a  negro  boy  named  Jeffree,  and  to  his  three 
daughters,  above  mentioned,  a  negro  woman 
named  Abigail ;  and,  after  some  provisions 
not  now  in  question,  proceeds  to  declare 
"the  above  property  is  to  my  said  daughters 
and  the  heirs  of  their  i)ody — now  if  either 
of  the  above  named  girls  should  die  without 
any  lawful  heirs  of  their  body,  her  property 
shall  go  to  the  surviving  children,  and  so 
on."  Polly  Templeton,  died  in  1847,  leaving 
her  husband  Alexander  Templeton,  two  chil- 
dren, the  plaintiffs,  and  two  grand-children, 
the  issue  of  a  deceased  daughter,  the  de- 
fendants, who  would  be  the  distributees  of 
her  estate  if  she  died  intestate.  The  hus- 
band, Alexander  Templeton,  on  2d  August, 
1840,  executed  a  deed,  whereby  he  released 
all  bis  interest  in  the  negroes  then  twenty 
in  number  given  by  the  deed  of  Stephen 
Phillips  to  bis  daughter  I'olly  to  the  plain- 
tiffs and  defendants,  in  the  i)roportions  of 
one-third  to  each  of  the  i)laintiffs,  and  of 
one-third  to  the  defendants  to  be  tnpially 
divided  between  them.  The  bill  prays  par- 
tition of  the  negroes,  according  to  the 
scheme  of  this  last  deed. 

The  Court  of  Appeals  in  l^pilty  has  decid- 
ed, on  the  construction  of  the  deed  of  Ste- 
phen I'hiliips,  that  the  issue  of  Polly  Tem- 
pleton took  as  purchasers,  after  her  life  es- 
tate; and  has  referred  to  this  Court  the 
single  question,   whether  the  property  shall 

3  Rich. Eq.— 15 


be  divided  amongst  sftld  issue  per  stripes  or 
per  capita. 

ft  is  well  said  by  I^ord  EUbm,  in  Lady 
Mnciiln  V.  I'elham,  (10  Ves.  175.)  a  case 
son)ewhat  analogous  to  the  present,  that  "it 
is  better  to  adhere  to  a  settled  omstructiiMi 
than  to  come  to  a  decision  having  a  tenden- 
cy to  shake  that  which  forms  a  rule  of  con- 
struction, and  which  may,  in  practice,  have 
been  act»>d  ui)on  in  many  cases."  Our  first 
inquiry,  then,  should  be,  whether  such  words 
as  are  now  in  question  have  received  a  "set- 
tled construction"  in  this  State.  In  the  case 
of  Camiibell  v.  Wiggins,  (Rice's  Eq.  10,)  in 
December,  18.38,  it  was  decide<l  by  three 
Chancellors  against  the  opinion  of  the  Chan- 

*549 
cellor  on  the  circuit,  that,  under  *a  grant 
by  Act  of  A.ssembly  to  the  "ln'irs  at  law  of 
John  Taylor  and  lilake  Wiggins,"  all  who 
could  l)ring  them.selves  within  the  terms  of 
the  description  were  entitled  to  take  per 
capita :  and  the  general  doctrine  was  an- 
nounced that  "when  the  persons  intt'uded 
to  take  under  a  grant  or  devise  are  descrilt- 
ed  as  a  class,  without  designating  the  pro 
I>ortions  in  which  they  are  to  take,  all  are 
equMlly  entitled  who  can  bring  themselves 
within  the  descriiition."  In  Ix'uiacks  v. 
Glover,  (1  Rich.  Eq.  141.)  in  .January,  1845, 
where  the  limitation  was  to  the  "heirs  of  the 
body"  of  a  tenant  for  life,  the  (pie.stion  as  to 
the  proportions  in  which  the  designated  per- 
sons should  take  the  estate,  was  referred  to 
the  ten  .Judges  in  the  Court  of  Ernu-s,  but 
no  authoritative  decision  was  attained — five 
Judges,  including  one  of  the  majority  in 
Campbell  v.  Wiggins,  being  of  opinion  that 
the  distribution  should  be  regulated  by  our 
Act  of  1791,  and  tive  .lodges  being  of  opinion 
that  the  estate  should  be  eipi.-iUy  divided 
amongst  all  the  objects  of  the  gift.  In  Keltt 
V.  Ilouser,  (M.  S.  May.  1840.)  the  Equity 
Court  of  Api)eals  decided  according  to  the 
case  of  Campbell  v.  Wiggins,  but  some  stress 
seems  to  have  been  laid  ui)on  expressi(»ns  in- 
troduced into  the  gift  indicating  etpiality  of 
participation  among  the  objects  of  bounty. 
In  Rochell  v.  Tonq)kins.  (1  Strob.  E(i.  114.) 
where  an  estate  was  limited,  ujion  the  death 
of  a  wife,  without  appointment  and  without 
living  issue,  to  her  right  heirs,  it  was  held, 
that  our  statute  of  distributions  should  as- 
certain as  well  the  persons  who  were  to  tj\ke. 
as  the  proportions  in  which  they  should 
take;  and  there  the  husband,  as  statutory 
heir,  took  one  half  of  the  i>state,  and  the 
other  distributees,  who  were  numerous  and 
in  different  degrees  of  relationship,  took 
shares  jure  representatlonis ;  but,  in  that 
ca.se,  the  question  seems  not  to  have  been 
argued  by  counsel  nor  considered  by  the 
Court.  In  Seabrook  v.  Seabrook  (McM.  Fx[. 
201.)  the  question  underwent  some  discus- 
sion, but  the  case  was  deternnned  upon  prin- 
ciples not  affecting  the  question.  After  this 
review  of  our  cases  on  this  subject  I  think 

225 


*549 


3  RICHARDSON'S  EQUITY  RErORTS 


we  may  pronounce  that,  notwithstanding  tlie 
doctrine  of  Campbell  v.  Wiggins  may  have 
been  the  law  of  this  State  for  about  six 
years,    it    was    greatly    shaken    by   the    case 

*550 
*of  Lemacks  v.  (clover,  and  that  we  have  not 
any  "settled  construction"  of  such  terms  of 
description  as  are  employed  in  the  present 
(ase,  forming  a  rule  of  property,  and  that 
we  are  at  liberty  to  adopt  any  rule  on  the 
sul)ject  which  we  may  suppose  will  best  sub- 
serve the  intention  of  donors  and  the  policy 
of  the  State.  This  conclusion  is  greatly  con- 
firmed by  the  consideration  that  our  Act  of 
1791  is,  and  has  long  been,  extensively 
known  and  highly  approved  by  the  people  of 
this  State;  and  that  this  legislative  will, 
as  it  was  called  in  the  argument,  has  always 
had  more  influence  in  regulating  testators 
and  other  grantors  in  the  distribution  of 
property  than  the  rule  of  Campbell  v.  Wig- 
gins, which  was  little  known,  except  to  mem- 
bers of  the  profession,  and  could  not  have 
been  acted  upon  in  practice  in  many  cases. 

Whatever  may  be  the  doctrine  of  the  Eng- 
lish cases  on  this  subject,  the  state  of  our 
law  and  of  public  policy  justify  the  rule 
that  whenever  we  are  compelled  by  the 
terms  of  description,  in  a  devise  or  grant, 
to  resort  to  our  statute  of  distributions  for 
the  purpose  of  ascertaining  the  objects  of 
the  gift,  we  must  also  resort  to  the  statute  to 
ascertain  the  proportions  in  which  the  do- 
nees shall  take,  unless  the  instrument  mak- 
ing the  gift  indicates  the  intention  of  the 
donor  that  a  different  rule  of  distribution 
shall  be  pui'sued.  In  England,  leaving  out 
of  view  such  exceptions  as  grow  out  of  es- 
tates of  gavelkind  and  coparcenary,  &c.,  the 
heir  is  a  single  individual,  designated  by  the 
common  law,  and  when  the  term  heirs  is 
employed,  it  means  persons  who  are  to  take 
successively  as  heir,  and  not  persons  who 
are  entitled  to  an  equal,  or  even  a  common 
I>articipation ;  but  our  Act  of  1791  is  an 
Act  of  descents  as  well  as  distributions,  and 
determines  at  once  who  shall  be  the  heirs 
of  the  real  estate  of  an  intestate  and  the 
distributees  of  his  personalty. 

The  term  heirs  is  inapplicable  to  the  suc- 
cession to  personal  estate,  and  even  as  to 
real  estate,  we  have  no  other  heirs  except 
the  hseredes  facti  of  our  statute  of  distribu- 
tions (Seabrook  v.  Seabrook).  As  remarked 
by  that  eminent  jurist,  Chancellor  Harper, 
in  Lemacks  v.  Glover,  in  an  argument  that 

*551 
has  nearly  *exhausted  the  subject:  "In  Eng- 
land, when  the  term  heirs  or  heirs  of  the 
body  is  taken  to  mean  a  class  of  persons, 
these  cannot,  in  any  manner  or  respect,  take 
as  heirs  or  lieirs  of  the  body.  Whether  con- 
strued children,  issue  or  descendants,  next  of 
kin.  &c.,  they  must  be  always  different  per- 
sons from  the  heirs:  not  so  with  us."  In  the 
case  under  consideration  the  Court  of  Ap- 
peals in  E<iuity  could  not  have  attained  the 

226 


conclusion  that  the  "heirs  of  the  body"  of 
the  tenant  for  life  took  as  purchasers,  with- 
in the  rules  as  to  the  remoteness  of  limita- 
tions, otherwise  than  by  construing  these 
terms  to  mean  the  descendants  of  the  ten- 
ant for  life  living  at  the  time  of  her  death, 
or  something  equivalent.  No  one  can  take 
as  heir  of  the  body  of  another  unless  he  ful- 
fils the  description,  and  is  not  only  such  a 
person  as  would  take  the  real  estate  of  that 
other  under  our  Act  of  distributions,  but 
likewise  a  lineal  descendent.  As  we  are 
obliged,  then,  to  ascertain  from  the  statute 
of  distributions  who  are  the  heirs  of  the 
body,  it  is  a  logical  consequence  that  we 
should  look  there  also  to  ascertain  their 
shares  in  the  subject  of  gift.  The  statute 
is  the  exponent  of  the  full  meaning  of  the 
donor  unless  he  has  declared  a  contrary  in- 
tent, which  is  not  pretended  in  the  case  be- 
fore us.  "And  this  agrees  with  what  the 
law  supposes  to  be  the  rule  of  affection, 
by  which  children  are  preferred  to  grand- 
children and  nearer  kindred  to  the  more 
remote."  (Per  Harper,  Ch.  in  Lemacks  v. 
Glover.)  Certainly  in  all  the  cases  on  this 
point  which  have  hitherto  come  before  the 
Courts  of  South  Carolina,  the  intention  of 
the  donors  would  have  been  more  completely 
fulfilled  by  following  the  statute  for  the 
shares,  and  it  is  believed  that  such  would  be 
the  result  in  a  large  majority  of  the  in- 
stances that  will  occur  in  practice.  A  fer- 
tile mind  may  conceive  cases  of  hardship 
from  the  operation  of  any  general  rule,  but 
such  hardship  from  the  rule  we  are  dis- 
posed to  establish  in  this  matter,  may  be 
avoided  always  by  the  careful  expression  of 
the  whole  intention  of  the  testator.  In 
Lady  Lincoln  v.  Pelham,  where  the  gift  was 
of  "one-fourth  to  the  children  of  A.  and  one- 
fourth  to  or  among  the  children  of  B." ; 
and  distribution  per  capita  was  directed, 
Lord  Eldon  said,  "I  am  not  sure  that  my  de- 

*552 
cision  does  *not  defeat  the  intention."  W^hat 
was  doubtful  in  that  case  seems  certain 
whenever  there  is  a  necessary  reference  to 
the  statute  to  ascertain  the  donees.  Most, 
if  not  all,  of  the  English  cases  which  hold 
that  the  distribution  shall  be  per  capita, 
where  gifts  are  made  to  a  class  of  persons, 
such  as  to  children,  grand-children,  to  A.  and 
the  children  of  B.  to  the  next  of  kin  of  A., 
&c.  (Northey  v.  Strange,  1  P.  Wans.,  .340; 
Blackler  v.  Webb,  2  P.  Wms.,  38.3,  are  ex- 
amples,) are  not  inconsistent  with  tlie  rule 
we  have  adopted,  for  in  them  there  is  no 
necessary  reference  to  the  statute  of  dis- 
tributions for  any  purpose.  We  do  not  go 
to  the  statute  to  discover  who  are  children, 
next  of  kin,  &c. ;  but  we  are  obliged  to  look 
there  to  find  out  who  are  heirs  of  the  body, 
descendants  or  relations  entitled  to  take ; 
and  in  the  cases  which  actually  occur  we 
commonly  find  them,  not  strictly  a  class  but 
individuals    standing   in    various    degrees   of 


TEMPLETOX  v.  W  ALKHR 


*564 


kindred  to  the  iiitostnto  or  first  talker,  nnd 
entitled  to  nnetiUiil  sliares  of  tlie  estate. 

It  was  strongly  insisted  in  the  argument 
of  this  ease,  that  wherever  several  persons 
take  as  pnrohasers  under  one  gift,  they 
must  take  per  capita,  and  tiiat  no  ease  can 
he  found  to  the  contrary.  lUit  where  is  the 
necessary  <'oniiection  hetwe«'n  the  ideas  of 
purcha.se  and  e<iuality?  Surely  a  testator 
might  provide  for  unequal  distrihutlon 
among  those  taking  hy  purcha.se;  as  hy  a 
gift  to  A.  and  the  three  children  of  B.,  so 
that  A.  should  take  one  half,  or  by  a  gift 
to  C.  for  life  and  upon  his  death  to  his  chil- 
dren then  living,  the  eldest  son  of  C.  taking 
oife  half,  however  ininierous  such  children 
may  be.  It  is  useless,  however,  to  suppose 
cases  when  examples  may  he  found  in  the 
books.  In  2  Jarni.  40,  it  is  said:  "The  stat- 
ute of  di.strihutions  not  only  determines  the 
objects  of  a  gift  to  'relations,'  hut  also  reg- 
ulates the  proportions  iu  which  they  take, 
the  gift  being  held  to  apjtly  to  the  next  of 
kin  and  the  persons  whom  the  statute  ad- 
mits by  representation,  the  whole  being  tak- 
en per  stirpes,  not  per  cainta ;  that  is.  the 
property  is  distributable  proportionably 
among  the  stocks,  not  ecpially  among  the  sev- 
eral individual  objects  of  every  degree." 

In  Roach  v.  Hammond,  (I're.  in  Ch.  401,) 
on  a  gift  by  a  testator  of  all  his  real  and 
per.sonal    estate    "for    the    use    of    his    rela- 

*553 
*tions,"  it  was  determined  that  those  who 
would  be  entitled  to  his  jicrsonal  estate  un- 
der the  statute  of  distril»utions,  and  those 
only,  should  come  in.  and  that  they  should 
take  in  the  proportions  prescribed  by  the 
statute;  and  the  Lord  Chancellor  said  it 
had  been  often  ruled  accordingly  in  this 
Court.  See  also  Masters  v.  Hooper.  (4  liro. 
C.  C.  207:)    Devisme  v.  Mellish,  (5  Ves.  525.) 

In  Stamp  v.  Cooke.  (1  Cox.  2;{4.)  where  tes- 
tator directed  the  residue  of  his  estate  to  be 
parted  amongst  his  "next  relations,  as  si.s- 
ters,  nephews  and  nieces."  Sir  Lloyd  Kenyon. 
Master  of  the  Kolls,  held  that  distrilmtiim 
should  be  according  to  the  statute,  per  stiriies. 
He  said,  "the  statute  is  not  to  be  adverted  to, 
when  testator  has  himself  laid  down  a  dif- 
ferent rule,  but  has  that  been  done?" 

In  Rowland  v.  (Jorsucli.  (2  Cox,  1S7,)  Sir 
L.  Kenyon  applied  a  similar  rule  to  the 
words  "descendants  or  representatives."  say- 
ing that  no  person,  taking  as  representative, 
can  take  otherwise  than  as  the  statute  gives 
it  to  representatives,  i.  e.  per  .stirpes.  See 
also  Rooth  V.  Vickars,  (1  Coll.  0;)  Cotton  v. 
Cotton,  (2  Rea.  (57.) 

It  is  now  .setth'd  in  England,  that  in  a 
gift,  "next  of  kin"  means  nearest  in  kindred 
in  degree,  and  imi)Iies  no  reference  to  the 
statute  of  distributions.  Rrandon  v.  Rran- 
don.  (.*{  Swanst.  .S12:)  Elmesley  v.  Young.  (2 
Myl.  &  K.  7^0:)  (S  C«.n.  Eng.  Ch.  R.  227.) 
Rut  the  opinion  prmailed  there  for  a  long 
time,  that   next   of   kin    meant   such   of  the 


kindred  as  would  be  entitled  to  shares  of  an 
intestate's  estate,  under  the  statute ;  and 
while  that  opinion  prevailed,  the  statute 
was  also  adverted  to  for  the  proportions  of 
the  distributees.  In  the  case  of  Stamp  v. 
Cooke,  already  <ited,  the  Master  of  the  Rolls 
said:  "If  the  residue  had  been  given  to  the 
next  of  kin,  and  the  testator  had  stopped 
there,  the  statute  would  have  been  the  rule 
to  go  by,  and  although  nephews  and  nieces 
are  not  in  fact  so  near  as  sisters,  yet  the 
fund  would  have  been  distributed  per  stirpes, 
according  to  the  .statute."  It  is  true,  that  in 
riiillips  v.  Garth,  (3  Bro.  C.  C.  64,)  Mr.  Jus- 
tice Buller,  sitting  for  the  Lord  Chancellor, 

♦554 
determined  *that,  where  a  testator  left  his 
property  to  be  ecjually  divided  amongst  his 
next  of  kin,  the  subject  of  the  gift  .should  be 
divided  per  capita  among  the  surviving  hroth- 
ers,  nephews  and  nieces  of  the  testator.  It 
ai)pears,  however,  from  the  remarks  of  Sir 
John  Leach,  M.  R.,  in  Hinchley  v.  Madarens, 
1  Myl.  &  K.  27,  (0  Con.  Eng.  Ch.  R.  480.)  that 
when  the  case  of  Phillips  v.  Garth  came  be- 
fore Lord  Thurlow.  by  way  of  appeal,  his 
Lordship  expressed  doubt  as  to  the  propriety 
of  the  decision,  and  that  the  appeal  was 
abandoned  upon  a  compromise  among  the 
next  of  kin,  by  which  the  property  was  di- 
vided among  them  per  stirpes,  and  not  per 
capita — and  that  Mr.  J.  Buller's  decision 
was  doubted  by  Lord  Eldon,  in  Garrick  v. 
Lord  Camden,  (14  Ves.  ;i85.)  and  disapproved 
by  Sir  Wm.  Grant,  in  Smith  v.  Campbell,  (I'J 
Ves.  403,)  and  the  Master  of  the  Rolls  refers 
these  doubts  and  disapproval  to  so  much  of 
the  decision  as  directs  distribution  per  cap- 
ita. 

In  the  ca.se  of  Hinchley  v.  Maclarens, 
above  cited,  the  testator  gave  the  bulk  of  his 
property  to  his  daughter,  but  directed  that 
if  she  died  before  attaining  the  age  of  twen- 
ty-one, his  property  should  be  equally  divid- 
ed amongst  his  next  of  kin.  The  testator 
left  surviving  him  his  daughter,  one  broth- 
er, and  two  nephews  anil  a  niece,  the  chil- 
dren of  two  deceased  sisters. — The  daughter 
died  under  twenty-one,  intestate  and  unmar- 
ried. Sir  John  Leach  determined  that  where 
the  words  "next  of  kin"  were  used  simplic- 
iter  in  a  gift  over,  and  without  explanatory 
context,  showing  a  different  intention  on  the 
part  of  the  testator,  they  must  be  taken  to 
mean  next  of  kin,  according  to  the  statute 
of  distributions,  and  that  the  property  must 
be  divided,  not  per  capita,  but  per  stirpes. 

Sir  John  Leach  reiterated  this  opinion, 
upon  a  like  state  of  facts,  iu  Elmeslev  v. 
ioung,  2  .Myl.  &  K.  82,  (7  Con.  Eng.  Cli.  R. 
270.)  but  his  opinion  was  overruled  by  Com- 
missioners Shadwell  and  Rosan<iuet,  mtou  ap- 
peal, on  the  ground,  however,  that  there  was 
no  reference  to  the  statute,  for  the  meaning 
of  the  words  "next  of  kin,"  2  Alyl.  &  K.  780, 
(8  Con.  Eng.  Ch.  R.  227.) 

It  is  the  opinion  of  this  Court  that,  by  the 

227 


*555 


3  RICHARDSON'S  EQUITY  REPORTS 


*555 
principles  of  the  *common  law,  by  the  rea- 
soning of  the  Euglisli  cases,  and  by  our  own 
law  and  policy,  we  are  justified  in  establish- 
ing as  a  general  rule,  in  cases  lilce  tlie  one 
before  us.  that  the  partition  shall  be  per 
stirpes ;  and  it  is  so  ordered  and  adjudged 
in  this  case. 

O'XEALL,  EVANS,  WARDLAW,  FROST, 
WITHERS  and  WHITNER,  JJ.,  and  DUN- 
KIN,  Ch.,  concurred. 


3  Rich.  Eq.  555 
THOMAS    COLLIER    and    Others    v.    ELEA- 
NOR  COLLIER   and   Others. 
(Columbia.    Dec,   1850.) 
[Wills  (©=3531.] 

Testator  bequeathed  to  his  deceased  "son 
John's  children"  a  negro;  to  his  deceased  "son 
William's  children"  another  negTO ;  to  his 
"daughter  Margaret,"  and  to  each  of  his  other 
four  children,  naming  them,  certain  negroes; 
and,  "tenthly,  all  the  rest  of  my  estate  not  yet 
disposed  of,  I  give  to  be  equallj-  divided  among 
my  above  named  heirs;"  Held,  that,  under  the 
tenth  clause,  the  legatees  took  per  stirpes  and 
not  per  capita ;  that  is  to  say,  that  "'John's 
children"  took,  between  them,  one  share,  "Wil- 
liam's children,"  between  them,  one  share,  and 
the  five  children  of  testator  each  one  share. 

[Ed.  Note. — Cited  in  Perdriau  v.  Wells,  5 
Rich.  Eq.  28;  Eelder  v.  Felder,  Id.  515; 
Barksdale  v.  Macbeth,  7  Rich.  Eq.  133  ;  Allen 
V.  Allen,  13  S.  C.  532,  86  Am.  Rep.  716 ;  Kern- 
good  V.  Davis,  21  S.  C.  207 ;  Dukes  v.  Faulk, 
37  S.  C.  206.  16  S.  E.  122,  31  Am.  St.  Rep. 
745. 

For  other  cases,  see  Wills.  Cent.  Dig.  §  1150 ; 
Dec.  Dig.  (S==>531.] 

Before  Dunkin,  Ch.,  at  Orangeburg. 

William  Collier,  who  died  in  January, 
1849,  by  his  last  will  and  testament,  bearing 
date  the  10th  March,  1846,  devised  and  be- 
queathed as  follows: 

"First.  1  give  to  my  son  John's  children,  a 
negro  man  named  Jack.  Secondly,  I  give  to 
my  son  William's  children,  a  negro  man 
named  Israel.  Thirdly,  I  give  to  my  daugh- 
ter Margaret,  a  negro  woman  named  Harri- 
et, and  her  children.  Fourthly,  I  give  to  my 
daughter  Sophia,  two  negroes,  Selina  and  Al- 
fred. Fifthly,  I  give  to  my  sou  Thomas,  two 
negroes,  Job  and  Edward.  Sixthly,  I  give  to 
my  son  George,  two  negroes,  Ned  and  Sophia 
Ann.  Seventhly,  I  give  to  my  daughter  Nel- 
ly, a  negro  woman  named  Hager,  and  her 
children,  and  a  negro  girl  named  Rosanua ; 
but  in  the  event  should  my  daughter  Nelly 
die,  leaving  a  cliild  or  children,  in  that  case, 
it  is  my  will,  that  the  said  negroes  go  to  her 
child  or  children ;  but  should  she  die  before 
her  husband  David,  it  is  my  will  that  oue- 

*556 
half  the  said  negroes  *go  to  the  said  David ; 
but    should   the   said    David   die    before   my 
daughter  Nelly,  then  it  is  my  will  that  none 
of  the  said  negroes  shall  go  to  any  of  the 


heirs  of  the  said  David,  Init  it  is  my  will, 
that  the  negroes  after  the  death  of  my 
daughter  Nelly,  come  back  to  my  above 
named  heirs.  Eighthly,  I  give  to  my  wife, 
Eleanor,  three  negroes,  Moi-iah,  Stephen  and 
Ciesar,  also  one  horse,  named  Jim,  and  a 
Dearbou  wagon,  and  as  much  household  fur- 
niture as  she  may  think  necessary  for  her 
use,  to  be  only  during  her  life,  after  death, 
it  is  my  will,  that  the  property  I  give  my 
wife  be  equally  divided  among  all  my  above 
named  heirs.  Ninthly,  I  give  to  my  grandson 
Oliver,  one  bed  and  furniture.  Tenthly,  all 
the  rest  of  my  estate  not  yet  disposed  of,  I 
give  to  be  equally  divided  among  all  my 
above  named  heirs." 

William  Collier  left  surviving  him,  his 
widow,  his  five'  children,  Margaret,  Sophia, 
Thomas,  George  and  Nelly,  named  in  his 
will ;  five  grand-children,  namely,  J.  'D.  W. 
Collier,  Lewis  P.  Collier,  Francis  C.  Collier, 
Mary  A.  Collier  and  William  O.  Collier,  chil- 
dren of  his  deceased  son,  William  Collier; 
and  five  other  grand-children,  namely  Mary 
Weathers,  Susannah  Moorer,  S.  W.  M.  Col- 
lier, Oliver  D.  Collier,  and  Albert  G.  Collier, 
children  of  his  deceased  son  John  Collier. 

The  only  question  was  as  to  the  proportion 
in  which  the  parties  took  the  property,  a 
tract  of  land,  and  about  eighteen  slaves, 
which  passed  under  the  10th  clause  of  the 
will. 

Dunkin,  Ch.  The  only  question  is  as  to 
the  proportion,  in  which  "the  above  named 
heirs"  shall  take.  The  context  of  the  will 
seems  to  confine  the  term  to  the  children  and 
grand-children  of  the  testator,  and  not  to  in- 
clude ills  widow.  The  principle  of  the  case 
cannot  well  be  distinguished  from  that  in- 
volved in  Campbell  v.  Wiggins,  (Rice's  Eq. 
10.)  The  authority  of  that  case  is  much 
shaken  by  the  decision  of  the  Court  of  Er- 
rors, on  the  same  point,  in  Lemacks  v.  Glov- 
er, (1  Rich.  Eq.  141.)  Under  these  circum- 
stances, it  seems  proper,  that  the  doctrine 
should  be  reviewed ;  and  I  recommend  that 
this  case  be  carried  up  for  that  purpose.    At 

*557 
present,  I  am  bound  by  the  *authority  of 
Campbell  v.  Wiggins,  and  must  decree,  that 
the  children  of  John  and  the  children  of  Wil- 
liam, take  per  cajuta,  with  the  children  of 
the  testator.  It  is  ordered,  that  the  writ  of 
partition  issue  to  divide  the  estate  accord- 
ingly. 

The  complainants  appealed,  on  the  ground. 

That  his  Honor  should  have  decreed  that 
the  children  of  John  and  the  children  of  Wil- 
liam take  per  stirpes,  and  not  per  capita, 
with  the  children  of  the  testator. 

Munro,  for  appellants. 
Ellis,  contra. 

Y/ARDLAW,  Ch.,  delivered  the  opinion  of 
the  Court. 


228 


<g=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Inde.\e3 


COLLI i:k  v.  collier 


*558 


It  is  the  opinidii  of  this  Court,  tlint  tliis 
case  must  lie  determined  on  tlie  authority  t)f 
the  case  of  Templetoii  v.  Wallier,  [.'{  Ridi.  E«i. 
f)4.'i,  55  Am.  Dec.  VA*\.\.  and  we  refer  to  tluit 
ca.se  for  the  reasoning  and  autliority  l>y 
wiiich  our  general  conclusion  is  attained. 
The  words  of  jjfift  are  here  somewhat  differ- 
ent, and  it  has  been  ar;;ued  that  the  testator, 
hy  directinj;  that  his  estate  shall  'he  e<iually 
<livided  anionj;  all  his  ahove  named  heirs.' 
lias  manifested  liis  intention,  that  the  dis- 
tribution of  Ins  estate  shall  be  per  cai)ita 
amon;r  all  who  hrinj;  themselves  within  the 
scope  of  the  term  'heirs';  and  that  this  case 
is  within  the  exieiition  to  tiie  iieneral  rule. 
But  it  seems  to  us.  that  upon  the  whole  will, 
and  particularly  by  the  maimer  and  amount 
of  the  several  primary  ;:ifts  to  his  'son  .Iohi\'s 
children,'  to  his  'son  William's  children,'  to 
his 'daughter  Margaret.'  his 'daughter  Sophia' 
and  to  his  other  children,  and  by  the  phra.se 
'above  named  heirs.'  the  testator  signiti''s  his 
purpose,  that  his  "son  .Tohn's  children'  shall  be 
one  of  his  lieirs,  his  "sou  William's  children' 


sb.ill  lie  one  of  his  heirs,  and  each  of  his 
own  children  one  of  liis  heirs;  and  that  the 
words  of  e(iuality  are  satisfied  by  et^ual  dis- 
tribution amongst  those  of  the  same  degree, 
according  to  the  statute.  The  testator's 
'grand-son,  Oliver,'  is  represented  to  be  a 
son  of  .Jolm,  and  will  it  be  urged  that  testa- 
tor intended  Oliver  to  take  two  full,  etiual 
shares'/ 

The  appeal  presents  no  question  as  to  the 
♦558 
right  of  the  widow,  •Eleanor,  to  a  share  of 
the    residue   of   the   estate,    and    this   Court 
has  not  considered  that   nuitter. 

It  is  ordered  and  decreed,  that  a  writ  of 
partition  issue  to  divide  the  residue  of  the 
testator,  William  Collier's  estate,  among  his 
children  and  grand-<-hildr(>n.  per  stiri>es; 
and  the  circuit  decree  is  modified  accordingly. 

O'NEALL,  EVANS,  WARDI^W,  FROST\ 
WITHERS  and  WIIITNER,  JJ.,  and  DUN- 
KIX,  Cli.,  concurred. 

Decree  modified. 

229 


IN  THE  COURT  OF  ERRORS 


COLrMHlA— .MAY,    1851 


All  tiiiv  H^'nr.KS  axd  Ciiancllloks  i'rkskxt  except  Wardlaw,  J., 

WHO    WAS    ABSKNT    HOLDING    THIC    CIRCUIT    CoURT 

FOR  Charleston. 


.TAMi:s  M. 


3  Rich.  Eq.  *559 
*('AKI:Y   M'Lriii:.   Adm'r.   V 
YOlXC;,  JIN. 

(C<)liiinl>ia.     May.    isrd.) 

I  n  ,7/.v  e=jG14.1 

Ti'stJitdi'  (Icvist'd  rciil  ])n)i)t>rt.v  to  his 
'■(liui;:lit<'r  ('.,  lor  and  duriiiir  the  tt'rin  of  her 
natural  life;  and  at  iicr  death,  I  «ive,  i)e(!ueath 
and  devise  the  same,  abs()lMt(dy  and  forever,  to 
her  lineal  descendants;  and  in  case  she  should 
die  without  line;il  descentlants.  (one  or  more.) 
li\iim    at    the    time    of   her   ii"eatli.    tlien."    over: 

I I  (III.  that  ('.  took  a  life  estate,  with  remainder 
to  her  lineal  descendants  as  purchasers. 

[Ed.  Note.— Cited  in  Ilays  v.  Mays.  5  Kich. 
Its;  Dannor  v.  Trescot,  Id.,  !>(!(>;  Addison  v. 
Addison.  !)  Rich.  I-:(i.  (il ;  Markley  v.  Single- 
tarv.  11  Kich.  Eq.  '.VM\:  Anderson  v.  Khodus, 
12  Kich.  Eq.  Ill;  Monairhan  v.  Small,  (j  S.  C. 
ISli;  Kannister  v.  Hull.  Hi  S.  C.  'J-JS ;  Mcln- 
tyre  v.  Mclntyre.  Id..  l'!>4,  iJ't.-).  JltT  ;  Fields  v. 
Watson,  2:>  S.  C.  -Ki.  ;">:  Smith  v.  Smith,  24 
S.  C.  815;  Archer  v.  Ellison.  'JS 
S.  E.  71H;  Fuller  v.  Missroon,  .">"» 
14  S.  E.  714;  Shaw  v.  Erwin.  41 
10  S.  F.  4!)<);  Simms  v.  I5uist.  r»2 
r)(iO.  nci.  :!()  S.  E.  4(I();  Duckett  V 
S.  ('.  i:5;-).  4.')  S.  E.  i:iT;  Williams 
S.S  S.  C.  270.  fiS  S.  E.  241  ; 
102  S.  r.  in.  S6  S.  E.  214. 

For  other  cases,  see  Wills,  Cent.  Diir.  §  1402; 
Dec.  Disr.  <£=»014.] 

I  Wills  C=>(;H).] 

Testator  liecjueathed  personal  proi)erty  to 
his  "dauiihtei-  (".,  and  the  issue  of  her  body  for- 
ever: hut  in  case  of  my  said  daughter's  death 
without  issue  living  at  the  time  of  her  death, 
then."  ov<'r;  Held,  that  ('.  took  a  life  estate 
with  remainder  to  her  issue  as  jiurchasers. 

I  Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Difi.  S  l.XI;    Dec.  Dig.  <©=»«)10.] 

\Wilh  <S=(>10.1 

Testator  luMiueathed  personal  property  to  his 
■•dau;:hter  ('.  ;  hut  in  case  of  my  said  daugh- 
ter's death  without  issue  livinu'  at  the  time  of 
her  dr.-ith,  then."  over;  ('.  died  leaving  issue; 
Held,  that  ('.  took  an  ahsohite  estate  in  the 
property,  and  that  the  same  vested  in  her  hiis- 
liand.  jure  mariti. 

I  Ed.  Note.— Cited  in  Huist  v.  Dawes.  4  Kich. 
Eq.  424. 

For  other  cases,  soe  Wills,  Cent.  Dig.  §  ];'>.S4; 
Dec.    Dig.   <S=G10.1 

[This  case  is  also  cited  in  Simms  v.  Buist  52 
S.  C.  r>.-»4.  :{0  S.  E.  4tM),  and  distinguished 
therefrom.] 


S.    C.   241. 

;.">  s.  (".  ;5:>o, 

S.   C.  214, 
S.   C.   ").")!), 
P.utler.  07 
(Jause, 
Adams  v.  Verner, 


Keforc  Johnston,  ("li..  at  Xowhorry,  July, 
1S49. 

Jonathan  Davenport,  deceased,  by  his  last 
will  and  testa nu'iit.  lK>aring  date  the  18th 
-May,  1.S42,  devised  and  bwiueathed  as  fol- 
lows: 

"Ist.  It  i.s  my  will  ami  desire,  that  all  luy 
jnst  debts  and  fnneral  expeiLses  be  first  paid 
out  of  tlie  cash  on  hancL  and  not«'s  and  bonds 
owing  to  me  at  the  time  of  my  death:  and. 
if  that  fund  be  not  sufficient,  then  out  of  the 
balance   of  my   estate. 

■'2d.  It  is  my  will,  that  all  the  personal 
♦560 
property  which  I  have  *heretofore  jriven  to 
any  of  mj~  children,  and  put  them  in  posses- 
sion of,  be  vested  in  my  said  children  re- 
spectively, absolutely  and  forever. 

"8(1.  I  jiive  anil  devise  to  my  daughter. 
Ciitherine  Davenport,  the  whole  of  my  real 
estate,  of  which  I  may  die  seized,  containint; 
in  all  about  fourteen  hundred  acres  of  land, 
for  and  during  the  term  of  her  luitural  life: 
and  at  her  death  I  give.  be(iueath,  and  devise 
the  same  absolutely  and  forever  to  her  liiieal 
descendants ;  and  in  case  she  should  die 
without  lineal  descendants,  (one  or  more,) 
living  at  the  time  of  her  death,  then  it  is  my 
will,  that  the  whole  of  saiil  real  estate  revert 
to  my  estate,  and  be  disposed  of  as  hereinaft- 
er directed. 

"4th.  I  give  and  bequeath  to  my  daughter, 
Catherine  Davenport,  and  the  issue  of  her 
b(.dy  forever,  my  Merriman  clock,  and  the 
following  twenty-f(Uir  negro  slaves,  viz: 
Andy,  Kit,  I'hillis,  Smith.  Frances.  Milt(tn, 
Sam.  (son  of  Kit.)  Caroline,  Kitter.  Amand.i. 
Melinda,  Charles,  Lucinda.  (Jrittin.  Jerry. 
Lewis,  I'eter.  Anderson  his  wife  Martha, 
her  ciiihlren  Mar.v.  Nancy  and  Ennly.  Samp- 
son and  Tener,  with  their  futurt'  increase: 
1  ut  in  case  of  my  said  daughter's  death  with- 
out issue  living  at  the  time  of  her  death, 
then  it  is  my  will,  that  the  property  herein 
bequeathed  to  her,  by  this  or  any  other 
clause  of  my  will,  be  ecpially  divided  l)e- 
tween    my    chihlren.    James    M.    Davenport, 


<S=»For  other  cases  see  same  topic  aud  KEY-NUMBEH  iu  all  Key-Numbeied  Digests  and  Indexes 


231 


■5G0 


3  RICHARDSON'S  EQUITY  REPORTS 


John  G.  Daveniioil  aiul  Aimy  Hill ;  and  I 
give  and  bequeath  and  devise  the  same  to 
my  said  three  children  and  their  heirs  for- 
ever, share  and  share  alike. 

"5th.  I  give  and  bequeath  to  my  said 
daughter,  Catherine  Davenport,  the  choice 
of  my  wagons,  and  four  choice  horses :  pork 
sufficient  for  one  year,  and  a  stock  of  hogs 
sufficient  to  make  pork  for  the  next  succeed- 
ing year ;  one  thousand  bushels  of  corn,  and 
a  proportionate  quantity  of  fodder  and  oats ; 
three  choice  beds  and  furniture,  all  my 
household  and  kitchen  furniture,  and  my 
barouche  and  harness. 

"Och.  I  give  and  bequeath  to  my  son,  James 
M.  Davenport,  and  to  his  heirs  forever,  the 
following  negro  slaves,  with  their  future  in- 
crease,   viz:      Ned,    Mariah,    Iverson,    Isaac, 

*561 
Claiborne,    *Viny.    Charlotte,    Hannah,    Blu- 
ford,  (son  of  Easter,)  Nelson  and  old  Hannah. 

"7th.  I  give  and  beiiueath  to  my  son  John 
G.  Davenport,  and  to  his  heirs  forever,  the 
following  negro  slaves,  with  their  future  in- 
crease, viz:  Jim  and  his  wife  Sarah,  with 
their  four  children,  Solomon,  Elvira,  Ad- 
niii-al  and  Muzilla,  also  old  Sam  and  his  wife 
Esther. 

"8th.  I  give  and  bequeath  to  my  daughter 
Aimy  Hill,  and  to  her  issue  forever,  the  follow- 
ing negro  slaves,  with  their  future  increase, 
viz:  Albert,  Denips,  Ellick,  Jo.vce,  Nelson,  (son 
of  Albert,)  Dorcass  with  her  children,  Ann  and 
I'eggy  and  Ephraim  ;  also  tifteen  hundred  dol- 
lars in  cash ;  but  in  case  my  said  daughter 
should  die  without  leaving  issue  alive  at  her 
death,  then  it  is  my  will,  that  the  property 
bequeathed  to  her  in  this  clause  be  equally 
divided  between  my  three  children,  James  M. 
Davenport,  John  G.  Davenjiort  and  Catharine 
Davenport,  and  I  give  and  bequeath  the  same 
to  my  said  three  children,  absolutely  and  for- 
ever, share  and  share  alike. 

"9th.  To  my  daughter  Maria  Louisa  Mc- 
Lure,  and  to  my  daughter  Elizabeth  G.  Rudd, 
deceased,  I  have  heretofore  given  and  ad- 
vanced their  full  portion  of  my  estate,  for 
which  reason  no  provision  is  made  for  either 
of  them  in  this  my  will. 

"10th.  It  is  my  will  and  desire,  that  all 
the  rest  and  residue  of  my  estate,  not  herein 
specitieally  devised  and  bequeathed,  be  sold 
by  my  executors,  on  such  terms,  conditions 
and  credits  as  they  shall  deem  proper,  and 
the  proceeds  arising  therefrom,  after  the  pay- 
ment of  my  debts,  and  the  legacies  herein 
bequeathed,  be  equally  divided  between  my 
four  children,  James  M.  Davenport,  John  (J. 
Davenjjort,  Aimy  Hill  and  Catharine  Daven- 
port, share  and  share  alike,  absolutely  and 
forever ;  and  in  the  event  of  either  of  my 
said  four  children  dying  before  such  division 
should  be  made,  the  issue  of  such  child  or 
children  shall  take  among  them,  the  share 
to  which  their  respective  parents  would  have 
been  entitled  if  they  had  lived.  I  have  here- 
tofore   given    property    to    each    one    of    my 


children,  and  have  put  them  in  possession  of 
the   same ;    and   it  is   my   express  intention 

*562 
that  what  *I  have  so  given  them,  and  what 
I  have  given  them  in  this  my  will,  shall  be 
their  portions  of  my  estate  in  full,  notwith- 
standing any  apparent  or  seeming  ine<iuali- 
ties,  as  I  have  divided  it  out  among  them  ac- 
cording to  my  own  intentions  and  my  own  no- 
tions ;  and  I  am,  (or  at  least  think  I  am,) 
the  best  judge  in  the  matter." 

The  bill  was  filed  by  the  plaintiff,  as  ad- 
ministrator of  James  M.  Young,  deceased, 
the  husband  of  testatoi-"s  daughter,  Cathar- 
ine, for  a  settlement  of  his  estate.  Mrs. 
Young  was  also  dead.  The  defendant  is  her 
only  child. 

Johnston,  Ch.  This  case  is  fully  stated  in 
the  pleadings  and  exhibits,  and  was  heard 
upon  the  facts  set  forth  in  the  bill.  The  argu- 
ment was  so  limited  and  incomplete,  as  to 
afford  scarcely  any  guide  whatever  to  the 
proper  decision  of  it.  For  the  purpose  of 
eliciting  further  argument,  and  particularly 
the  adduction  of  authorities  bearing  on  the 
points  raised,  I  threw  out  at  considerable 
length,  the  impressions  which  the  imperfect 
argument  had  produced  on  my  mind ;  but 
nothing  of  the  kind  has  been  furnished  me, 
and  I  have  been  left  to  grope  my  way  to  the 
conclusions  which  I  am  about  to  announce, 
most  of  which  have  therefore  been  adopted 
with  much  hesitation. 

I  think  it  would  introduce  a  principle  en- 
tirely too  perplexing  in  practice,  and  so  far 
as  I  know,  without  precedent,  to  allow  Mr. 
McLure  to  carry  back  the  note  given  to 
Stevens,  through  the  intermediate  note,  to 
the  decree,  and  give  him  the  lien  of  that 
decree,  upon  proof  that  the  last  note  remotely 
arose  out  of  that  consideration.  He  will 
nevertheless  be  entitled,  in  taking  an  account 
of  his  intestate's  estate,  to  rank  as  a  credi- 
tor for  the  money  he  has  been  obliged  to  pay 
on  that  note;  and  may  thus  be  partially,  if 
not  wholly,  reimbursed. 

I  am  of  opinion  that,  according  to  the  de- 
cisions on  Bell's  will,  («)— from  which  I  can- 
not distinguish  this  case — the  personalty 
was  well  limited  to  the  defendant  as  pur- 
chaser, in  remainder,  by  the  fourth  clause 
of  his  grandfather's  will ;   and,  of  course,  the 

*563 
*plaintiff's  intestate  was  chargeable  with  the 
profits  of  it,  from  the  time  the  remainder 
took  effect.  In  taking  the  account,  there 
may  be  some  modification  of  this  liability,  in 
i-egard  to  slaves  employed  in  planting,  which 
may  depend  upon  the  season  of  the  year  when 
Mrs.  Young,  the  life-tenant,  died.  The  precise 
time  of  her  death  is  not  stated  in  the  plead- 
ings ;  and  I  am  therefore  compelled  to  re- 
serve this  point  until  the  commissioner's 
report  comes  in. 

'a)  Riley's  Eq.  247:  Rail,  Eq.  535;  2  Hill, 
32s,  and  see  2  Sp.  7SG. 


MLURE  V.  YOLXCJ 


*565 


With  respect  to  the  real  estate,  covered  by 
the  third  ohiiise  of  the  will,  I  entertain,  at 
present,  impressions  somewhat  differinj^  from 
those  .suKfiested  by  me  at  the  hearing'. 

If  we  consider  the  word^  of  the  direct 
devise  in  this  clause,  apart  from  those  relat- 
ing to  the  lindtation  over,  I  suppose  that 
tile  words  "lineal  descendants" — IteinK  tes- 
tamentary words,  and  not  words  of  a  deed — 
may  he  construed  eijuivalent  to  heirs  of  the 
liody ;  and  then  it  follows,  aceordinj;  to  all 
the  authorities,  that  the  estate  created  was 
a  fee  conditional  in  Catharine,  the  first  pur- 
<-haser.(?>) 

I  shall  not  stop  here  to  inciuire,  whether 
the  words  of  limitation  over,  or  any  other 
words  in  the  context,  are  sufficient  so  to  con- 
tine  the  words  of  limitation  in  the  direct 
flift — hy  pointing  them  to  the  heirs  of  the 
body  livinj;  at  Catharine's  death — as  to 
confer  a  remainder  on  those  specific  lieirs, 
hy  purchase,  (c)  But  assuming,  for  the  pres- 
ent, that  there  is  no  such  (lualifyinj,'  matter 
in  the  context,  and  that  therefore  the  will 
vested  a  fee  conditional  in  Catharine,  I  shall 
proceed  to  state  the  results,  which,  in  my 
opinion,  nmst  follow  in  this  case  upon  that 
assumption. 

This  kind  of  estate,  says  Blackstone,  (</) 
"was  called  a  conditional  fee,  by  reason  of 
the  conditioni  expressed  or  implied  in  the 
donation  of  it:  that,  if  the  donee  died  without 
such  particular  heirs,  the  land  should  revert 
to  the  donor — for  this  was  a  condition  annex- 
ed  by   law   to   all   grants  whatsoever:    that, 

*564 
on  fail*ure  of  the  heirs  specified  in  the  grant. 
the  grant  should  be  at  an  end,  and  the  land 
revert  to  its  ancient  proprietor."  This  emi- 
nent commentator  i)roceeds  to  state  the  in- 
cidents of  fees  conditional,  and  among  them 
one  was,  that  the  performance  of  the  con- 
dition by  the  birth  of  issue  "enabled  the 
tenant  to  aliene  the  land,  and  thereby  to  bar. 
not  only  his  own  issue,  but  also  the  donor  of 
his  interest  in  the  reversion."  "If,  however," 
he  proceeds,  "the  tenant  did  not  in  fact 
aliene  the  land,  the  course  of  descent"— mean- 
ing the  des(/ent  per  forniam  doni — "was  not 
altered  by  this  performance  of  the  condition, 
for,"  says  he,  "if  the  issue  had  afterwards 
died,  and  then  the  tenant,  or  original  grantee, 
had  died,  without  making  any  alienation,  the 
land,  by  the  terms  of  the  donation,  ct)uld 
descend  to  none  but  the  heirs  of  his  body: 
and,  therefore,  in  default  of  them,  must  have 
reverted  to  the  donor.  For  wiiicb  reason, 
in  order  to  subject  tlie  lands  to  the  ordinary 
course  of  descent,  the  donees  of  these  con- 
ditional fee  simples  took  care  to  aliene  as 
soon   as  they   had  performed   the  condition. 


(h)  2  m.  Com.  im.  (and  note  10,)  l^Sl. 

{(■)  Sec  authorities  cited  in  Hi  il  v.  Hull  '2 
Strob.   K(|.   IS!).  1<)'J. 

U/l  2  I'd.  Com.  110  anil  vidv  1  Cniisc.  Tit.  ."t. 
ch.  1',  §  .-.,  S.  !),  10.  21.  L'S;  and  Tit.  1  .tSkI  2 
passim,  2  VA.  Com.  111. 


by  having  issue;  and  afterwards  repurchased 
the  lands,  which  gave  them  a  fee  .simple 
absolute,  that  would  descend  to  the  heirs 
general,  according  to  the  course  of  the  com- 
mon law." 

Another  incident  of  fees  conditional  was 
that  the  husband  of  a  woman  actually  seized 
of  such  an  e.state,  became  tenant  by  the 
curtesy,  upon  having  issue  by  her,  born  alive, 
and  callable  of  inheriting  her  estate.  "In 
this  case,"  says  this  commentator, (e)  "he 
shall,  on  the  death  of  his  wife,  hold  the  lands 
for  his  life,  as  tenant  by  the  curtesy  of  Eng- 
land." And  he  lays  it  down  upon  authority, 
that  by  the  birth  of  the  i.ssue,  the  husband 
became,  even  during  the  life  of  his  wife,  ten- 
ant by  the  curtesy  initiate,  .so  as  to  be  en- 
titled to  do  homage  for  her  land  alone,  and 
not  conjointly  with  her,  as  he  was  bound 
to  do  before  the  issue  was  born ;  that  be 
also  became  natural  guardian  of  the  issue  or 
heir  apparent  of  the  land ;  thus,  for  the 
term  of  his  life,  displacing  the  wardship  of 
the  lord  of  the  fee;    and  that  his  estate  by 

*565 

the  cur*tesy,  once  vested,  was  not  determin- 
able by  the  death  or  coming  of  age  of  the 
infant  heir. 

This  authority  is  sultioient  to  show  that, 
according  to  the  law  of  England,  (which  is 
our  law,  except  so  far  as  it  is  modiiied  by 
statute.)  if -the  e.state  vested  in  Catharine  by 
the  will  of  her  father  was  a  fee  conditional, 
she  Jiever  having  alienated  it,  nor  converted 
it  into  a  fee  simple  absolute,  it  descended 
per  formam  doni  at  her  death  upon  the  de- 
fendant, her  sole  is.sue.  subject,  however,  to 
the  life  estate  in  her  husband,  as  tenant  by 
the  curtesy,  as  contended  for  in  the  plain- 
tiff's bill.  The  conse(iuence  of  that  would 
be,  that  the  husband's  estate  would  not  be 
accountable  for  rents  accrued  between  the 
death  of  the  wife  and  his  own  death. 

The  law  of  this  case  must  undoubtedly  be 
as  I  have  stated  it,  unless  there  is  something 
in  the  statute  of  17!)1,  5  .Stat.  10:.*,  to  alter 
or  modify  it.  The  (iue>tion  then  is,  how  far 
does  this  statute  a  fleet  estates  in  fee  condi- 
tional, or  their  incidents'/  It  is  very  clear 
that  the  statute  does  not,  in  terms,  include 
such  estates,  but  is  ekpres>ly  made  to  affect 
fee  simjile  only.  And.  if  we  look  to  the  con- 
text, we  shall  see  that  its  intention  was  only 
to  regulate  the  descent  among  heirs  general, 
according  to  the  course  of  the  common  law, 
and  to  prescribe  a  more  equitable  canon  than 
before  existed,  to  be  apiilied  to  ca.-^es  in 
which  decea.sed  parties  possesse<l  the  ability 
ti»  devise  the  estate  according  to  their  own 
pleasure,  but  neglected  to  do  sc».  This  was 
entirely  consonant  to  fee  simples  absolute,  the 
species  of  estates  expressly  mentioned  in  the 
statutt' ;  but  could  not  be  intended  of  fees 
conditivinal,  which  were  of  a  quality  that  ad- 


(()  2  VA.  Com.  110.  IL'G. 


233 


*565 


3  RICHARDSON'S  EQUITY  REPORTS 


mitted   of  transmission    by   deed   only   inter 
vivos,  and  not  by  will. 

I  do  not  snppohe  it  will  be  insisted  that 
this  statute  was  intended  to  apply  directly  to 
estates  of  the  description  we  are  now  con- 
sidering, or  that  Ihey  were  intended  to  be  in- 
cluded in  the  property  over  which  it  was  to 
have  direct  operation.  If  that  were  the  case, 
it  is  easy  to  show  that  it  aniou«ts,  virtually, 
to  a  complete  abolition  of  fees'  conditional, 
which  would  be  a  very  strong  interpretation 
to  be  put  on  a  statute  which  makes  no  iiien- 

*566 
tion  of  *such  estates  at  all.  Uihat  would  be 
left  of  an  estate  descendible  to  specific  heirs, 
if  it  were  taken  from  them  and  given  to  heirs 
geiieralV  Taken  from  the  special  male  or  fe- 
male line,  provided  for  in  tlie  contract,  and 
given  to  males  and  females  promiscuously? 
Or  from  the  lineal  issue,  whose  advancement 
formed  the  consideration  of  the  grant,  and 
given  to  collaterals?  What  would  be  left  of 
the  donor's  right  of  reversion,  if  this  Act 
were  made  to  apply  to  such  estates?  Though 
the  contingency  should  happen  upon  which, 
by  the  terms  of  his  grant,  the  estate  should 
return  to  him,  to  wit:  the  failure  of  the 
special  heirs  mentioned  in  it,  yet,  upon  the 
construction  now  under  consideration,  tlie 
land  should  not  revert,  but  go  to  other  per- 
sons never  within  the  donor's  contemplation. 
This  v,ould  be  a  startling  construction. 
How  many  titles  and  how  many  settlements 
would  it  destroy!  It  would  shake  the  landed 
interests  of  the  State  to  an  extent  and  to  an 
amount  in  value  that  would  confound  the 
rashest  reformer  among  us,  and  cause  even 
him  to  pause.  When  I  consider  the  number 
of  ad.iudicaiions  whicli  till  our  judicial  ar- 
chives and  oar  books  of  repoils,  in  which  fees 
conditional  are  recognized  and  supported  as 
valid  and  subsisting  estates,  I  cannot  hes- 
itate to  discard  any  interpretation  of  this 
organic  statute  regulating  descents,  wliich 
rests  for  its  validity  only  on  a  principle  that 
abolishes  this  established  tenure. 

But,  as  I  have  said,  no  one  contends  that 
the  statute  of  1791  applies  directly,  or  was 
intended  to  apply  directly,  to  fees  condition- 
al. No  one  contends  that  it  regulates  direct- 
ly the  distribution  of  such  estates.  Does  any 
one  pretend  that,  upon  the  death  of  the  first 
purrhaser  of  a  fee  conditional,  it  is  to  be  dis- 
tributed by  giving  the  widow  or  widower  of 
the  party  one-third?  or  that,  in  case  tliere 
be  no  lineal  descendants,  the  distribution  is 
to  l)e  extended  to  collaterals?  And  if  this  is 
not  contended  for,  what  is  meant  by  saying 
that  the  statute  (which  is  only  for  distribu- 
tion) applies  to  such  estates? 

But  I  may  be  asked,  do  you  contend  that 
*567 
the  statute  of  1701  *has  no  influence  (/)  what- 


(/i   F.'arne  107  uf  Phila.  Ed.  of  isl!);    p.  10:5 
of  :!(1  Euy.  Ell.;    Martia  v.  I'rice,  2  Rich.  Eq. 
470.  471. 
234 


ever  upon  the  rule  of  inheritance  in  tliese  es- 
tates? Certainly  I  do  not.  It  has  an  indi- 
rect influence.  We  are  told  by  the  author- 
ities that  in  England  "a  devise  to  the  heirs 
of  the  body  comprehends  the  remotest  issue, 
and  takes  the  oldest  son  previous  to  and  in 
preference  to  the  younger."  I  suppose  tliis 
rule  of  primogeniture  may  bo  still  applicable 
to  the  inheritance  of  fees  conditional  created 
before  1791.  It  is  understood  to  be  very  dif- 
ferent in  relation  to  such  estates  created 
since  that  time;  and  I  believe  the  uniform 
practice  is  to  apply  a  rule  of  inheritance 
drawn  from  the  statute  of  1791.  But  this  is 
not  because  the  abolition  of  the  right  of 
primogeniture,  contained  in  that  Act,  was  in- 
tended by  the  statute  to  be  directly  applied, 
or  is  directly  applicable,  to  fees  conditional. 
I  have,  upon  another  occasion,  endeavored  to 
slaow  tliat  this  provision  in  the  statute  was 
intended  to  apply  solely  to  estates  wliich  liad 
previously  descended  according  to  tlie  gener- 
al law"  of  inheritance,  and  which  it  was  the 
object  of  the  statute  to  render  distributable 
by  a  different  rule ;  and  that  the  right  of 
primogeniture  was  abolished  for  the  purpose 
of  introducing  the  new  rule ;  the  object  be- 
ing to  clear  the  ground  for  the  general  dis- 
tribution, by  abolishing  tliat  which  stood  in 
its  way.  But  all  this  related  exclusively  to 
intestates's  estates,  descendible  to  lieirs  gen- 
eral, according  to  the  course  of  the  common 
law.  The  influence  which  this  legislation  lias 
upon  fees  conditional  is  simply  this:  the 
statute  of  1791  serves  to  define  who  are  heirs, 
and  we  resort  to  it  for  the  purpose  of  learn- 
ing from  its  provisions  wliat  lineal  descend- 
ants come  within  the  description,  and  to 
these  persons  we  adjudge  the  inheritance  to 
belong,  as  heirs  of  the  body.  The  process  Is 
just  the  same  as  if  the  inheritance  of  the 
special  estates  were,  by  the  terms  of  the  in- 
strument, made  descendible  to  the  sheriffs  of 
the  county,  and,  by  a  change  of  the  law,  that 
ofiice  sliould  be  vested  in  a  plurality  of  per- 
sons ;  we  should  have  to  resort  to  the  statute 
by  wliich  tlie  tenure  was  changed,  in  order  to 
know  wliat  persons  were,  as  sheriffs,  entitled 

*568 
to  the  property.  And  so  in  rela*tion  to  the 
statute  of  1791.  This  statute  may  be  regard- 
ed as  a  table  of  di'tinitions,  to  wliich  convey- 
ances of  fees  conditional,  subse(iuently  ex- 
ecuted, may  be  supposed  tacitly  to  refer;  and 
when  we  And  in  such  conveyances  the  words 
heirs  of  the  body,  we  turn  to  tlie  Act  for  tlie 
purpose  of  learning  what  issue  of  the  body 
are  therein  declared  to  be  heirs,  and  in  what 
proportions ;  just  as,  in  the  case  of  such  con- 
veyances executed  before  the  statute,  we 
should  resort  to  the  definitions  of  the  com- 
mon law,  to  which  the  instrument  must  be 
supposed  to  have  referred.  This  is  the  only 
function  the  statute  performs  as  to  fees  con- 
ditional. It  furnishes  information.  But  as 
to  fee  simples,  for  the  regulation  of  which  it 
was  enacted,  it  goes  further,  and  commands 


M'LURE  V.  YUL  XG 


»570 


how  tln'.v  sliall  be  distril)iite<l.  Rut  the  stat- 
ute of  IT'.tl  is  not  entitled  to  operate  to  any 
{ireater  extent  than  this.  To  the  incident  of 
inheritance  belonging  to  fees  conditional,  it 
has  tlie  indirect  application  whieh  I  have 
stated.  Hut  it  is  not  perceived  how  it  applies 
to  any  other  incident  or  <iuality  of  such  es- 
tates: whether  arising  lu'forc  or  after  the 
descent  is  cast.  For  instance,  can  it  be  sup- 
po.siMl  that  it  abolishes  or  niodities  the  pow- 
er of  barring  the  iidieritance  by  alienation? 

I  do  not  perceive  by  what  process  of  n'a- 
.soidng  it  can  be  established  that  the  tenancy 
by  the  curtesy  is  abolished,  as  incident  to 
this  particular  descrii»tion  of  estates,  any 
more  than  any  other  of  its  incidents.  The 
estate  being  pernutted  to  exist,  and  being 
recognized  by  law,  must  carry  with  it  all  its 
inclih'nts,  and  this  among  the  rest,  unless 
abolished  expressly  or  by  necessary  in)plica- 
tion. 

It  is  a  very  different  (juestion  whether  this 
tenancy  is  abrogated  in  relatlim  to  fee  simple 
e.states  absolute,  upon  which  much  might  be 
said.  Ulion  that  subject  it  would  be  improp- 
er and  unbecoming  to  volunteer  an  opinion 
here,  where  the  case  does  not  call  for  it. 
But  this  case  does  involve  the  point  I  have 
endeavored  to  discuss;  and,  according  to  the 
best  view  I  can  take,  witli  my  present  op- 
portunities, I  must  come  to  the  conclusion 
(and  so  I  adjudge)  that,  if  Catharine's  estate 
was  a  fee  conditional,  her  husband  was  enti- 
tled to  a  tenancy  by  the  curtesy ;  and  he  was 

*569 

*not  accountable  for  the  rents  of  the  land  ac- 
cruing between  her  death  and  liis  own. 

Till'  remaining  question  is,  whether  the 
limitation  over  is  sutficient  to  convert  the 
estate  into  an  estate  for  life  in  Catharine, 
with  remainder  to  the  defendant  as  pur- 
chaser. The  words  of  the  limitation  over 
are  nearly  the  same  and  of  identical  import 
with  those  employed  as  to  the  personalty: 
and  it  would  seem,  at  first  view,  calculated 
to  produce  the  same  effect.  lUit  the  ca.se  of 
Whitworth  v.  Stuckey,  1  Itich.  K(i.  411,  412, 
413,  is  pre<"isely  in  point,  to  show  that,  as 
api)licable  to  real  estate,  such  words  are 
not  sutticient  to  affect  the  direct  limita- 
tion. And  to  that  case,  and  the  authorities 
tliere  cited,  I  refer:  and  with  the  more  confi- 
dence, because  the  Chancellor  who  delivered 
the  opinion  was  the  same  who  had  given  the 
judgment  on  liell's  will:  and  on  this  latter 
occasidii  offers  his  reasons  for  applying  a  dif- 
ferent rule  in  ri'lation  to  real  and  pcrsunal 
property. 

It  is  ordered  that  the  foregoing  opinion 
stand  for  the  decree  of  this  Court. 

It  is  further  ordered  that  the  Coniniission- 
er  do  call  in  the  creditors  of  the  jilaintilfs 
intestate,  to  prove  and  establish  their  de- 
mands, l»y  a  day  to  be  fixed  by  the  Conuuis- 
sioner,  by  advertisement  in  the  .*>outli  Caro- 
linian newspaper;    and  that  I  lie  Co.inuissiou- 


er  do  take  an  account  of  the  said  estate, 
charging  it,  among  other  things,  with  the 
profits  of  the  personal  estate  limited  in  re- 
mainder to  the  defi'iidant.  by  the  will  of 
.lonafhan  Davenport,  according  to  the  fore- 
going opinion :  and  that  the  Commissioner 
report  the  proper  mode  of  distributing  the 
assets  of  the  said  estate  among  its  creditors, 
and  what  balance,  if  any,  remains  for  distri- 
bution to  the  defendant,  the  sole  distributee. 
The  costs  to  1k>  paid  out  of  said  estate  iu  the 
!  first  instance. 

The  complainant  appealed,  on  the  following 
grounds : 

1st.  On  the  bill  filed  by  Young  and  wife 
against  I)aveni»ort.  her  guardian,  this  Court 
ordereil  the  property  to  be  delivered  to  Young, 
but  declared  that  the  guardian  should  have  a 

*570  ' 

lien  on  the  *property  for  any  balance  that 
might  be  found  due  to  him ;  a  balance  of 
.i;4()l.ir)  was  found  due  to  the  guardian,  for 
which  Young  gave  his  note;  Davenport 
transferred  the  note  to  Stephens,  and  Young 
gave  to  Stephens  a  new  note,  with  Mcl.ure  as 
surety  ;  and  the  surety  having  paid  the  note 
since  Young's  death,  it  is  submitted  that 
his  Honor  erred  in  declaring  that  he  is  not 
entitled  to  a  lieu  on  the  property  for  the  debt. 
I'd.  That  by  a  proper  construction  of  Jona- 
than Davenport's  will,  the  land  was  devised 
to  his  daughter  Catharine  in  fee  simple. 

.'^(1.  That  his  Honor  erred  in  deciding  that 
the  personalty  bequeathed  to  testator's  daugh- 
ter C'atharine  was  well  limited  to  the  defend- 
ant, her  only  cliild.  as  purcha.ser  in  remain- 
der. 

4th.  That  his  Honor  erred  in  deciding  that 
the  said  Catharine  took  only  a  life  estate  in 
the  property  bccpieathed  to  her  by  the  4th 
and  nth  clauses  of  the  will. 

nth.  That  his  Honor  erred  in  not  directing 
that  the  estate  of  .lames  M.  Young,  decea.sed, 
should  not  be  held  to  account  for  the  property 
which  the  .said  Catharine  received  under  the 
oth  clause  of  tlie  will,  nor  for  the  clock 
be»iueathed  to  her  by  the  4th  clause — seeing 
that  that  property,  or  the  greater  part  of  it, 
was  i-onsuujed  or  worn  out  before  the  estate 
came  into  the  possession  of  .said  Young. 

The  defendant  also  appealed,  on  the  follow- 
ing gnanids: 

1st.  That  his  Honor  erred  in  holding  that 
j  Mrs.  Catharine  Young  took  a  fee  conditional 
I  in  the  lands  devisi>d  to  her  by  the  .'!d  ilause 
j  of  .Tonathan  Davenport's  will. 
!  I'd.  That  tenancy  by  the  curtesy  does  not 
i  now  exist  in  this  State;  and  that  his  Honor 
I  erred  in  deciding  that  .Tames  M.  Ycnnig.  de- 
I  ceased,  was  entitled  to  a  lifp  estate  in  the 
j  lands  devised  by  the  .'td  clause  of  the  will,  as 
tenant  by  the  curtesy. 

."{(l.  That  by  the  terms  of  the  will,  Mrs. 
Catharine  Young  took  only  a  life  estate  iu 
the  lands  devised  to  her,  with  remainder  to 
her  issue  as  iiurchasers. 

235 


*570 


3  RICHARDSON'S  EQUITY  REPORTS 


4th.  That  James  M.  Young,  jr..  took  under 
Hie  will,  at  the  death  of  his  mother,  a  fee 
simple  estate  in  the  lands  devised  to  her. 
*571 

*Sullivan,  for  the  plaintiff,  cited  2  Jarm. 
on  Wills,  24,  25,  178 ;  2  Wms.  on  Exors.,  S09, 
810;  Phillips  v.  Garth,  3  Bro.  C.  C,  69;  Rev. 
Dom.  Rel.,  457;  Scanlan  v.  Porter,  1  Bail., 
427 ;  Bedon  v.  Bedon,  2  Bail.,  2:n  ;  1  Hill's 
Ch.,  281;  3  Hill,  193;  4  McC,  442;  2  McC. 
I'h.,  171;  Hull  v.  Hull,  2  Strob.  Eq.,  190;  6 
Rep.,  19;  3  Rich.,  289;  3  Strob.  Eq.,  211;  1 
McC.  Ch.,  82  et  seq. ;  4  Kent,  27 ;  1  Co.  Lit., 
19  ;  2  Bay,  397  ;  1  McC.  Ch.,  91 ;  2  McC.  Ch., 
324;    Gray  v.   Givens,  Riley   Ch.,  41. 

Bauskett,  contra,  cited  6  Cruise,  147;  3 
Bin.  R.,  150;  Archer's  case,  1  Rep.,  163;  4 
Kent  Com.,  214,  220;  Merest  v.  James,  5  Eng. 
C.  L.  R.,  156;  1  Salk.,  224;  2  Jarm.,  354; 
Lees  V.  Mosley,  589;  Cooper  v.  Collis,  4  T.  R., 
294;  44  Eng.  C.  L.  R.,  330;  4  Bur.,  257,9; 
33  Eng.  C.  L.  R.,  373;  32  Eng.  C.  L.  R.,  483; 
Williams  v.  Ca.ston,  1  Strob.,  130;  1  Bin., 
139 ;    2  Hill  Ch.,  197. 

Garlington,  same  side. 

UUNKIX,  Ch.,  delivered  the  opinion  of  the 
Court. 

The  question  referred  to  the  Court  of  Er- 
rors arises  out  of  the  third  and  fourth  claus- 
es of  the  will  of  Jonathan  Davenport,  deceas- 
ed. The  Chancellor  ruled  that  under  the  de- 
vise to  Catharine  Davenport  she  took  a  fee 
conditional  in  the  real  estate.  On  the  part 
of  the  appellant,  it  is  insisted  that  she  took 
only  a  life  estate,  with  a  valid  remainder  to 
himself  as  a  purchaser  under  his  grandfa- 
ther's will.  The  decision  is  founded  on  what 
is  familiarly  known  as  the  rule  in  Shelley's 
case.  All  the  authorities  admit  that  a  rigid 
adherence  to  the  letter  of  this  rule  would  fre- 
quently defeat  the  intention  of  the  testator. 
"It  is  a  rule  of  tenure,  which  is  not  only 
independent  of,  but  generally  operates  to  sub- 
vert, the  intention."  It  must  not,  therefore, 
be  understood,  says  Mr.  Jarman,  that  even 
the  technical  expression,  "heirs  of  the  body," 
is  "incapable  of  control  or  explanation  by  the 
effect  of  superadded  expressions,  clearly 
demonstrating  that  the  testator  used  those 
words  in  some  other  than  their  ordinary  ac- 
ceptation, and  as  descriptive  of  another  class 
of  objects"— (2  Jarm.  on  Wills,  300.)  Al- 
though a  difference  of  opinion  exists  among 
Judges  as  to  the  word  issue,  yet,  it  seems 

*572 

now  settled,  that  un*less  restricted  by  the 
context,  this  expression  cannot  be  satisfied  by 
applying  it  to  descendants  at  a  particular 
l)eri()d.  But  if,  from  superadded  expressions, 
or  from  the  context,  or  from  other  pai-ts  of 
the  will,  it  is  manifest  that  the  testator  used 
the  term  as  synonymous  with  "children,"  or 
intended  to  describe  a  class  of  persons  to  take 

236 


at  a  particular  time,  issue  will  be  construed 
as  a  word  of  purchase,  and  not  of  limitation. 
And  this  rule  is  equally  applicaljle  to  every 
other  expression  used   as   synonymous   with 
heirs    of    the    body.      Whenever    the    words 
"heirs  of  the  body"   would  be  explained  to 
mean  .some  other  class  of  persons,  the  same 
construction  is  given  to  the  synonyme,  and 
the  rule  in  Shelley's  case  does  not  apply. — 
(2  Jarm.  281.)     It  must  be  conceded  that,  in 
the  application  of  these  rules,  the  cases  can- 
not be  reconciled.     There  seems  to  have  pre- 
vailed an  unceasing  conflict  between  the  obli- 
gation to  observe  a  technical  rule  and  a  solic- 
itude not  to  defeat  the  obvious  intention  of 
the  testator.     In  England,  this  struggle  has 
been  so  manifest,  and  the  discrepancy  in  the 
decisions   so  perplexing,   that  a   special  Act 
of  Parliament  has  been  found  necessary,   (1 
Vic.  c.  26,  s.  29,)  which  restricts  and  defines 
the  construction  to  be  given  to  words  in  a 
will    importing    a    failure    of    issue.      But,\ 
prior   to   that   Act,   if   it   could   be  gathered 
from  the  will  that  the  testator  did  not  con- 
template an  indefinite  succession  of  issue,  but 
a   class   of  persons  to  take  at  a  particular 
time,  this  manifest  intention  was  I'espected 
and  carried  into  effect.    It  was  said,  in  argu- 
ment, that  the  will   of  Davenport  was  pre- 
pared by  a  professional  gentleman  of  sagacity 
and  long  experience,  whose  name  appears  as 
a    witness    to    the    instrument.     Be   that    as 
it  may,  if  the  draughtsman  had  not  before 
him,  he  clearly  had  in  his  mind,  the  Act  of 
1791;    which  declares  the  mode  of  distribu- 
tion of  an  intestate's  estate  at  the  time  of  his 
death.     In   the   various  clauses  of  the  will, 
the  terms  issue,  children,  and  heirs,  repeat- 
edly occur.     W'hen  the  word  heirs  is  used,  it 
is  obviously  intended  only  to  express  the  am- 
plitude of  the  estate,  as  in  the  devise  to  his 
sons     "and    their    heirs     forever." — In     the 
clause    under    review,    the    devise    is    to    his 
daughter,    Catharine,    "for    and    during    the 

*573 

term  of  her  natural  life ;  and,  at  her  *death, 
I  give,  devise,  and  bequeath  the  same,  ab- 
solutely and  forever,  to" — whom?  Not  to 
her  child  or  children,  for  she  might  have 
none,  but  to  her  children,  grand-children,  or 
great-grand-children,  as  the  case  might  be; 
or,  using  the  comprehen.sive  and  familiar 
terms  of  the  statute,  "to  her  lineal  descend- 
ants." But,  perhaps  she  might  leave  none  of 
these ;  and  the  testator  proceeds  to  provide, 
as,  in  such  case,  the  statute  provides,  for  dis- 
tribution among  collaterals,  where  the  intes- 
tate leaves  no  lineal  descendant.  "And  in 
case,"  says  he,  "she  should  die  without  lineal 
descendants,  (one  or  more,)  living  at  the  time 
of  her  death,  then  it  is  my  will  that  the  whole 
of  said  real  estate  revert  to  my  estate  and  be 
disposed  of  as  hereinafter  directed." 

The  statute  declared  that  on  the  death  of 
an  intestate,  leaving  only  brothers  and  sis- 
ters, the  estate  should  be  distributable  equal- 


M'LURE  V.  YOUXO 


*575 


ly  jiiiii>ii;.'st  tlu'iii.  This  was  not  quite  in 
accordaiKt'  wilh  the  testiitui's  views.  His 
(lau^-'littT  liad  two  hrothers  and  tliree  sisters, 
who,  in  tile  contingency  ciniteniphited.  would 
be  entitled  to  her  estate  under  the  statute. 
But  there  were  two  of  the  sisters  wiioni  the 
testator  desired  not  to  partake,  as  he  had 
already,  in  his  life  time,  amply  provided  for 
them,  or,  (to  use  his  own  expressions,)  he  had 
done  so  '•accordinji  to  ids  own  intentions  and 
hij!  own  notions,  and  I  am,  (says  he,)  or  at 
least,  I  think  I  am.  the  liest  judu'e  in  the 
matter."  lie  tluMffore  directs  that,  in  such 
event,  "the  jiroperly  lic(|ueatiied  to  my  daufjli- 
ter,  (Catharine,)  shall  he  equally  divided  he- 
tween  my  ciuldren.  .lames  M.  l)avenpt»rt, 
John  <J.  Davenport,  and  Aimy  Hill:  and  I 
give,  he<iueath,  and  devise  the  same  to  my 
said  three  children  and  their  heirs  forever, 
share  and  share  alike;"  tiie  testator  therehy 
modifying'  the  provisions  of  the  statute,  and 
excludin;:  his  other  two  daufihters,  Maria 
Louisa  McLnre  and  Elizaheth  (J.  Kudd.  Is 
Iherc  any  rule  or  decision  which  demands  the 
deslruf.tion  of  this  .sciieme.  and  a  sacrifice  of 
the  m:inif(>st  purpose  of  this  testator?  Giv- 
ing to  the  terms,  "lineal  descendants."  exact- 
ly the  nieanin;;  of  "issue."  are  there  not 
words  restraininj;  tlie  meanini:  to  issue  liv- 
ing at  tlie  death V  It  is  argued  that  the  con- 
struction   of    this    devise    is    concluded    by 

*574 
Whitworth  v.  Stuckey,  (1  Rich.  E<i.  *404.) 
("eitainly  that  case  goes  as  far,  in  deference 
to  the  decisions  in  Westminster  Hall,  as  the 
most  tenacious  could  desire. — And  it  is  some- 
what remarkable,  as  is  elsewhere  noticed, 
that  the  reason  for  adhering  to  the  technical 
construclion  in  devises  of  real  estate  in  the 
CVjurts  of  England,  not  oidy  does  not  exist  in 
South  Carolina,  but  the  contrary.  Admitting, 
as  the  English  authorities  do,  that  a  more 
liberal  rule  prevails  in  be<piests  of  person- 
alty, they  justify  the  distinction  on  the 
ground  that,  by  construing  the  words  to 
import  a  general  failure  of  issue,  it  would, 
in  personalty,  necessarily  render  void  the 
gift  over,  which  is  to  take  eflect  on  such  con- 
tingency; but  that  this  construction,  in  de- 
vises of  real  estate,  would  only  have  the  ef- 
fect of  creating  an  estate  tail,  on  which  a 
remainder  may  lie  lindted. — {2  Jarm.  .'iOli.) 
Hut  in  South  Carolina  this  construction 
creates  a  fee  conditional,  upon  which,  accord- 
ing to  our  decisions,  a  remainder  cannot  be 
limited;  and  the  disinclination  to  adoi)t  such 
construction  should  equally  exist  in  devi.ses 
«»f  leal  estate  as  in  bequests  of  personalty, 
lint  tlip  terms  of  this  devise  are  not  the  same 
with  those  in  Wiiitworth  v.  Stuckey.  and  other 
words  arc  here  superadded,  evincing  the  in- 
tention of  the  testator,  whicii  are  wanting  in 
that  devise.  Language  of  the  strictest  tech- 
nical iiniMirt,  as  heirs  of  the  body,  will  not 
control  the  c<instruction  if  the  intention  he 
clearly  nianifesti'd  to  describe  therehy  a 
class  of  persons  to  take  at  a  particular  pe- 


riod. In  such  case  the  intention  will  prevail. 
Tile  rule  only  reiiuires,  says  Mr.  Jaruian,  a 
<lear  indu-ation  of  intention  to  that  effect. 
And  so,  in  Uyan  v.  Cowley,  (Lloyd  iS:  (lould, 
10,)  Lord  Chancellor  Sugden  says  of  the  term 
issue,  it  may  he  employed  as  a  word  of  liuii- 
tation,  or  of  purchase,  and  if,  by  the  context, 
the  testator  shows  that  it  is  used  as  synony- 
mous with  child  or  children,  he  translates 
his  own  language,  and  the  Court  gives  effect 
to  his  declared  menning.  Using  technical 
expressions,  a  party  is  i)resumed  to  use  them 
in  a  techni<-al  sen.se,  because  every  man  is 
lircsumed  to  know  the  law.  It  has  been 
already  remarked,  that  the  u.se  of  the  term 
"lineal  descendants,"  indicated  that  the  testa- 
tor probably  lnokeil  to  the  scheme  of  the  stat- 

*575 
ute  which  adoiits  tins  iie<u*liar  phrase  in 
liroviiling  for  the  tinal  distribution  of  an  in- 
testate's estate  at  the  period  of  his  death. 
Hut  the  testator  had  borrowed  other  expres- 
sions from  the  .same  statute,  more  familiarly 
known,  perhaps,  than  any  other  in  the  stat- 
ute hook.  The  tirst  canon  of  this  statute 
provides  for  the  distribution  of  tiie  estate 
between  the  widow  and  children,  if  more- 
than  one;  but  if  only  one,  the  remainder  of 
the  e.state  shall  be  vested  in  that  one,  abso- 
lutely forever.  Then,  in  the  next  canon,  the 
lineal  descendants  of  the  intestate  shall  rep- 
resent their  respective  parents,  and  be  enti- 
tled, &c.  The  next  provides  for  the  event 
that  the  intestate  shall  not  leave  "a  child 
or  other  lineal  descendant":  It  is  hardly  nec- 
essary to  say  that  the  statute  confers  an 
estate  in  fee  simple,  or,  in  its  own  prhase, 
"absolutely  forever."  Each  canon  vests  the 
estate  in  the  persons  who,  at  the  death  of 
the  intestate,  shall  answer  the  destription. 
If  the  testator  had  devised  the  estate  to  his 
daughter,  for  and  during  the  term  of  her 
natural  life,  and  at  her  deatli.  to  such  per- 
sons, absolutely  and  forever,  as  would  at  that 
time,  had  it  been  her  own  property,  be  enti- 
tled to  take  her  e.state  according  to  the  stat- 
ute of  distributions,  it  would  be  ditticult  to 
entertain  a  doubt  as  to  tiie  meaning  of  the 
testator,  and  scarcely  questionable  that  the 
persons  thus  (lecril-)ed  would  take  as  purchas- 
ers. They  might  be  the  lineal  descendants  of 
bis  daughter,  or  her  ancestors,  or  her  col- 
lateral relations,  or  even  her  husband.  They 
would,  nevertheless,  according  to  our  deci- 
sions, be  her  heirs.  Hut  the  testator  clearly 
manifests  that  no  indelinite  succession  was 
contemplated,  and  that  he  merely  purposed 
to  describe  a  class  of  persons,  who,  at  the 
death  of  his  daughter,  should  take  absolutely 
the  estate  which  he  had  given  to  her  for  life. 
He  ha.s,  in  the  will  before  us,  only  varied  the 
language  to  meet  his  purpose.  He  declares, 
in  case  his  daugiiter  should  die  without  lineal 
descendant.s,  one  or  more,  living  at  the  time 
of  her  death,  then,  he  desires  the  estate  to 
revert  to  his  estate,  and  to  be  disposed  of  in 
a  different  manner  than  that  prescrihed  by 

237 


*575 


3  RICHARDSON'S  EQUITY  REPORTS 


the  statute  in  such  event.  The  testator, 
therefore,  adopts  the  language  of  the  statute 
and  with  the  meaning  intended  by  the  stat- 
ute, provided,  at  the  death  of  his  daughter, 

*576 

there  *were  living  any  lineal  descendants, 
(one  or  more.)  By  "lineal  descendants,"  the 
statute  meant  child,  grand-child,  great-grand- 
child, &c. ;    the  testator  meant  the  same. 

But,  as  I  have  remarked,  there  are  other 
expressions  in  this  will  which  do  not  appear 
in  Whitworth  v.  Stuckey,  and  which  have 
received  judicial  construction,  as  limiting 
tne  general  terms  of  this  devise.  After  giv- 
ing a  life  estate  to  his  daughter,  the  testator 
provides,  as  follows — "after  her  death,  I 
give,  bequeath  and  devise  the  same,  absolute- 
ly and  forever,  to  her  lineal  descendants." 
These  are  the  expressions  used  in  the  first 
canon  of  the  statute  of  distributions. 

The  effect  of  these  words,  as  declaratory 
of  the  intention  of  the  testator,  came  under 
the  consideration  of  this  Court  in  Myers  v. 
Anderson,  (1  Strob.  Eq.  344  [47  Am.  Dec. 
537]).  Although  that  was  a  case  of  person- 
alty, no  such  distinction  is  adverted  to,  and 
the  language  of  the  Court  seems  too  distinct, 
general  and  emphatic,  to  admit  of  any  such 
restricted  interpretation.  In  that  will  the 
words  were,  (after  the  gift  of  a  life  estate  to 
Mary  Brown  and  Margaret  Brooks,)  "after 
the  death  of  the  said  Mary  Kiown  and  Mar- 
garet Brooks,  to  be  the  absolute  property  of 
the  issue  of  their  bodies,  forever."  "If  oblig- 
ed," says  the  Chancellor  in  the  circuit  decree, 
"by  the  rules  of  law  to  extend,  in  perpetuity, 
the  interests  of  these  legatees  which  is  ex- 
pressly given  for  life,  and  to  declare  that  the 
interest  which  is  given  to  their  issue,  ex- 
pressly 'to  be  their  absolute  property,'  is  no 
interest  at  all, — that  the  absolute  property 
is  not  in  the  issue  to  whom  it  is  given,  but 
in  the  mother  to  whom  it  is  not  given,  but, 
on  the  contrary,  from  whom  it  is  expressly 
withheld:  if  I  am  obliged  by  the  rule  in 
Shelley's  case  to  do  this,  I  shall  feel  that  I 
am  sacrificing  tiie  intention  of  the  testator, 
as  to  which  there  can  be  no  mistake."  The 
Chancellor  "conformed  his  decree  to  the 
manifest  intention  of  the  testator,  and  declar- 
ed that  Mary  Brown  and  Margaret  Brooks 
took  only  a  life  estate,  and  that  upon  their 
deatlis,  respectively,  their  issue  took  as  pur- 
chasers." In  attirnihig  this  decree,  the  Court 
*577 

of  Appeals  say. — "all  the  au*thorities  agree 
that,  if  the  limitation  be  to  the  heirs  of  the 
body,  or  issue,  and  to  their  heirs,  this  con- 
stitutes them  purchasers:  as  it  shews  an  in- 
tention to  give  tiiem  an  estate,  not  inherit- 
able from  the  first  taker,  but  an  original 
estate  inheritable  from  themsehes  as  a  new 
stock  of  descent.  The  authorities  also  agree 
that,  if  the  estate  limited  to  the  heirs  of  the 
body,  or  issue,  L.e  of  a  (luality,  or  be  given 
to  be  enjoyed  in  a  way,  incompatible   with 

238 


the  idea  that  they  are  to  hold  it  in  indefinite 
succession  (as  if  it  be  given  to  them  as  ten- 
ants in  common,  or  to  be  equally  divided 
between  them).; — this  takes  it  out  of  the  rule 
in  Shelley's  case;  and  the  immediate  heirs 
or  issue  take  as  purchasers.  It  appears  to 
the  Court  that  the  testator  in  this  case,  by 
the  gift  to  the  issue,  not  only  of  the  property, 
or  slaves,  but  of  the  absolute  property  in 
them,  (a  term  importing  the  quantity  of  inter- 
est intended  to  be  given,)  has  as  effectually 
glA'en  them  the  fee,  (so  to  speak)  as  if  the  be- 
quest had  been  to  the  issue  and  their  heirs; 
and  that  the  gift  of  the  absolute  property,  or 
fee,  rebuts  the  idea  that  he  intended  it  to  go 
in  an  indefinite  succession." 

This  doctrine  met  the  approbation  of  the 
whole  Court,  among  whom  was  Chancellor 
Harper,  who  had  himself  decided  Whitworth 
V.  Stuckey,  and  who,  in  this  decision,  saw 
notliing  inconsistent  with  it.  The  principles, 
on  which  the  distinction  was  placed,  are  well 
estallished  principles  in  relation  to  real 
estates,  and  constitute  well  recognized  ex- 
ceptions to  the  ride  in  Shelley's  case.  The 
language  of  this  will  is,  if  possible,  more 
emphatic.  It  is  not  merely  to  be  "their  abso- 
lute -property,"  but  it  is  given,  in  the  words 
of  the  statute,  to  them  absolutely  and  for- 
ever. This  Court  is  of  opinion,  in  the  terms 
of  Myers  v.  Anderson,  that  this  is  equivalent 
to  a  devise  to  them  and  their  heirs,  that  the 
daughter  of  the  testator  took  only  a  life 
estate,  and  that  the  defendant,  the  only  child 
of  his  deceased  mother,  was  a  purchaser  un- 
der the  will  of  his  grand-father,  and  that  it 
should  have  been  so  declared. 

O'NEALL,  FROST,  WITHERS  and  WHIT- 
NER,  J  J.  and  WARDLAW,  Ch.  concurred. 

*578 

*The  case  ha\"ing  been  returned  to  the 
Equity  Court  of  Appeals,  in  that  Court  the 
following  judgment  was  pronounced. 

JOHNSTON,  Ch.  The  Court  of  Errors 
having  determined  that  the  defendant  took 
the  real  estate  covered  by  the  3d  clause 
of  testator's  will,  as  purchaser,  upon  the 
death  of  his  mother :  and  their  decision  to 
that  effect  having  been  returned  to  this 
Court ;  it  is  ordered  that  the  same  be  deemed 
the  judgment  of  this  Court  upon  that  point; 
and  that  the  account  which  has  been  ordered 
be  taken  with  that  modification. 

This  Court,  proceeding  to  deliver  its  judg- 
ment upon  the  residue  of  the  case,  concurs 
with  the  Chancellor  in  so  much  of  his  decree 
as  relates  to  the  note  given  to  Stevens. 

It,  also,  concurs  with  him  in  his  decree 
relating  to  the  personal  estate  of  the  testa- 
tor, except  as  to  so  nmch  thereof  as  is  cover- 
ed by  the  5th  clause  of  his  will. 

In  the  4th  clause  the  direct  limitation  is 
to  Catharine  and  her  issue.     The  limitatiou 


M'LURE  V.  YOUNG 


"bin 


over,  in  tbc  ialtcr  part  of  that  clause,  has 
iiffii  itioiK'ily  iH'ld  sufticit'iit  to  convert  the 
issue  into  purchasers. 

Hut  in  the  oth  elause  issue  are  not  men- 
tioned in  th«'  direct  ;,'ift.  That  is  made  to 
Catharine  alone;  and  the  limitation  over 
(which  is  found  in  ti)e  latter  part  of  the 
fourth  clause)  cannot  have  the  effect  to  vest 
any  thin;^  in  the  issue,  unless  liy  implication; 
which  is  expressly  contrary  to  Carr  v.  I'ortcr, 
(1  McC.  Vai  m.  This  difference  iK'tween  tiie 
4th  and  r>th  clauses  was  overlooked  hy  tiie 
Chancellor,  from  the  fact  that  only  the  4th 
clause  was  arjiued,  and  that  very  imperfect- 
ly.    Our  opinion  is  that  Catharine  took  an 


ahsolute  interest  in  the  personalty  given  by 
tile  nth  clause:  and  that  the  same  vested  in 
her  husliand  jure  niaiiti ;  and  whatever  of 
it  remained  at  his  death,  was  i)art  of  his 
estate. 

It  is  ordered  that  the  decree  he  moditied 
as  indicated  in  ♦^his  judgment  and  in  that  of 
the  Court  of  Errors. 

IMXKIX  and  DARGAN,  CC.  concurred. 

WAUni.AW.  ("h.  was  not  present  at  the 
hearing  in  this  Court. 
Decref    modilied. 

239 


[End  of  Vollmk  3  Ricu.  Eq.] 


REPORTS 


OF 


CASES   IN    EOUIT\ 


/ 


ARGUED  AND   DETERMINED    IN   THE 


COURT  OF  APPEALS  AND  COURT  OP  PRRORS 
OF  SOUTFI  CAROLINA 


VOLUME  IV 

FROM  NOVEMHER,  1851,  TO  MAY,  1S52,  BOTH  INCLUSIVE 


By  J.  S.  G.  RICHARDSON 

STATE  REPORTER 


COLUMHIA,     S.    V. 

rU INTEL)  BY  R.  W.  <;ir.liES 

lsr),-{ 


ANNOTATED    EDITION 

ST.    PAUL 

WEST   PUBLISHING   CO. 

11)17 


CHANCELLORS 

DURING  THE  PERIOD  COMPRISED  IN  THIS 
VOLUME 


Hon.  job  JOHNSTON 
"      BEN  J.  F.  DUN  KIN 
"      GEO.  \V.  DARGAN 
"      F.  H.  WARDLAW 


4  Rich.Eq.  (iii) 


TABLE   OF   CASES   REPORTED 


Atchesou  V.   Robertson . 


Page 
39    Lowiy 


Baker  v.  Lafitte 392 

Ballard   v.   ^IcKenua 358 

Boggs    V.    Adgcr -IDS 

Bomar    v.    Mullins 80 

Boulware  v.  Harrison 317 

Brown   v.   Postell 71 

Buist  V.   Dawes,   note 415 

Buist    V.    I  )awes 421 

Buist  V.   Dawes 496 

Bnsby  v.   Bjrd 9 

Campbell  v.   Briggs 370 

Chisolm  V.   Cbisolm 266 

Crenshaw  v.  Crenshaw 14 

Crim  V.  Knotts 340 

Cunningham    v.    Shannon 135 

Dennis  v.  Dennis 307 

Douglass    V.    Brice 322 


Evans  v.   P^vaus. 


334 


Foster  v.  Hunter 16 

Foster  v.   Kerr 390 

(ieddes,  Ex  parte 301 

< Jlenn   v.   Caldwell 168 

(irlover   V.    Harris 25 

Hay   V.    Hay 378 

Heath   v.    Bishop 46 

Hicks  V.  Pegues 413 

Higginbottom   v.   Peyton 314 


Keitt  V.  Andrews. 


349 


Lawton  V.  Hunt 233 

Long   V.    Cason 60 


V.    O'Bry; 


262 


AI(  <  'all    V.    McCall 447 

McMullen  v.  Cathcart 117 

McQueen  v.  Fletcher ir)2 

Maybin   v.    Kirby lo.") 

Meek  v.  Richardson 88 

Miller    v.    Anderson 1 

Moover  v.   Andrews. 349 

Norton,    Ex   parte,    note 215 

Norton   V.   Gillison's   Legatees 213 

O'Neall   V.    Boozer 22 

Pettus  V.   Clawson 92 

Pettus  V.   Smith 197 

Raines  v.   Adams 399 

Raines  v.  Woodward 399 

Rivers   v.   Fripp 276 

Rose    V.    Drayton 260 

Smith  V.  Pettus 197 

South  Carolina  R.  Co.  v.  .Tones 4.")9 

Telfair  v.  Howe 254 

Thomson  v.  Peyton 314 

Thorne  v.  Fordham 222 

Verdier    v.    Foster 227 

Williman  v.    Holmes 475 

Yarborough  v.  Bank  of  (Georgia 462 

Zimmerman   v.    Harmon 165 

Zimmerman   v.   Wolfe 329 


4  Ricn.Eq. 


(iv>t 


CASES   IN   EQUITY 

AKGIEI)    AND    nKTKKMINKIl    IX    TIIK 

COURT  OF  APPEALS 

AT  COI.UMBIA,  SOUTH  CAROLINA— NOVEMBER  AND 
DECEMBER  TERM,  1851. 


ClIAXCKLT.ORS    PrKSEN'T. 

IIo\.   .TOR   .TOIIX.STON, 
"       B.    F.    DTXKIX. 
"       G.  W.  I)AK(JAX, 
"       F.  II.  WARD  LAW. 


4  Rich.  Eq.  *l 
•BENJAMIX  MILLKU  and  Otli.rs  v.  THOM- 
AS R.  AXDERSOX  and  Others. 
(Columbia.     Xov.  and   Dec.  Term,   1851.) 

[Slaves  <£=>7.1 

Tliere  cannot  be  a  valid  jiift,  by  parol,  of  a 
slave,  to  take  eflfect  at  the  donor's  death— al- 
though the  form  of  an  actual  delivery  be  gone 
through  with. 

[Ed.  Xote. — For  other  case.s,  see  Slaves4  Cent. 
Dig.  §  28;    Dec.  Dig.  <®=>7.] 

[Slaves  <©=T.] 

A  father  intending  to  make  a  gift,  to  take 
effect  at  his  death,  of  a  negro  to  his  infant  child, 
put  in  the  presence  of  witnesses,  the  negro's 
hand  into  that  of  the  child,  and  said,  tlie  negro 
wa.s  to  be  the  child's  at  his.  the  fatiier's  death: 
the  father  afterwards  spoke  of  and  recognized 
the  gift,  but  he  retained  possession  of  the  negro 
until  his  death:— i/cW,  that  there  was  no  valid 
gift. 

[Ed.  Note.— Cited  in  Busby  v.  Byrd,  4  Rich. 
Eq.  13. 

For    other    cases,    see    Slaves,    Cent.    Dig.    SS 
20-29;    Dec.  Dig.  .©=7.] 

[Oifts  <©=>2n.i 

Scmble.  that,  if  the  donor  intends  to  part 
with  tlie  whole  title  at  tlie  time  of  tlie  delivery, 
merely  retaining  possession  for  the  benefit  of 
the  donee,  the  gift  is  valid. 

[Ed.   Xote.— For  other  cases,  see  Gifts,  Cent. 
Dig.  §  40;    Dec.  Dig.  <S=2."..| 

Before  John.ston,   Ch.,  at   Kdgctield,   June, 
1851. 

Johnston,    Ch.     This  bill,   liled  22d  April, 
1850,  is  for  an  account  and  scttleuient  of  the 

*2 
estate  of  the  late  James  Miller,  who  *died  in- 


te.'^tate,  29tli  March,  1847.  He  had  been  twice 
married,  but  both  of  his  wives  pre-deceased 
him — each  of  them  leaving  children. 

By  the  first  wife,  who  died  17tli  January, 
1824,  he  had  three  children— Edmund,  the 
oldest,  who  was  born  in  1819.  and  was  about 
five  years  of  age  at  his  mother's  death,  and 
Mary,  who  was  about  two  years,  and  Emily, 
who  was  about  four  years,  youn.ger. 

Edmund  married  and  subsequently  died  in 
1845,  during  his  father's  life,  leaving  two 
children,  named  in  the  pleadings.  Mary  al- 
so married  in  her  father's  life-time,  having 
become  the  wife  of  her  co-defendant,  Thos. 
R.  And(>rson,  in  the  year  ISoG :  she  is  still 
alive.  Emily  married  also  during  her  fa- 
ther's life,  but  pre-deceased  him,  leaving  dis- 
tributees,   who  are    parties    to   the   suit. 

The  intestate,  by  the  second  wife,  had  five 
children,  all  of  whom  (or  the  representatives 
and  distributees  of  such  of  them  as  are 
dead)  are  parties  to  this  proceeding.  The 
only  question  which  I  am  called  upon  to  de- 
termine, relates  to  a  gift  of  three  slaves, 
which  James  Miller,  the  intestate,  is  alleged 
to  have  hade  to  Edmund,  Mary  and  Emily, 
the  three  children  of  the  first  marriage,  im- 
mediately upon  the  death  of  their  mother. 
These  slaves,  with  the  subsequent  increase, 
remained  in  the  donor's  po.s.session  from  the 
(late  of  the  alleged  gift  to  the  time  of  his 
death ;  and  the  question  is,  whether  they 
are  parcel  of  his  estate,  or  are  to  be  regard- 


®=3For  other  cases  see  same  topic  aud  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 
4Ricu.Eq.— 1 


*2 


4  RICHARDSON'S  EQUITY  RErORTS 


ed  (excluding,  of  course,  their  increase.)  as 
advancements  to  the  donees. 

The  defendant,  Anderson,  became  the  ad- 
ministrator of  the  intestate,  and  it  appears 
that  he  produced  the  slaves  in  question  to 
the  appraisers  of  the  estate ;  and  this  cir- 
cumstance is  relied  on  as  evidence  against 
the  gift  of  them  by  the  intestate.  But  I 
think  this  matter  is  sufficiently  explained 
by  the  evidence,  and  that  no  inference,  un- 
favorable to  the  donation,  is  to  be  drawn 
from  it.  The  question  must  turn  entirely  up- 
on the  testimony  in  relation  to  the  gift,  and 
the  explanation  which  the  conduct  of  the 
donor  affords,  as  to  his  intention  in  making 
it. 

Joseph  Noble  was  present  when  the  dona- 


tion was  made,  and  was  *produced,  on  behalf 
of  the  donees,  to  state  the  circumstances. 
He  says,  that  on  the  morning  after  the  moth- 
er of  Edmund,  Mary  and  Emily  was  buried, 
their  father,  in  the  presence  of  witness,  wit- 
ness's mother  and  sister,  and  also  in  the  pres- 
ence of  his  own  mother  and  one  Hatcher, 
called  up  three  little  negroes.  Bob,  (about  the 
size  of  Edmund,)  Sue,  (about  the  size  of 
Mary.)  and  Elvira,  (about  the  size  of  Emily,) 
and  putting  Bob's  hand  into  that  of  Ed- 
mund, Sue's  into  that  of  Mary,  and  Elvira's 
into  that  of  Emily,  made  the  gift,  saying 
the  negroes  were  to  be  theirs  (the  children's) 
at  his  own  death,  and  that  what  he  did  was 
done  in  compliance  with  his  wife's  death-bed 
re<iuest. 

The  depositions  of  George  Tillman  were 
also  read  on  behalf  of  the  donees.  He  was 
the  brother  of  the  first  Mrs.  Miller,  the  moth- 
er of  the  donees,  and  though  not  present  at 
the  gift,  the  intestate  told  him  of  it  a  few 
days  after  it  was  made.  No  doubt  the  con- 
versation related  to  the  precise  facts  spoken 
of  by  Noble. 

He  says,  that  a  few  days  after  his  sister's 
death,  he  and  his  mother,  on  their  way  to 
the  intestate's  house,  met  him,  and  he  then 
;stated  to  them,  that,  in  obedience  to  his  de- 
ceased wife's  request,  in  the-  presence  of 
"Benjamin  Hatcher  and  Nancy  Noble,  he 
had  given  Bob  to  his  son  Edmund,  a  negro 
;arl  Sue  to  Mary,  and  a  negro  girl  Elvira 
to  Emily;  and  that  he  had  given  and  deliv- 
ered the  hands  of  those  negroes  into  the 
hands  of  his  children  above  named." 

This  witness  also  testifies  to  another  con- 
versation which  he  had  with  the  intestate, 
in  August,  1846,  in  witness's  piazza,  while 
eating  peaches.  He  was  giving  vent  to  his 
grief,  says  the  witness,  at  his  being  bereaved 
of  his  children,  Edmund  and  Emily — ^and  he 
spoke  of  his  endeavors  to  provide  for  them — 
and  told  how  he  had  bought,  or  furnished 
the  means  of  buying,  several  negroes  for  Mr. 
Anderson — and  for  Edmund,  he  had  bought 
a  family  of  negroes  at  Capt.  Wever's  sale-^ 
and  to  John  Rainsford,  (who  had  married 
Emily,)  he  had  given  about  $2,000,  in  notes 

2 


— and  then  spoke  of  the  reason  of  his  not 
having  given  possession,  which  was,  that  he 
had  no  more  negroes  than  he  wanted,  and 


that  he  disliked  separating  his  *faniilies  of 
negroes  and  substituting  others  or  strange 
negroes  in  their  stead,  for  negroes  were 
troublesome  at  best,  and  that  it  was  time 
enough  for  them  to  have  them  at  his  death, 
when  he  was  dead  and  gone.  This  was  some 
seven  or  eight  months  before  his  death. 
He  remarked,  "it  might  be  another  Scott 
case,  for  he  had  given  the  negroes  in  the 
same  way  that  he  understood  Mr.  John  Gray 
gave  a  negro  girl  to  a  daughter,  who  married 
a  gentleman  by  the  name  of  Scott:  by  de- 
livering the  negroes'  hands  into  the  chil- 
dren's hands." 

It  appears,  that  after  Edmund's  marriage, 
he  went  to  a  plantation  of  the  intestate,  on 
Horn's  creek,  where  he  superintended  as 
overseer— Bob  being  among  the  hands  there. 
When  he  left  that  place  and  removed  to  an- 
other plantation  of  his  father's,  called  Pov- 
erty Hill,  Bob  still  continued  as  before,  par- 
cel of  the  Horn's  creek  gang.  It  also  ap- 
pears, that  the  intestate  administered  on  Ed- 
mund's estate,  but  did  not  include  Bob  in 
the  inventory. 

In  relation  to  Sue,  the  intestate  also  re- 
tained possession  of  her  until  his  death,  not- 
withstanding Mary's  marriage  and  settling 
off  in  1836,  ten  years  before  he  died.  The 
only  additional  circumstance  respecting  this 
slave  and  her  issue,  (for  she  had  several 
children,)  was  a  conversation  related  by  the 
witness.  Walker.  This  witness  says,  that 
after  Mary's  marriage,  he  rode  up  one  morn- 
ing to  the  intestate's,  when  he  was  whipping 
Sue,  and,  by  way  of  explanation,  he  stated 
that  Sue  behaved  very  badly;  that  when 
Mary  went  to  herself,  he  had  given  Sue  to 
her,  but  she  was  so  mean  that  Mary  would 
not  have  her,  and  he  had  been  obliged  to  buy 
another  to  put  in  her  place. 

As  to  Emily,  there  is  nothing  to  be  added 
to  what  has  been  stated.  Though  she  mar- 
ried and  settled  off,  Elvira,  who  is  supposed 
to  have  been  given  to  her,  still  remained  at 
her  father's. 

I  have  no  doubt  whatever  of  the  formal 
delivery  of  the  slaves  to  the  children,  in 
the  manner  spoken  of  by  Noble,  and  I  have 
as  little  doubt  that  the  intestate's  intention 
was  to  vest  them  with  a  title  in  the  slaves. 

I  do  not  think  it  necessary  to  distinguish 

*5 

between  the  testimony  *of  Tillman  and  No- 
ble. Though  the  former  speaks  of  declai-a- 
tions  of  the  intestate,  from  which  we  might 
generally  infer  a  perfect  gift,  yet,  as  it  is 
evident  that  in  those  declarations  he  referred 
to  what  he  had  done  when  Noble  was  pres- 
ent, it  would  be  a  pei'version  of  principle  to 
extend  the  declarations,  by  construction,  be- 
yond the  specific  acts  he  then  performed — 


MILLER  V.  ANDERSON 


and  these  we  have  from  Noble,  who  witnessed 
them,  and  they  speak  for  themst-lves. 

I  have  no  doubt,  as  I  liave  said,  that 
there  was  a  formal  tradition  of  the  proper- 
ty, and  that  the  intention  was  to  iiass  an 
interest  in  it  to  them.  I5iit  the  (pu'stion  is, 
whether  the  intestate  intended  to  i»ass  the 
title  to  them  presentl.v.  rcscrviiii;  the  cu.s- 
tody  in  him.self,  for  their  benefit  and  as 
their  bailee,  or  to  pass  a  title  to  them  in 
present!,  to  take  effect  at  his  death,  in- 
terposiuj:;  in  the  mean  time,  a  title  in  him- 
self, for  his  own  life,  and  for  his  own  ben- 
efit. 

If  his  intention  was  of  the  former  de- 
scription. I  am  of  opinion  there  was  a  good 
and  effectual  gift,  and  having  taken  po.s- 
session  under  his  children,  the  statute, 
which  is  relied  on  for  destroying  the  d<tnees' 
title,  could  not  avail  for  that  purpose: — 
such  a  possession  would   not  be  adverse. 

If.  however,  the  intestate's  intention  was 
to  reserve  a  life  estate  in  himself,  and  to 
make  a  i»resent  formal  delivciy  by  way  of 
investing  the  donees  with  the  remainder  ex- 
[lectant  on  his  death,  I  am  of  opiiuon  that 
this  could  not  be  done  by  parol :  antl  that, 
whatever  forms  were  adopted,  they  were  in- 
effectual for  such  a  purpose. 

In  the  transmission  of  title  i.n  personal 
jiroperty,  the  essential  thing  is  delivery,  and 
the  essence  of  that  is  not  the  form  adopted, 
but  the  power  which  the  formal  act  com- 
nnniieates.  There  must  pass  from  the 
donor  or  grantor  to  the  other  party,  an  ir- 
revocable control  or  dominion,  to  reside 
in  the  latter  from  that  time  forward,  ir- 
respective of  any  change  in  the  intention  of 
the  former. 

Where  a  party  delivers  a  deed  or  instru- 
ment, which  is  in  its  nature  irrevocalile.  and 
especially  when  it  is  founded  upon  proper 
consideration,  he  puts  in  the  hands  of  the 
grantee  a  power  of  control  and  dominion 
over    the    property    covered    by     the    deed, 

*6 
which    *that   party   may    exercise  according 
to  the  tei'ms  of  the  deed,  whether  the  gran- 
tor may  in  future  time  be  willing  or  unwill- 
ing. 

I  have  endeavored  to  explain  this,  in  my 
opiiuon,  in  Jaggers  v.  Estes.  (;>  8trol).  E<i. 
."'.4,)  to  which  I  refer.  An  interest  in  per- 
sonalty, to  lie  enjoyed  or  enforced  in  futuro, 
may  therefore  be  conferred  l>y  deed  ;  and  it 
is  because  the  pow«>r  to  control  the  proi)er- 
ty  is  carried  in  the  deed  itself.  That  pow- 
er of  control  is  a  delivery,  and  there  is  no 
dondnlon  where  it  is  wanting;  for  deliver}* 
is  neither  more  nor  less  than  the  transfer 
of  dominion. 

But  a  future  donunion  cannot  be  trans- 
ferred by  parol.  In  the  case  of  a  deed, 
there  is  always  extant  in  the  deed  itself, 
and  beyond  the  control  of  the  grantor,  a 
power  of  dominion  in  o|)position  tt).  and  in 
despite  of,  the  control  resulting  to  the  gran- 


tor from  his  retention  of  the  possession  of 
the  property.  But  where  there  is  no  deed, 
the  only  means  of  imi'arting  a  dominion 
over  personal  property  is  by  a  delivery  of 
it,  with  an  intent  to  confer  the  dominion. 
A  formal  delivery,  when  the  control  of  the 
property  is  not  intended  to  go  with  the  act, 
Is  a  mere  form,  and  no  delivery.  It  is  utter- 
ly ineffectual,  and  the  intention  to  make  a 
substantial  delivery,  is  rebutted  by  the  re- 
tention of  the  property,  under  a  claim  of 
title  in  the  deliverer.  He  intends  to  pass, 
at  the  time,  no  control  over  the  proi)erty. 
His  intention  is.  that  that  control  shall  arisi' 
at  a  future  time,  and  not  presently ;  and 
the  formal  delivery  is  in  anticipation  of 
that  future  time  at  which  the  control  is 
intended  to  be  vested,  and  when  alone  a 
true  delivery  can  be  made. 

In  all  cases  where  a  right  is  intended  to 
pass  in  personal  property,  unless  there  be 
a  deed,  or  .some  irrevocable  instrument,  the 
property  must  be  delivered  with  an  intent 
to  confer  a  present  control,  and  so  strong  is 
this  principle,  that  in  cases  donatio  mortis 
causa,  where  the  gift  is  intended  to  be  con- 
ditional merel}'.  and  to  be  defeated  by  the 
recovery  of  the  donor,  the  proiierty  must 
be  delivered,  or  what  is  the  .same  thing, 
put  within  the  power  of  the  donee.  (Ward 
V.  Turner,  2  Ves.  Sen.  4.'J1). 

Having  thus  settled  in  my  own  nnnd  that, 
*7 
if  it  was  fntended  *that  a  legal  title  to  the 
property  should  remain  in  the  donor  for 
his  own  life,  the  gift  of  the  remainder  by 
parol  was  ineffectual — the  question  is, 
whether  the  evidence  establishes  a  gift  of 
that  nature,  or  whether  it  establishes  a 
present  ti'ansnussion  of  title  to  the  donees, 
coupled  with  a  retention  of  po::session  for 
their  benefit,  which  would  amount  to  a  pos- 
session on  their  part. 

I  think  the  evidence  proves  a  gift  of  the 
former  character. 

Hardly  any  thing  could  be  more  explicit 
than  the  donor's  declaration,  at  the  time  of 
the  intended  donation,  that  the  property 
was  to  be  theirs  (the  donees)  at  his  death. 
Is  it  not  necessarily  implied  that  it  should 
be  or  remain  his  (and  not  theirs)  until  that 
time? 

Then,  upon  the  supposition  that  the  prop- 
erty belonged  to  the  donees  in  present!,  how 
are  we  to  account  for  their  pernntting  their 
father  to  retain  pos.-<ession  after  they  came 
of  age  or  married?  How  are  we  to  account 
for  the  intestate  not  having  included  Bob 
in   Edmund's   estate? 

Ednnnid  died  in  1845,  and  yet  we  find 
the  intestate  si)eaking  of  the  gift  to  him. 
in  1S4().  without  practically  admitting  that 
the  rijiht  which  the  gift  vested  was  to  take 
eft'ect  until  his  own  death.  How  are  we 
to  reconcile  this  circumstance  without 
adopting  the  hypothesis  that  he  retained  a 
title  iu  himself  for  life? 

8 


*7 


4  RICHARDSON'S  EQUITY  REPORTS 


Again:  The  fact  of  the  intestate  having 
stated  to  Walker  that  he  had  attempted  to 
give  Sue  to  Mary,  upon  her  marriage,  is  re- 
lied on.  But  this  circumstance  rather  forti- 
fies the  supposition,  that  he  considered  the 
title  to  be  in  himself  for  life,  at  that  time, 
and  that  this  new  gift  was  made  in  virtue 
of  that  ownership,  and  not  merely  in  pur- 
suance of  the  gift  of  1824. 

Again:  In  the  answer  of  Anderson  and 
wife,  it  is  substantially  admitted  that  the 
receipt  given  by  them  to  the  intestate,  for 
advancement,  did  not  include  Sue.  This  is 
not  reconcilable  witli  the  supposition,  that 
the  title  to  Sue  passed  in  presenti,  (with 
a  power  of  present  control,)  in  1824.  It  is 
perhaps  reconcilable  with  a  gift  in  remain- 
der, but,  as  we  have  seen,  such  a  gift  would 
be  ineffectual. 

*8 

*Again:  By  way  of  accounting  for  the 
intestate's  retention  of  possession,  the  tes- 
timony of  Tillman  is  relied  on,  that  it  was 
inconvenient  to  him  to  part  from  the  prop- 
erty. But  this  is  as  well  reconcilable  with 
the  retention  of  a  life  estate  as  the  present 
parting  from  the  entire  title,  and  rather 
more  so,  inasmuch  as  his  expressions  seem 
to  imply,  that,  whether  he  should  retain 
the  possession  or  part  from  it,  depended  on 
his  own  option,  which  infers  that  the  own- 
ership was  in  him.  And  again,  when  the 
intestate  said,  "it  was  time  enough  for  them 
(the  children)  to  have  them  when  he  was 
(lead  and  gone,"  was  this  acknowledging  that 
the  negroes  then  belonged  to  the  children? 
Was  it  not  rather  an  assertion  of  right  in 
himself,  by  which  he  could,  at  his  pleasure, 
postpone  their  enjoyment  of  the  property? 

It  is  adjudged  and  decreed,  that  the 
slaves.  Bob,  Elvira  and  Sue,  with  their  in- 
crease, as  to  the  two  latter,  were  parcel  of 
the  estate  of  James  Miller,  at  his  death, 
and,  as  such,  chargeable  to  his  administra- 
tor; that  he  account  for  the  price  at  which 
he  sold  Elvira;  and  that  the  others  are  sub- 
ject to  partition,  for  which  purpose  the  par- 
ties have  leave  to  take  out  a  writ  of  parti- 
tion. It  is  further  ordered,  that  the  admin- 
istrator account  before  the  Commissioner,  to 
whom  all  matters  of  account  are  hereby  re- 
ferred. 

The  parties  to  be  at  liberty  to  apply  for 
any  other  necessary  order.  The  costs  to  be 
paid  out  of  the  said  estate. 

The  defendants  appealed  on  the  grounds: 

1.  That  from  the  evidence  in  the  case 
there  was  a  valid  gift  of  the  negroes  in 
question  by  the  intestate,  James  INIiller,  to 
his  children,  Edmund,  Mary  and  Emily. 

2.  Because,  it  is  respectfully  submitted, 
that  his  Honor,  the  presiding  Chancellor, 
should  have  ordered  an  issue  at  law,  at  the 
request  of  the  defendants,  to  try  the  ques- 
tion whether  there  was  a  valid  gift  or  not. 


Griffin,  Banskett,  for  appellants. 

Carroll,   contra. 

*9 

*PER  CURIAM.  This  Court  concurs  in 
the  decree  of  the  Chancellor:  which  is  hereby 
affirmed  and  the  appeal  dismissed. 

JOHNSTON,  DUNKIN  and  DARGAX,  CC, 

concurring. 

WARDLAW,  Ch.,  having  been  of  counsel, 
gave  no  opinion  in  this  case. 
Appeal   dismissed. 


4    Rich.  Eq.    9 

LE^IS   BI'SBY   aud  MARY.   His  Wife,  yT' 
THOMAS  B.  BYRD  aud  Others. 

(Columbia.     Nov.  and   Dec.  Term,   1851.) 

[Slaves  <^=s7.] 

A  ijurol  gift  of  a  negro  to  take  effect  in 
possessiou  at  the  donor's  death,  is  necessarily 
void,  because  there  can  be  no  delivery,  aud  to  a 
parol  gift  delivery  is   essential. 

[Ed.  Note. — For  other  cases,  see  Slaves,  Cent. 
Dig.  §§  20-29;   Dec.  Dig.  <S=7.] 

[Gifts  <©=:5ll,  18.] 

To  constitute  a  delivery,  it  is  essential  that 
the  deliverer  should  part  with  his  control  over 
the  chattel;  and  where  his  iutention  is  to  vest 
a  future  interest,  though  he  may  go  through  the 
form  of  delivering  the  chattel,  yet,  inasmuch  as 
he  retains  his  control  over  it,  there  is  no  de- 
livery. 

[Ed.  Note. — For  other  cases,  see  Gifts,  Cent. 
Dig.  §§  9,  31;   Dec.  Dig.  <S=:5ll,  18.] 

Before  Johnston,  Ch.,  at  Abbeville,  June, 
1851. 

Johnston,  Ch.  This  was  a  bill  filed  by  Lew- 
is Busby  and  Mary,  his  wife,  against  Thomas 
B.  Byrd,  administrator  of  the  estate  of  Rhoda 
Pullam,  deceased,  the  distributees  of  the  said 
Rhoda  and  others;  claiming  the  delivery  of 
a  negro  woman,  Leah,  and  her  children,  and 
partition  of  the  same  among  the  four  daugh- 
ters of  Lucy  Pullam,  deceased,  viz:  Mary,  the 
wife  of  Lewis  Busby,  Mahala,  the  wife  of 
Matthew  H.  Bryson,  Rhoda,  the  wife  of  Wm. 
Sanders,  and  Eliza,  the  wife  of  Thomas  B. 
Brooks. 

James  Pullam,  the  husband  of  Rhoda  Pul- 
lam, had  owned  Leah,  the  negro  in  contro- 
versy.    At  the  sale  which  was  made  of  his 

property  after  his  death,  in  the  year  , 

Leah  was  bought  by  one  Charles  B.  Foshee, 
who  kept  her  about  one  year  and  then  sold 
her  to  Rhoda  Pullam,  who  had  her  in  her  pos- 
session from  that  time  until  her  death,  except 
the  period  of  time  during  which  Lucy  Pul- 
lam had  possession  of  her,  and  whilst  John 
P.  Coleman  owned  her,  of  which  more  will 
be  said  hereafter. 

*10 

*Leah  and  her  children,  who  have  now 
increased  to  the  number  of  eight,  are  still 
in  the  possession  of  Thomas  B.  Byrd,  the  ad- 
ministrator of  the  estate  of  Rhoda  Pullam, 


®=3For  other  cases  see  same  topic  and  KEY-NUMBER  m  all  Key-Numbered  Digests  and  Indexes 


BUSBY  V.  BYKD 


who  dii'd  in  Juiu'.  ISJfi;    and  he  alone  of  the 
defendants  lias  answered. 

Luf-y  rnllani  was  the  widow  of  Benja- 
min rnllani.  who  was  the  nephew  of  James 
PulliiiM  tlie  hiisliand  of  Klioda  Pullam;  and 
the  jilaintiffs,  for  themselves  and  for  the  «>th- 
er  three  daiii,'hters  of  Lucy  I'ullam.  claim, 
that,  in  conseiineiice  of  their  relathmsliip 
to  the  said  Bliuda,  slu-  liad  ;;iven,  in  h«'r  life 
time,  Leah  and  her  child  Ally  (the  only  child 
then  liorn)  to  the  plaintiff,  Mary,  and  her  sis- 
ters above  named.  They  allci;*',  that  iUioda 
I'ullam,  "in  or  aiiout  tiie  year  o(  our  Lord 
one  thousand  eif,'lit  hundred  and  thirty-live, 
gave  and  delivered  to  your  oratrix  and  her 
sisters,  named  aforesaid,  who  had  hut  small 
means,  a  ne^rro  woman,  Leah,  and  her  dauirh- 
ter  Ally.  Whatever  the  precise  tenns  of  the 
said  fiift  were,  your  orator  and  oratrix  as- 
sert there  was  a  substantial  and  lef,'al  ^ift 
of  the  said  Leah  and  her  said  dau;:hter,  to  the 
Si.sters  of  your  oratrix  with  ber.self,  and 
actual  delivery  of  the  .said  slaves  accompa- 
nied, for  some  time,  by  po.ssession." 

The  plaintiffs  endeavored  to  show  a  parol 
gift  from  Rlioda  rullam;  and  upon  that  point 
offered  many  of  her  declarations  .statiiif;  in 
various  forms,  (as  the  witnesses  remendiered 
themi,  that  she  intended  to  give,  and  at  other 
times  that  she  had  givt-n,  Leah  and  her  chil- 
dren, or  some  of  them,  to  Lucy  rullam  or  her 
daughters. 

I  do  not  regard  the  gift  made  out  either 
by  these  declarations  or  the  temporary  pos- 
ses.sion  of  the  woman,  Leah,  by  the  said  Lucy 
Pullam;  and  I  admitted  counter  declarations 
of  the  alleged  donor  (when  subse»iuently  in 
possession,)  stating  that  she  had  intended  to 
give,  but  had  changed  her  mind— that  she 
had  not  given,  that  she  never  intended  to 
give  Leah  or  her  children,  either  to  Lucy 
Pullam  or  her  daughters — and  that  she  had 
made  her  will,  giving  Leah  to  Lucy  Pullam 
and  one  of  her  children  to  each  of  her  daugh- 
ters, but  that  she  had  dt'stroyed  it,  &c.  The 
testimony  was  somewhat  conflicting,  and  ap- 
parently inconsistent,  but  I  think  susceptible 
of  reasonable  explanation  in  the  view  which 

*11 

I  have  *taken  of  the  case.  The  evidence  is 
all  in  writing,  either  in  answer  to  interroga- 
tories propounded  by  the  parties  or  taken  by 
the  Commissioner,  and  is  appended  to  this 
decree,  so  that  either  party  may  have  the  fidl 
benefit  of  it. 

It  will  be  seen  that  Lucy  Pullam  died  In 
August,  is;]0,  and  that  Leah  and  her  cliihl 
Ally  had  been  sent  back  to  lUioda  Pullam 
but  a  short  time  before  her  death.  By  refer- 
ring to  the  testimony,  it  will  also  be  seen  that 
Leah  remained  in  the  possession  of  Lucy  Pul- 
lam for  a  period  of  time  less  than  a  year. 
All  the  witnesses  concurred  in  this.  Some 
of  them  say  that  Leah  was  with  Lucy  I^il- 
1am  only  a  few  months.  So  that  there  is  no 
clear    evidence    either    of   a    declaration    of 


IChoda  Pidlam  that  she  had  given  Leah,  or  of 
Lucy  Pullam's  possession  of  her  and  her  child, 
prior  to  the  sununer  of  In."'..".  Dr.  I'alhoun 
says  that  "he  made  a  will  for  Rhoda  Pul- 
lam In  the  latter  part  of  the  .vear  l.s;{;j.  by 
which  the  girl  I^-ah  and  her  children  were 
given  to  L.  Pullam,  with  an  injunction,  tliat 
she  would  give  one  negro  child  to  each  of  lu-r 
daughters,  when  they  married,  or  came  of 
age,  should  the  woman  have  so  many."  This 
will  was  not  destroyed  until  the  year  1S41, 
and  I  am  of  opinion  that  all  the  declarations 
of  Bhoda  I'ullam,  in  relation  to  the  alleged 
gift  of  Leah  and  her  <hildr«'n,  had  reference 
to  this  will,  then  in  existence,  and  the  pro- 
vision which  she  had  made  thereby  for  Lucy 
I'ullam  and  her  children — that  she  never 
meant  that  she  had  given  up  all  control  over 
the  said  slaves,  but  that  she  had  made  that 
disposition  of  Leah  and  her  children  by  will, 
and  that  it  was  her  intention  that  they 
should  go  in  that  way,  unless  she  chose  to  al- 
ter and  destroy  the  will,  which  she  still  re- 
tained the  right  to  do,  and  which  afterwards 
she  did  actually  do,  when  some  of  the  i)ar- 
ties  had  offended  her  by  taking  coun.sel  to 
ascertain  whether  they  could  hold  the  ne- 
groes under  the  gift.  She  not  only  destroyed 
the  will,  but  de.stroyed  it  in  such  a  manner, 
(by  '•burning  it  on  her  pipe,")  as  to  indicate 
her  strong  di.«<approbation  of,  and  contempt 
for,  the  conduct  of  the  parties  of  whom  she 
complained,  and  her  determination  to  give 
them  nothing. 

This  view  of  the  testimony  is  supported  by 
*12 

the  reference  to  the  *deed  of  gift,  said  to 
have  been  drawn  by  Dr.  Calhoun,  when  the 
provision  in  favor  of  Lucy  Pullam  and  her 
children  was  spoken  of:  he  having  drawn  no 
deed  of  gift  but  a  will,  which  wik?  revocable: 
and  it  is  also  strengthened  by  the  conduct  of 
Lucy  I'ullam  herself,  when,  in  the  presence  of 
Coleman,  she  returned  Leah  to  Rhoda  Pullam, 
expressing  her  dissatisfaction  with  the  man- 
ner in  whicn  she  had  taken  the  negroes,  stat- 
ing that  her  friends  had  told  her  that  she  was 
working  and  raising  negroes  for  other  per- 
sons, that  the  title  to  her  children  was  worth 
nothing,  and  unless  Rhoda  Pullam  would 
make  a  deed  of  gift,  it  would  be  useless  for 
her  to  keep  the  negroes  any  longer.  Rhoda 
Pullam  replied,  she  would  make  no  deeds 
about  it,  and  if  they  refused  to  take  her 
word  for  it,  they  might  send  them  home: 
and  in  a  few  days  after  they  were  returned. 

I  think  there  is  nothing  in  the  circum- 
stances of  this  case — either  in  the  relation- 
ship of  the  parties,  the  declarations  of  Rhoda 
Pullam.  or  in  the  temporary  custody,  which 
Lucy  Pullam  had  of  these  negroes,  explain- 
ed as  it  is.  which  would  authorize  the  Court 
to  presume  a  gift  other  than  that  made 
in  the  will  drawn  by  Dr.  Calhoun,  which  was 
revocable,  and  in  fact  revoked. 

I   am   also   against   the   plaintiffs   on   the 


*12 


4  RICHARDSON'S  EQUITY  REPORTS 


statute  of  limitations.  After  the  return  of 
Leah  to  Rhoda  Pullam,  as  stated  above,  Cole- 
man says,  "she  never  did  acknowledge  any 
right  except  her  own."  She  sent  for  Ally. 
Afterwards,  in  1839,  she  sold  Leah  to  Cole- 
man, who  owned  her  between  one  and  two 
years,  and  then  sold  her  back  to  Rhoda  Pul- 
lam, at  an  advance  of  three  hundred  dollars. 
When  a  letter  was  received  from  Rhoda  Pul- 
lam, Jr.,  one  of  the  daughters  of  Lucy  Pul- 
lam, claiming  a  negro  or  money,  she  declared 
that  "the  Pullam  girls"  had  no  interest  in 
Leah;  which  she  occasionally  repeated  down 
to  her  death,  in  June,  1846. 

There  is  no  reason  to  doubt,  (even  if  there 
ever  had  been  a  gift,)  that  Rhoda  Pullam,  and 
her  representative  since  her  death,  have  had 
adverse  possession  of  Leah  and  her  children 
quite  long  enough  to  confer  title  to  them ; 
and  there  is  as  little  room  for  doubt  that  the 
daughters  of  Lucy  Pullam  knew  that  their 

*13 

mother  had  re*turned  them — that  Rhoda  Pul- 
lam had  sent  for  Ally,  and  that  she  had 
changed  her  mind  upon  the  subject,  and  held 
them  in  her  own  right  and  under  her  own  con- 
trol, and  adverse  to  every  other  claim,  al- 
though she  still  intended,  until  affronted,  to 
give  them  by  her  will. 

It  is  not  an  answer  to  the  plea  of  the  stat- 
ute, to  say  that  the  gift  by  its  terms  was  not 
to  take  effect  until  the  death  of  Rhoda  Pullam. 
If  there  ever  was  a  gift,  it  was  a  parol  gift, 
and  such  gift  to  take  effect  in  possession  at 
the  death  of  the  donor,  is  void  for  want  of 
delivery.  The  formal  words  of  delivery  may 
be  pronounced,  the  ceremony  may  be  per- 
formed, but  it  is  inconsistent  and  impossible 
that  there  can  be  a  real  delivery  in  such  a 
case:  because  it  is  necessary,  in  order  to 
complete  a  parol  gift,  that  the  property  itself 
should  be  delivered,  and  by  the  very  terms  of 
a  gift  to  take  effect  in  futuro,  the  donor  is 
not  to  deliver  but  to  retain  possession.  A  de- 
livery is  neither  more  nor  less  than  the 
abandonment  of  control  by  one  party,  and 
the  transfer  of  it  to  the  other:  and  when  the 
intent  is  to  retain  that  control,  a  delivery  is 
impossible.  I  have  stated  my  opinion  on  this 
point  in  my  decree  in  Jaggers  v.  Estes,  (3 
Strob.  Eq.  34,)  and  very  recently  in  the  case 
of  Miller  v.  Anderson,  [4  Rich.  Eq.  1,]  which 
I  heard  at  Edgefield,  and  content  myself  with 
a  reference  to  what  I  have  there  said. 

There  is  another  point  upon  which  I  think 
I  should  be  justified  in  refusing  to  decree  a 
specific  delivery  in  this  case.  In  no  view 
that  can  be  taken  of  the  testimony,  is  the 
evidence  of  gift  so  free  from  doubt  and  ob- 
scurity, as  to  entitle  the  plaintiffs  to  insist 
upon  the  equity  of  such  a  decree:  and  they 
should  be  left  to  their  remedy  at  law,  if  there 
be  any.  It  is  ordered  that  the  bill  be  dis- 
missed. 

The  complainants  appealed,  on  the  grounds: 


1.  That  the  evidence  established  a  gift  to 
complainant  and  her  sisters  to  the  slaves 
mentioned  in  the  pleadings. 

2.  That  the  statute  of  limitations  did  not 
begin  to  run  until  Rhoda  Pullam's  death,  and 
ought  not  therefore  to  have  been  held  a  bar 
to  complainant's  claim. 

*14 

*3.  That  the  suit  for  the  delivery  and  par- 
tition of  the  slaves  in  controversy,  was,  in 
this  instance,  prosecuted  in  the  proper  Court, 
and  that  the  remedy  was  not  at  law. 

4.  That  there  was  reasonable  proof  of  the 
gift  of  Leah  and  her  children  to  complainant, 
Mary,  and  her  sisters — proof  of  possession 
under  such  gift — and  of  permissive  posses- 
sion by  Rhoda  Pullam  until  her  death:  and 
that  the  decree  should  have  been  rendered 
for  complainants  in  accordance  with  it. 

Thomson,  Noble,  for  appellants. 
,  contra. 

PER  CUltlAlM.  This  Court  concurs  in  the 
decree  of  the  Chancellor ;  and  it  is  ordered 
that  the  same  be  affirmed,  and  the  appeal 
dismissed. 

JOHNSTON,     DUNKIN,     DARGAN     and 
WARDLAW,  CC,  concurring. 
Appeal  dismissed. 


4    Rich.  Eq.    14 
D.  M.  CRENSHAW  v.  W.  T.  CRENSHAW. 

(Columbia.     Nov.   and   Dec.  Term,   1851.) 

[Guardian  and  Ward  <s;=:=>o3.] 

A  general  grant  of  guardianship  of  the  es- 
tate authorizes  the  guardian  to  receive  any  es- 
tate afterwards  accruing  to  the  ward. 

[Ed.  Note.— Cite(t  in  Todd  v.  Davenport,  22 
S.  C.  150. 

For  other  cases,  see  Guardian  and  Ward, 
Cent.  Dig.  §  144  ;    Dec.  Dig.  <©=>33.] 

[Guardian  and  Ward  (®=>163.] 

Where  the  same  person  unites  in  himself  the 
characters  of  administrator  and  guardian  of 
one  of  the  distributees,  and  in  his  returns  as 
guardian  charges  himself  vith  the  share  of  the 
distributee,  he  is  no  longer  liable  to  account 
as  administrator  to  that  distributee. 

[Ed.  Note.— Cited  in  Anderson  v.  Earle,  9  S. 
C.  464. 

For-  other  cases,  see  Guardian  and  Ward, 
Cent.  Dig.  §  540;    Dec.  Dig.  <©=:5l63.] 

[Executors  and  Administrators   <@==>531.] 

[Where  an  executor,  who  was  also  guard- 
ian, charges  himself,  as  guardian,  with  a  spe- 
cific legacy  to  his  ward,  both  he  and  the  sureties 
on  his  executor's  bond  are  discharged  from  lia- 
bility.] 

[Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  §  2427;  Dec. 
Dig.  <S=»531.] 

Before  Wardlaw,  Ch.  at  Union,  June,  1851. 

The  circuit  decree,  from  which  the  case 
will  be  sufficiently  understood,  is  as  follows: 

Wardlaw,  Ch.  This  was  an  appeal,  in  be- 
half of  the  sureties  in  the  administration 
bond,   from  a   decree  of  the  Ordinary,  that 


©=3For  other  cases  see  same  topic  and  KEY- NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


FOSTER  V.  IILXTER 


m 


W.  T.  Crenshaw,  as  adiiiinistratoi-  of  Jane 
Cren.sliaw,  pay  to  D.  W.  Crenshaw,  a  distrib- 
utee of  the   estate,    who   had    cited   the   ad- 

*15 
*tuinistrator  to  acctunit,  the  sum  of  $17-.4G, 
with  interest  tliert'on  from  January  1,  1.S47. 
It  ai)peared  from  tlie  rejtort  of  the  Ordi- 
nary, tliat  Jane  Crenshaw  died  intestate  in 
18.'J4,  leaving  six  hrotliers  and  sisters,  of 
wliom  D.  M.  Crensliaw  was  one,  the  distribu- 
tees of  her  estate,  and  tliat  administration  of 
her  estate  was  granted  to  \V.  T.  Crenshaw; 
that  the  administrator  made  a  return  to  the 
Ordinary,  May  10,  iSoG,  whicli  was  the  basis 
of  tlie  decree;  that  by  i)rt)ceedings  in  equity, 
said  W.  T.  Crensliaw  was  appointed  guard- 
ian of  the  person  and  estate  of  said  D.  M. 
Crenshaw  ;  and  that  at  the  date  of  the  ap- 
pointment, the  intestate,  Jane,  was  alive; 
and  the  petition  and  report  of  the  Counnis- 
sioner  in  Equity  referred  to  the  interest  of 
the  ward  in  tlie  estate  of  his  deceased  father, 
James  Crenshaw,  as  the  estate  of  the  ward 
needing  guardianship,  although  by  the  or- 
der the  guardian  was  api»ointed  in  general 
terms;  that  the  said  W.  T.  Crenshaw,  May 
16,  1S3G,  probably  after  his  return  to  the  Or- 
dinary of  tlie  same  date,  made  his  return,  as 
guardian,  to  the  Commissioner  in  Equity,  in 
which  he  charged  himself  with  tlie  interest 
of  the  ward  in  the  estate  of  said  intestate, 
Jane.  The  Ordinary,  proceeding  apparently 
iipon  the  notion  that  the  guardianship  was 
limited  to  the  interest  of  the  ward  iu  the  es- 
tate of  his  father,  decreed  that  W.  T.  Cren- 
shaw, as  administrator,  was  liable  for  liis 
ward's  share  in  the  estate  of  his  sister  Jane. 
I  am  of  opinion  that  the  appeal  must  be 
sustained.  A  general  grant  of  guardianship 
of  the  estate  authorizes  the  guardian  to  re- 
ceive any  estate  accruing  to  the  ward  after 
the  appointment.  It  is  proper,  in  case  the 
subse(juent  acquisition  of  estate  by  tlie  ward 
be  large,  that  the  fact  be  brought  to  the  at- 
tention of  the  Court,  by  the  otticer  of  the 
Court,  or  by  some  friend  of  the  ward,  so  that 
additional  security  may  be  required  from  the 
guardian ;  but  the  guardian  is  appointed  to 
protect  the  possible  as  well  as  the  actual  in- 
terests of  the  ward.  His  authority  cannot 
be  apportioned  according  to  the  .security  he 
may  have  given.  The  case  of  Simkins,  Ordi- 
nary, V.  Cobb,  (2  Bail.  GO,)  is  direct  authority 
that  if  the  administrator  of  an  estate  be  ap- 

*16 
pointed  guardian  of  the  distribu*tees,  enter 
into  bond  as  guardian,  and  charge  himself 
in  his  returns  as  guardian  with  the  balances 
in  his  hands  as  aflministrator,  the  adminis- 
tration bond  is  discharged.  As  guardian,  he 
becomes  creditor  of  himself  as  administrator, 
and  thus  uniting  the  characters  of  creditor 
and  debtor,  the  debt  upon  the  administration 
bond  is  extinguished.  (Johiis(Ui  v.  Johnson, 
2  Hill  Eq.  2S4  [29  Am.  Dec.  72].) 

It  is  ordered  and  decreed,  that  the  decree 


of  the  Ordinary  be  reversed,  and  that  D.  M. 
Crenshaw  pay  the  costs. 

The  i)etitioner  ai)i>ealed,  on  the  following 
grounds : 

1.  Iiecau.se  the  defendant  was  not  a|ipoint- 
ed  guardian  of  the  interest  of  the  petitioner 
in  the  estate  of  Jane  Crenshaw:  and  he. 
having  her  estate  as  administrator,  is  liable 
for  the  same  in  that  character. 

2.  Iiecau.se,  even  if  defendant  made  liim- 
.self  and  his  sureties,  on  his  guardianship 
bond,  liable  for  what  he  received  as  admin- 
istrator, it  cannot  discharge  the  sureties  on 
the  administration  bond  to  the  petitioner. 

Dawkins,  for  appellant. 
,  contra. 

PEK  CURIAM.  We  concur  in  the  Clian- 
cellor's  decree,  which  is  hereby  attirmed  and 
the  appeal  dismissed. 

JOHNSTON,      ItlNKlN,      DARGAN     and 
WARDLAW,  CC,  concurring. 
Decree  affirmed. 


4    Rich.  Eq.    IS 

JAMES  H.  FOSTEli.  A-bnr.  of  Nancy  Davis, 

v.  JOHN  IIINTER. 

(Columbia.     Nov.  and   Dec.  Term,  1S.")1.) 

[Judfimcni  <©==>87G.l 

Where  the  presumption  of  the  satisfaction 
of  a  judiiment  is  nrsred  from  the  lapse  of  time 
merely,  it  is  indispensable  that  the  term  of 
twenty  years  be  coini)let;':  and  even  where  that 
is  tiie  ease,  the  presunqition  is  not  irrebuttable, 
but  is  of  such  strenirtli  that  it  can  be  overcome 
by  scarcely  any  evidence. 

[Ed.  Note. — Cited  in  Myers  v.  O'llaulou,  12 
Rich.   Eq.  208. 

For  other  cases,  see  Judgment.  Cent.  Dig.  §§ 
I(;4.s-1G.")2 ;    Dec.   Dig.   <S=>87G.] 

[Judijnicnt  C=87G.] 

I^apse  of  time,  less  than  twenty  years,  and 
corrolxirating  circumstances  held  sufficient  to 
raise  the  presumption,  that  a  decree  in  favor  of 
parties,  some  of  whom  were  resident  in,  and 
some  without,  the  State,  was  satisfied  so  far  as 

*I7 
the  parties  *in  tlie  State  were  interested  ;   but 
not  suHicient  to  raise  the  presumption  of  satis- 
faction as  against  the  parties  resident  without 
the  State. 

[Ed.  Note. — For  other  cases,  see  Judgment, 
Cent.  Dig.  §  1648;    Dec.  Dig.  <S=3876.1 

Before  Johnston,  Ch..  at  Abbeville.  June, 
1S51. 

This  case  will  be  sutHciently  understood 
from  the  opinion  delivered  iu  the  Court  of 
Appeals. 

Wil.son,  for  appellant. 
I'erriu  «&  McGowen,  contra. 

The  opiniou  of  tlie  Court  was  delivered  by 

WARDIi.VW,  Ch.  William  Vickory.  who 
died  iu  1804,  by  his  will,  gave  his  real  and 
personal  estate,  with  iiiconsuleralile  excep- 
tions, to  his  daughter   Betty,   while   she   re- 


^=>For  other  cases  see  same  topic  aud  KEY-NUMBER  in  all  Key-Numbered  Digests  and  ludeies 


*17 


4  RICHARDSON'S  EQUITY  REPORTS 


mained  unmarried;  and  upon  her  marriage 
or  deatli,  he  directed  tlie  whole  to  be  sold  and 
eiiually  divided  between  his  daughters,  Ruth 
Hunter  and  Nancy  Davis.  Benj.  Howard 
and  Andrew  McComb  were  appointed  execu- 
tors by  tliis  will,  and  the  latter  assumed  tlie 
trust.  Betty  Vickory  enjoyed  the  estate  de- 
vised aad  bequeathed  to  her  until  her  death 
in  1826.  Andrew  McComb  liad  previously 
died ;  and  John  McComb,  his  son  and  admin- 
istrator, took  out  letters  of  administration 
on  the  estate  of  William  Vickory,  and,  on 
June  9,  1826,  sold  the  estate,  real  and  person- 
al, for  the  aggregate  sum  of  $1,312.68%.  He 
returned  the  sale  bill  to  the  Ordinary's  ofhce, 
but  made  no  further  returns.  He  died  in 
1828.  Nancy  Davis  died  in  1825,  intestate, 
leaving  children  and  grand  children  as  her 
next  of  kin.  Slie  was  residing,  at  the  time 
of  her  death,  with  her  sister,  Betty  Viclvory, 
and  was  in  indigent  circumstances.  There 
is  some  proof  that  John  McComb,  as  admin- 
istrator, settled  with  several  of  these  chil- 
dren and  grand  children,  although  no  re- 
ceipts are  produced.  Ruth  Hunter  seems  also 
to  have  died  before  the  sale  in  June,  1826, 
leaving  three  children.  At  tliat  sale,  John 
Hunter,  son  of  Ruth,  purchased  the  land 
of  testator  for  the  sum  of  $413,  and  he  and 
his  sisters,  Mary  and  Elizabeth,  purchased 
chattels  to  the  amount  of  .$204.06yi. 

John  B.  Pressley  took  out  letters  of  ad- 
*18 

ministration,  de  bonis  non,  *on  the  estate  of 
William  Vickory,  and  made  sale  of  some  per- 
sonalty to  the  amount  of  about  $80. 

At  the  sitting  of  the  Court  of  Equity  for 
Abbeville,  in  June,  1831,  John  Hunter,  Eliza- 
beth Hunter,  and  Mary  Hunter,  filed  their 
petition,  setting  forth,  the  seisin  of  land,  will 
and  death  of  William  Vickory ;  the  death  of 
Ruth  Hunter,  leaving  the  petitioners  as  her 
only  children  and  distributees ;  the  death  of 
Nancy  Davis,  leaving  several  children,  some 
of  whom  resided  without  the  limits  of  the 
State ;  the  sale  of  the  lands  by  John  Mc- 
Comb, and  the  purchase  of  them  by  John 
Hunter,  and  that  said  John  Hunter  liad  given 
his  notes  for  $413,  due  June  9,  1827,  which 
were  then  unpaid,  and  that  titles  for  said 
lands  had  not  been  made ;  and  praying  that 
said  sale  might  be  confirmed,  and  titles  for 
said  land  executed  and  delivered  to  said 
John  Hunter,  on  his  paying  the  purchase 
money  aforesaid,  with  interest.  John  B. 
Pressley,  as  solicitor  for  the  representatives 
of  Nancy  Davis  residing  in  the  State  of  Il- 
linois, consented  that  the  prayer  of  the  peti- 
tion be  granted  on  the  terms  prayed.  On 
July  2,  1831,  Chancellor  De  Saussure  ordered 
and  decreed,  that  the  sale  of  the  lands  be 
confirmed,  on  the  terms  prayed,  and  that  the 
Commissioner  of  the  Court  execute  titles 
therefor  to  the  purchaser,  unless  after  per- 
sonal notice  to  the  parties  resident  in  this 
State,   and  publication  in  a  newspaper  for 

8 


three  months,  the  parties  In  interest  express 
dissent  to  the  order. 

Administration  of  the  estate  of  Nancy  Da- 
vis, at  the  instance  of  the  distributees  in  Il- 
linois, was  granted  to  James  H.  Foster,  on 
February  15,  1851,  and  he  filed  his  petition 
June  2,  1851,  praying  that  the  decree  of  July 
2,  1831,  be  revived,  and  that  John  Hunter 
pay  the  said  sum  of  $413.  with  interest  from 
June  9,  1827,  to  the  Conunissioner  of  the 
Court,  for  distribution  among  the  distribu- 
tees of  Ruth  Hunter  and  Nancy  Davis,  or 
that  said  John  Hunter  pay  one  half  of  said 
sum  to  the  petitioner  for  distribution  among 
the  distributees  of  Nancy  Davis. 

The  defendant,  John  Hunter,  in  his  an- 
swer, states  that  no  money  has  ever  been 
paid   by  him   to   the  Commissiouer   for  this 

*19 
land,  and  *that  no  title  has  ever  been  execut- 
ed by  the  Conunissioner  to  him,  but  he  al- 
leges that  the  land  was  bought  on  some 
agreement  between  himself  and  his  sisters, 
and  that  their  wliole  purchases  at  said  sale 
did  not  amount  to  one  half  of  tlie  wliole 
amount  of  the  sales,  and  that  It  was  the 
understanding  between  himself  and  John  INIc- 
Comb,  that  lie  and  his  sisteis  should  have 
the  land  in  part  of  their  share  of  the  estate 
of  William  Vickory.  The  answer  further 
states  the  information  and  belief  of  defend- 
ant, that  all  the  children  of  Nancy  Davis 
have  received  their  shares  from  John  Mc- 
Comb, except  two  of  her  daughters,  now  in 
Illinois,  Frances  Ross  and  Ruth  'S'ickory ; 
and  insists  that  the  distributees  of  Nancy 
Davis  have  no  remedy  except  against  the 
estate  of  McComb.  Lapse  of  time  and  the 
statute  of  limitations  are  relied  upon,  as 
if  specially  pleaded. 

No  evidence  is  offered  in  support  of  the 
answer,  as  to  the  allegations  of  an  agreement 
about  tiie  purchase  of  the  lands  between 
the  defendant  and  his  sisters,  nor  of  the 
understanding  between  defendant  and  John 
McComb,  tliat  tlie  land  was  to  be  taken  in 
payment  of  the  interest  of  defendant  and  his 
sisters  in  William  Vickory's  estate.  Pretty 
strong  evidence,  however,  is  offered,  that 
John  McComb  settled  with  the  distributees 
of  Nancy  Davis  resident  witliia  this  State. 

The  Chancellor  on  the  circuit  decreed,  that 
the  decree  of  July  2,  1831,  be  revived,  and 
that  John  Hunter  pay  to  the  Commissioner 
of  the  Court  one  half  of  the  purchase  money 
of  the  land,  with  interest — that  the  distrib- 
utees of  Nancy  Davis  be  made  parties  to  the 
proceeding — and  that  the  Conmiissioner  take 
an  account  of  any  portion  of  the  proceeds  of 
the  sale  of  the  land  which  may  have  been 
paid  to  these  distributees. 

From  this  decree  the  defendant  appeals, 
insisting  upon  the  lapse  of  time,  and  corrobo- 
rating circumstances,  as  raising  the  presump- 
tion of  payment,  and  disputing  the  right  of 
the  petitioner,  as  administrator,  to  proceed  in 
the  matter  of  controversy. 


FOSTER  V.  HUNTER 


•22 


The  right  of  the  petitioner,  as  luhuiiiistra- 1 
tor  of  Nancy  Davis,  to  prosecute  this  ilaiin, 
is  not  entirely  clear;    imt   by  the  operation  [ 
*20  1 

of  ♦the  decree  of  July.  IK'A,  tlie  interest  of  I 
the  distributees  of  Nancy  Davis  was  convert- 
ed into  a  pecuniary  demand:  and  her  ad- 
ministrator is  the  proper  person  to  mai^e 
distribution.  It  is  stated  to  us,  that  tlie 
petitioner  is  the  attorney  in  fact  of  the  dis- 
tributees resident  in  Illinois;  and  if  tliat 
fact  hi<d  been  alle^'cd  in  the  petition,  he 
would  have  been  i)roperly  before  the  Court. 
But  all  objection  an  this  point  is  super- 
seded by  tlie  order  in  the  circuit  decree,  to 
make  the  distributees  parties. 

Is  the  defendant  protected  liy  the  lapse  of 
time?     The  decree  of  July,  IS-'U,  is  in  effect 
a    judirment    a,s:ainst    the   present    defendant 
for  $41:^.    with   interest    from    June  U,   ISliT. 
The  full  term  of  twenty  years  had  not  elaps- 
ed, from  the  date  of  that  decree,  before  the 
present  suit  was  instituted;    and  where  the 
presumption    of   satisfaction    is   urired    from 
the  lapse  of  time  merely,  it  is  indispensable 
that  the  term  of  twenty  years  be  complete. 
Even  where  this  is  the  fact,  the  presumption 
which  arises  is  not  one  of  those  presumptions 
of  law  which  are  absolutely  irrebuttable,  al- 
thoush  it  is  of  such  strenjith  that  it  can  be 
overcome  by  scarcely  any  evidence.     In  this 
Court,    where    the    Chancellor    exercises   the 
function  of  determininj;  upon  facts  as  well  as 
law,  effect  would  be  fiiven  to  the  presump- 
tion,  wherever,   in   the   Courts  of  Law,   the 
jury  should  be  directed  to  iiresume  the  fact. 
But   where  the   lapse    of   time  is  less   than 
twenty  years,  as  in  this  case,  circumstances 
opposing;  the  conclusion  of  satisfaction,  such 
as  the  admissions  of  the  debtor,  are  entitled 
to  full   weis;ht.      Stover  v.   Duren,   CJ   Strob. 
448  [51  Am.  Dec.  G'M].)     Here  we  have  the 
statement  of  defendant's  counsel  in  the  peti- 
tion   of   1S31,    after   the   death   of   McComb, 
administrator,  supported  by  all  the  circum- 
stances of  the  case,   that  defendant's   notes 
for  the  price  of  the  land  had  not  been  paid ; 
and   umch  more,   we   have  ■  defendant's   own 
admissions,    in    his    answer    to    the    present 
proceeding,   that   no    money    has   ever    been 
paid  by  him  for  this  land  to  the  Commission- 
er of  the  Court,  and,  on  his  information  and 
belief,  that  two  of  the  daughters  of  Nancy 
Davi?,    resident    in    Illinois,    were    not    paid 
by  McComb.     If  the  understanding  between 
defendant  and  McComb  set  up  in  the  answer 
*21 


ever  existed,  and  *defendant,  upon  whom 
was  the  burden,  has  offered  no  proof  of  it, 
such  understanding  could  not  bind  those  who 
were  no  parties  to  it,  and  they  would  still 
be  entitled  to  their  shares  in  the  proceeds 
of  the  land,  until  it  was  proved  they  were 
otherwise  satisfied. 

It  is  liuite  true,  however,  that  the  presump- 


tion of  satisfaction  of  the  decree  of  ISini.  does 
not  depend  solely  upon  the  lapse  of  time  :  and 
that  corroborating  circumstances  exist  which, 
wi'  think,  are  sutlicient  to  bar  those  of  the  dis- 
tributees  of   Nancy    Davis,    who   were  adult 
residents  of  this  State  in  IS^O,  when  the  sale 
of  this  land  was  made  by  the  administrator, 
with  the  will  aiuiexed.     It  is  alleged  in  the 
petition  of  is;n.  that  most  of  the  parties  in 
interest  were  present  at  that  sale  and  con- 
sented   thereto,    (meaning   to   ex<ept.    as    we 
suppose,    those    who    were    absent    from    the 
State,)  and  after  the  personal  notice  to  those 
in  the  State,  directed  by  the  decree  of  ISSl, 
and   presumed   to   be   given,   no   objecfion   to 
the  decree  is  manifestcHl.    The  administrator. 
McComb,  had   funds  in   his  hands,  fntm   the 
proceeds   of   the    chattels    sohl.   adeipiate   to 
pay   tlu>  distributei's   resich'ut   here,   and   we 
should  presume  that  he  did  his  duty.     Posi- 
tive evidence,  in  aid  of  the  presumption,  is 
offered,  that  he  did  pay   most  of  these  dis- 
tributees.     It    is    not    likely    that,    in    their 
needy  condition,  they  would  have  acquiesced 
in  defendant's  possession   of  the  land  for  a 
(luarter  of  a  century,  if  they  had  any  just 
cause  of  clamor.    The  decree  of  1S;U  recites, 
that  the  Court  was  informed  that   the  dis- 
tributees resident  in  the  State  consented  to 
the  order;  their  acquiescence  makes  this  fact 
very    probable.      Administration    on    the   es- 
tate of  Nancy  Davis  was  not  indispensable  to 
enable  the  parties  to  avail  themselves  of  that 
decree. 

On  the  whole,  we  consider  the  claim  stale, 
except  as  to  such  of  the  distributees  of  Nancy 
Davis  as  were  resident  without  the  State  on 
June  9,  IS'JG. 

It  is  ordered  and  decreed,  that  the  dis- 
tributees of  Nancy  Davis,  resident  without 
the  State  on  June  0.  lS2(i,  and  the  repre- 
sentative of  John  McComb.  he  made  parties 
to  this  proceeding.  It  is  further  ordered  and 
decreed,  that  the  decree  of  July  2.  IS-'U,  he 
revived,  so  far  as  the  distributees  of  Nancy 

♦22 
Davis,  resident  without  *the  State  on  June 
9,  ISUU,  are  interested;  and  that  the  defend- 
ant. John  Hunter,  pay  to  such  distributees, 
so  non-resident,  who  have  not  been  other- 
wise satisfied,  their  portions  of  said  decree 
for  ?413,  with  interest  from  June  9,  ISL'7. 
And  the  Commissioner  is  directed  to  state 
the  accounts  accordingly. 

The  order  in  the  circuit  decree,  that  de- 
fen<lant  pay  over  to  the  Commissioner  one 
half  of  the  purchase  money  of  the  land,  with 
interest,  is  recalled;  and  it  is  ordered  that 
said  decree  be  reft)rmed  according  to  the 
opinions  herein  expressed.  Costs  to  await 
the  accounting  before  the  Commissioner. 


JOHNSTON,  DUNKIN  and  DAllGAN,  CC, 
concurred. 

Decree  modified. 

8 


»22 


4  RICHARDSON'S  EQUITY  REPORTS 


4    Rich.  Eq,   22 

JOHN  B.  O'NEIALL,  Ex'or.  of  David  Boozer,  v. 
AMELIA  BOOZER  et  al. 

(Columbia.     Nov.  and   Dec.  Terra,  lS.ol.) 

[Wills  <g=:35Gl.] 

Testator  directed  his  executors  "to  enclose  a 
grave-yard  at  Aveleigb  Church,  from  4.5  to  .50 
yards  square,  with  a  wall  of  split  rock  from 
4%  to  5  feet  high,  so  as  to  enclose  the  grave 
of  "my  first  wife,  as  well  as  my  own,  with  suffi- 
cient space  also  for  the  grave  of  my  present 
wife;  and  to  erect  over  the  area  included  by 
the  wall,  a  covered  wooden  building  of  the  mOst 
lasting  materials,  to  be  finished  and  painted  in 
appropriate  style,  and  in  tlie  most  durable  man- 
ner. And  I  appropriate  one  thousand  dollars' 
out  of  my  estate  to  these  purposes:"— //c/rf,  that 
the  grave-yard  intended  to  be  enclosed  and  cov- 
ered was  one  of  forty-five  or  fifty  square  yards. 
[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §  1221 ;    Dec.  Dig.  <S=:>5U1.] 

[Wills  <S=>460.] 

Words  of  a  will  may  be  transposed,  in  or- 
der to  give  full  operation  and  consistency  to  the 
context. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §  979;    Dec.  Dig.  <S=:5460.] 

Before  Johnston,  Ch.,  at  Newberry,  July, 
1850. 

This  case  will  be  sufficiently  understood 
from  the  opinion  delivered  in  the  Court  of 
Appeals. 

Fair,  for  the  appellant. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW,  Ch.  The  will  of  David  Booz- 
er contains  the  following  clause:  "I  desire 
my   executors    to    enclose    a    grave-yard    at 

*23 
*Aveleigh  Church,  from  45  to  50  yards 
square,  with  a  wall  of  split  rock  from  4^^ 
to  5  feet  high,  so  as  to  enclose  the  grave  of 
my  first  wife,  as  w-ell  as  my  own,  with  suffi- 
cient space  also  for  the  grave  of  my  present 
wife;  and  to  erect  over  the  area  included 
by  the  wall,  a  covered  wooden  building  of 
the  most  lasting  materials,  to  be  finished  and 
painted  in  appropriate  style,  and  in  the  most 
endurable  manner.  And  I  appropriate  one 
thousand  dollars  out  of  my  estate  to  these 
purposes." 

The  Chancellor  on  the  circuit  determined, 
in  the  construction  of  this  clause,  that  the 
grave-yard  intended  to  be  inclosed  was  one 
of  forty-five  or  fifty  yards  square,  and  that 
the  wooden  building  intended  was  not  com- 
mensurate, but  one  sufficient  to  cover  a  space 
or  area  adequate  for  the  three  graves  indi- 
cated ;  and  he  ordered  the  Commissioner  to 
inquire  and  report  as  to  the  probable  cost 
of  inclosing  such  a  grave-yard  and  erecting 
such  a  building. 

The  Commissioner,  not  pursuing  exactly 
the  terms  of  the  order,  has  reported  that  an 
area  of  45  or  50  yards  square  could  not  be 
inclosed  with  stone  and  covered  by  a  wooden 
building  for  less  than  $4,600;  and  that  an 
area  of  45  or  50  feet  square  could  be  inclosed 


and  covered  as  directed  by  the  will  for  $900 
or  .^1.000. 

From  the  decree  of  the  Chancellor  an  ap- 
peal is  taken  to  this  Court,  on  the  ground 
that  by  the  just  construction  of  the  will,  45 
or  50  feet  square,  instead  of  yards,  should 
be  inclosed  by  a  stone  wall,  and  the  whole 
area  included  within  the  wall  be  covered  by 
a  wooden  building. 

According  to  the  natural  construction  of 
the  terms  employed  by  the  testator,  the  wood- 
en building  is  to  cover  the  whole  space  with- 
in the  wall  of  split  rock.  "Over  the  area  in- 
cluded by  the  wall,"  as  fully  and  accurately 
expresses  this  idea  as  any  terms  that  could  l>e 
employed,  And  we  can  perceive  no  intimation 
of  any  intention  on  thejiart  of  the  testator  to 
limit  the  area  to  be  covered,  to  a  part  or  sec- 
tion only  included  by  the  wall. 

This  is  one  circumstance  which  aids  us  in 
ascertaining  the  testator's  intention  as  to  the 
extent  of  the  grave-yard  to  be  inclosed  by 
the  wall.     A  structure  sufficiently  extensive 

*24 
to  cover  three  *graves  is  fx-equently  found 
within  rural  grave-yards ;  but  one  large 
enough  to  cover  45  or  .50  yards  square,  or 
half  an  acre,  is  without  example ;  it  would 
be  most  ungainly,  and  would  exhaust,  several 
times  over,  the  amount  of  the  fund  appro- 
priated by  the  testator  for  this  purpose,  and 
which  cannot  be  exceeded  by  the  executor. 

The  testator  explains  his  purpose  in  inclos- 
ing a  grave-yard  with  a  wall  to  be,  in  his 
own  language,  "so  as  to  inclose  the  grave  of 
my  first  wife,  as  well  as  my  own,  with  suffi- 
cient space  also  for  the  grave  of  my  present 
wife."  His  design  was  to  separate  a  place 
of  sepulture  for  the  bodies,  wdien  dead,  of 
himself,  and  his  consorts  dead  and  living. 
If  he  really  intended  to  inclose  half  an  acre 
with  the  wall,  his  careful  provision  for  'suffi- 
cient space'  to  receive  a  third  corpse,  was 
utterly    without   occasion    and    meaning. 

One  phrase  in  the  testator's  directions  to 
his  executors  in  this  matter,  if  the  exact  or- 
der of  his  words  be  observed,  is  inconsistent 
with  all  the  rest  of  his  directions.  One  par- 
ticular in  the  description  of  the  grave  yard 
is,  that  it  is  to  be  'from  45  to  50  yards 
square.'  The  construction  of  a  written  in- 
strument should  be  made  from  all  its  parts ; 
and  if  one  phrase  descriptive  of  the  subject 
of  disposition  be  irreconcilable  with  several 
other  parts  of  the  description,  we  should  act 
on  the  maxim:  ex  multitudine  siguorum, 
colligitur  identitas  vera.  If  we  should  strike 
out  the  whole  of  this  phrase  as  'falsa  demon- 
stratio,'  the  other  portions  of  the  bequest 
would  be  harmonious,  and  leave  the  testator's 
meaning  beyond  doubt.  But  a  less  violent 
process  will  serve  the  purpose.  It  is  only- 
necessary  to  transpose  the  words  'yards 
square,'  to  give  consistency  and  full  opera- 
tion to  the  whole  clause.  If  we  correct  a 
supposed  inadvertence  of  the  scribe,  and  read 


10 


^=3For  other  cases  see  same  topic  and  KEY-NUMBER  m  all  Key-Numbered  Digests  and  Indexes 


GLOVER  V.  HARRIS 


*27 


Siiuare  yards,  we  shall  then  have  a  space  of 
al»<»ut  twenty-one  feet  sciuare,  to  be  inclosed 
by  a  stone  wall  and  covered  by  a  wooden 
buildinj.':  and  this  will  afford  sutticient  space 
for  three  srraves;  and  the  wall  and  building 
may  be  erected  for  the  sum  appropriated  for 
the  same  by  the  testator.  'It  is  ipiite  clear, 
that  where  a  clause  or  expression,  other- 
wise senseless  and  contradictory,  can  be 
rendered  consistent  with  the  context,  by  be- 
inf?  transposed,  the  Courts  are  warranted  in 

*25 
♦niakiiifi    that    transposition.'      (1    Jarm.    on 
Wills,  4P,~;    2   Ves.   sen.  32,  248.) 

It  is  declared  and  adjudfied.  that  the  tes- 
tator directed  his  executors  to  inclose  with 
a  stone  wall  a  grave-yard  of  from  45  to  50 
stpiare  yards;  and  to  erect  over  the  area  in- 
cluded by  the  wall  a  covered  wooden  build- 
ing, further  described  in  the  will.  And  it  is 
ordei'ed  and  decreed,  that  the  Chancellor's 
decree  be  modified  accordingly. 

DUNKIN  and  DARGAN,  CC,  concurred. 
Decree  modified. 


4    Rich.  Eq.   25 

SUSAN    and     WILKY     (iLOVKR    v.     ELIZ. 

HARRIS,  GEO.   A.  ADDISON   and  Wife. 

and  E.  S.  IRVINE  and  Wife. 

(Columbia.     Nov.  and   Dec.  Term,   1851.) 

[WiUs    ®=587.    (;14.] 

Testator,  intending  "as  for  his  worldly  es- 
tate to  dis[)ose  thereof."  devised  and  heqiicatlied 
as  follows: — "I  lend  to  my  wife.  J,  G..  durins: 
lier  natural  life,  the  use  of  one  half  of  my  land" 
(describing  it)  "and  five  negroes"  (naming  them): 
after  other  bequests,  the  will  cont;iinod  the  fol- 
lowing residuary  clause,  to  wit:  "It  is  my  will 
that  at  my  decease  all  the  property  which  I 
possess  and  have  not  before  bequeathed,  be  sold 
on  a  credit  of  one  and  two  years,  and  for  my 
debts  to  be  paid  out  of  the  debts  which  are  due 
me,  and  the  money  arising,'  from  the  sales  of  my 
property ;  and  the  balance  to  be  put  out  at 
interest  for  the  use  and  support  of  my  children," 
&c: — Jleld,  (1)  that  the  five  negroes  did  not  pass 
to  the  wife  absolutely,  but  for  life  only:  (2) 
that  the  reversion,  after  her  death,  did  not  pass 
under  the  residuary  clause,  but  was  intestate 
property. 

[Ed.  Note. — Cited  in  Lopez  v.  Lopez,  23  S. 
C.  2Uy;  Yarn  v.  Yarn,  32  S.  C.  71>,  10  S.  E. 
82JJ;  Lojran  v.  Cassidy,  71  S.  C  201,  203,  50 
S.  E.  7'J4. 

For  other  cases,  see  Wills,  Cent.  Dig.  §§ 
1200,  1303;    Dee.  Dig.  ©=5587,  614.J 

[This  case  is  also  cited  in  Logan  v.  Cassidy.  71 
S,  C.  175,  50  S.  E.  704,  and  distinguished 
therefrom.] 

Before  Johnston,  Ch.,  at  Abbeville,  June, 
1.S51. 

Johnston,  Ch.  The  bill  in  this  case  was 
tiled  the  21st  of  April,  1851;  and  is  for  a 
partition  of  slaves  and  an  account,  &c.  The 
contest  is  between  the  desc-endauts  of  Wiley 
(Jlover,  Sen.  and  of  his  wife,  Jemima,  both 
deceased,  in  relation  to  the  proper  distribu- 
tion of  their  estates  under  their  wills.     In 


the  opening  of  the  judgment  I  am  about  to 
pronounce,  it  may  conduce  to  the  undersrand- 
ing  of  it,  to  state  the  relation  of  the  parties, 
and  how  the  controversy  between  tliem  has 
arisen. 

*26 

♦Wiley  Glover,  Sen.,  married  Jenuma.  the 
daughter  of  one  Rartlet  Satterwhite.  At  his 
death,  which  took  place  the  8th  February, 
ISOU,  he  left  a  will,  dated  the  (5th  of  Decem- 
ber, 1.S04,  (the  provisions  of  which  will  be 
noticed  hereafter,!  and  was  survived  by  liis 
said  wife  ami  two  children,  a  son  and  a 
daughter.  The  son.  Willis  Satterwhite  Glov- 
er, is  now  dead  intestate,  and  the  plaintiff, 
Susan  (ilover,  is  his  widow.  The  plaintiff, 
Wiley  (Jlover,  Jr.,  is  his  son  and  only  child, 
conseciuently  these  two  are  his  sole  distribu- 
tees. 

The  daughter.  Elizabeth,  is  the  defendant, 
Elizabeth  Harris,  and  the  defendants,  the 
wives  of  (Jeorge  A.  Addison  and  E.  S.  Irvine, 
art'  her  two  daughters. 

Having  stated  the  relation  of  the  parties 
to  this  suit,  let  us  now  go  back  to  matters 
which  some  of  the  parties  sujipose  bear  more 
or  less   upon  the  controversy  between   them. 

Rartlet  Satterwhite.  after  Wiley  (Jlover, 
Sen,,  married  his  daughter,  executed  his  will 
the  15th  of  February,  1803.  which  contains 
the  following  clau.se: 

"I  give  and  bequeath  unto  my  beloved 
daughter.  Jemima  Glover,  (to  her  and  her 
heirs  lawfully  begotten  of  her  body.)  forever, 
the  following  negro  slaves,  (they  and  their 
increase.)  namely.  Tener  and  Chaney  ;  and 
after  the  demise  of  my  wife,  one  negro 
woman,  named  Jude,  (her  and  her  increase)," 

This  testator  (Satterwhitel  did  not,  how- 
ever, depart  this  life  until  the  21st  of  Jan- 
uary, 1807,  when  he  died,  leaving  liis  ,said 
will  in  full  force,  which  was  admitted  to 
probate  the  14th  of  the  succeeding  April. 

In  the  mean  time,  to  wit,  on  the  (>th  of 
Decvmber,  1804,  Wiley  (ilover.  Sen.,  the  lius- 
band  of  Jemima,  executed  his  will,  as  luis 
been  stated,  containing  the  following  clauses, 
among  others: 

"As  for  the  worldly  estate  it  hath  pleased 
God  to  bless  me  with,  I  dispose  thereof  as 
follows:     *     *     * 

"Item:  I  lend  to  my  loving  wife,  Jemima 
Glover,  during  her  natural  life,  the  tise  of 
one  half  of  my  land,  (the  same  inchuling  the 
plantation  and  building  where  I  married  her,) 
and    five    negroes,    namely,    one    negro    man, 

♦27 
Murphy,  one  woman,  Tener,  two  boys,  ♦Nat 
and  Jack,  and  one  girl.  Mariah,"  (Murphy 
and  Mariah  are  both  dead,  and  are  not  ia 
question  in  this  case.)  "three  head  of  horses, 
(viz:  one  young  sorrel  mare,  one  bay  filly, 
and  one  sorrel  horse  colt.)  ten  bead  of  picked 
cattle,  all  my  stock  of  hogs  and  sheep,  two 
feather  beds  and  furniture,  and  as  nuich  of 
the    household    and    kitchen    furniture    and 


®=^ror  other  cases  see  same  topic  aud  KEY-NUMBEH  in  all  Key-Numbered  Digests  and  ludexas 


11 


4  RICHARDSON'S  EQUITY  REPORTS 


plantation  tools  as  she  wishes  to  keep  for  her 
use." 

*  *  *  *  *  * 

"Item:  It  is  my  wish  and  desire,  that 
when  my  daughter,  Elizabeth  Glover,  comes 
of  age  or  marries,  the  following  mentioned 
negroes  and  their  increase  be  equally  divided 
between  my  daughter,  Elizabeth  Glover,  and 
my  son,  Willis  Satterwhite  Glover,  share  and 
share  equal,  namely,  Anneky,  Harriet,  Mary, 
Chaney,  Harper,  Ned  and  Wince. 

"Item:  It  is  my  will  and  desire,  that  at 
my  decease  all  the  property  which  I  possess 
and  have  not  before  bequeathed,  be  sold 
on  a  credit  of  one  and  two  years,  and  for  my 
debts  to  be  paid  out  of  the  debts  which  are 
due  me  and  the  money  arising  from  the  sales 
of  my  property;  and  the  balance  to  be  jiut 
out  on  interest  for  the  use  and  support  of 
my  children,  Elizabeth  Glover  and  Willis 
Satterwhite  Glover. 

"Item:  It  is  my  will  and  desire,  that  when 
my  daughter,  Elizabeth  Glover,  marries  or 
comes  of  age,  all  the  monies  arising  from 
the  sales  of  my  property,  be  equally  divided 
between  my  daughter,  Elizabeth  Glover  and 
Willis  Satterwhite  Glover. 

"It  is  my  wish  and  desire,  that  my  wife, 
Jemima,  shall  keep  and  have  the  use  of  the 
negroes  which  I  have  before  bequeathed  to 
my  daughter,  Elizabeth  Glover,  and  Willis 
Satterwhite  Glover,  until  my  daughter,  Eliza- 
beth Glover,  and  Willis  Satterwhite  Glover, 
comes  of  age  or  marries." 

The  executors  named  in  the  will  were  tes- 
tator's wife,  Jemima,  and  his  friends  Nathan 
Lipscomb  and  James  Bullock. 

This  testator  died,  as  has  been  stated,  on 
the  8th  of  February,  180G,  and  on  the  6th  of 

*28 
March,  1806,  his  will  was  admitted  to  *pro- 
bate,    and   the   widow,   Jemima,   and   James 
Bullock  qualified  as  executors. 

On  the  11th  of  the  same  month,  they  caus- 
ed an  inventory  and  appraisement  to  be  made 
and  returned  to  the  ordinary ;  in  which 
Chaney  and  her  three  children,  Harper,  Ned 
and  Tom,  and  Teuer  and  her  three  children, 
Nat,  Jack  and  Mariah,  are  set  down  as  part 
of  their  testator's  estate ;  Jude  is  not  includ- 
ed in  the  Inventory. 

Jemima,  the  widow  of  Glover,  intermarried 
with  Nathan  Lipscomb,  the  9th  March,  1808, 
and  they  had  the  possession  of  Tener  and 
her  issue. 

Lipscomb's  will  is  in  evidence,  dated  the 
26th  April,  1820,  and  admitted  to  probate  the 
29th  September  of  the  same  year,  by  which  he 
willed,  "that  his  wife,  Jemima,  should  have 
all  the  negroes  she  had  in  her  possession  at 
the  time  of  their  intermarriage,  and  their  in- 
crease, viz:  Tener,  Nat,  Jack,  Harry,  John- 
son, Caroline,  Sarah  and  Isaac,  and  their 
future  increase,"  &c. 

Jemima  Lipscomb,  (formerly  Glover,)  died 
the  29th  January,  1850,  leaving  in  full  force 
her  will,  executed  the  18th  of  April,  1819,  by 
12 


the  2(1  clause  of  which  she  bequoathod  to  hor 
grand  daughter,  the  defendant,  Ann  Jemima 
Harris,  (now  wife  of  the  defendant,  E.  S. 
Irvine.)  during  her  natural  life,  "Jenny  and 
her  children,  Chaney  and  Harper,  Harry  and 
his  wife,  Milley,  and  her  children,  Jim.  Tom, 
Fib,  Dicey,  Harry,  Mary,  Isaac  and  Emeline, 
and  Johnson  and  Sarah  and  her  children, 
Elvina,  Jude,  Peter  and  Lina,  with  all  their 
increase,"  with  remainder  to  her  children, 
&c. 

By  the  .3d  clause,  she  bequeathed  for  life, 
with  remainder,  &c.,  to  her  grand  daughter, 
the  defendant,  Rebecca,  wife  of  George  A. 
Addison,  "Edy,  Eliza,  Amanda,  Frances, 
Emma,  Jane,  Sarah,  Edmund  and  Doc ;  and 
Caroline  and  her  children,  Lewis,  Tira,  Bill, 
Johnson,  Josephine  and  Elizabeth,  with  all 
their  increase,"  &c. 

By  the  5th  clause,  she  bequeathed  to  her 
daughter,  the  defendant,  Elizabeth  Harris, 
(formerly  Glover,)  "Rachel  and  her  children, 
Allen,  Tilda,  Cary,  Gus  and  Lisha,  and 
Jack  and  Nat.  Jude  and  Tener,  to  her,  her 
heirs  and  assigns  forever." 

The  plaintilfs,  the  widow  and  son  of  Willis 
*29 
Satterwhite  Glover,  *claim  under  the  will  of 
Wiley  Glover,  Sen.,  insisting  that  the  will  of 
his  widow,  (afterwards  Jemima  Lipscomb,) 
is  ineffectual  to  alter  their  rights,  as  fixed 
by  the  will  of  her  first  husband. 

The  defendants  claim  under  the  will  of 
Jemima  Lipscomb,  and  fortify  their  claim 
by  the  will  of  Bartlet  Satterwhite,  insisting 
that  Wiley  Glover  had  no  such  i-ights  in 
the  property  as  enabled  him  to  bequeath  it. 

The  negroes  mentioned  in  the  pleadings 
are: 

1st.  Jude  and  her  issue. 
2d.  Chaney  and   her  issue. 
3d.  Tener   and   her  issue. 

I  shall  put  Chaney  and  her  issue  out  of 
the  question.  They  are  bequeathed  by 
Glover  absolutely  to  his  two  children,  and 
have  been  partitioned  in  a  former  proceed- 
ing given  in  evidence,  which  is  conclusive 
between  these  parties. 

With  respect  to  Jude  and  Tener  and  their 
respective  issues,  it  is  very  clear,  that  if 
they  were  in  possession  of  Glover  and  wife, 
at  the  time  of  Glover's  death,  as  their  prop- 
erty, the  marital  rights  of  Glover  attached, 
and  they  must  be  governed  by  his  will ; 
and  it  must  depend  on  the  terms  of  the  will 
whether  his  widow  had  any  right  of  disposi- 
tion over  them. 

If,  however.  Glover  had  no  right  to  the 
property  at  his  death,  the  will  of  hi.s  father- 
in-law,  Satterwhite,  which,  though  first  ex- 
ecuted, came  subsequently  into  operation, 
must  govern ;  and  if  that  is  the  case,  I  sup- 
pose there  is  no  question,  the  legal  opera- 
tion of  that  will  was  to  vest  the  property 
absolutely  in  Satterwhite's  daughter;  and 
(her  second  husband,  Lipscomb,  having  by 
his    will    released    his    marital    rights,)    her 


GLOVER  V.  HARRIS 


♦32 


will  is  sufficient  to  carry  the  title.  Now, 
with  regard  to  Jude  and  her  issue,  it  not 
only  appears  negatively,  (from  the  fact  that 
there  is  no  evidence  of  Glover's  possession ; 
that  they  are  not  mentioned  in  the  will  of 
Glover :  and  especially  that  they  were  not 
inventoried  as  part  of  his  estate.)  that  they 
were  not  in  his  possession  in  his  life  time, 
but  the  pregnant  fact  is  also  in  evidence, 
that  Satterwhite's  will,  which  alone  men- 
tions   the    existence    of    such    negroes,    sus- 

♦30 
pends  Mrs.  Glover's  *right  upon  a  prior  dis- 
position of  them  for  life  to  her  mother,  who 
lived,  according  to  the  evidence,  until  1817; 
so  that  it  was  impossible  for  (ihtver's  right, 
as  husband,  ever  to  have  attached  during 
his  life.  These  negroes  were,  therefore, 
well  disposed  of  by  Mrs.   Lipscomb. 

It  remains  to  consider  Tener  and  her 
stock:  two  of  these.  Murphy  and  Mariah,  (I 
include  Murphy  as  of  that  stock  for  con- 
venience, though  he  was  of  a  ditferent 
stock,)  died  during  the  life  of  Mrs.  Lip.s- 
comb,  who  had  a  life  tenure  in  them,  under 
Glover's  will,  and  are,  therefore,  out  of  the 
question  here. 

As  to  the  remainder  of  that  stock.  I  am 
of  opinion,  that  it  stands  upon  a  footing  dif- 
ferent from  Jude  and  her  issue.  The  evi- 
dence that  Tener  and  her  children  were  in- 
ventoried as  parcel  of  Glover's  estate,  by 
his  widow,  under  whom  the  defendants 
claim,  within  little  over  a  month  after  hia 
death,  is  pretty  conclusive  and  very  satis- 
factory evidence,  as  against  them,  at  least, 
that  he  died  possessed  of  them.  This,  too, 
was  in  the  life  time  of  .Satterwhite.  who 
may  be  supposed  to  have  taken  some  in- 
terest in  the  affairs  of  the  family  and  prob- 
ably was  not  ignorant  of  the  fact. 

Upon  this  evidence,  I  conclude,  that  Glov- 
er, who  named  this  stock  of  negroes  in  his 
will,  had  obtained  possession  of  them  as 
early  as  1804,  (the  date  of  his  will,)  and 
held  them  as  his  own. 

There  is  no  evidence  that  they  were  ever 
in  Satterwhite's  possession  after  Glover  be- 
queathed them;  nor,  indeed,  is  there  any 
evidence,  that  they  were  at  any  time,  what- 
ever, in  his  possession,  beyond  the  fact  that 
they  are  mentioned  in  his  will  of  1803. 

It  is  not  unreasonable  to  suppose,  that, 
after  that  will  was  drawn,  he  concluded  to 
anticipate  the  bequest  by  an  actual  gift 
inter  vivos. 

In  opposition  to  the  actual  possession  of 
them  by  Glover,  and  his  disposition  of  them, 
I  do  not  feel  at  liberty  to  conclude  that 
there  was  any  right  remaining  in  Satter- 
white, upon  which  his  will,  when  it  came 
into  operation  by  his  own  death,  could  act. 

It  has  been  ingeniously  argued,  indeed, 
that  Glover  held  as  bailee  of  Satterwhite, 
and  by  his  will,  only  intended  to  confer 
on  his  wife  the  same  interest  which  he  sup- 


*31 


posed  was  given  her  by  the  *will  of  Satter- 
white, his  bailor.  But  where  is  the  evi- 
dence of  the  bailment'.'  If  he  knew  of  Sat- 
terwhite's will  and  its  provisions,  and  ac- 
knowledged his  right,  where  was  the  neces- 
sity or  the  propriety  of  attempting  to  make 
any  disposition  of  the  property,  at  all?  Be- 
sides, even  if  he  supposed  that  Satterwhite's 
will  gave  his  wife  a  life  tenure  in  the 
slaves,  with  remainder  to  the  issue  of  her 
body,  why  did  he  not  conform  to  that? 
Wliy  (lid  he  dispo.se  of  Tener  and  Chuney 
differently? 

My  conclusion   is,  that   these  slaves  must 
be  governed  by  Glover'.s  will. 

Some  remarks  have  been  made  upon  the 
construction  of  that   will. 

It  is  remarkable  tliat  there  is  no  general 
residuary  clause  in  this  testamentary  paper. 
The  testator  .«ets  out  with  the  expression  of 
a  desire  to  dispose  of  his  whole  estate: 
which  circumstance,  upon  authority  and  in 
reason,  will  justify  the  giving  to  subsequent 
dispositions,  a  wider  scope  and  operation 
than  they  would  otherwise  be  entitled  to. 
But  even  under  such  circumstances,  an  un- 
reasonable, unnatural  or  forced  interpreta- 
tion should  not  be  adopted. 

In   this   will   there   is   no   specific   disposi- 
tion of  these  slaves  beyond  the  life  interest 
of  Mrs.  Glover.     There  is,  to  be  sure,  a  pro- 
vision   for    the    sale    of    "all  the  property 
which    I    possess    and    have    not    bequeath- 
ed."      This     may     mean     all     property     as 
to  which  no  bequest  is  made  at  all ;    or  it 
may    mean    all    interests    undisposed    of    in 
property  not   fully  bequeathed,  and  certain- 
ly,  under   the  general   rule  that  a   testator, 
declaring    an    intention    to    dispose    of    his 
whole  estate,   should  have  his  will  so  con- 
strued, if  it  reasonably  can  be.  as  to  effect 
his  intention,  I  should  adopt  the  latter  con- 
struction,  if  it    were   not   repugnant   to  the 
other    provisions    of    this    will.      The    testa- 
tor not  only  directs  his  unbetpieathed  proiv 
erty  to  be  sold,  but  to  be  sold  "at  his  death." 
He    could   not   have   intended   this  direction 
to  operate  on  these  slaves,  since  such  a  sale 
would    have   defeated   his    specific  direction, 
that  his  wife  should  have  the  enjoyment  of 
them  during  her  life.     There  is  another  rea- 
son, which,  it  appears  to  me,  should  prevent 

*32 
I  the  construction  *alluded  to.  It  consists  in 
the  purpose  which  the  sale  was  intended  to 
effect.  The  sale  was  to  raise  funds  to  pay 
debts.  Now,  it  is  of  the  very  essence  of  a 
specific  IXHiucst ;  such  as  the  gift  to  the  wife, 
here  for  life — that  the  property  is  given  clear 
of  debts,  and  that  the  debts  should  be  paid 
out  of  otlier  property  without  disturbing  it. 

It  is  argued,  however,  that  the  reversion 
might  have  l>een  sold,  and  the  wife  allowed 
to  retain  and  enjoy  the  slaves,  without  dis- 
turbance, during  her  life.  But  this  prop- 
erty was  personal  property;    and  it  is  ditti- 

1-^ 


*32 


4  RICHARDSON'S  EQriTY  REPORTS 


cult  to  conceive  how  the  sale  could  have 
been  made  good  without  a  delivery ;  and 
how  could  that  have  been  made  without  dis- 
paraging the  rights  of  the  life  tenant. 

If  this  property  was  not  intended  to  fall  | 
within  the  provision  for  a  sale,  another 
point  in  the  construction,  which  was  con- 
tended for  by  the  plaintiffs,  is  also  over- 
ruled. The  proceeds  of  the  sale  were  not 
only  to  be  applied  to  debts,  but,  whatever 
balance  might  remain,  after  the  debts  were 
satisfied,  was  to  be  divided  between  the  two 
children,  Willis  and  Elizabeth.  It  was  urg- 
ed that  this  should  give  these  two  an  equal 
portion  in  the  negroes,  after  their  mother's 
death,  instead  of  the  money  wliich  the  sale 
was  intended  to  raise.  I  might  concede,  that 
where  personal  property  is  ordered  to  be 
sold  and  the  proceeds  divided,  and  the  prop- 
erty is  not  actually  sold,  the  persons  among 
whom  the  proceeds  are  to  be  distributed 
have  an  equitable  interest,  entitling  tliem 
to  the  property  itself.  But  I  have  arrived 
at  the  conclusion,  that  this  property  was 
not  directed  to  be  sold,  nor  its  proceeds  di- 
vided, and,  therefore,  I  cannot  apply  the 
doctrine  to  which   I  have  alluded. 

But  it  was  contended,  on  the  other  hand, 
by  the  defendants,  that  these  slaves  were 
given  by  the  will,  out  and  out,  to  the  widow. 
If  so,  there  was  no  reversion  in  the  case. 
And  upon  this  construction,  the  slaves,  be- 
longing absolutely  to  the  widow,  must  pass 
under  her  will;  and  the  plaintiffs  have  no 
interest  in  them. 

The  argument  was,  that  by  the  proper 
construction  of  Glover's  will,  though  he 
loaned  his  wife,  for  life,  one  half  his  land; 
yet,  as  a  separate  thing,  he  loaned  her  the 

*33 

five  negroes  mentioned  by  him,  *without 
restricting  the  loan  to  her  life.  That  the 
word  "lend,"  as  applied  to  the  negroes,  is 
equivalent,  in  law,  to  a  gift ;  and  there  be- 
ing no  restriction  as  to  time  in  that  part 
of  the  will,  the  gift  was  absolute. 

If  the  loan  was  of  the  land  and  of  the  ne- 
groes, as  separate  dispositions  and  upon  dit- 
ferent  terms,  there  might  be  ground  for  the 
inference  contended  for. 

The  words  of  the  will  are,  "I  lend  to  my 
loving  wife,  during  her  natural  life,  the  use 
of  one-half  of  my  land,"  (describing  it,)  "and 
five  negroes,"   (naming  them). 

I  cannot  disjoin  these  things.  In  Moon  v. 
Moon,  (2  Strob.  Eq.  333,)  the  Court,  for  rea- 
sons appearing  in  the  context  of  the  will,  ar- 
rived at  the  conclusion,  that  a  tract  of  land 
and  two  negroes,  given  in  the  same  clause, 
were  given  upon  different  terms ;  and  that 
terms  of  restriction,  employed  in  more  im- 
mediate connection  with  the  negroes,  were 
applicable  to  them  exclusively,  and  not  to 
the  land.  But  this  was  done  by  construc- 
tion. But  I  cannot  see  room  for  consti'uc- 
tion  here.     The  disposition  of  land  and  ne- 

14 


groes  is  uno  flatu.  They  are  both  loaned, 
and  loaned  for  nse  only,  and  for  life. 

I  think,  too,  that  in  such  a  connection  as 
this,  (whatever  may  have  heen  decided  uix)n 
the  word  "loan,"  in  other  connections.)  it 
would  be  both  unnatural  and  unreasonable 
to  suppose  that  the  testator  intended  to  give, 
in  the  sense,  at  least,  of  parting  from  his 
whole  right. 

The  result,  in  my  opinion,  is,  that  the  will 
of  Glover  operated  only  to  dispose  of  these 
negroes  during  his  wife's  life ;  and  the  re- 
mainder in  them  was  intestate  property  of 
his  estate. 

His  widow  was  entitled  to  an  undivided 
third  of  that  remainder,  and  each  of  his  chil- 
dren, Willis  and  Elizabeth,  to  an  undivided 
third. 

The  widow,  Mrs.  Lipscomb,  was  entitled 
to  bequeath  her  tliird ;  and  so  far  as  she 
has  done  so,  the  defendants  are  entitled  to 
the  benefit  of  her  will. 

The   plaintiffs    are    entitled,    by   partition, 

*34 

to  have  the  third  to  *which  Willis  Satter- 
white  Glover  was  entitled,  allotted  to  them, 
and  sub-partitioned  between  them,  by  allow- 
ing to  the  plaintiff,  Susan,  one-third  of  that 
share,  and  the  plaintiff,  Willis,  the  remain- 
ing two-thirds  of  the  same.  And  they  are 
entitled,  in  the  same  ratio,  to  an  account  of 
the  hire  or  profits  of  said  slaves,  from  the 
death  of  Mrs.  Lipscomb,  at  the  hands  of  the 
defendants,  in  whose  hands  respectively,  the 
said  slaves  have  been.  All  which  is  hereby 
adjudged  and  decreed:  and  let  a  writ  of 
partition  issue,  and  an  account  be  taken  by 
the  Commissioner  accordingly. 

If  any  of  the  slaves  have  died  since  the 
remainder  fell  in,  or  have  been  disposed  of 
by  either  of  the  defendants,  and  are  not  now 
in  their  possession,  the  Commissioner  will 
take  an  account  of  the  value  of  such  slaves, 
and  report  it  for  the  judgment  of  the  Court; 
which  will  be  reserved  on  those  matters  until 
the  report  comes  in.  He  may  also  report  any 
special  matter,  subject  to  the  same  condi- 
tions.   The  defendants  to  pay  the  costs. 

The  defendants  appealed  on  the  follow- 
ing grounds: 

1.  Because  there  was  no  evidence  that 
Bartlett  Satterwhite  ever  gave  Tener  and 
her  increase  to  Wiley  Glover,  or  his  wife, 
Jemima,  except  what  is  contained  in  his 
(Satterwhite's)  will.  The  bequest  in  his  will 
did  not  and  could  not  take  effect  until  his 
death;  but  he  died  after  Glover,  and  there- 
fore he.  Glover,  never  had  the  right  to  dis- 
pose of  said  negroes. 

2.  Because  there  was  no  evidence  that 
Wiley  Glover  ever  had  possession  of  Tener, 
except  the  circumstance  of  his  having  dispos- 
ed of  her  by  will ;  but  if  he  had  the  cus- 
tody of  her  at  the  time  he  wrote  his  will,  6th 
December,  1804 — a  period  subsequent  to  the 
making  of  Satterwhite's  will,  loth  Febru- 
ary,  1803 — it  is  reasonable   and  natural   to 


GL0\T:R  v.  HARRIS 


*37 


<'onclii(le  that  his  possession  was  not  abso- 
lute, but  peiinissive,  and  solely  in  reference 
to  the  will  of  Satterwhite,  by  which  Tenet 
was  Riven  to  his  wife,  which  Rift,  however, 
was  inchoate  and  imperfect,  until  the  will 
took  effect   by    the  death    of   Satterwhite. 

'i.  Then'  was  no  evidence  of  a  Rift  of  Ten- 
er  from  Satterwhite  to  (Jlover  or  his  wife, 
other  than  that  in  Satterwliite's  will.    There 

♦35 

♦was  no  evidence  even  of  possession  by  (ilo- 
ver,  e.xcept  the  effort  to  dlsjiose  of  her  by 
will,  which  conforms  to  Satterwliite's  will,  in 
not  assumiiiR  to  disjiose  of  her  l»eyond  the 
life  of  .Teminia,  his  wife;  therefore,  the  de- 
fendants insist,  that  there  was  no  Rift  to 
(ilover,  nor  .such  uniiualilie<l  possession  by 
him  as  will  presume  a  Rift  in  his  favor. 

4.  lUit  if  it  he  assumed  that  Wiley  (jlover 
had  the  riRht  to  dispi>se  of  Tener,  by  pre- 
sumiiiR  a  Rift,  other  than  that  end)raced  in 
Satterwliite's  will,  and  in  opiM)sition  to  it; 
then  the  defendants  insist  that  Wiley  Glover, 
by  his  will,  disposed  of  all  his  interest  in 
Tener  and  her  increase  to  Jemiuia,  his  wife, 
the  donor  of  defendants. 

5.  The  defendants  insist  that  Tener  was 
Riven  absolutely  to  .Temima  Gbner.  by  the 
will  of  her  father,  Bartlett  Satterwhite.  cer- 
tainly b.v  the  will  of  her  husiiand,  Wiley 
Glover.  But  if  it  should  be  held  that  "there 
is  no  disposition  of  the.se  slaves  beyond  the 
life  interest  of  Mrs.  Glover,"  then  the  in- 
terest in  remainder,  which  was  not  bequeath- 
ed, should  have  been  sold  at  the  death  of 
(ilover,  under  the  express  provisions  of  his 
will.  And  a  bill  haviuR  beiMi  tiled  for  that 
purjmse  many  years  since,  the  matter  is  now 
"res  adjudicata." 

(j.  The  interest  in  Tener  and  her  children 
luidisposed  of  by  the  will  of  Wiley  Glover, 
was  an  interest  in  reversion,  as  to  which  he 
(lied  intestate — which  on  his  death  vested  in- 
stantly in  those  entitled  to  distribution; 
and  they  are  now  l)arred  by  lapse  of  time 
and  the  statute  of  limitations. 

7.  Mrs.  Jemima  Glover — afterwards  .Te- 
mima Lipscomb — held  these  ncRroes,  from 
the  death  of  Satterwhite,  in  1S()(>.  until  she 
died  in  1850.  She  held  them  as  her  own,  ad- 
versely to  every  other  claim,  especially  aft**r 
the  death  of  Nathan  Lipscomb,  in  ISL'O,  un- 
der whose  will  these  ncRroes  were  Riven  to 
her  for  the  third  time:  and  the  complainants 
are  therefore  barred  by  lapse  of  time  and 
the  statute  of  limitations. 

Perrin  &  McGowen,  for  apiK'Uants. 

,  contra. 

♦36 
♦The  opinion  of  the  Court  was  delivered  by 

JOHNSTON,  Ch.  This  Court,  beluR  entire- 
ly sjitislied  with  the  view  which  the  Chan- 
cellor has  taken,  as  reRanls  the  possession 
of  the  slave  Tener  and  her  children  by  Wiley 


Glover,  and  the  operation  of  his  will  ui)on 
her,  as  his  property:— deems  it  necessary  to 
notice  oidy  two  i)oints  made  in  the  argument 
of  the  api»eal  liere: 

L  Was  that  slave  Riven  by  the  will  of  this 
testator,  in  the  tirst  instance,  to  his  wife  al>- 
solutely;    or  only  for  life? 

li.  If  for  life  only,  did  the  residuary  clause 
of  the  will  attach  upon  the  reversion;  or 
did  it  remain  intestate? 

I.  No  case  has  been  pointed  out  at  all 
obliRiuR  the  Court  to  jmt  a  construction  ni^m 
the  words  of  the  will,  contrary  to  their  plain 
and  manifest  nieaniuR.  NothiuR  can  be 
plainer  than  that  the  testator  intended,  as 
he  .says  in  his  will,  to  loan  to  his  wife  the  use 
of  this  property,  duriuR  her  natural  life. 

The  case  of  Moon  v.  Moon,  2  Strob.  Eq. 
.'i.'J.3,  even  if  it  api»ly  almost  in  tenns  to  this 
cas«',  is  no  authority  for  a  construction 
aRainst  the  jtlain  intent  of  the  will.  That 
case  was  rubHl  upon  the  construction  of  the 
particular  will  before  the  Court, — and  the 
decision  was  made  with  a  view  to  promote, 
and   not  to  contradict,   the  real   intention. 

There  is  a  difference  between  the  phrase- 
oloRy  of  that  will  and  this: — and  where  the 
difference  of  phraseoloRy  points  to  a  differ- 
ent intention  in  the  two  cases,  principle, — 
(the  same  principle  which  governed  the  con- 
struction in  that  case,) — compels  us  to  come 
to  a  different  result  in  this. 

The  two  cases  aRree  in  this:  that  the  tes- 
tators both  intended  to  dispose  of  their  whole 
estates:-  that  after  a  dispositiiai  of  realty 
and  personalty  in  the  siime  clause,  which 
certainly  as  to  one  class  of  property  was  in- 
tended to  be  only  for  life,  and  as  to  the  oth- 
er was  equivocal,  the  testators  take  up  a 
portion  of  the  pro^ierty  and  make  it  the  sub- 
ject of  further  disposition, — but  totally  neg- 
lect the  other. 

So  far  the  two  cases  agree.  But  they  dif- 
fer in  other  resiKnts. 

*37 

*In  Moon  v.  Moon,  the  words  of  the  will. 
(sui>i>lying  neces-sary  words.)  are  these:  "I 
Rive  my  wife,  N.  T.  M.,  the  tract  of  land 
whereon  I  live,  containiuR  HOC  acres,  more  or 
less ;  also"  (I  give  her)  "two  negroes,  to 
wit,  my  man  Stei»hen  and  my  Rirl  Harriet, 
duriuR  her  natural  life,  or  widowhood,"  &c. 

In  this  case,  the  will  is,  "I  lend  to  niy 
loving  wife,  J.  G.,  during  her  natural  life, 
the  use  of  one  half  my  land,"  (describing  it,) 
"and  live  negroes."  (naming  themi. 

Is  it  not  i)alpable  that  the  words,  "during 
her  natural  life."  are,  in  the  latter  case, 
connected  inunediately  with  the  words  of 
dispositicm,  so  as  to  qualify  them,  before 
they  are  applied  by  the  testator  to  the  sub- 
jects di.sposed  of.  The  effect  is,  that  what- 
ever subjects  are  touched  by  the  disi)osltion 
are  affected  by  the  qualitication  attached  by 
the  testator  to  the  words  of  disposition 
themselves. 

The  words  of  this  clause  of  Glover's  will 

15 


*37 


4  RICHARDS(WS  EQUITY  REPORTS 


have  the  same  meanins  as  if  he  had  said, 
"I  am  now  going  to  point  out  property  wliicli 
I  intend  for  my  wife,  but  I  intend  to  loan  it 
to  her,  for  her  use  during  lier  life:  and  up- 
on these  terms  my  will  is  that  she  have  the 
land  and  five  negroes."  The  phraseology  of 
iloon  was  different.  He  imposes  no  restric- 
tion upon  the  words  of  disposition  in  them- 
selves, but  uses  them  in  their  natural  sense. 
Applied  in  their  natural  sense,  they  gave  his 
wife  a  fee  in  his  land ;  and  so  would  they 
have  given  her  the  negroes  absolutely,  if  he 
had  not,  in  inunediate  proximity  with  thiit 
disposition,  imposed  a  restriction  upon  the 
gift,  as  made  by  the  words  of  disposition. 

In  that  case,  a  full  and  unqualified  dis- 
position was  made,  applicable  to  both  land 
and  negroes, — and  then  a  restriction  is  im- 
posed upon  that  disposition,  so  far  as  related 
to  the  negroes. 

In  this  case,  nothing  but  a  qualified  dis- 
position proceeds  from  the  mouth  of  the 
testator,  equally  affecting  all  the  property  to 
which  he  applies  it.  If  our  language  afford- 
ed a  verb  signifying,  "I  lend  for  life,"'  we 
should  have  this  testator's  meaning  if  we 
inserted  that  single  word  instead  of  the 
words  of  disposition  employed  by  him. 

*38 

*I  think,  too,  as  I  have  intimated  in  the 
decree,  that  the  word  "lend,"  used  in  such 
a  connection  as  this,  is  evidence  of  an  in- 
tention to  make  a  limited  disposition.  Take 
the  words,  "lend,"  "use,"  "for  life" ;  they 
all  harmonize  in  shewing  that  there  was 
no  intention, — there  could  be  none, — to  give 
the  property  absolutely  and  forever.  In 
Waller  v.  Ward,  2  Sp.  793,  it  is  said:  "the 
term  use  might  sometimes  afford  argument 
for  an  intention  to  give  only  a  life  estate :" 
— and  I  think  when  it  is  connected  with  the 
word  "lend"  and  the  words  "during  her 
life" — all  standing  in  one  group — it  is  diffi- 
cult to  conjecture  any  other  intention. 

2.  Being  satisfied  that  these  slaves  are 
only  given  for  life,  I  am,  also,  of  opinion, 
that  the  residuary  clause  of  the  will  does  not 
embrace  them ;  and  therefore  they  are  in- 
testate property  after  the  efflux  of  the  life 
estate. 

I  can  add  very  little  to  what  I  have  said 
in  the  decree  upon  that  subject. 

The  direction,  then,  is  to  sell,  at  the  tes- 
tator's death,  all  the  property  to  which  the 
special  residuary  clause  was  intended  to  ap- 
ply. The  very  fact  that  the  interest  now 
under  consideration  was  of  necessity,  at  that 
time,  a  reversionary  interest,  upon  which  no 
act  of  administration  could  be  performed  un- 
til the  prior  life  estate  expired  and  the  rever- 
sion accrued, — of  itself  forbids  the  idea  that 
it  was  intended  to  be  parcel  of  the  property 
then  directed  to  be  subjected  to  an  act  of 
administration. 


It  is  ordered,  that  the  decree  be  affirmed, 
and  the  appeal  dismissed. 

DARGAX  and  DUNKIN,  CC,  concurred. 

WARDLAW,  Ch.,  having  been  of  counsel 
in  the  cause,  gave  no  opinion. 
Decree  affirmed. 


4   Rich.  Eq.  *39 
♦EDMUND  ATCHESOX  and  Others  v.  DOUG- 
LASS ROBERTSON,  Ex'or.,  and  Other.s. 
(Columbia.     Nov.  and   Dec.  Term,  1851.) 

[Wills  <©=:37:'.().] 

Where  legatees,  whose  legacies  were  of  equal 
grade,  had  heen  paid  in  unequal  proportions, 
and  afterwards  a  fund,  insufficient  to  pay  all 
the  balances,  was  recovered  from  the  estate  of 
a  deceased  executor  who  had  committed  waste, — 
}icld,  that  such  fund  should  be  applied  in  the 
first  instance  towards  equalizing  the  lesatees 
who  had  received  less  than  the  others,  before 
any  part  should  be  applied  to  the  legacies  of 
those  who  had  been  more  favored. 

[Ed.  Note.— Cited  in  Lay  v.  Lay,  10  S.  O. 
219. 

For  other  cases,  see  Wills,  Cent.  Dig.  §  lS79j 
Dec.   Dig.   <g=»736.] 

[Executors  and   Administrators   <g=:331S.] 

Where  a  legacy  to  an  executor  is  of  equal 
grade  with  those  of  other  legatees,  and,  because 
of  a  devastavit  committed  by  a  deceased  co-ex- 
ecutor, the  assets  are  insufficient  to  pay  all  the 
legacies,  he,  the  executor,  is  not  entitled  to  re- 
tain his  whole  legacy,  but  only  his  due  propor- 
tion. 

[Ed.  Note. — For  other  cases,  see  Executor* 
and  Administrators,  Cent.  Dig.  §  1324 ;  Dec. 
Dig.  <©=^31S.] 

[Executors  and  Administrators   <S=>111.] 

Counsel  fee  allowed  the  executor  out  of  the 
assets,  and  Wham  v.  Love  (Rice  Eq.  51)  ap- 
proved. 

[Ed.  Note.— Cited  in  McClellen  v.  Hethering- 
ton,  10  Rich.  Eq.  204,  73  Am.  Dec.  89. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  449 ;    Dec.  Dig.  <S=>111.] 

Before  Johnston,  Ch.,  at  Edgefield,  June, 
1851. 

The  bill  was  filed  by  legatees  of  William 
Robertson  deceased. 

The  testator  died  in  May,  1841,  leaving  a 
will,  of  which  two  of  his  nephews,  (the  de- 
fendant, Douglass  Robertson,  and  James  Rob- 
ertson, now  deceased,)  were  executors,  and 
also  entitled  to  legacies  under  the  will. 

On  the  24th  of  November,  1841,  the  execu- 
tors sold  the  estate  on  a  credit  of  twelve 
months,  and  shortly  afterwards  divided  the 
sale  notes  between  them ;  Douglass  Robert- 
son receiving  notes  to  the  amount  of  $4,- 
739.53,  and  James  to  the  amount  of  .$4,677.09. 

On  the  7th  of  Septeml)er,  1847,  Douglass 
took  from  James,  his  co-executor,  who  then 
seemed  to  be  in  failing  circumstances,  a 
mortgage,  to  secure  himself  from  the  con- 
sequences of  his  (James's)  devastavit  of  the 
assets  in  his  hands. 

James  died  intestate  shortly  after  execut- 
ing this  mortgage.    His  estate  came  into  the 


16 


^ssFor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


ATCHESON  V.  ROBERTSON 


•42 


hand  of  the  defendant,  Hill,  to  be  adminis- 
tered, and  realized  but  a  small  sum  applica- 
ble to  the  niortjiase. 

The   bill   claimed    an   account    of    William 
Robertson's   estate,  and   that   Douglass   Rob- 
ertson   be    held    resjionsible    for    the    waste 
committed  by  his  co-exetutor,  .lames. 
*40 

♦The  case  came  to  a  hcariii;,'  niion  the 
merits,  in  June  INHO ;  and  tlie  Court  decided 
that  I)ou},'lass  was  not  liable  for  the  dev- 
astavit of  his  co-executor:  Itut  that  the 
estate  was  entitled  to  the  beiiellt  of  the 
mortf^ase  which  lie  had  taken  for  his  own 
protection.  (;}  Rich.  Kq.  i:\'2  [.jIj  Am.  Dec. 
63-4]). 

The  accounts  were  referred  to  the  com- 
missioner. T'i)oii  the  reference,  it  appeared 
that  payments  had  been  m.-ule.  of  unecpial 
amounts,  to  the  different  legatees,  whose  leg- 
acies were  all  of  ecpial  ;:ni(le.  The  com- 
missioner, in  his  report,  distiibuted  the  re- 
mainini,'  as.sets  in  proi)ortion  to  the  balances 
still  due  the  legatees,  and  not  in  i)roi»ortion 
to  their  legacies,  as  they  stood  before  any 
payments  were  made  upon  them.  To  this 
part  of  the  report,  the  defendants  excepted, 
and  insisted  that  the  assets  should  be  dis- 
tributed in  proportion  to  the  original 
amounts  of  the  legacies,  and  not  in  propor- 
tion to  the  amounts  to  which  they  were 
reduced  by  the  i)artial  and  une(inal  pay- 
ments which  had  been  made  to  the  legatees. 

In  his  report,  the  commissioner,  al.so, 
held  Douglass  Robertson  entitled  to  retain 
the  whole  amount  of  his  own  legacy  out  of 
the  amount  of  assets  which  came  to  his 
hands,  and  to  distribute  the  residue  only, 
among  the  other  legatees.  To  this  part  of 
the  report,  the  plaintiffs  put  in  an  excejition, 
(number  2.)  insisting  "'that  the  connnissioner 
erred,  in  allowing  the  defendant.  Douglass 
Robertson,  to  retain,  out  of  the  assets  in 
his  hands,  the  entire  share  of  his  testator's 
estate,  to  which  he  would  have  been  entitled 
had  there  been  no  waste  of  the  same ;  and 
submitting  that  he  should  have  received 
credit,  only  for  his  proportionate  share  of 
those  assets,  his  possession  thereof  being 
fiduciary  merely,  and  no  appropriation  of 
any  part  thereof  having  been  made  by  him 
to  the  payment  of  his  individual  share  of 
the  same.'' 

The  commissioner,  in  his  report,  al.so 
charged  the  fund  to  be  distributed  with  the 
counsel  fees  paid  by  Douglass  Robertson,  for 
defending  tbis  suit:  to  which  the  plaintiffs 
put  in  an  exception,  (number  1,)  insisting 
that  it  was  error  to  allow  this  charge,  in- 
asmuch as  tlie  fees  "were  expenses  incurred, 

*41 
not  for  the  benefit  of  the  testa*tor's  estate, 
but  in  resisting  the  claims  of  the  legatees, 
and   in  sustaining  a   defence   utterly  liostile 
to  their  interest." 

Tlie  case  came  up  upon  the  reiiort  and  ex- 
ceptions. 

4  Rich. Ey.— 2 


John.ston,  Ch.  I  shall  sustain  all  the  ex- 
ceptions. 

In  relation  to  tbe  defendants'  exeeiition, 
though  it  is  said  there  are  authorities  both 
ways,  (which  are  not  produced,  however.)  I 
caiuiot  ptMceive  why  the  assets  remaining  for 
distribution  should  not  be  appliitl.  in  the  first 
instance,  towards  equalizing  the  legat»vs  who 
have  received  less  than  ihe  otluTs.  before  go- 
ing on  to  itay  those  of  them  w  bo  liave  l»een 
more  favored. 

I  liave  uiore  doubt  respecting  the  .-second 
excei)tion  of  the  plaintiffs  than  any  other. 
Rut  it  iippears  to  me  that  Douglass  Kohert- 
son  had  no  right  to  retain  his  entire  legacy 
out  of  the  as.sets  v»hich  canie  to  his  hands, 
and  throw  the  other  legatees  upon  the  assets 
in  the  hands  of  his  co-executor ;  thus  bur- 
dening them  with  the  whole  of  the  loss  oc- 
casioned by  his  de\astavit.  He  was  boun«l  to 
make  lair  distribution  of  what  came  to  his 
own  hands,  and  was.  therefore,  entitled  ro  re- 
tain oidy  his  due  proportion. 

The  first  exception  of  the  plaintiffs  aii|u'ar.s 
to  be  decided  by  the  case  of  Wham  v.  Love. 
Rice  Eq.  51.  Tliib  Court  has  nothing  to  do 
with  counsel  fees,  except  when  they  are  ex- 
penses of  administration.  The  fees  in,  this 
case  were  not  for  the  benefit  of  tiie  estate, 
nor  were  they  incurred  in  preseiving  it.  or 
adding  to  the  funds  to  be  distributiMj;  but 
simply  in  defending  the  exei  utor.  in  a  mat- 
ter entirely  personal. 

It  is  true,  he  successfully  defended  himself, 
and  e.stablished  his  innocence  of  tbe  charges 
brought  against  him.  That  entitled  bim  to 
his  costs.  But  though  the  Court  has  author- 
ity to  decree  costs,  according  to  tbe  merits 
of  ihe  case:  it  can  go  no  furtiier.  It  has  no 
authority  to  decree  coun.-el  fees  in  any  case, 
unless  they  are  incurred  as  expenses  of  ad- 
ministration. An  executor's  case  differs,  in 
no  respect,  from  any  other  case:  and  unless 
we  take  upon  us  to  decree  counsel  fees  in 
*42 

every  case,  according  to  the  merits  of  *the 
parties,  we  have  no  right  to  do  it,  on  the 
ground  of  merit  alone,  in  the  ca.se  of  an  ex- 
ecutor. 

Ordered,  that  the  exceptions  be  sustained, 
and  the  report  recommitted,  to  be  reformed. 

The  defendant,  Douglass  Robertson,  ap- 
pealed, en  the  following  grounds: 

1.  That  he  was  entitled,  under  the  practice 
of  this  Court,  and  in  e<iuity  and  justice,  to  be 
allowed  the  fee  paid  his  .solicitor  in  defend- 
ing this  suit,  as  by  the  result  of  the  case,  it 
appeared  that  he  was  imiiroperly  brought  in- 
to Court,  and  not  liable  as  to  the  matters 
charged  against  him  in  the  bill. 

2.  That,  being  in  possession  of  the  fund,  he 
was  entitled  to  retain  what  was  due  to  him- 
self as  legatee,  otherwise  he  derives  no  ben- 
efit from  his  own  diligence  and  hone.sty,  and 
is  made,  to  some  extent  at  least,  answerable 
for  the  devastavit  of  his  co-executor. 

17 


*42 


4  RICHARDSON'S  EQUITY  REPORTS 


GrifBn,  for  appellant. 
Bauskett,  contra. 

The  judgment  of  the  Court  was  announced 


by 


DARGAN,  Ch.  On  the  main  issues  involv- 
ed in  this  appeal,  we  entirely  approve  of  the 
views  of  the  Chancellor  in  his  circuit  decree. 
In  Lupton  v.  Lupton,  (2  Johns.  Ch.  614,) 
where  some  of  the  legacies  had  been  paid  in 
full,  and  others  of  equal  grade  remained  un- 
paid, and  the  executor  had  committed  a  dev- 
a.stavit,  and  was  insolvent,  so  that  the  lat- 
ter could  not  he  recovered  from  him,  it  was 
lield,  that  those  legatees  who  had  received 
payment,  were  not  hound  to  refund,  or  to 
contribute,  in  the  way  of  apportionment,  to- 
wards the  satisfaction  of  those  who  had  re- 
ceived nothing,  even  though  some  of  the  un- 
paid legatees  were  infants  at  the  time  of  the 
application  for  contribution ;  there  having 
been  originally  a  sutliciency  of  assets  in  the 
hands  of  the  executor  to  pay  all  the  legacies. 
But  the  question  here  raised  between  the  leg- 
atees of  Wm.  Robertson,  is  essentially  differ- 
ent. Their  legacies  are  of  equal  grade,  and 
they  have  received  partial  payments  in  un- 
equal amounts,  from   a  fund  heretofore  de- 

*43 
voted  to  that  purpose.  Another  fund,  *which 
has  been  recovered  from  the  estate  of  a  de- 
ceased executor,  wlio  had  committed  waste, 
is  now  to  be  applied  in  payment  of  these  leg- 
acies, but  which  is  still  insufficient  to  satis- 
fy them  in  full.  Tlie  commissioner  supposed, 
(and  he  so  reported,)  that  the  fund  in  hand 
was'  to  be  applied  in  payments  to  the  lega- 
tees, in  proportion  to  the  unsatisfied  balances 
due  upon  their  respective  legacies.  The 
Chancellor  overruled  his  judgment  in  this 
particular;  and  this  Court  concurs  with  the 
Chancellor. 

If  the  fund  liad  been  applied,  before  bill 
filed,  in  full  satisfaction  of  some  of  these 
legacies  to  the  exclusion  of  others,  without 
an  intention  to  give  a  preference,  (there  be- 
ing no  original  deficiency  of  assets,)  this  Court 
might,  and  probably  would,  in  accordance 
with  the  doctrine  asserted  in  Lupton  v.  Lup- 
ton, (already  cited,)  refuse  to  decree  a  resti- 
tution for  the  purpose  of  equalization ;  and 
leave  the  parties  who  had  been  satisfied,  in 
the  enjoyment  of  the  advantages  gained  by 
their  diligence.  Equality  is  a  favorite  rule 
in  this  Court.  And  the  equalization  of  paj'- 
ments  can  be  attained  in  this  case  without 
any  decree  for  restitution,  and  simply  by  the 
application  of  the  fund  now  under  the  con- 
trol of  the  Court.  It  should  be  applied,  first, 
to  equalize  the  payments  on  all  the  legacies ; 
and  the  residue  should  be  applied  rateably  on 
all  the  legacies,  as  the  Chancellor  has  de- 
creed. 

Another  question  has  been  raised,  under 
these  circumstances.  Douglass  Robertson,  the 
executor  of  AVm.  Robertson,  is  also  a  lega- 

18 


tee.  His  legacy  is  of  the  same  grade  with 
those  of  the  other  parties  to  this  bill.  Tliere 
is  a  deficiency  of  assets  to  pay  all  the  leg- 
acies, in  consequence  of  the  devastavit  of 
his  co-executor,  James  Robertson,  as  has 
been  before  stated ;  and  Douglass  Robertson 
claims,  as  executor,  the  right  to  detain,  of 
the  assets  which  have  come  into  his  hands, 
enough  to  satisfy  his  own  legacy  in  full,  be- 
fore any  application  of  the  fund  is  made  in 
payment  of  his  co-legatees ;  in  analogy  to  the 
right  of  an  executor  to  detain  for  the  pay- 
ment of  his  own  debt  against  the  testator. 
No  authority  has  been  adduced  in  support  of 
the  doctrine  here  advanced ;  and,  regarded 
as  a  principle,  it  is  not  supported  by  a  sem- 

*44 
blance  of  equity.  *An  execiitor  receives  the 
assets  of  the  estate  in  trust,  for  the  com- 
mon benefit  of  all  the  parties  in  interest,  ac- 
cording to  their  respective  riglits,  as  fixed 
by  the  will.  If  the  testator  gives  him  a 
legacy,  and  intends  that  he  should  have  prior- 
ity of  payment,  such  intention  would  be  de- 
clared upon  the  face  of  the  will.  And  it  is 
inequitable,  that  an  executor  should,  by  vir- 
tue of  his  office,  (which  is  a  mere  trust,)  be 
allowed  preferences  as  a  legatee,  to  which  he 
is  not  entitled  by  the  provisions  of  the  will. 
The  Chancellor  has  so  decided;  and  this 
Court  concurs. 

In  the  settlement  of  his  accounts,  the  ex- 
ecutor claimed  to  be  reimbursed  for  his  coun- 
sel fee  paid  in  this  cause.  This  charge  was 
allowed  by  the  commissioned,  and  disallowed 
by  the  Chancellor.  The  decision  of  the  Chan- 
cellor, overruling  the  report  of  the  conunis- 
sioner  in  this  resi>ect,  has  been  made  a 
ground  of  appeal:  and  a  majority  of  this 
Court  are  of  tile  opinion,  that  the  counsel 
fee  should  have  been  allowed,  as  a  credit 
upon  the  executor's  accounts. 

This  executor  has,  (as  most  executors  do,) 
kindly  undertaken  the  execution  of  the 
trusts  imiKised  upon  him  by  the  will;  and 
this  litigation,  as  an  incident,  has  grown 
naturally,  and,  I  would  say,  almost  neces- 
sarily, out  of  his  administration  of  the  es- 
tate. And  it  is  but  sheer  justice  that  he 
should  be  re-imbursed  and  made  whole  for 
all  outlays  that  were  reasonably  incident  to 
the  execution  of  the  trust;  not  as  compen- 
sation, but  as  a  part  of  the  expenses  of  its 
administration.  This,  I  conceive,  not  to  be 
inconsistent  with  the  decision  in  Wham  v. 
Love,  (Rice  Eq.  51,)  which  lays  down  the 
same  rule.  But,  it  is  said,  that  Wham  v. 
Love  decides,  that  the  executor  is  not  enti- 
tled to  be  re-imbursed  for  his  counsel  fees, 
where  the  litigation  has  been  raised  for  his 
own  benefit.  There  can  be  no  rule  more  un- 
deniably just  and  fair.  But  I  think  it  would 
be  an  unwarranted  construction  of  the  deci- 
sion in  that  case  to  .say,  that  where  an  ex- 
ecutor is  obliged,  for  his  own  security,  to 
resort  to  the  aid  of  this  Court,  for  the  set- 
tlement of  an  estate  which  he  has  adminis- 


HEATH  V.  BISHOP 


tered,  he  shall  forfeit-  re-iniburscuient  for 
counsel  fees,  (otherwise  deemed  just  and 
reasonable,)  because  tliere  aris«'  in  the  set- 
tlement of  his  aecounts.  or  in  the  adjustment 

♦45 
of  the  ♦eciuities  between  himself  and  Ids  ces- 
tui que  trusts,  (|uestions  in  which  his  inter- 
est and  theirs  are  aida^oidstic.  Such  (lues- 
tions  arise  in  almost  every  case  of  this  char- 
acter. I  think  a  rule"  may  be  laid  down  as 
reasonable  as  it  is  simple;  that  an  execu- 
tor should  be  ailoweil  reimbursement  for  a 
reasonable  counsel  fee  paid  by  him  for  the 
settlement  of  the  estate  in  equity,  where  the 
aid  of  the  Court  a|)pears  necessary  and  proi^- 
er.  If  he  has  any  knotty  points  or  inqiortant 
interests  of  his  own,  for  which  he  pays  ex- 
tra fees,  the  excess  should  be  paid  out  of  his 
own  iwcket. 

It  is  ordered  and  decreed,  tliat  the  circuit 
decree  be  nioditieil,  and  that  the  report  of  the 
commissioner  be  re-connidtted.  and  he  l)e  in- 
.structed  to  correct  his  report,  by  allowing 
the  counsel  fee,  paid  by  the  executor,  as  a 
credit  on  his  accounts.  In  all  other  respects 
the  appeal  is  disnnssed  and  the  circuit  de- 
cree attirmed. 

JOILNSTON.  Ch.  I  am  satistied  with  my 
ruling  in  the  decree,  upon  all  points,  except 
the  counsel  fet'. 

On  that  sul)ject.  I  am  not  williiiu  to  abridge 
the  principle  of  Wham  v.  Love.  All  expendi- 
tures for  the  benefit  of  an  estate,  in  the  hands 
of  the  executor,  are  proper  charges,  and 
should  be  allowed  him,  in  passing  his  ac- 
counts. I  suppose  that  where  a  bill  is  filed 
for  the  direction  of  the  Court,  or  to  clear 
out  incumbrances, — or,  in  short,  in  any  case 
where  the  decree  of  the  Court  is  necessary 
to  remove  doubts  and  settle  or  distribute  the 
estate, — fees  paid  by  the  executor,  in  such 
eases,  should  be  siiiowed  him:  and  this  would 
be  no  violation  of  the  doctrine  of  Wham  v. 
Jvove. 

My  objection  to  the  allowance  of  the  fee. 
in  this  case.  was.  that  it  was  not  expended  in 
promotion  of  the  interests  of  the  cestui  que 
tru.sts:  at  least  a  very  large  part  of  it. 

liut  there  is  a  circumstance  in  the  case 
which  reconciles  me  to  the  allowance  of  it. 
It  is.  thar  the  estate  has  receivi'd  tiie  benetit 
of  the  mortgage  taken  by  Douglass  Kobertson 
from  his  co-executor.  The  title  in  that  prop- 
erty was,  by  the  mortgage,  in  Douglass:  and 
it   would  seem    ineipiitable  to   take  it    from 

*46 
him  and  confer  *its  benehts  upon   the   lega- 
tees generally,  witimMt  allowing  him  the  ex- 
pen.ses  claimed  by  him. 

DUNKIX,  Ch..  concurred. 

WARDLAW.  Ch.,   Iiaving  been  of  counsel, 
exjiressed  no  opinion. 
Decree  nuKlitied. 


4    Rich.  Eq.   46 

JA.MK.S    IIK.VTll    V.    .JOHN    O.    RISlIoT, 

J<tll.\  lUSllOI'.  S.n.,  and  lUKKKL 

lusnor. 

(Columbia.      Nov.   an  J   Deo.   Term.  Is'il.) 

[Tru.sfa  <G=3ir,l.] 

'I'lioiiLili  the  mode  of  procedure  for  the  re- 
lief of  tile  creditor  is  difTerent.  eipiitalile  estates 
are  as  much  subject  to  the  payment  of  the  debts 
of  the  etstni  que  trust,  to  the  extent  of  his 
I)re.sent  vested  interest  in  severalty,  as  legal 
estates  are  to  the  payment  of  the  debts  of  the 
owner. 

|Kd.  Note. — For  other  cases,  see  Trusts,  Cent. 
Dig.  S  l!in;    Dec.  Dig.  C=>151.J 

[Tnints  <G==>ir)l.l 

Tliei-e  is  no  form  or  mode  by  which  property, 
with  the  present  vested  right  of  sev(>ral  enjoy- 
ment, as  to  eitlier  the  corpus  or  the  incoine,  may 
be  given  t((  aii<i  eiijoye<l  l)y  one.  and  not  lie  lia- 
ble for  till-  payment  of  his  delits  :— infants  and 
married  wonieii  cunstituting  no  exceptions,  for 
they  are  incapable  of  contracting  debts. 

IKd.  Note.— Cited  in  Howe  v.  (Jngu'.  •">-  S. 
C.  101.  2U  S.  K.  :5J»4;  Ilumphrev  v.  Canqibel), 
51)  S.  C.  4:5,  4G,  37  S.  E.  liG. 

Tor  other  cases,  see  Trusts.  Cent.  Diz.  SS  11I5, 
lJir.'.%,   1!»7:    Dec.  Dig.   <S=1."1.1 

[Wills  (£=j(54S.l 

Send)le.  that  a  limitation  or  condition  an- 
nexed to  a  devise  or  fiilt,  that  the  est.ite  shall 
revert,  or  pass  to  some  third  person,  on  the 
iiankruptey  or  insi>lven'y  of  the  (irst  taker,  or 
on  an  attenqit  by  a  creditor  to  subject  it  to  the 
liavinent  of  his  debt,  would  be  valid:  or.  in 
cases  of  trust,  that,  by  the  maciiinery  of  a 
shifting  use,  or  a  jiower  of  revocation,  "the  es- 
tate may  i)e  made  to  pass  away  frnni  tiie  first 
taker   ui)on   the  same  contingencies. 

[Ed.  Note.— Cited  in  Jones  v.  Heliiuser,  91 
S.  C.  4,  7.3  S.   E.  1(>4!>. 

For  other  cases,  see  Wills,  Cent.  Dig.  §  1539 ; 
Dec.  Dig.   <©=5(;4S.] 

\Trusts  <®=151.] 

If  the  rents  and  profits  are  to  be  paid  to  the 
cestui  que  trust,  from  time  to  time,  at  the  pure 
and  aiisohite  discretinn  of  the  trustee,  or  as 
some  oilier  appointor  to  uses.  nniy.  at  his  dis- 
cretion, appoint  and  dir  K-t.  with  a  linutati.n  ov 
powei-  to  ap|)oint  over  to  other  use.s.  such  an 
interest,  not  being  vested  in  the  cestui  que  trust, 
and  beiutf  vague,  uncertaui  and  undefined,  can- 
not be  subjected  to  the  payment  of  his  debts; 
semlile. 

I  Ed.  Note.— Cited  in  People's  Iamxu  &  Ex- 
change liank  V.  (Jarlinston.  54  S.  C.  V24  32 
S.  E.  513.  71  Am.  St.  Kei).  SOO. 

For  other  cases,  .see  Trusts.  Cent.  Di^'.  SS  195. 
1951/0,197;    Dec.  Dig.  (S=>151.J 
[Trusts  <S=3l51.1 

Or,  it  seems,  if  the  rights  of  tlie  delitor  are 
so  nungled  with  those  of  other  beneficiaries  that 
they  cannot  be  .separated  without  injiiiy  to  his 
eo-cestui  (|Ue  trusts.— inasmuch,  as  theie  is  no 
present  ri;,'lit  of  several  enjovnu-nt.  and  there  can 
be  no  iiartitinii.  the  interest  of  such  debtor  can- 
not lie  subje<-ted  to  the  payment  of  his  debts. 

I  Ed.  Note.— For  other  cases,  see  Trusts.  Cent. 
Dig.  S§   195,   195>...,  197;    Dec.   Dig.   (0=5151.] 
[('rrilitfirs'  Suit  ©=>,S.] 

Oift  of  slaves  to  a  trustee,  in  trust,  "to  i)ay 
over  to  J.  (J.  yearly,"  iV:c.,  "the  net  iirolits  or  in- 
conn-  from  the  lidior  or  liire  of  s.iid  slaves,  for 
th«'  better  support  and  maintenance  of  the  said  J. 
(i.,"  with  remainder,  in  fee.  after  the  death  of 
J.  (i..  and  with  this  ciaidition.  that  the  trustee 

*47 
shall  permit  the  donor,  "if  it  *shall  be  absolnte- 


®:»For  other  cases  see  same  topic  and  KEJf-NUilBER  in  all  Key-Numbered  JJigests  and  Indexes 


19 


*47 


4  RICHARDSON'S  EQUITY  REPORTS 


]y  necessary  for  liis  support,  to  use,  keep  and 
enjoy  the  sairl  slaves  during  his  riatural  life," 
»!cc. :  J.  (jr.  having  no  property  upon  which  ex- 
ecutions against  him  could  be  levied,  and  being 
out  of  the  State.— //eW,  that  his  interest  in  the 
slaves  was  liable  in  equity  to  the  claims  of  his 
creditors ;  that  a  bill  filed  for  that  purpose 
should  be  a  creditors'  bill,  and  all  the  creditors 
should  be  called  in. 

[Ed.  Note.— Cited  in  Nelson  Carlton  &  Co.  v. 
Felder,  6  Rich.  Eq.  69 ;  Rivers  v.  Thayer,  7 
Rich.  Eq.  167 ;  S.  S.  Farrar  &  Bros.  v.  Hasel- 
den,  9  Rich.  Eq.  337 ;  Curiae  v.  Rembert,  37 
S.  C.  221,  15  S.  E.  954. 

For  other  cases,  see  Creditors'  Suit,  Cent. 
Dig.  §  38;    Dec.  Dig.  <S=:3S.] 

[Trusts  (g==>151.] 

Held,  further,  that  the  donor  had  no  right  to 
re-take,  use  and  keep  the  slaves,  he  not  having 
shown  that  they  were  absolutely  necessary  for 
his  support. 

[Ed.  Note. — For  other  cases,  see  Trusts,  Cent. 
Dig.  §§  195,  1951/2,  197;    Dec.  Dig.  <©=:>151.] 

Before  Wardlaw,  Ch.,  at  Chester,  July, 
1851. 

>Vardlaw,  Cli.  The  plaintiff  is  a  judgment 
creditor  for  $02.13,  with  interest  thereon 
from  January  15,  1834,  and  costs,  $8.90,  of 
John  G.  Bishop,  who  is  absent  from  the  State, 
and  without  property  here,  upon  which  a  fi. 
fa.  could  be  levied ;  and  plaintiff  seeks,  in 
this  proceeding,  to  obtain  satisfaction  of  his 
judgment  from  certain  equitable  assets  ol 
his  debtor. 

John  Bishop,  senior,  father  of  John  G. 
Bishop,  on  February  3,  1846,  conveyed  to 
Burrel  Bishop  a  negro  woman,  Hannah, 
about  45  years  old,  and  a  negro  boy,  Henry, 
about  12  years  old,  in  trust,  "to  pay  over  to 
John  G.  Bishop  yearly,  and  from  year  to 
year,  or  as  much  oftener  as  necessary  or  con- 
venient, the  net  profits  and  income  from  the 
labor  or  hire  of  said  Hannah  and  Henry,  for 
the  better  support  and  maintenance  of  the 
said  John  G.  Bishop,"  with  the  farther  dis- 
position of  the  fee  in  said  slaves,  after  the 
death  of  said  John  G.  Bishop,  and  with  this 
condition — that  the  trustee  "shall  and  do 
permit  and  suffer  me.  the  said  John  Bishop, 
if  it  shall  be  absolutely  necessary  for  my  sup- 
port, to  use,  keep  and  enjoy  all  and  singular 
the  said  slaves,  Hannah  and  Henry,  or  the 
value  of  them,  or  whatever  part  I  may  think 
necessary  during  my  natural  life,  without 
paying  anything  for  the  same  or  in  respect 
thereof,  and  not  otherwise;  and  that  from 
and  after  my  decease,  to  be  held,  enjoyed 
and  disposed  of  as  hereinbefore  provided." 

It  appeal's  that  the  trustee  has  in  his 
hands  notes,  &c.,  to  the  amount  of  $240,  and 
cash  to  the  amount  of  $25,  arising  from  the 
hire  of  said  slaves.  The  petition  is  taken 
pro  confesso  against  John  G.  Bishop,  who  left 
the   State   some  years   ago.     Burrel   Bishop, 

*48 
*the  trustee,  in  his  answer,  admits  the  facts, 
and  claims  connnissions.  John  Bishop,  sen- 
ior, in  his  answer,  sets  forth,  that  his  pur- 
pose in  the  execution  of  the  trust  deed,  was 
to  provide  support  and  maintenance  for  his 


son.  John  G.,  who  is  thriftless,  of  understand- 
ing not  sound,  and  liable  to  imposition  by 
artful  men;  and  claims  that,  as  he,  the  gran- 
tor, is  now  aged,  of  feeble  health,  and  limit- 
ed estate,  the  income  from  said  slaves  should 
be  appropriated,  under  the  condition,  to  his 
own  supi)ort.  No  evidence  in  support  of  the 
answer  was  offered,  although  it  seemed  to  be 
taken  for  granted  that  John  Bishop,  senior, 
was  a  poor  man,  but  not  in  absolute  in- 
digence. 

It  was  suggested  at  the  bar,  that  thei'e 
were  other  unsatisfied  creditors  of  John  G. 
Bishop;  but  no  petition  nor  proof  was  offer- 
ed in  their  behalf.  I  have  no  difficulty  in 
overruling  the  particular  defence  made  in  the 
answer  of  John  Bishop,  senior ;  but  I  have 
some  difficulty  in  recognizing  the  equity  of 
the  plaintiff'  to  .satisfaction  of  his  demand 
from  this  trust  fund. 

Conceding  that  the  plaintiff"  has  so  far  ex- 
hausted his  legal  remedies  as  to  be  entitled 
to  proceed  against  the  equitable  assets  of 
his  debtor,  (Perry  v.  Nixon,  1  Hill  Ch.  335, 
and  the  cases  there  cited,)  it  may  still  ba 
doubted  whether  he  can  proceed  against  this 
particular  interest  of  defendant.  Surely  a 
father  may  provide  a  maintenance  for  a 
prodigal  and  insolvent  son  beyond  the  reach 
of  creditors.  The  plaintiff'  here  cannot  pre- 
tend that  he  trusted  John  G.  Bishop  on  the 
faith  of  this  interest,  for  the  credit  was  ex- 
tended long  before  the  execution  of  the  deed 
conveying  the  two  slaves.  The  property  is 
settled  by  a  father  of  small  means,  for  the 
support  and  maintenance  of  his  son;  and  it 
is  manifest  that  the  income  is  not  more  than 
adequate  for  this  purpose.  "W'here  the  whole 
income  of  a  trust  estate  is  at  the  disi)osal 
of  a  husband,  this  Court  may  still  reserve 
a  portion  from  the  grasp  of  his  creditors  for 
the  maintenance  of  his  wife  and  family, 
(Bethune  v.  Beresford.  1  Des.  174 ;  Jones  v. 
Fort,  1  Rich.  Eq.  50.)  Many  men  as  strongly 
need  the  protection  of  the   Court  from  the 

*49 
consequences  of  tiieir  *improvidence,  as  mar- 
ried women  do  from  the  improvidence  of  hus- 
bands. 

If  John  G.  Bishop  were  within  th^^  jurisdic- 
tion and  without  other  means  of  maintenance 
than  from  the  hire  of  these  two  slaves,  I 
should  probably  reject  the  prayer  of  this 
petition.  But  he  makes  no  defence  here ;  it 
does  not  appear  that  he  has  claimed  any 
portion  of  this  income  for  some  years;  and, 
for  all  that  I  know,  he  has  abundant  main- 
tenance elsewhere  than  in  this  State.  With 
some  hesitation,  I  shall  grant  the  plaintiff 
reliCi. 

It  is  ordered  and  decreed,  that  Burrel  Bish- 
op, from  the  funds  in  his  hands  as  trus- 
tee of  John  G.  Bishop,  pay  to  the  plaintiff"  the 
principal,  interest  and  costs  due  upon  his 
judgment,  and  the  costs  of  this  petition. 

The  defendants  appealed,  on  the  grounds: 


20 


^=»For  oilier  cases  see  same  lopii;  aud  kE V-NU.VIBEU  in  all  Key-Numbered  Digests  and  Indexes 


IIEATII   V.  BISHOP 


*51 


1.  Because  the  fund  out  of  whifli  the  peti- 
tioner seeks  iiayment  of  liis  dclit,  lu'liij;  creat- 
ed for  the  express  purpose  of  supporting  and 
UKiintaininf:  John  Kishop,  jr.,  it  is  contrary  to 
the  principles  of  eipiity  to  lend  its  aid  to  de- 
feat the  object  of  the  donor's  i)ounty,  by  sub- 
jecting said  fund  to  the  iiayment  of  debts  of 
John  Bishop,  jr.,  and  especially  those  which 
existed  lonj;  anterior  to  the  creation  of  said 
trust. 

2.  Because  the  donor.  John  Bishop,  senior, 
having  reserved  to  himself  the  rij^ht  to  .said 
fund,  in  case  the  same  should  be  necessary 
for  his  .support  and  maintenance,  and  the  said 
donor  l>eing  still  alive,  and  having  the  right 
to  claim  the  benefit  of  such  reservation,  this 
Court  has  no  power  to  defeat  such  right  by 
ordering  said  fund  to  be  paid  to  creditors  of 
cestui  fpie  trust. 

3.  Becausp  the  said  decree  should  have  or- 
dered said  fund,  (in  ca.se  tlie  same  is  subject 
to  the  payment  of  the  del)ts  of  J.  Bishop,  jr.,) 
to  be  distributed  among  all  his  creditors  in 
e^iuitanle  parts,  and  should  have  ordered  a 
reference,  with  leave  for  the  creditors  to  pre- 
sent and  establish  their  demands. 

McAliley,  Boyce,  for  appellants. 
Boylston,  Williams,  contra. 

*50 

♦The  opinion  of  the  Court  was  delivered  by 

DARGAN,  Ch.  As  a  general  rule,  with 
some  few  exceptions,  it  may  be  stated,  that 
the  attributes  with  which  the  laws  of  this 
country  have  invested  the  institution  of 
property,  attach  alike  to  equitable  as  to  legal 
estates  (a).  Under  the  maxim,  that  e(iuity  fol- 
lows the  law,  the  system  of  trusts  has  been 
moulded  into  an  almost  perfect  analogy  and 
correspondence  with  legal  estates.  Equitable 
interests  admit  of  the  same  modifications  as 
to  the  quantity  of  right,  duration,  time,  con- 
ditions and  modes  of  enjoyment,  that  apper- 
tain to  estates  at  law.  The  same  canons  of 
descent  as  to  real  property  apply  to  both 
systems.  They  are  in  the  main  subject  to 
the  same  rules  of  succession.  They  may  alike 
be  held  in  severalty,  in  joint-tenanc.'ii^  copar- 
cenary, and  in  common.  They  are  devisable 
and  assignable,  (b)  and  what  is  more  ger- 
main  to  the  present  emiuiiy,  they  are  both 
subject  to  the  payment  of  debts;  though  the 
mode  of  procedure  for  the  relief  of  the  (  hmH- 
tor  is  different. 

There  are  certain  ideas  tlnit  are  insepara- 
ble from  the  institulion  of  proiterty.  among 
the  most  pi'ominent  of  which  are,  the  right 
of  alienation,  and  its  being  subject  to  the 
pavment  of  debts.  In  all  cases  like  the  pres- 
ent, the  enquiry  must  be,  whether  the  debtor 
has  a  vested,  determinate  interest  in  the  e(iui- 
table  estate  sought  to  be  subjected,  with  tiie 
present  right  of  enjoyment  in  severalty.     If 


he  has.  the  right  of  the  creditor,  follows  as 
a  corollary  in  mathematical  .science  does  the 
main  propo.sition.  Under  the  above  qualiflca- 
tions  and  conditions,  the  creditor  is  entitled 
to  relief,  and  in  some  form  or  other,  the 
debtor's  estate,  be  that  more  or  le.ss,  should 
i>e  disposed  of  or  sequestrated  for  the  satis- 
fai'fion  of  his  debt. 

I  am  not  aware  of  any  form  or  mode  by 
which  proi)erty,  with  the  present  right  of  sev- 
eral enjoyment,  as  to  either  the  cori)us  or 
the  income,  may  be  given  to  and  enjoyed  l)y 
one,  and  not  be  liable  for  the  payment  of  his 
deiits.  The  case  of  married  women,  and  oth- 
er persons  under  disability,  constitute  no  ex- 
ceptions, for  such  persons  are  incapable  of 
contracting  debt.s. 

*51 

*A  testator  or  donor  may  give  property 
with  a  limitation  or  condition  annexed,  that 
it  shall  revert,  or  pass  to  .some  third  person, 
on  the  bankruptcy  or  insolvency  of  the  first 
taker,  or  on  an  attempt  by  a  creditor  to  sub- 
ject it  to  the  payment  of  his  debts :  and  such 
a  limitation  would  lie  valid  (c).  Or  in  cases 
of  trust,  by  the  machinery  of  a  shifting  use, 
or  a  power  of  revocation,  the  estate  might 
be  made  to  pass  away  from  the  first  taker, 
upon  the  same  or  any  other  contingencies 
within  tlhe  period  prescribed  against  perpetui- 
ties. It  is  obvious  that  such  cases  as  these 
constitute  no  exception.  For  the  very  cir- 
cumstances that  cause  the  equitable  estate  of 
the  debtor  to  be  liable,  cause  it  also  to  pass 
from  him  and  cea.se  to  be  his  property.  In 
the  in.stances  supposed,  the  insolvency  of  the 
debtor,  or  the  attempt  of  the  creditor  to 
make  the  proi)erty  liable,  destroys  the  debt- 
or's estate.  When  the  creditor  stretches 
forth  his  hand  to  grasp  it,  it  eludes  him  and 
flits  away  like  a   shadow. 

If  a  trust  be  created  with  the  view  of  pro- 
viding again.st  the  improvidence  of  the  bene- 
ficiary, and  it  be  directed  that  the  rents 
and  profits  be  paid  to  him  from  time  to  time, 
at  the  pure  and  ab.solute  discretion  of  the 
trustee,  or  as  some  other  appointor  to  uses, 
may  at  his  discretion  appoint  and  direct,  with 
a  limitation  or  power  to  appoint  over,  to  oth- 
er uses,  such  a  vague,  undefined  and  uncer- 
tain interest  in  the  beneficiary,  could  not  be 
made  subject  to  his  debts:  becau.se  such  an 
interest  does  not  amount  to  property  vested 
in  him.  Or  if,  in  the  scheme  of  the  trust, 
the  rights  of  a  debtor  are  so  mingled  with 
those  of  other  beneficiaries,  that  they  cannot 
be  separated  without  injury  to  his  co-cestui 
que  trusts,  and  thus  destroying  the  scheme 
of  the  settlement;  inasmuch  as  there  is  no 
present  right  of  several  enjoyment,  and  the 
Court  would  refuse  a  partition,  the  interest 
of  an  indebted  beneficiary   of  such  a   trust 


(a)   Butler's  note  to  Co.  Litt. 
(6)  2  Story  Eq.  §  974. 


l-'SO,  b. 


(c)  Domraett  v.  Bedford,  3  Ves.  140,  (>  T.  R. 
(!S4;  Sluo  v.  Halo,  l:?  Ves.  404:  Yariiold  v. 
.Miiorliniisc.  1  Russ.  &  Mylue,  3GS;  1  Chit. 
Gen.  I'r.  GO. 

il 


*51 


4  RICHARDSON'S  lOQUITY  REPORTS 


could  not  be  made  subject  to  the  payment  of 
his  debts.  I  do  not  affect  to  say,  that  I  have 
laid  down  all  the  exceptions,  or  seeming  ex- 
ceptions, to  the  rule,  that  the  debtor's  equita- 
ble estates  and  interests  may,  in  this  Court, 

*52 
be  subjected  to  the  payment  of  the  *claims  of 
his  creditors.  But  I  have  said  enough  to 
shew,  that  there  is  no  qualification  of  the 
rule  which  would  protect,  or  exempt  from 
such  liability,  the  interest  of  the  defendant, 
John  G.  Bishop,  in  the  trust  estate  created  by 
the  deed  of  liis  father,  John  Bishop.  Before 
I  leave  this  branch  of  the  case,  it  will  be 
proper  for  me  to  cite  some  of  the  cases,  on 
the  authority  of  which  the  foregoing  observa- 
tions are  made. 

In  Brandon  v.  Robinson,  (18  Ves.  429,)  the 
trust,  (which  was  created  by  will,)  was  that 
the  eventual  share  of  the  testator's  son, 
Thomas  Goom,  should  be  laid  out  by  the  trus- 
tees in  the  public  funds  or  government  secu- 
rities, "and  that  the  dividends,  interest  and 
produce  tliereof,  as  the  same  became  due 
and  payable,  should  be  paid  by  them,  from 
time  to  time,  into  his  own  proper  hands,  or 
on  his  proper  order  or  receipt,  subscribed 
with  his  own  proper  hand,  to  the  intent  that 
the  same  should  not  be  grantable,  transfera- 
ble, or  otherwise  assignable,  by  way  of  antici- 
pation of  any  unreceived  payment  or  pay- 
ments thereof,  or  any  part  thereof;"  and  the 
will  directed,  that  upon  the  decease  of  Thom- 
as Goom,  the  trustees  should  pay  the  said 
share  and  dividends,  &c.,  to  such  persons  as 
would,  in  the  course  of  administration,  be 
entitled  to  any  personal  estate  of  the  said 
Thomas  Gooni,  as  in  cases  of  intestacy. 

Thomas  Goom  became  a  bankruiit.  and  the 
plaintiff  was  the  surviving  assignee  under 
the  commission;  and  the  will  prayed  an  ex- 
ecution of  the  trusts  of  the  will  and  an  ac- 
count, and  that  the  estate  may  be  sold  and 
the  clear  residue  ascertained,  and  that  the 
plaintiff  might  receive  such  part  or  share 
thereof,  or  interest  therein,  as  he  shall  be 
entitled  to  as  assignee,  &c.  To  which  bill,  the 
defendants,  the  trustees,  put  in  a  general 
demurrer.  The  Lord  Chancellor  (Eldon)  said : 
"There  is  an  obvious  distinction  between  a 
disposition  to  a  man  until  he  becomes  a  bank- 
rupt, and  then  over,  and  an  attempt  to  give 
him  i)roperty  and  to  prevent  his  creditors 
from  obtaining  any  interest  in  it,  though  it 
is  his."  "There  is  no  doubt,  that  property 
may  be  given  to  a  man  until  he  shall  become 
l)ankrupt.  It  is  equally  clear,  generally 
speaking,  that  if  property  be  given  to  a  man 

*53 
for  his  life,  the  donor  cannot  *take  away  the 
incidents  to  a  life  estate.  And,  as  I  have  ob- 
served, a  disposition  to  a  man  until  he  shall 
become  bankrupt,  is  (juite  different  from  an 
attempt  to  give  to  him  for  life,  with  a  proviso 
that  he  shall  not  sell  or  alien  it.  If  that  con- 
dition is   so   expressed,   as  to  amount  to  a 

22 


]  limitation,  reducing  the  interest  short  of  a 
I  life  e.state,  neither  the  man  nor  his  assignees 
can  have  it  beyond  the  period  limited." 

In  Piercy  v.  Roberts,  (1  Myl.  &  K.  4,)  the 
testator  betiueathed  a  legacy  of  £400  to  hi& 
executors,  in  trust,  to  pay  the  same  to  his 
son,  Thomas  Jortin  Roberts,  in  such  smaller 
or  larger  portions,  at  such  time  or  times, 
and  in  such  way  or  manner,  as  they,  or  the 
survivor  of  them,  should,  in  their  judgment 
and  discretion,  think  best.  Thomas  Jortin 
Roberts  became  insolvent,  and  took  the  bene- 
fit of  the  insolvent  debtor's  Act.  The  bill  was 
filed  by  the  assignee  of  the  insolvent  debtor's^ 
estate  against  the  executors,  to  recover  the 
legacy  and  interest,  or  so  much  thereof  as 
remained  unpaid.  The  Master  of  the  Rolls 
(Sir  John  Leach)  said:  "The  question  is, 
whether  this  legacy  passed  to  the  assignee 
of  the  insolvent  upon  the  insolvency  of  the 
legatee,  or  whether  it  may  remain  in  the 
hands  of  the  executors,  to  be  applied,  at  their 
discretion,  for  the  benefit  of  the  legatee. 
The  insolvent  being  the  only  person  sub- 
stantially entitled  to  this  legacy,  the  attempt 
to  continue  in  him  the  enjoyment  of  it,  not- 
withstanding his  insolvency,  is  in  fraud  of 
the  law.  The  discretion  of  the  executors 
determined  by  the  insolvency,  and  the  prop- 
erty passed  by  the  assignment." 

In  Graves  v.  Dolphin,  (1  Simons,  GG.)  the 
testator,  Benjamin  Graves,  gave  his  real 
and  personal  estates  to  trustees,  in  trust, 
(among  other  tilings,)  to  pay  an  annuity  of 
£500  to  his  son,  John  Graves,  for  the  term  of 
his  natural  life.  The  testator  then  i)i'oi'ee(led 
to  declare  that  the  said  yearly  sum  of  £.500, 
given  to  his  son,  John  Graves,  for  his  life, 
was  intended  for  his  personal  maintenance 
and  suiiport  during  his  natural  life,  and 
should  not,  on  any  account  or  pretence  what- 
ever, be  subject  or  liable  to  the  debts,  engage- 
ments or  incumbrances  of  his  said  son;  but 
that  the   same   should   be,   for  the   purposes 

*54 
aforesaid,  from  time  to  time,  when  it  *should 
be  due,  paid  over  into  the  proper  hands  of 
his  son  only,  and  not  to  any  other  person  or 
persons  whatsoever.  He  further  directed, 
that  the  receipt  of  his  son  only,  should  be  a 
good  and  sutficient  discharge  to  his  trustees 
for  the  said  annuity.  John  Graves  became  a 
bankrupt,  and  his  assignee  sold  the  annuity 
to  the  defendant.  And  the  question  was, 
whether  the  annuity  passed  to  the  assignee 
by  virtue  of  the  assignment  of  the  commis- 
sioners. It  was  contended  on  the  part  of 
John  Graves,  that  the  annuity  did  not  pass/ 
His  counsel  relied  on  the  direction  in  the  will, 
that  the  annuity  should  be  from  time  to  time 
paid  into  the  proper  hands  of  John  Graves, 
and  that  his  receipt  only  should  be  a  suffi- 
cient discharge  for  the  same. 

The  Vice  Chancellor,  (Sir  John  Leach,) 
said:  "The  testator  might,  if  he  had  thought 
fit,  have  made  the  annuity  determinable  by 
the  bankruptcy  of  his  son;    but  the  policy  of 


HEATH  V.  BISHOP 


the  law  does   not  permit  property  to  be  so  [ 
limited,  that  it  shall  contimie  in  the  enjoy-  ! 
nient   of  the   hankrupt,    notwithstandint;  his 
bankruptcy."    The  judf^inent  was  that  the  de- 
fendant was  well  entitled  to  the  annuity. 

in  Green  v.  Spieer,  (1  Uuss.  &  M.  '-V.io,)  tne 
Master  of  the  Kolls  decided  the  .same  i)oint 
in  favor  of  an  assif,'nee  under  the  insolvent 
debtor's  Act,  although  the  trustee  had  a 
discreti<in  as  to  the  time  and  manner  of  ap- 
plyinj^'  the  rent.s  and  profits  of  the  trust  estale 
to  the  support  and  maintenance  of  the  heiie- 
ticiary  of  the  trust,  on  tiie  ground  that  the 
whole  beneficial  interest  in  the  rents  and 
profits  had  vested  in  him. 

The  case  of  Hallett  v.  Thompson,  (5  I'ai^e, 
583,)  was  a  suit  in  behalf  of  the  plaintiff, 
who  was  a  judgment  creditor  of  the  defend- 
ant, Thompson.  The  bill  was  filed  after  the 
return  of  execution  unsatisfied,  for  the  recov- 
ery of  the  debt  out  of  a  lej;acy  by  the  testa- 
trix, in  the  following  words:  "I  give  and  i)e- 
queath  unto  my  friend,  Jeremiah  Thompson, 
of  the  city  of  New  York,  the  sum  of  $4,000, 
which  sum  I  nevertiieless  order  my  executors 
to  retain  in  their  own  hands,  and  put  at  in- 
terest, and  pay  the  interest  tiiereof  yearly  to 
the  said  Jeremiah,  during  his  natural  life; 
unless   the  said   Jeremiah   shall,   during   his 

*55 
lif^  by  an  instrument  under  iiis  *hand  and 
seal,  require  the  payment  of  the  said  legacy 
to  himself."  In  that  case,  she  ordered  the 
legacy  and  interest  to  be  paid  over  to  the 
legatee.  She  then  proceeds  to  direct,  if  the 
legacy  should  not  be  paid  over  to  Thompson 
during  his  life,  it  should  be  paid  to  such 
person  or  persons  as  he  shouUl  by  his  last 
will  appoint ;  and  in  default  of  such  testa- 
mentary direction  by  him,  it  was  to  be  paid 
to  his  heirs  at  law.  The  testatrix  further 
declared  it  to  be  her  will,  that  neither  tiie 
legacy,  or  the  interest  thereon,  should,  in 
any  case,  be  liable  to  Thompson's  creditors 
for  any  debt  due  by  him.  The  complainant 
prayed  that  Thompson  might  be  decre(>d  to 
execute  such  an  instrument,  as  was  recpiired 
by  the  will  to  obtain  payment  of  the  legai-y 
from  the  executors,  and  that  the  complain- 
ant's judgment  nnght  be  paid  out  of  the  leg- 
acy and  the  interest  due  thereon.  The  defend- 
ant, Thompson,  put  in  a  general  demurrer  to 
the  liill,  for  the  want  <(f  e(|uity.  The  Ciiancel- 
lor  said:  "The  legacy  in  this  case  is  perfectly 
under  the  control  of  Thompson,  the  legatee, 
so  that  he  may  ol»tain  payment  thereof  when- 
ever he  pleases.  This  power  to  comi)el  pay- 
ment is  a  beneficial  interest  in  the  legatee, 
which  would  pass  to  the  assignees  under  t.ie 
English  bankrupt  and  insolvent  debtor's 
Acts."  After  connnenting  upon  some  of  the 
provisions  of  the  New  York  revised  statutes, 
that  were  thought  to  be  applicabU*  to  the 
case,  and  citing  some  of  tlie  English  ca.ses, 
the  Chancellor  proceeds  to  .say:  "Independ- 
ent of  any  statutory  provisions,  thereftre,  I 
have  no  doubt  it  would  be  comiietent  for  this 


Court,  and  its  imperative  duty,  to  compel 
the  defendant,  Thomp.son,  to  execute  this 
beneficial  interest,  so  as  to  em\ble  the  com- 
plainant to  obtain  payment  of  the  legacy,  to 
he  applied  in  satisfaction  of  the  judgment, 
as  far  as  it  would  go." 

"As  a  general  rule,"  he  further  observes, 
"it  is  contrary  to  sound  public  pt)licy  to  per- 
mit a  per.son  to  have  tiie  absolute  and  uncon- 
trolled ownership  of  property  for  his  own 
purposes,  and  to  Ik'  aide  at  the  same  time  to 
keep  it  from  his  honest  creditors."  The 
demurrer  was  overruled,  and  the  complain- 
ant had  a  decree  for  the  .$4.(X)0  in  the  hands 
of  the  executors,  to  be  api)lied  in  .satisfaction 
of  ills  judgment. 

*56 

*The  case  last  cited,  suggests  a  reference, 
(which  I  consider  not  irrelevant,)  to  the 
course  which  this  Court  adopts  for  the  relief 
of  creditors,  against  an  insolvent  debtor, 
who  has,  under  a  trust,  a  general  power  of 
appointment  to  uses. 

Mr.  Sugden,  in  his  work  on  powers,  (page 
335,)  says:  "Of  course  the  i)eneficial  interest 
a  man  takes  under  the  execution  of  a  power, 
forms  part  of  ids  estate,  and  is,  like  the  re.st 
of  his  property,  subject  to  his  debts ;  nor, 
indeed,  can  an  appointment  be  made,  so  as 
to  protect  the  funds  from  the  debts  of  the 
appointee." 

"But  etpiity  goes  a  step  farther,  and  holds, 
that  where  a  man  has  a  general  power  of 
appointment  over  a  fund,  and  he  actually 
exercises  the  power  by  deetl  or  by  will,  the 
property  appointed  shall  form  part  of  his 
assets,  so  as  to  be  subject  to  the  demands  of 
his  creditors,  in  preference  to  the  claims  of 
his  legatees  or  ai)pointees."  He  proceeds  to 
say,  that  the  power  nmst  be  actually  execut- 
ed, as  equity  never  aids  the  non-execution  of 
a  power  (d);  and  to  draw  a  distinction  as  to 
the  rights  of  voluntary  appointees  to  uses, 
and  those  for  valuable  consideration,  the 
claims  of  creditors  prevailing  against  the  for- 
mer and  not  against  the  latter.  This  princi- 
ple of  subjecting  the  appointed  estate  or  fund 
to  the  claims  of  creditors  over  those  of  the  vol- 
untary appointees,  proceeds  upon  the  ground, 
that  a  general  power  of  appointment  gives  to 
the  appointor  a  beneficial  interest  in  the 
fund,  which  amounts  to  property  in  him ; 
and  that  ex  equo  et  bono,  his  creditors  have 
a  right  to  claim  all  his  estate  if  neces.sury, 
to  be  ai)plied  in  satisfaction  of  their  demands. 

I  will  now  turn  my  attention  more  par- 
ticularly to  the  case  before  the  Court.  John 
Bishop,  by  his  deed,  dated  February  :{,  1S4(J, 
for  love  and  affection  and  a  nominal  pecun- 
iary consideration,  conveyed  to  lUirrell  T. 
Bishop,  his  heirs,  executors  and  administra- 
tors, two  negroes  therein  particularly  de- 
scrilxnl,  in  trust,  to  pay  over  to  Joiui  (J.  Bish- 
op, yearly  and  from  year  to  year,  or  as  much 
oftener  as  necessary  or  coiwenient,  the  nett 


j     (</)  Holmes  v.  Cogliill,  12  Yes.  2«J0. 


23 


*56 


4  RICIIARDSONS  EQUITY  REPORTS 


profits  find  hire  of  t.ie  negroes,  for  the  better  I 

-57 
support  and  maintenance  of  the  *said  John  G. 
Bishop.  The  deed  then  gives  to  the  trustee 
under  certain  circumstances,  amounting  al- 
most to  an  absolute  discretion,  the  power  to 
sell  the  negroes  ;  and  provides,  in  case  the  ne- 
groes should  be  sold,  that  the  trustee  shall 
pay  to  John  G.  Bishop  the  interest  that 
should  accrue  on  the  fund  arising  from  the 
sale.  The  trust  further  declares,  that  at  the 
death  of  the  .said  John  G.  Bishop,  the  trustee 
"shall  divide  one-half  of  rhe  price  of  the  ne- 
groes to  the  issue,  the  children  tiien  alive, 
of  the  said  John  G.  Bishop;  the  other  half 
to  the  trustee  and  others,  the  donor's  chil- 
dren. It  was  further  declared,  that  if  John 
G.  Bishop  should  leave  no  lawful  issue  of 
his  body  begotten  alive  at  the  time  of  his 
death,  the  share  given  to  his  children  should 
be  eqxially  divided  among  Burrel  T.  Bishop 
and  others,  the  donor's  children.  There  was 
a  farther  trust  declared  in  the  deed,  by  which 
the  donor  was  to  be  permitted,  if  absolutely 
necessary  for  his  support,  to  keep  and  use  the 
negroes,  or  the  value  of  them,  "without  any 
charge  for  such  use,  during  his  natural  life ; 
and  at  his  death  to  be  held,  enjoyed  and  dis- 
posed as  before  directed." 

It  is  not  shewn  or  pretended,  that  the  use 
of  the  negroes,  or  fund  arising  from  their 
sale,  is  absolutely  necessary  or  indeed  nec- 
essarj'  in  any  sense  for  the  support  of  Jolm 
Bishop,  the  donor.  John  G.  Bishop  is  alive, 
but  not  a  resident  of  the  State.  The  remain- 
der-men have  no  present  right  of  enjoyment. 
The  complainant  has  obtained  a  judgment 
against  John  G.  Bishop;  upon  which  a  fi.  fa. 
has  issued,  and  it  has  been  returned  nulla 
bona.  It  has  been  proved  that  the  defend- 
ant has  no  other  property  in  the  State  upon 
which  satisfaction  can  be  made  of  the  exe- 
cution. And  the  complainant,  by  petition 
setting  forth  these  facts,  prays  that  the 
income  which  John  G.  Bishop  has  for  life  in 
the  aforesaid  ti'ust  estate,  may,  by  a  decree 
of  this  Court,  be  made  subject  to  the  satisfac- 
tion of  his  judgment. 

After  the  review  which  I  have  made  of 
tlie  authorities  which  bear  on  this  subject, 
it  would  be  supertluous  to  enter  into  any 
further  argument,  for  tlie  purpose  of  shew- 
ing that  there  is  no  ground  upon  whioli  the 
claim   of  the   creditor   can    in   this   instance 

*58 
*be  resisted.  Many  of  the  cases  that  have 
been  cited  are  nuu-h  stronger  than  this,  in 
favor  of  the  beneficiary  of  the  trust.  All 
the  cases  that  bear  an  analogy  to  the  case 
before  the  Court,  go  to  shew  that  where  the 
beneficiary  has  a  right  to  the  present  en- 
joyment, in  severalty  of  the  benefits  con- 
ferred upon  him  by  the  trust,  the  creditor 
Ims  an  equity  that  will  not  be  disregarded 
by  the  Court,  liowever  elaborate  may  be  the 
attempt  to  deprive  such  interest  of  the  in- 
cidents of  property,  and  thus  to  exclude  the 

24 


claims  of  creditors.  The  declaration  that 
the  provision  in  the  trust  was  for  the  better 
support  and  maintenance  of  John  G.  Bishop, 
if  it  was  intended  to  exclude  the  claims 
of  creditors,  will  be  ineffectual  for  that  pur- 
pose. For  we  liave  seen,  that  schemes  mucli 
more  skilfully  constructed  for  that  object, 
and  with  the  most  studied  forms  of  lan- 
guage, have  been  overthrown  and  creditors 
let  in. 

It  is  the  opinion  of  this  Court,  that  the 
income  to  which  John  G.  Bishop  is  entitled, 
in  the  trust  estate  created  hy  the  deed  afore- 
said, is  subject  to  the  claims  of  his  credi- 
tors, and  that  the  circuit  decree  is  right 
in  adjudging  that  the  complainant's  judg- 
ment should  be  paid  out  of  the  same. 

Having  now,  at  greater  lengtli  than  I 
liad  intended,  disposed  of  the  merits  of  the 
cause,  I  will  briefly  advert  to  a  matter  of 
practice.  It  is  the  oi)inion  of  tlie  Court, 
that  this  proceeding  should  have  been  in  the 
nature  of  a  creditor's  bill ;  that  is  to  say, 
the  petitioner  should  have  sued  in  behalf 
of  himself  and  the  other  creditors,  who 
would  come  in  and  make  themselves  parties 
to  the  cause,  and  ofter  to  contribute  to  the 
expenses  thereof.  Whenever  this  Court 
takes  hold  of  an  equity  for  the  purpose  of 
giving  relief  to  a  creditor,  it  will  do  ro  in 
l)ehalf  of  all  the  creditors,  and  will  marshal 
the  fund  among  them  according  to  their  I'e- 
spective  rights.  It  is  a  wholesome  rule  of 
practice  and  will  be  insisted  on.  It  prevents 
multiplicity  of  suits,  the  accumulation  of 
costs,  and  injustice  among  the  creditors 
themselves.  It  also  saves  the  debtor's  es- 
tate from  unnecessary  charges,  and  its  en- 
forcement will  be  a  mercy  to  him. 

No  question  as  to  this  point  was  made  at 
*59 
the  circuit  trial ;  but  *it  was  suggested, 
that  there  were  other  creditors.  These  cred- 
itors, if  any  such  exist,  will  doubtless  be 
stirred  up,  after  this  decision,  to  prosecute 
their  claims.  It  would  be  best  to  dispose 
of  them  all  at  once  and  in  one  proceeding. 
This  Court  will  do  now  what  should  have 
been  done  on  the  circuit.  It  will  order  the 
petition  to  be  amended,  so  as  to  make  it  a 
creditor's  petition,  and  direct  notice  to  be 
given  to  creditors,  after  the  usual  form,  to 
appear  and  present  and  prove  their  de- 
mands. And  after  the  report  on  the  claims 
of  creditors  has  come  in,  the  circuit  Court 
will  proceed  to  give  judgment  in  their  favor 
according  to  their  respective  rights. 

It  is  ordered  and  decreed,  that  the  circuit 
decree  be  affirmed  so  far  as  it  adjudges  the 
fund  in  question  to  be  subject  to  the  pay- 
ment of  the  claims  of  the  creditors  of  John 
G.  Bishop;  and  so  far,  also,  as  it  adjudges 
that  the  plaintiff  has  proved  his  debt. 

It  is  further  ordered  and  decreed,  that 
the  plaintiff  amend  his  petition,  so  as  to 
make  it  conform  to  the  character  of  a  credi. 
tor's  bill. 


LONG  V.  CASOX 


»60 


It  is  further  ordered  and  decreed,  tliut 
when  the  petition  sluill  luive  l)een  so  aniend- 
■ed,  tlie  eonnnissiont'r  ;;ive  notice  to  credit()rs, 
throu^rli  tlie  ne\vsiiai)er  i»ress,  to  appear  Ite- 
fore  him  and  prove  their  demands,  on  oatli. 
on  or  before  tlie  first  day  of  .June  next,  and 
that  tlu'  said, conunissioner  report  tlu-rcon. 

It  is  further  ordered  and  decretMl.  tliat  tlie 
case  he  renumded  to  the  circuit  Court,  for 
the  purpose  of  hearing:  said  report,  and  of 
adjud;:inK  the  claims  of  creditors  that  may 
be  set  forth  therein.  marslijillin«  the  fund 
among  them  accordini;  to  their  respective 
rights. 

It  is  further  ordered  and  decreeil,  that  if 
no  other  creditor  shall  ]>resent  and  i)rove  a 
claim,  or  if  the  fuml  he  sufHcient  to  pay 
all  the  claims  that  are  presented  and  prov- 
ed, the  circuit  Court  proceed  to  give  a  final 
decree  in  hehalf  of  the  petitioner,  and  such 
other  creditors  as  may  have  presented  and 
proved  their  demands,  for  the  whole  amount 
of  their  respective  claims. 

JOHNSTON.    DT'NKIN.   and    WARDLAW, 
CC.  concurred. 
Decree  modified. 


4    Rich.  tq.   *60 

♦JAMES  LONG  and  Wife  v.  J.  A.  M.  CASON. 

(Columbia.     Nov.  and   Doc.  Term,  1851.) 

[GtinifUfin   and   Ward   (©=3(51.] 

The  dofondaut.  bciiif;  administrator  of  an 
estate  in  which  plaintilt  had  an  interest  as 
distrilnitee.  \va.s  apijointed  by  the  Court  of  Ordi- 
nary guardian  of  the  plaintiff:  in  defendant's 
returns  as  guardian,  he  charged  himself  with 
the  amount  in  his  hands  as  administrator,  but 
omitted  to  charge  himself  with  interest:  fur  the 
balance  appearing  to  be  due  on  his  returns,  the 
ordinary  made  an  ex  parte  decree  against  him, 
and  for  the  amount  of  the  df-cree  he  confessed 
judgment  to  the  ordinary:  other  persi>iis  were 
then  appointed  by.  the  ''ourt  of  K(iuity.  '.;uar(l- 
ians  of  the  piaintilY,  and  they  received  from 
the  sheriff  the  amount  of  the  judgment  con- 
fessed to  the  ordinary:  shortly  Jtfter  plaintiff 
arrived  at  af;e,  but  more  than  four  years  after 
the  date  of  the  decree  and  the  n-i-eipt  to  the 
sheriff",  plaintiff  conunenced  this  ])rocee(iiiig  to 
recover  from  defendant  the  interest  'which  he 
had  omitted  to  char;:e  himself  with  in  his  re- 
turns:— Held,  that  neither  the  decree  of  tlie  ordi- 
nary. n<u-  the  judgment  confessed  tn  him.  could 
be  re.i;ariled  jis  an  estoppel  of  plaintiff  from  the 
further  prosecution  of  her  rif,dits  a.i;ainst  defend- 
ant. 

[Kd.  Note.— Cited  in  M(d)uilie  v.  Mclntvre,  11 
S.   C.   56L'.   .•{!'   Am.    Rep.   oOd. 

For    other    oases,    see    (Jnardian    and    Ward. 
Cent.  Dig.  S  -'84  ;    Dec.  Dig.  <S=»<J1.] 

[fJinHiition    of   Artionfi   <S='TlI.l 

Jlcld.  further,  that  plaintiff  was  i)arn(l  by 
the  statute  of  linntations. 

[Kd.   Note.— Cited  in   Moore  v.    lloo.l,  li   Rich. 
Eq.  ;J25.  70  Am.  Dec.  lilO. 

For   other   cases,    see    Limitation    of    .\ctions, 
■Cent.  Dig.  ^  :'.!».") ;    Dec.  Dig.  (©=37l!.l 


yudiitiiriit    (SxsaOfi.').] 

A  juiiirment  cannot  operate  n.s  an  estoppel 
as  asainst  parties  not  le;r:dly  before  the  Court 
which  pron(»uuced  the  judgment. 

[Kd.  Note.- Cited  in  Ren  wick  v.  .Smith.  11  S. 
C.  :{()4. 

For  other  oases,  see  Judgment,  Cent.  1)1;:.  § 
1177;    Dec.  Dig.  <g=>fUi5.1 

[Liniitniion    of   Aclions   (@=>1():{.] 

Thoush  technical  trusts  are  uot.  as  between 
trustee  and  cestui  <pie  trust,  within  the  statute 
of  limitations,  yet,  if  the  trustee  does  an  act 
which  imports  to  lie  a  ternnnatioii  of  his  trust, 
the  statute  will  from  that  tinn*  <ommeuee  to 
run  in  iiis  favor. 

|Kd.  Note.— Cited  in  Solleo  v.  Croft.  7  Rich. 
Ki\.  42:  I'arks  v.  .Noble,  !)  Rich.  Ivi.  OS;  Cul- 
burn  v.  Iloll.ind.  14  Rich.  Km.  241  :  Mason  v. 
Johnson,  i:'.  S.  C.  24:  M<ites  v.  Madden.  14  S. 
<'.  4;>2:  Dickerson  v.  Smith,  17  S.  C.  :',(l."» : 
Hayes  v.  Walker,  70  S.  C.  52,  48  S.  E.  Osi». 

F(U'  other  cases,  .see  Limitatif)n  of  Actions, 
Cent.    Dig.    SS    500,    .500-510;     Dec.    Dig.    <g=> 

lo:;.] 

[Limittition  of  Actions  C=>10;11 

An  act  done  in  a  public  ollice.  open  for  the 
information  of  parties  interested,  must  be  taken 
notice  of  b.v  them  ;  and  whore  the  act  puritorts 
to  be  a  termination  of  a  trust,  it  will,  as  a  gen- 
oral  rule,  give  currency  to  the  statute  of  limita- 
tions in   favor  of  the  trustee. 

|K<i.  Note. — Cited  in  Roberts  v.  Johns,  24  S. 
C.  588;  Fricks  v.  L-wis.  20  S.  C.  240,  1  S.  K. 
8.V4;  Royd  v.  Munro.  :^2  S.  C.  2.5:;.  10  S.  E. 
!)0:; :  Roiiertson  v.  I'.lair  &  Co..  .50  S.  C.  110. 
.'U  S.  K.  11,  7<!  Am.  St.  Rep.  54:!;  Kilgore  v. 
Kirkland,  0!)  S.  C.  SO.  48  S.  K.  44. 

For  other  cases,  see  Limitation  of  Actions, 
Cent.  Dig.  §§  500,  500-510:    Dec.  Dig.  <S==>lo;J.] 

[Liwitdtion  of  Actions  <^;=>10^.] 

Wheie  a  guardian,  disi)laced  from  his  trust, 
has  a  settlement,  iiurjiortin.i;  to  be  in  full,  with 
his  successor  duly  appointed,  he  from  that  time 
occupies  the  position  of  a  stranger  to  his  former 
wards  and  their  new  guardian. 

|Kd.  Note. — For  other  lases.  see  Limitation 
of  Actions.  Cent.  Diu'.  5(§  500,  .500-510;  Dec. 
Dig.  (£=>10:'k] 

[Ad I  rise  /'osscssioii  <2=»4.| 

Where  a  trustee  has  the  legal  title,  or  where 
he  may  pro.secute  a  suit  in  behalf  of  his  cestui 
(|ue  trust  for  the  matter  in  controversy,  and  is 
barred,  as  against  a  stranger,  by  the  statute  of 
limitations,  the  cestui  que  trust,  even  thou.!,di  he 
be  an  infant,  will  also  be  barred  as  against  such 
stranu'cr. 
|Kd.   Note. — Cited  in   Barnwell   v.   Marion,  .54 

s.  c.  2:u),  ;?2  s.  K.  ;u:i. 

For  other  cases,  see  Adverse  I'ossessiou,  Cent. 
Dig.   S  2:i;    Dec.   Dig.   <g=>4.] 

[OiKirditin    itiid    Ward   (2=3125.] 

A  guardian  is  a  trustee  who  may  pro.secute 
a  suit  in  behalf  of  the  ward  for  his  equitable 
choses  in  action  ;  wher  >.  theref(U0,  as  to  such 
(hoses,  the  guardian  is  barred  by  the  statute  of 
limitations,  the  infant,  in  the  absence  of  collu- 
sion, is  barii'd  also,  as  against  stiangers  and 
must  resort  to  his  remedy  against  the  guardian. 

jKd.  Note.— Cited  in  Wi«:htman  v.  Grav,  10 
Ri<  h.  K(i.  5:50 :  Crosby  v.  Crosby,  1  S.  C.  :'.45: 
.MrDuflie  V.  M.Intyre,  11  S.  C.  50(1.  501,  ;{2 
-Vm.  I{e|>.  5(MI;  State  e.\  rel.  V.ui  Wyck  v. 
Norris,  15  S.  C.  200:  Waring  v.  Cheraw  <X:  D. 
R.  Co.,  10  S.  C.  424;  Werber  v.  Cain,  71  S. 
C.  34t>,  51   S.   K.   12:i. 

For  other  cases,  sec  (Tuardi.m  and  Ward, 
Cent.  Dig.  S  428;    Dec.  Dig.  <S=125.] 

jThis  case  is  also  cited  in  Haruwell  v.  Marion, 
54  S.  C.  22;>.  .■'.2  S.  K.  Ml.'},  and  distinguish- 
ed  therefrom.] 


^=>For  other  cases  see  same  topic  and  KEY-NL'MUUH  ia  all  Key-Nuubered  Digests  and  indexes 


25 


*61 


4  RICHARDSON'S  EQUITY  REPORTS 


*61 

*Before  Jolmston,  Ch.,  at  Anderson, 
June,  1851. 

This  case  will  be  sufficiently  understood 
from  the  opinion  delivered  in  the  Court  of 
Appeals. 

Harrison,  for  appellants. 
Reed,  Vandiver,  Orr,  contra. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW,  Ch.  By  the  appointment  of 
the  ordinary  of  Anderson  district,  J.  A.  M. 
Cason,  on  June  6,  1S36,  became  an  adminis- 
trator of  the  estate  of  William  Cason,  who 
died  intestate ;  and  on  November  IS,  1839, 
by  like  appointment,  became  guardian  of 
Cynthia  and  other  infant  children  of  the  in- 
testate. In  his  returns  as  guardian  to  the 
ordinary,  it  seems  that,  by  'unintentional 
inaccuracy,'  as  the  ordinary  reports,  he  omit- 
ted to  charge  himself  with  interest  on  the 
balance  which  had  been  in  his  hands,  as  ad- 
ministrator, for  some  years.  On  February 
23,  1846,  the  ordinary  made  a  decree,  that  it 
appears  on  settlement,  that  J.  A.  M.  Cason 
is  indebted  to  his  wards  in  the  sum  of  $2710.- 
39;  and  on  February  27,  1846,  Cason  con- 
fessed a  judgment  to  the  ordinary  for  this 
sum.  Mrs.  Cason  and  Jacob  Pickle  .were 
appointed  by  the  Court  of  Etiuity,  March  6, 
1846,  guardians  of  the  same  wards ;  and  on 
April  6,  1846,  they,  as  guardians,  gave  a  re- 
ceipt to  the  sheriff  for  the  amount  of  the 
judgment  \ponfessed  by  J.  A.  M.  Cason. 
James  Long  and  Cynthia  Cason  intermarried 
Dec-ember  28,  1849,  and  the  wife  did  not  at- 
tain the  age  of  twenty-one  years  until 
March  6,  18.50.  James  Long,  on  October  21, 
1850,  cited  J.  A.  M.  Cason  to  account  before 
the  ordinary  for  the  mistake  as  to  interest 
aTiove  mentioned ;  and  Cason,  appearing  by 
counsel,  insisted,  that,  granting  the  mistake, 
he  was  protected  from  further  accounting  by 
the  decree  of  the  ordinary  and  the  judgment 
at  law,  which  were  ratified  by  the  subsequent 
guardians  by  their  act  acknowledging  satis- 
faction to  the  sheriff,  and  further  that  he 
was  protected  by  the  statute  of  limitations. 
The  ordinary  overruled  these  defences,  and 
ordered    Cason    to    account    further.      From 

*62 
this  order  Cason  *appealed  to  this  Court; 
and  at  the  sitting  for  Anderson,  in  June  last, 
the  Chancellor  decreed  that  Cason  was  not 
liable  to  account,  and  reversed  the  order  of 
the  ordinary.  Long  and  wife  appeal  from 
that  decree;  on  various  grounds  contesting 
the  sufficiency  of  Cason's  defences. 

The  decree  of  the  ordinary,  of  1.846,  can- 
not be  regarded  as  an  estoppel  of  Long  and 
wife  from  the  further  prosecution  of  their 
rights.  That  decree  seems  to  have  been  made 
at  the  instance  of  the  guardian,  without  the 
presence  of  any  person  authorized  to  repre- 
sent the  wards.  The  case,  in  this  particular, 
is  governed  by  the  autliority  of  Miller  v. 
26 


Alexander,  (1  Hill  Eq.  27.)  There,  the  or- 
dinary, without  citation  of  the  distributees  or 
their  being  present,  upon  an  ex  parte  settle- 
ment of  the  accounts  of  an  administrator, 
decreed  a  certain  sum  against  the  adminis- 
trator, but  omitted  to  charge  him  with  inter- 
est collected  upon  notes.  The  Court  held 
the  decree  not  to  be  conclusive,  and  say: 
"It  was  wholly  an  ex  parte  proceeding,  made 
up  entirely  at  the  instance  of  the  administra- 
tor, to  enable  him  to  settle  with  his  cestui 
que  trusts.  In  order  to  be  conclusive,  it 
ought  to  be  the  judgment  of  the  Court,  be- 
tween parties  regularly  in  Court,  on  the 
same  matter  then  in  issue  between  them. 
It  must  appear  by  the  proceedings,  that  the 
parties  were  legally  in  Court." 

Whether  the  ordinary  can  vacate  his  for- 
mer decree,  without  a  direct  application  for 
that  purpose — whether  the  proceeding  in  this 
case  amounts  to  such  application,  and  wheth- 
er the  decree,  until  vacated,  must  not  be 
held  valid  by  other  Courts,  are  questions 
upon  which  some  difference  of  opinion  may 
exist ;  and  the  discussion  of  them  may  be 
waived  in  the  present  case. 

The  same  reasoning  which  establishes  the 
inconclusiveness  of  the  ordinai'y's  decree, 
shows  also  that  the  judgment  confessed  by 
the  guardian  to  the  ordinary  cannot  have 
the  force  of  an  estoppel.  In  that  proceeding, 
too,  the  wards  were  unrepresented. 

It  may  be,  however,  that  the  decree  of  the 
ordinary  in  1846,  although  not  a  technical 
estoppel,  is  a  starting  point  for  the  running 
of  the  statute  of  limitations.     In  procuring 

*63 
that  decree,  the  *guardian,  Cason,  evinced 
his  intention  to  terminate  his  trust  to  his 
wards.  He  intended  the  settlement  to  be  in 
full.  He  acknowledged  his  liability  as  guard- 
ian for  the  amount  decreed  against  him,  and 
confessed  judgment  for  this  sum :  and  by  the 
strongest  implication  denied  all  further  lia- 
bility. Moreover,  in  a  few  days  afterwards, 
he  was  displaced  from  his  trust,  and  suc- 
cessors to  him  appointed  by  this  Court. 
These  successors,  more  than  four  years  before 
any  further  proceeding  against  him,  received 
from  him  through  the  sheriff,  the  amount  of 
the  decree  and  judgment,  and  made  no  fur- 
ther claim  upon  him.  They  thus  ratified  the 
ordinary's  decree.  These  acts  of  Cason,  pur- 
porting to  be  in  full  execution  of  his  trust, 
place  him  in  the  character  of  a  stranger  to  his 
former  wards  and  their  new  guardians,  and 
put  them  upon  the  assertion  of  their  rights, 
at  the  hazard  of  losing  these  rights  by  lapse 
of  time. 

Technical  trusts,  as  to  claims  between 
trustees  and  lieneficiaries,  are  not  within  the 
statute  of  limitations.  But,  to  use  the  lan- 
guage of  our  last  reported  case  on  this  sub- 
ject, (Brockington  v.  Camlin,  4  Strob.  E(]. 
196,)  "if  the  trustee  does  an  act  which  inqjorts 
to  be  a  termination  of  the  trust ;  if  he  has  a 
settlement  which  is  intended  to  be  in  full ; 


LONG  V.  CASON 


*G6 


,t  „e  .e,.,e»  «.  to  par,  an,.  <-,a.„,s  ,he  resulue,  this  o,,,e  ,s  H.«l  |^-.;'f '--''..i^Uf 'J, 

tween  the  trustoe  aiul  his  cestui  que  trust,  ,  i'..„tiMn,l   v    Stokes,  »li  Ha.  an.l 

L  that  the  statute  ..f  liu.itatious  .ill  ^^    J"  ^:;5'!''l;,,„  ^'f  "^      .;;,^'l  Cox,  145;    Mil- 
.nouce  to  ruu  fnun  the  date  ;'f  •^"^•^l,  "^  "        !•  I""  mSu     H^        W^    441 :     Lewiu    on 


man  v.  Davis,  2  Strob.  E(i.  :?40;  I'ayut  .. 
Harris,  .->.  Strob.  Eq.  nO.)  lu  the  last  case 
there  had  been  an  acwuntiuR  of  the  adnnn- 
istrators  of  an  intestate  before  the  Ordinary, 
in  which  some  of  the  distributees,  m  their 


throu^'h  the  laches  of  the  execut..r  before  as- 
sent to  the  lej^acy,  a  stran.u'er  had  ^k''1""';<1 
title  bv  possession.  In  Ulover  v.  l^.tt.  (1 
Stroll  iMi  "'■».»  where  an  executor  had  l»aul  a 
Wiiacy  of  an  infant  to  her  father,  and  return- 


Hbsence  were' excluded  by  misapprehension  j  ed  the  father's  recei,^  J!;  j^"  ^li  r^as  a^^ 
of  uie  pi^vision  of  the  statute  of  <listn''"-  to  t>;e  -^-^J^^^^^^^^l^^  "^^Ll^it  i^l as 
tlons.     The  Chancellor  says:    ''I  ^ake  it,  tlm    Uyanls    ak^^^  ^^^^ 

an  act  done  in  a  .uUU.  ..mce.  open  for  t.-h^^^that   tV-  1-^  -  ^^^^^^  ,^^^  ^^ 

...ormanion  of  parties  interested  nuist^  be|  ^^^t^-^  ^-::r;  %::t::^J^ 
taken  notice  of  by  them;  and  that  the  statu  e  ,  cases    tiU  I  on^^u^^^^  ^^^^^^^^^         ^^^^ 

obtained  currency  against  the  parties  !"^'' ; !  "^^.  "^'y/^-^j,^  t.  ..^^  f,om  opening'  the  set- 
tioiied,     from     the    date    of    the    divisum       stat   te  <  f  hu 

This  remark,  althou^'h  ^-enerally  true,  »';  I  l^™^^'  n  se  4mli  s  were  their  trustees 
not  be  applicable  to  extreme  cases.  /^  f^^^"M  ^^o  tbriiiTtte  ^  of  the  settlement,  and  au- 
que  trust  is  always  ban-ed  by  len.ho^^^^^  ^^^^.^   ^.,^^.^„^   ,,r   the 

.peratin,  «^;--\,''sch ""  uul  li  G-"  In  I  r  cnl.n  of  Uie  errors  in  the  decree.  In  .en- 
Lord  Annesley,  (2  Sch.  and  Ut.  ♦'"/•^  ''  .  ^^^f.^^,^  ^uall  lose  nothinj;  by  non- 
Ixnvellin  V.  Mackworth,  (2  Eq.  Ca.  f,^"  ;^;^;M  ".";/'"/"  ;!!e,t  in  demandin,^  his  ri.ht ; 
Lord   Ilardwicke  says:    -The  rule,  that  ^^^1^;^^^:^^^   "^^^^      ,^,,,,,,,a  from  the  o^vv^- 


,e  ni  e.  ri  a.     u.  ,         ";    ^  ^     ,.,,,i,.  ex<-epted  f nun  the  opera- 
statute  of  limitations  does  not   bar  ;\t>">t    and  he  ^^J;^ >  ;        lin.itations:    hut  if  an 
estate,    holds    only    as    between    cestui    ^'"H  ^^,;l^'\ie,e,al  title  in  tinist  for  t^ 
trust    and    trustee,    not    between    cestui    que    ;!^';^';;\^^;:^;,J^,,.^,,,,„te  suit  in  his  behalf  f<>r 

the  matter  in  controversy,  the  pohcy  of  the 


trust  and  trustee  on  one  side  and  strani,'ers  on 
the  other ;  for  that  would  make  the  statute 
of  no  force  at  all,  because  there  is  hardly  any 
estate  of  consequence  without  such  trust." 

Where   there    is    no    imputation    of   fraud 
an  infant  beneticiary  will  be  bou 


bar  incurred  tlirouj:li  the  laches  of  his  trus- 
tee.    In  Wych  V.  East  Ind.  Co..  (3  P.  Wins. 
309,)  A.  had  agreed  with  the  company  for  a 
certain    allowance,   and    afterwards   died   in- 
testate, leaving  an  infant  son.     B.  took  out 
administration    during   the    minority    of   the 
.^on.    but    instituted    no    suit    upon    the    con- 
tract.    The  son,  within  the  term  of  the  stat- 
ute after  attaining  maturity,  but  not  within 
the  term  after  the  cause  of  action  accrued, 
brought  his  bill  against  the  company  for  an 
account;     and    they    pleaded   the    statute   of 
limitations.     Lord  Talbot  said:    "The  admin- 
istrator, during  the  infancy  of  the  plaintiff, 
had  a  right  to  sue;    and  though  the  cestui 
(pie  trust  was  an  infant,  yet  he  must  be  bound 
hv   the   trustee's   not   suing   in   time;    for   I 
cannot  take  away  the  beneht  of  the  statute 
of  limitations  from  the  company,  who  are  in 
no  default,  and  are  entitled  to  take  advantage 
thereof    as    well    as    private    ptM-sons ;     since 
their  witnesses  may  die,  or  their  vouchers  be 
lost.     And  as  to  the  trust,  that  is  only  be- 
tween the  administrator  and  the  infant,  and 
does  not  affect  the  company."     In  a  note  to 


statute    to   protect   possession   and   preclude 

"liti<'ati.)n.    sh.mld    have    full    operation.      It 

m,    or    irauu     ivmains  for  us  to  emiuire.  whether  guardians 

1  bv  a  l"  1    appointed  by  this  Court  are  not  entitled  to 

•  sue  for.  and  receive  the  equitable  <hoses  of 

their  wards. 

It  is  said  in  Kent's  Ctimmentanes.  (_  k. 
'>'^S)  that  a  sruardian  may  sell  the  perscmal 
estate  of  his  ward,  for  the  purposes  of  th" 
trust  without  a  i»revious  order  of  the  Court, 
and  that,  if  the  sale  be  fair,  the  title  ot  the 
purchaser  is  undoubtedly  good,  although  the 
safer  course  is  to  have  the  previous  order 
of  the  Court.  In  Eield  v.  Schiefleliu,  (7 
.Tohns  Ch.  150.)  and  in  Bank  of  Virginia  v. 
Crais:  (♦>  Leigh,  MOll.)  the  doctrine  is  broad- 
ly asserted,  that  guardians  have  the  same 
t'itle  to  the  pei-sonal  estate  of  their  wards, 
as  executors  have  to  the  personal  assets  of 

*66 
their  testators.  It  *would  be  hazardous  to 
recognize  this  doctrine  as  to  the  chattels  of 
wards:  and  this  Court  in  the  case  of  Bailey 
V  ratti>rson.  ^n  Rich.  Eq.  150,)  set  aside  tlio 
purchase  of  a  slave  from  a  guardian.  In 
general,  guardians  cannot  <-hange  the  nature 
of  infants  estates,  but  they  may  even  do  that, 
as  is  said  bv  Lord  Hardwi.ke  in  Inwood  v. 
Twvno,  ^Amb.  41'.),  2  Eden,  14S,)  -under  par- 


»j6 


4  RICHARDSON'S  EQUITY  REPORTS 


ticular  circumstances;  and  the  Court  will 
support  their  conduct,  if  the  Court  would 
do  it  under  the  same  circumstances."  They 
ar«  entitled,  however,  to  the  possession  and 
management  of  all  the  property  of  their 
wards,  and  to  the  collection  and  disbursement 
of  all  the  income,  profits  and  credits  arising 
therefrom.  Their  authority  extends  to  bind 
the  infants  by  all  such  acts  as  appear  to  be 
for  the  advantage  of  the  infants,  and  for 
which  the  guardians  are  liable  to  account. 
I  apprehend  that  a  guardian  has  plenary 
right  to  receive  moneys  coming  to  his  ward, 
and  to  prosecute,  compound  and  acquit  any 
debt  or  liability  to  the  ward.  He  always 
acts  under  responsibility  to  his  ward  for  the 
faithful  and  judicious  performance  of  his 
trust,  and  is  liable  for  any  fraud,  gross  negli- 
gence, or  otlier  breach  of  trust.  But  a 
stranger  dealing  with  him  as  to  the  choses 
of  the  ward,  may  rightfully  presume  that  he 
is  acting  for  the  benefit  of  the  infant,  and  in 
the  absence  of  any  evidence  of  collusion,  does 
not  partake  of  the  guardian's  responsibility. 
It  appears  to  me  highly  important  to  the  in- 
terests of  infants  and  to  the  repose  of  the 
community,  that  guardians  should  have  such 
power  over  the  rights  and  credits  of  their 
wards.  If  the  debtor  of  the  infant,  cannot 
safely  account  and  pay  to  the  guardian,  for 
the  hire  of  a  slave  or  any  other  lialiility,  the 
estates  of  infants  must  suffer  the  impoverish- 
ment resulting  from  having  every  demand 
settled  by  a  law  suit.  If  the  statute  will  not 
run  against  an  infant  represented  by  a 
guardian,  we  may  conceive  of  a  case  in  which 
a  debtor  would  be  liable  to  reclamatioii  for 
undesigned  mistake  after  more  than  twenty- 
four  years.  Why  should  an  infant  with 
guardian  be  barred  by  lapse  of  time  any  more 
than  by  the  statute  of  limitations V  But  it 
will  hardly  be  disputed  that,  as  to  such  chos- 

*67 
es  as  cannot  be  assigned  at  law,  and  are  *not 
legal  demands,  he  is  barred  by  lapse  of  time. 
(Miller  v.  Mitchell,  Bail.  Eti.  437;  Buchan 
V.  James,  Sp.  Eq,.  382.)  The  hardship  of 
barring  by  the  statute,  an  infant  after  a 
settlement  made  by  his  guardian,  is  not  much 
greater  than  in  the  case  of  any  other  benefi- 
ciary who  is  barred  through  his  trustee. 

These  views  have  strong  support  from  au- 
thority. In  Field  v.  Schieffelin,  the  sale  and 
assignment  by  a  guardian  to  a  stranger  of 
bond  and  mortgage  belonging  to  an  infant, 
were  held  valid.  The  same  doctrine  is  held  in 
Livingston  v.  Jones,  (Harring.  Ch.  105.)  So, 
also,  the  guardian's  transfer  of  the  infant's 
stock  in  a  bank  is  valid — (Bank  of  Virginia 
v.  Craig.)  The  case  of  Ellis  v.  Essex  Mer. 
Bridge,  (2  Pick.  243,)  was  like  the  last,  ex- 
cept that  the  guardian  was  of  one  non  com- 
pos. Ex  parte  Dale,  Buck,  30.5,  is  cited  by 
Macph.  on  Infants,  541,  for  the  doctrine,  that 
money  left  by  a  guardian  in  the  hands  of  one 
who  becomes  bankrupt,  passes  to  the  as- 
signees, for  such  a  trustee  is  the  true  owner, 

28 


A  guardian  is  permitted  to  prove,  under  a 
commission  of  bankruptcy,  a  debt  due  to  an 
infant.  Ex  parte  Belton,  1  Atk.  251 ;  Waloott 
V.  Hall,  2  Bro.  C.  C.  305. 

In  Capehart  v.  Iluey,  (1  Hill  Eq.  400,) 
where  the  guardian  executed  a  release  of  the 
ward's  claims  against  a  witness,  in  order  to 
render  the  witness  competent,  the  Court  say: 
"A  guardian,  Jis  the  officer  of  the  Court  of 
Equity,  is  charged  with  the  preservation 
of  all  the  rights  and  interests  of  the  Wiird. 
He  cannot,  however,  generally  change  the 
nature  or  diminish  the  capital  of  the  estate ; 
but  with  this  exception,  he  is  authorized  to 
do  any  act  for  the  infant  which  a  prudent 
man  in  the  management  of  his  own  business 
would  do.  Such  an  act  must  of  necessity  fall 
within  the  rule,  well  stated  in  Bing.  on  Inf. 
and  Cov.  152:  'it  seems  generally  tliat  those 
acts  of  the  guardian  are  binding  on  the  in- 
fant, which  are  for  the  benefit  of  the  infant^ 
and  for  which  the  guardian  can  account ; 
for  so  far  his  authority  extends.'  The  re- 
lease here  is  an  act  for  which  the  guardian 
can  and  must  account,  if  he  thereby  fails  in 
recovering  the  share  of  his  ward."  Now,  if 
the  guardian  has  authoi'ity  to  release  one  lia- 

-1=68 
bility  to  his  ward,  he  ma.v  any  other  in  *right 
merely;  and  if  for  one  purpose,  he  may  for 
any  other  appearing  to  be  for  the  advantage 
of  the  infant;  and  in  every  case  he  is  liable 
to  account  to  his  ward.  It  would  be  ditlicult 
to  state  any  matter,  more  clearly  for  the  ben- 
efit of  the  infant,  than  the  ascertainment  of 
his  distributive  share  of  his  father's  estate, 
and  the  adjustment  and  settlement  of  the  ac- 
counts of  his  former  guardian. 

It  is  lield,  in  Johnson  v.  Johnson,  (2  Hill 
Eq.  284  [29  Am.  Dec.  72],)  that,  where  an  ex- 
ecutor becomes  guardian  of  an  infant  lega- 
tee he  must  account  in  the  latter  character, 
for  whatever  funds  he  had  in  his  hands  as 
executor  were  transferred,  by  operation  of 
law,  to  his  account  as  guardian.  Simkins  v. 
Cobb,  (2  Bail.  00.)  On  what  principle  can  his 
debt  as  executor  be  regarded  as  extinguish- 
ed by  his  appointment  as  guardian,  unless  as 
guardian  he  had  the  legal  right  to  settle  and 
adjust  and  receive  the  balance  due  on  his 
accounts  as  executor. 

In  Massey  v.  Massey,  (2  Hill  Eq.  490,)  the 
statute  of  limitations  was  held  to  protect  the 
ward,  sued  after  he  became  of  age  with  his 
guardian,  from  reimbursement  of  an  erro- 
neous payment  made  in  his  behalf  to  his 
guardian,  more  than  four  years  before  bill 
ttled,  but  less  fiian  four  years  after  the 
ward's  maturity,  although  the  guardian  hhn- 
self  did  not  plead  the  statute.  That  case  is 
the  exact  correlative  of  the  present  one;  and 
the  rule  should  work  both  ways.  If  the  in- 
fant be  protected,  under  the  statute,  by  the- 
guardian's  receipt  of  money  four  years  before 
suit,  he  should  be  barred  by  the  guardian's 
laches  in  not  prosecuting  and  receiving  fot 
the  statutory  term. 


BIIUWN  V,  POSTELL 


*71 


I  coneliule,  that  Cynthia  Loii;;.  having 
guardians  competent  to  protect  her  interests, 
and  to  prosecnte  in  her  behalf  for  any  error 
in  the  settlement  of  the  accounts  of  her  for- 
mer guardian,  is  not  exempt  hy  her  infancy 
from  the  bar  of  the  statute  of  limitations. 

It  is  not  necessary  in  this  case,  to  deter- 
mine what  may  be  the  operation  of  the  stat- 
ute against  an  infant  with  guardian,  as  to 
legal  demands  standing  in  the  name  of  the 
infant.  Our  judgment  is  limited  to  the  case 
presented.  We  hold.  that,  as  to  a  chose  of 
the  infant,  not  assignable  at  law,  and  pecu- 

*69 
liarly  within  *the  power  an«l  duty  of  the 
guardian,  the  laches  of  the  g\iardian  in  the 
absence  of  collusion,  by  operation  of  the  stat- 
ute of  limitations,  bars  the  infant  as  to 
strangers,  and  leaves  him  to  his  remedy 
against  the  guardian. 

It  is  ordered  and  decreed,  that  the  appeal 
be  disnussed.  and  the  decree  be  attirmed. 

JOHNSTON  and  DlNKIN,  CO.,  concurred. 

DARGAN,  Ch.  I  think  that  where  the  or- 
dinary has  made  a  decree  on  a  subject  mat- 
ter and  between  parties  within  his  jurisdic- 
tion, such  decree  is  conclusive  unless  it 
should  he  reversed  or  modified  on  appeal. 
And  though  there  be  errors  or  inaccuracies 
in  it.  he  has  no  power  to  entertain  an  appli- 
cation in  the  nature  of  a  bill  of  review  for 
the  correction  of  those  errors.  His  ofhcial 
power  over  the  matter  ceases  when  he  has 
rendered  his  decree.  He  has  not  the  power 
even  to  enforce  his  own  decrees.  More 
strongly  would  the  case  appear,  where  the 
parties,  as  in  this  instance,  have  regarded 
the  proceedings  before  the  ordinary  as  a  final 
settlement,  and  have  received  the  shares  de- 
creed to  them  in  full. 

I  think  also  that  where  an  infant  has  a 
guardian  who  makes  a  settlement  for  hi».i. 
or,  which  is  the  same  thing,  adopts  one  al- 
ready made  and  gives  a  discharge,  if  the 
subject  matter  is  such  as  falls  within  the 
power  and  authority  of  the  guardian,  the  in- 
fant is  as  nuuh  concluded  as  if  he  was  an 
adult.  A  settlement  like  this  could  only  be 
opened  upon  such  general  grounds  of  ecpii- 
talile  relief  as  would  be  available  to  all  per- 
sons not  under  the  disability  of  infancy. 
On  the  foH'going  grounds  I  concur  in  the 
decree  which  has  been  rendered  by  this 
Court.  Rut  I  am  not  prepared  to  admit. 
or  to  place  my  concurrence  on  the  ground 
that  an  infant  is  to  be  deprived  of  the  sav- 
ing in  the  statute  of  limitations  in  his  favor, 
because  he  has  a  guardian.  The  statute  it- 
self makes  no  such  distinction:  nor  am  I 
aware  of  any  authority  for  it,  either  as  to 
chattels  or  chtises  in  action.     It  is  said  that 

*70 
the  statute  runs  *against  an  infant  from  the 
time  he  has  a  guardian,  because  then  he  has 


some  one  to  look  after  his  rights  and  to  sue 
for  him  if  necessary.  He  may  sue  iiefore  he 
has  a  guardian  if  he  chooses.  The  statute 
idaces  him  under  no  disability  from  suing, 
but  gives  him  a  longer  time  to  bring  his  ac- 
tion. Married  women  and  lunatics  may  also 
sue  during  their  respective  disabilities;  yet 
it  has  never  been  supposed,  that,  becau.se 
they  might  .sue,  this  was  to  destroy  or  to 
take  away  the  savings  in  the  statute  in  re- 
spect to  them. 

The  statute  of  limitations  runs  against 
trustees,  executors  and  administrators,  be- 
cause it  runs  against  tlie  legal  estate,  which 
is  vested  in  them  for  the  pinposes  of  their 
trusts.  And  the  rights  of  their  cestui  (pie 
trusts  may  be  lost  by  their  laches,  wherethe 
statute  has  been  perndtted  to  run  so  as  to 
create  a  bar.  And  in  such  a  case,  the  only 
remedy  would  be  again.st  the  trustee  for  an 
abuse  of  trust.  Rut  the  guardian  is  not  pos- 
sessed of  any  legal  estate  in  his  ward's 
chattels  or  choses.  If  a  guardian  should 
take  a  note  or  other  security,  payable  to 
himself  for  the  rents  and  profits  of  his  ward's 
real  or  ixn-sonal  estate,  or  calling  in  the 
ward's  cho.ses  should  reinvest  them  in  other 
securities  payable  t«>  himself,  in  these  and 
sinnlar  cases  I  should  have  no  hesitation  in 
saying,  that  the  statute  of  limitiitions  would 
run  again.st  the  guardian,  and  through  the 
guardian  against  the  infant  ward:  for  the 
reason  that  the  legal  estate  in  such  securities 
was  vested  in  the  guardian.  Rut  in  no  case, 
where  the  legal  title  in  the  ward's  estate  is 
not  vested  in  the  guardian,  would  1  say  that 
the  statute  would  run  against  an  infant  ex- 
cept under  the  specific  provisions  of  the  Act 
itself. 

Decree  affirmed. 


4    Rich.  Eq.   *7I 

*JOIIN  A.  RKOWN  v.  MAKY  W.  I'OSTF.LL 

and    Others. 

(Coluiubia.     Nov.   and   Dec.   Term.  1851.) 

[Appeal  and  Error  <g=>S70.1 

A  (lecrco  dctonniuing  a  case  iiiioii  its  ments, 
but  ordering  a  reference  to  ascertain  the 
amount  due.  and  not  deterniinini;  the  nnide  in 
which  satisfaction  should  be  ni.ulf  of  the 
amount  when  ascertained,  may  be  apiiealed  from 
when  an  appeal  is  taken  from  the  decree  on  the 
report. 

|Kd  Note.— Cited  in  Simpson  v.  Downs.  5 
Rich.  K(i.  4^");  Verdier  v.  Verdier.  I"-'  Rich. 
K.|.   14'_\ 

For  other  cases,  see  Appeal  and  Krror.  Cent. 
DiL'  88  •">4")1.  :US7-34S!>,  :!4!n-:'>.")l-J;  Dec.  Dig. 
C=>ST(;.] 

[TnixtK  <S=5l.".l.] 

Conveyance  of  jiroperty  in  trust,  that  hus- 
band and  wife  and  his  childien  slmuld  l>e  sup- 
ported and  maintained  out  of  the  proiierty  dur- 
ing their  natural  lives,  and,  after  tlic  death  of 
husband  and  wife,  that  tiie  estate  sh.uilil  be 
eciuailv  dividi'd  among  the  children:  tlie  luis- 
l)and.  tirst.  and  the  wife,  after  his  death,  con- 
tracted   debts,    personally,    for    rent.    overse,er's 


G=3For  other  cases  see  same  topic  and  ICEY-NL'MBER  In  all  Key-Numbered  Digests  and  Indexes 


2'J 


m 


4  RICHARDSON'S  EQUITY  REPORTS 


wages,  and  necessaries  supplied  for  the  use  of 
the  iami\\:—Held,  that  for  these  debts  the  cred- 
itors had  no  equity  to  make  the  trust  estate,  as 
such,  liable. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent. 
Dig.  §§  195,  1951/2,  197;    Dec.  Dig.  <S=^151.] 

[Trusts  (®=:3l51.] 

Held  further,  that  the  creditors  of  the  wife 
could  not  enforce  their  demands  out  of  her  in- 
dividual interest,  (1)  because  the  bill  was  not 
framed  with  that  aspect;  and  (2)  because  her 
interest  could  not  be  separated  without  breaking 
in  upon  the  scheme  of  the  trust,  which  required 
that  the  property  should  be  kept  together  until 
the  death  of  the  survivor  of  the  husband  and 
wife. 

[Ed.  Note.— Cited  in  Rivers  v.  Thayer,  7 
Rich.   Eq.   167. 

For  other  cases,  see  Trusts,  Cent.  Dig.  § 
195;    Dec.  Dig.  <©=>151.] 

This  case  was  heard  in  June,  1846,  in  York 
district,  before  Johnson,  Ch.,  who  made  the 
following  decree: 

Johnson,  Ch.  The  late  Jehu  Postell,  by 
deed  dated  in  February,  1819,  conveyed  to 
Charles  Williams  certain  slaves  by  name, 
ten  in  number,  with  their  subsequent  issue 
and  increase,  upon  certain  terms,  which  are 
very  confusedly  and  inartificially  expressed. 
Those  upon  which  the  question  to  be  consid- 
ered turns,  are  thus  expressed :  "The  said 
Charles  Williams  shall  stand  possessed,  as 
trustee  aforesaid,  and  the  said  Jehu  Postell 
and  Mary,  his  wife,  &e..  as  also  his  present 
children  or  any  other  children,  by  him,  the 
said  Jehu  Postell,  lawfully  to  be  begotten, 
are  to  be  supported  and  maintained  out  of  the 
said  property,  during  the  term  of  their  natur- 
al lives ;  and  at  the  death  of  the  said  Jehu 
Postell  and  Mary,  his  wife,  &c.,  the  said 
Charles  Williams  shall  stand  possessed  of 
the  said  property,  for  the  said  Jehu  Postell, 
during  the  tei-m  of  their  natural  lives,  and  at 
their  deaths,  to  such  of  their  children  as  may 
be  living,  share  and  share  alike,"  t&c. 

Jehu  I'ostell  retained  possession  of  the  ne- 
*72 
groes  until  his  death  *in  1S.'].3,  and  the  de- 
fendant, Mary  W.,  his  widows  ^md  their  chil- 
dren, have  had  possession  of  them  ever  since. 
Charles  Williams  is  also  dead,  and  neither 
he  nor  his  executors  have  ever  interfered 
with  them,  and  no  trustee  has  been  substitut- 
ed in  his  place.  Defendant,  Mary  W^.,  con- 
tracted a  debt  with  the  complainant,  a  mer- 
chant, for  goods,  which,  he  charges,  were 
necessaries  for  herself  and  children.  He  has 
obtained  his  judgment  at  law,  against  her, 
for  the  debt,  and  the  sheriff  has  returned 
nulla  bona  on  the  fi.  fa.  against  her,  and  the 
bill  prays  that  the  trust  property  may  be 
charged    with   the   payment    of  his   demand. 

Notwithstanding  the  informality  of  the 
deed,  I  think  it  may  fairly  be  deduced  that 
the  grantor  intended  that  the  support  and 
maintenance  of  his  widow  and  children, 
should  be  a  charge  as  well  on  the  corpus  as 
the  income  of  the  trust  property,  and  if  the 
account   raised   by   the   complainant   against 


the  defendant,  Mary  W.,  was  for  necessaries 
supplied  for  the  use  of  the  family,  it  is  a 
charge  on  the  trust  property. 

It  is  stated  that  an  order  of  the  Court  has 
been  heretofore  made,  authorizing  the  sale 
of  a  portion  of  the  negroes,  to  supply  the 
wants  and  pay  the  debts  contracted  by  de- 
fendant, Mary  W.,  for  the  use  of  the  family, 
and  that  out  of  the  proceeds  she  purchased 
a  house  and  lot  in  the  village  of  York.  It  is 
admitted  that  this  property  is  unproductive, 
and  it  is  the  desire  of  the  defendants  that  it 
should  1)6  first  sold,  to  meet  the  demands  up- 
on the  trust  property. 

It  is  therefore  ordered  and  decreed,  that 
the  commissioner  enquire  and  report,  wheth- 
er the  account  raised  by  the  complainant 
against  defendant,  Mary  W.  Postell,  was  for 
necessaries  supplied  for  the  use  of  herself 
and  family.  It  is  further  ordered,  that  the 
said  house  and  lot,  in  the  village  of  York, 
be  sold  by  the  commissioner,  on  the  first  Mon- 
day in  August  next,  or  some  convenient  sale 
day  thereafter,  on  a  credit  of  twelve  months, 
with  interest  from  the  day  of  sale ;  the  pur- 
chase money  to  be  secured  by  bond  and  per- 
sonal security,  and  a  mortgage  of  the  prem- 

*73 
ises,  and  the  proceeds  *of  sale,  when  collect- 
ed, to  remain  in  Court,  suliject  to  its  further 
order. 

In  June,  1847,  the  case  was  heard  on  the 
report  of  the  commissioner  before  his  Honor 
Chancellor  Caldwell,  who,  discovering  that 
some  of  the  cestui  que  trusts  had  not  been 
made  parties  to  the  bill,  made  the  following 
order: 

Caldwell,  Ch.  It  is  ordered  and  decreed, 
that  all  the  children  of  Jehu  and  Mary  W. 
Postell  be  made  parties  by  service,  if  with- 
in the  State,  or  by  publication,  if  without 
its  limits,  to  the  proceedings  in  this  case, 
and  that  the  report  be  recommitted  to  John 
M.  Ross,  Esq.,  special  referee,  without  prej- 
udice, and  the  evidence  to  be  offered  de 
novo,  and  that  all  the  creditors  of  ^Nlary  W. 
Postell,  who  have  claims  against  the  trust 
property  aforesaid,  have  leave  to  come  in 
as  plaintiffs  to  this  bill,  on  their  proportion- 
ally contributing  to  bear  the  expenses  of 
this  suit,  and  that  the  said  referee  do  en- 
quire and  I'eport,  whether  their  respective 
claims  were  for  necessaries  furnished  to 
her  or  her  children ;  whether  on  her  credit, 
or  on  the  credit  of  the  trust  estate ;  v/heth- 
er  any  of  them,  and  which,  was  contracted 
for  the  benefit  of  the  trust  estate,  or  whether 
it  ought  to  be  made  liable  for  the  same ; 
also,  of  what  property  the  trust  estate  con- 
sists; what  is  the  annual  income  thereof; 
how  the  same  has  been  applied,  and  who 
has  possession  thereof,  or  has  received  the 
rents  and  profits ;  also,  what  benefit  she 
and  her  children,  respectively,  have  derived 
from  the  trust  estate ;  and  who  would  be  a 
fit  and  proper  person  to  be  appointed  in  the 


30 


<g=>For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Inde.\es 


BROWX  V.  POSTELL 


76 


place    of    Charles    Williams,    the    deceased  j 
trustee. 

In  June,  1851,  the  case  ai;ain  came  up.  on 
the  report,  and  excejitions  thereto,  before 
his  Honor  ("haMcell<ir  Wardlaw,  who  pro- 
nounced   the   follo\vin;Lr   decree: 

Wardlaw,  Ch.  This  case  comes  up  Itefore 
me  on  exceptii)ns,  l»y  the  defendants  to  the 
report  of  a  special  conuMissioner.  estaidish- 
ing  certain  dehts  <lue  to  the  plaintiffs  as 
charges  upon  the  trust  estate,  of  which  de- 
fendants   are   l)eneliciaries.    and    recommend- 

♦74 

♦ing  the  jia.vuient  of  them  from  the  rent 
of  the  land,  and  the  hire  of  the  negroes 
comprising  the  trust  i)ropert.v. 

The  third  excejition  olijects  to  the  allow- 
ance of  the  claims  of  the  plaintiffs,  hecause 
there  was  no  evidence  that  credit  was  given 
on  account  of  the  trust  estate.  The  com- 
missioner, in  the  alisence  of  all  proof,  in- 
fers that  credit  was  given  on  the  faitli  of 
the  trust  estate,  from  the  fact  that  the  ben- 
eticiaries,  Mar.v  W.  Postell  and  her  seven 
children,  had  no  property,  besides  the  tru.st 
estate,  when  the  debts  were  created.  It 
also  appears  that  the  debts  are  for  rent, 
overseer's  wages,  and  for  necessaries  sup- 
plied for  the  use  of  the  family,  and  that  the 
deed  creating  the  trust,  prt)vides  for  the 
support  and  maintenance  of  the  family  out 
of  the  trust  estate.  Charles  Williams,  nam- 
ed as  trustee  in  the  deed,  never  interfered 
with  the  management  of  the  trust  proiterty. 
although  it  is  alleged  in  the  bill  that  he 
signified  his  willingness  to  accept  the  execu- 
tion of  said  trust :  and  since  his  death  his 
executors  have  abstained  from  all  Inter- 
ference, and,  although  named  in  the  bill, 
they  are  not  made  parties  to  the  suit.  No 
other  trustee  has  been  ai)iiointed.  The  trust 
property  continued  in  the  possession  of  Jehu 
Postell,  the  husband,  until  his  death  in  No- 
vember, is.'!;'.,  and  since  has  been  in  posses- 
sion of  the  widow,  Mary  W.  Postell,  and 
her  children.  The  debt  to  Bratton  &  Er- 
win  was  partly  contracted  by  Jehu  Postell ; 
but  after  his  death,  tlie  note  of  Mary  W. 
Postell  and  Thomas  Williams.  Jr.,  was  ac- 
cepted in  payment  l>y  Hratton  <&  Erwin.  All 
the  other  debts  were  contracted  by  Mary  W. 
Postell,  all  or  nearly  all  of  her  children  being 
then  nnnors;  one  of  them  is  still  under  age. 
Whenever  the  debts  were  contracted  with 
merchants  or  tradesmen,  the  items  in  the  ac- 
counts were  charged  to  Jehu  Postell  or  Mary 
W.  Postell ;  and  in  the  i-ase  of  every  debt  pre- 
sented, for  note  or  single  bill  was  taken  by 
the  creditor,  and  generally  .iudgments  In  the 
Court  of  Law  have  been  al.so  taken  against 
her.  The  debt  to  Starr  &  (iraham  was  con- 
tracted UKU-e  than  four  years  before  the 
order  was  passe<l  allowing  otTier  ireditors 
besi(kvs  Prowu,  the  original  phiintiff.  to 
come   in    and    prove   tli«>ir   dem.-uids.   and   all 

*75 
the  other  debts  were  contracted  ♦more  than 


four  years  before  the  filing  of  the  bill.  The 
statute  of  limitations  is  relied  upon  by  de- 
fendants. an<l  is  pleaded  by  Starr  &  (Jraham 
against  all  other  credit<u-s.  The  trust  deed 
was  regularly  n-corded. 

Tile  creditors  here  have  not  furidshed 
proof  satisfactory  to  my  mind  that  the  cr»>d- 
it  they  exteiKh'd  to  Mary  W.  Postell  was  on 
the  faith  (»f  the  trust  estate.  Persons  hav- 
ing notice  of  a  trust  are  not  to  be  encourag- 
ed In  dealings  with  the  beneficiaries,  which 
may  subjcet  the  tru.st  property  to  liaitility, 
••ind  in  many  cases  to  utter  destruction. 
There  is  little  use  in  creating  trust  esiates 
and  appointing  trustees  to  manage  them,  if 
ever.v  man  in  the  connnuuity  may  exercise 
his  discretion  as  to  what  is  necessary  for 
the  preservation  of  the  trust  est;ite  and  the 
execution  of  the  trusts.  The  interest  of  the 
trust  and  the  comfort  of  the  innnediate  i;ene- 
ficiaries  are  not  identical,  else  any  one  may 
sujiersede  the  tnistee.  and.  under  the  iilausi- 
ble  pretence  of  supplying  necessaries  to  the 
iieneficiaries.  ruin  the  estate.  The  only  s.ife 
rule  iji  the  absence  of  express  proof,  is  to 
presume  in  such  case,  that  the  crt'ditors 
trust  to  the  economy  and  honesty  of  the  ben- 
eficiary, and  expect  reimbursements  from  the 
income  actually  received  or  soon  to  be  le- 
ceived.  It  cannot  be  jtretended  that  the 
creditors  occupy  a  more  favorable  iMisition 
than  the  trustee  himself;  and  the  trn>;tee, 
without  the  previous  direction  of  the  Court, 
or  its  subsequent  sanction,  upon  some  sud- 
den emergenc.v.  cannot  encroach  upon  the 
capital,  or  exercise  discretion  in  disburse- 
ments, beyond  the  income  annually  accruing. 
Put  we  are  not  rashly  to  rennt  creditors  to 
the  rights  of  trustees ;  for  in  this  way  we 
shall  foster  dereliction  by  trustees  and  ir- 
responsible management  of  trust  estates.  I 
shall  not  undeitake  to  review  our  cases  on 
this  subject,  which  are  some^vhat  conflict- 
ing; but  I  think  the  principles  I  have  set 
forth  are  fairly  dediicible  from  Magwood 
v.  Johnston,  (1  Hill  i:<i.  L'.'Itii ;  Reid  v.  La- 
mar, (1  Strob.  Eq.  Ii7)  ;  and  Morton  v. 
Adams.  (Id.  71.'.)  I  coiuhule  that  the  plain- 
tiffs trusted  to  the  personal  liability  of  Mary 
W.  Postell.  This  conclusion  is  streniitbened 
by  the  fact,  that  the  plaintitTs  accepted  from 
her   higher  securities   for  the  debts   by   sim- 

*76 
*ple  contract,  (Gardner  v.  Hust.  2  Hiih.  <iOl.) 
and  by  the  fact  of  tlu'ir  great  delay  in  [irose- 
cuting    a    remedy    against    the    trust    estate. 

It  seems  that  under  the  decree  of  lS4t!, 
iniprovldently  made  before  all  the  beneficia- 
ries were  parties  to  the  suit,  a  lot  in  York- 
ville.  belonging  to  the  trust  estate,  has  betMi 
sold  and  purchased  by  the  i»laintiff.  Iin)wn, 
for  a  small  price,  and  that  the  sale  was  con- 
firnu'd  in  1N47;  and  it  was  urged  that  the 
sale  sh(Mdd  be  set  aside,  and  an  account 
ordered  for  rents  and  profits.  I  cannot  ven- 
ture to  decide  an  issue  not  made  by  the 
pleadings,   and   I   must  leave  the  parties  to 

31 


*76 


4  RICHARDSON'S  EQUITY  REPORTS 


proceed  hereafter  In  this  matter  as  they  may 
be  advised. 

It  is  ordered  and  decreed  that  the  bill  be 
dismissed. 

The  complainant  appealed  from  the  decree 
of  Chancellor  Wardlaw,  on  the  following 
gronnds: 

1.  Because,  it  is  respectfully  submitted, 
his  Honor  erred  in  holding  there  was  no 
sufficient  evidence  that  credit  had  been  giv- 
en by  J.  A.  Brown  and  the  other  complain- 
ants, on  the  faith  of  the  trust  property. 

2.  Because  liis  Honor  held,  the  creditors 
had  lost  their  right  to  compensation  out  of 
the  trust  estate,  by  accepting  the  notes  of 
Mary  W.  Postell,  and  it  is  submitted  that 
there  is  error  in  this,  and  that  the  creditors, 
by  such  acceptance,  did  not  destroy  their 
equities  to  payment  for  benefits  conferred  on 
the  trust   estate. 

.3.  Because,  if  his  Honor  decided  correct- 
ly that  sufficient  evidence  had  not  been  fur- 
nished of  credit  being  given  by  the  com- 
plainants on  the  faith  of  the  trust  prop- 
erty, he  should  have  decreed  the  sale 
of  the  house  and  lot  in  Yorkville,  bind- 
ing and  conclusive  on  the  defendants,  and 
particularly  on  those  of  tliem  who  gave  their 
consent  to  said  sale. 

4.  Because  his  Honor  is  mistaken  as  to 
the  fact  of  all  the  defendants  having  plead- 
ed the  statute  of  limitation — only  some  of 
them    having   done   so. 

5.  Because  liis  Honor  should  have  de- 
creed the  defendants  to  pay  costs. 

6.  Because,  under  the  decree  of  Chancel- 
lor Johnson,  the  complainants  were  entitled 

*77 
to    recover,   on   proving,    as    tliey   did,    *that 
the  accounts  raised  by  them  against  M.  W. 
Postell.  were  for  necessaries  for  the  use  of 
herself  and  family. 

Williams,    for   appellant. 

Witherspoon,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DARGAX,  Ch.  The  most  serious  difficul- 
ty encountered  by  the  Court  in  the  decision 
of  this  cause,  is  the  question  raised  in  the 
complainant's  sixth  ground  of  appeal.  The 
complainant  contends  that  the  decree  of 
Chancellor  David  .Johnson,  of  the  17th  June, 
1846,  did  adjudge,  that  he  should  recover 
Ms  debt  out  of  the  trust  estate;  provided, 
on  the  reference  ordered,  he  succeeded  in 
establishing  his  demands  as  stated  in  the 
bill.  He  contends,  that  having  proved  his 
claim,  as  will  appear  by  the  commissioner's 
report,  the  decree  is  conclusive  upon  the 
defendants  as  to  liis  right  to  recover. 

This  Court  is  of  the  opinion  that  the  de- 
cree of  the  17th  June,  1846,  did  adjudge  the 
cause  upon  its  merits,  and  that  the  Chancel- 
lor did  judicially  decide,  that  the  complain- 
ant should  recover ;  provided,  he  proved  liis 
debt  before  the  commissioner.  This  Court 
is  further  of  the  opinion,  that  this  decree,  un- 

32 


less  it  is  now  properly  in  review  before  this 
Court  in  the  way  of  appeal,  is  final  and  con- 
clusive upon  the  parties.  And  tliis  l)rings 
up  the  question,  whether  the  decree  of  the 
17tli  June,  1846,  can,  at  this  stage  of  the  pro- 
ceedings, be  brought  before  this  Court  on  an 
appeal.  We  are  of  the  opinion  that  it  may. 
And  the  complainant  having  appealed  from 
the  decree  of  June  term,  1851,  disallowing 
his  claim  and  dismissing  his  bill,  it  opens 
the  way  for  the  appellees  to  make  the  same 
questions  which  they  might  liave  made  if  the 
last  decree  had  been  against  them. 

Although  the  decree  of  the  17th  June,  1846, 
did  adjudge  that  the  complainant  should  re- 
co\er,  it  was  in  the  nature  of  an  interlocu- 
tory order  for  judgment.  No  execution  or 
attachment  could  have  been  issued  upon  it. 
It  did  not  ascertain  the  amount  to  be  re- 
covered, or  the  mode  in  which  satisfaction 

*78 

was  to  be  made.  The  *ainount  was  to  be  de- 
termined by  the  investigation  before  tlie  com- 
missioner, and  the  mode  of  satisfaction  out 
of  this  trust  estate  still  rested  in  the  discre- 
tion of  the  Court.  It  was,  therefore,  not  a 
final  judgment,  but  one  that  was  to  be  ren- 
dered complete  by  further  proceedings.  The 
case  was  not  ripe  for  the  final  action  of  the 
Court,  until  June  Term,  1851,  when  a  decree 
was  rendered,  from  which  this  ai^peal  has 
been  taken. 

It  is  unquestionably  true,  that  the  parties 
aggrieved  by  the  decree  of  June,  1846,  might 
then  have  appealed  from  that  decree.  Or 
they  might,  in  their  discretion,  (waiving  their 
present  right  of  appeal  until  the  final  judg- 
ment of  the  Court.)  bring,  by  way  of  appeal, 
all  the  former  adjudications  of  the  circuit 
Court  in  review  before  this  Court.  This  lat- 
ter is  virtually  the  position  of  the  appel- 
lees now  before  the  Court. 

A  question  might  arise,  (which,  however, 
does  not  arise  in  this  case,)  as  to  what  would 
be  the  effect  of  an  intermediate  appeal  be- 
tween the  interlocutory  and  final  decree  of 
the  Court.  The  better  doctrine  is,  that  such 
intermediate  appeal  should  conclude  all  ques- 
tions that  were  made,  or  might  have  been 
made,  in  the  appeal,  and  leave  open  only 
such  as  were  not  then  adjudged  and  could 
not  then  have  been  adjudged.  The  case  of 
Price  v.  Nesbit,  (1  Hill  E(i.  445,)  goes  much 
farther  than  this.  It  recognizes  no  such  dis- 
tinction, and  rules  that,  as  long  as  there  re- 
mains any  thing  for  the  Court  to  do  in  a 
cause,  all  the  preceding  orders  and  decrees 
may  be  reviewed  on  appeal.  The  extent  to 
which  the  right  of  appeal  was  allowed  in 
that  case,  has  given  rise  to  much  discontent. 
It  is  supposed  by  many  to  have  sanctioned  a 
rule  that  was  mischievous  and  cumbrous  in 
its  operation.  It  is  not  necessary  for  me,  on 
the  present  occasion,  to  borrow  any  force 
from  this  case. 

Whether  the  decree  of  the  17th  June,  1846, 
was  not  of  binding  obligation  upon  all  sue- 


BUMAR  V.  MULIJNS 


*81 


ceeding  circuit  Courts,  is  anotlior  question 
to  that  now  liefore  us.  Tluit  ilecroe  is  con- 
sidered now  to  be  fairly  before  tliis  Court 
on  appeal,  and  as  an  appeal,  we  have  a  right 
to  hear  it. 

*79 

♦It  is  the  opinion  of  this  Court,  that  the 
decree  of  the  17th  June,  1S4(!,  is  erroneous  in 
its  coustruetion  of  the  deed  creating  the 
trust.  The  deed  is  inartiliciall.v  drawn. 
But  the  intent  of  the  donor  is  sutticiently 
clear.  The  trust  declared  was  as  follows: 
Jehu  Postell,  by  deed  dated  l"Vbruary,  ISIO, 
gave  to  Charles  Williams  certain  slaves  by 
name,  in  trust,  that  Jehu  I'ostell  and  Mary, 
his  wife,  and  his  present  children  and  any 
future  children  by  him  lawfully  to  be  begot- 
ten, should  be  supported  and  maintained  out 
of  the  said  property  during  the  term  of  their 
natural  lives,  and  at  the  death  of  the  said 
Jehu  Postell  and  Mary,  his  wife,  the  trust 
estate  was  to  he  etpially  divided  among  the 
children.  This  is,  in  substance,  the  i)rovi- 
sions  of  the  deed  of  trust. 

If  this  be  considered  as  an  attempt  to  sub- 
ject the  trust  estate,  as  such,  to  the  claims 
of  the  creditors,  this  Court  perceives  no  equi- 
ty in  the  application.  The  credit  was  not 
given  to  the  trustee,  who  is  long  since  dead, 
nor  to  the  trust  estate,  but  to  some  of  the 
beneficiaries  personally.  The  corpus  of  the 
estate  the  Court  would  not  touch  under  any 
circumstances ;  and  if  the  income,  which  is 
small,  were  devoted  to  the  payment  of  this 
large  amount  of  debts,  there  would  be  no  in- 
come left  to  answer  the  objects  of  the  trust. 
There  is  no  etpiity  in  the  api>lication  as  a 
demand  against  the  trust  estate.    - 

The  counsel  of  the  appellant,  in  the  ar- 
gument, insisted,  that  if  the  Court  did  not 
recognize  an  eipiity  in  the  complainant's 
claim  again.st  the  trust  estate,  he  should  be 
allowed  to  enforce  his  demand  out  of  the  in- 
dividual shares  of  such  of  the  beneficiaries 
as  had  contracted  the  debts  that  he  was  seek- 
ing to  recover,  lie  claimt>d  the  right  to  en- 
force his  demands  against  the  ei|uitable  es- 
tates   of    his    debtors    individually. 

There  are  two  insurmountalde  imiK'diments 
to  the  Court's  adopting  this  latter  view  of 
the  case.  In  the  first  place,  he  has  not 
framed  his  bill  with  that  aspect.  That  is 
not  the  case  he  has  called  on  the  defendants 
to  answer,  or  this  Court  to  ad.judge.  The 
secu4ul  dithcnlty  arises  from  the  nature  of 
the  trusts  declared  in  the  deed.  The  Court 
could    not    subject    the    share   of   one   of   the 

*80 
♦beneficiaries  of  the  trusts  to  his  or  her 
debts,  without  breaking  in  upon  the  whole 
scheme  of  the  trust.  The  interest  of  one 
could  not  be  separated  without  injury  to  the 
other  cestui  que  trusts.  There  is  no  present 
right  of  enjoyment  in  severalty.  The  Court 
would  not  decree  a  partition.  The  scheme 
of  the   trust,   according  to   the   provisions  of 


the  deinl,  is,  that  the  estate  is  to  remain  as 
a  whole  until  the  death  of  the  survivor  of 
Jehu  Postell  and  Mary,  his  wife.  The  latter 
still  survives.  On  her  death,  the  children 
will  be  entitled  to  a  partition  and  enjoy- 
ment of  their  resjtective  shares  in  severalty. 
The  decree  is  attirnu'd  ami  the  ajipeal  dis- 
ndssed. 

JOHNSTON,    DINKIN    and    WAUDLAW, 
CC.   concurred. 
Decree  athrmed. 


4    Rich.  Eq.    80 

JOHN    BOMAIi,    Jan.,   v.    JANK   MCLLINS. 

(Columbia.     Nov.   and   Deo.  Term,  1851. » 

\Exrriitors  find  AdiiiiiiisfintDrs  <g=::3.'?0.] 

The  right  of  an  administrator  to  interfere 
at  all  witii  till'  lands  of  liis  iiifcstafc,  is  so 
('(iiiivocal,  that  his  rhiiin  to  the  rents  and  profits 
will  not  be  recognized,  where  the  lauds  are  held 
by  adverse  title.— Seaible. 

|Kd.  Note— I''or  other  cases,  see  Executors 
and  Administrators.  Cent.  Dig.  §S  ->^^l  -^5- 
204;    Dec.  Dig.  (©=3!).] 

[HushdiHl  (tnd   ^Vifc  <::=>V20.^ 

Wife  having  a  life  estate  in  land,  hu.sband 
conveys  it  to  a  trustee  for  her  sole  and  separate 
use  for  life,  with  right  to  disi)ose  of  two-thirds 
at  her  death,  and  with  remainder  in  one-third 
to  himself:  lnisl)an(l  and  wife  afterwards  piu'- 
cliase  tlie  estate  in  reniainilor,- then  sell  the 
land,  and  husband  with  the  proceeds  purchases 
other  land,  taking  himself  the  title:  the  laud 
thus  purdiased  by  husband  becomes  inq)rossed 
with  the  trusts  of  the  marriage  settlenn'ut. 

[Kd.  Note.— Cited  in  McLeod  v.  Tarrant.  ?.9 
S.  C.  275.  17  S.  E.  77;:,  20  L.  H.  A.  S4G ; 
Green  v.  Caunadv,  77  S.  C.  1!)7,  198.  '199,  57 
S.  E.  832. 

For  other  cases,  see  Husband  and  Wife,  Cent. 
Dig.   S   431;     Dec.    Dig.   <©=120.] 

\II iifiliotul  and    Wife   <S=>14.] 

Where  land  is  conveyed  to  husband  and 
wife,  they  Ijeconie  seized  of  an  estate  in  entiret.v 
— neither  can  alien  so  as  to  bind  the  other,  and 
the  survivor  takes  the  whole. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  }i  73;    Dec.  Dig.  <S=14.] 

[Estates  (©=5l0.1 

Wife  having  an  estate  for  life,  and  husband 
and  wife  being  seized  of  the  remainder  in  en- 
tirety, the  estate  for  life  does  not  merge  in  the 
estate  in  remainder. 

[Ed.  Note. — For  other  cases,  see  Estates, 
Cent.  Dig.  §  11 ;    Dec.  Dig.  <S=>10.] 

Before  Wardlaw,  Ch.,  at  Spartanburg, 
June,   1851. 

This  case  is  instituted  by  plaintiff  as  ad- 
ministrator of  the  chattels  and  credits  of 
Daniel  Mullins.  who  died  intestate,  against 
the    defendant,    the   widow   of    the   intestate, 

♦81 
for  an  account  of  rents  and  ♦profits  of  the 
Mullinax-mill  tract  of  land  and  the  Foster 
tract,  to  which  the  intestate  had  titles  in 
his  own  name,  and  of  which,  since  his  death, 
the  widow  has  retained  the  possession,  claim- 
ing them  as  purchased  with  trust  funds 
belonging  to  her. 


<g=>For  other  cases  see  aame  topic  auU  KEY-NUMUEK  iu  all  Key-Numbered  Digests  aud  Indexes 
■i  Kk.  II. Eli.— 3 


33 


*81 


4  RICHARDSON'S  EQUITY  REPORTS 


John  James,  former  husband  of  defendant, 
by  his  will,  gave  one-half  of  his  estate  in  fee 
to  his  daughter,  Polly  T.,  wife  of  Thomas 
C.  Austin ;  and  of  the  other  half,  gave  to  the 
defendant  two  negroes  absolutely,  and  the 
use  of  the  residue  for  life,  with  remainder 
in  the  residue  to  his  said  daughter  in  fee. 
This  estate  was  divided  between  the  widow 
and  daughter  of  testator;  and  to  the  widow 
were  assigned,  the  homestead,  ten  negroes, 
horses,  hogs,  household  and  kitchen  furni- 
ture, provisions,  »S:c.  Being  in  possession  of 
this  estate,  she  married  the  intestate,  Daniel 
Mullins,  who  had  no  property,  and  was,  and 
continued  to  be,  during  life,  drunken,  in- 
dolent and  unthrifty.  Soon  after  the  mar- 
riage, namely,  September  5,  1829,  Daniel 
Mullins  conveyed  to  a  trustee  all  the  prop- 
erty of  every  description,  real  and  personal, 
to  which  he  became  entitled  by  virtue  of  his 
marriage,  with  the  income  and  profits  thei'eof, 
in  trust  for  the  sole  and  separate  use  of  his 
wife  for  life,  with  power  in  the  trustee,  with 
her  consent,  to  sell  and  reinvest ;  "and  iu 
trust  also  to  permit  her,  the  said  Jane  Mul- 
lins, by  any  will  and  testament,  duly  ex- 
ecuted, to  dispose  of  two-thirds  of  said  proi> 
eity,  or  two-thirds  of  such  part  as  she  could 
have  disposed  of  lawfully  before  her  mai"- 
riage  with  me,  (himself.)  and  then  in  trust 
to  reconvey  the  remaining  one-third  of  the 
said  property  to  me  (himself)  discharged  of 
the  trust  hereby  created."  This  deed  was 
recorded  September  7,  1S29,  in  the  ofhce  of 
the  Register  of  Mesne  Conveyances  for  Spar- 
tanburg— in  which  district  the  parties  resid- 
ed— and  recorded  May  23,  1833,  in  the  office 
of  Secretary  of  State;  and  as  this  latter  date 
was  within  six  months  from  the  passage  of 
the  Act  of  1832,  (6  Stat.  482.)  the  deed  is 
valid,  according  to  the  provisions  of  that 
Act,  against  the  debts,  sales  and  mortgages 
of  the  husband,  contracted,  made  and  execut- 
ed after  the  ratitication  of  the  Act.  Thomas 
C.  Austin  and  Polly  T.,  his  wife,  by  release, 

*82 
dated  December  10,  1829,  con*veyed  to  Dan- 
iel Mullins  and  Jane  Mullins,  all  the  interest 
and  remainder  of  the  grantors,  in  the  planta- 
tion, slaves,  stock,  furniture  and  other 
property,  then  in  possession  of  the  grantees 
under  the  will  of  John  James  ;    December  21, 

1829,  the  said  Polly  T.  renounced  her  inher- 
itance ;    and  the  deed  was  recorded  April  5, 

1830.  About  1839,  Daniel  Mullins  and  wife 
sold  the  James  homestead  to  Harvey  Finch 
for  $1,540,  paid  in  1840,  '41  and  '42.  At  what 
times  and  for  what  prices  the  MuUinax  and 
Foster  lands  were  purchased,  it  did  not  ap- 
pear by  the  evidence,  but  it  appeared  that  the 
Mullinax  tract  consisted  of  eight  acres,  upon 
which  there  was  a  shoal ;  and  the  Foster 
tract  of  103  acres,  mostly  old  field ;  and  I 
inferred  that  the  aggregate  cost  was  less  than 
the  price  of  the  homestead.  Except  as  to  .$50 
paid  by  Finch  to  Mullinax,  and  discounted 
in  the  payment  for  the  homestead,  it  did  not 

,*^4 


strictly  appear  from  what  funds  these  two 
tracts  were  paid  for;  but  from  the  evidence 
as  to  the  means  and  habits  of  Daniel  Mullins, 
and  as  to  the  sale  of  the  homestead  not  other- 
wise invested,  I  conclude  that  the  payments 
were  made  from  the  trust  funds.  It  did  ap- 
pear that  most  of  the  labor  and  expense  in 
erecting  and  rel)airing  the  mill  and  dam  on 
the  Mullinax  tract  was  furnished  and  ex- 
pended from  the  trust  estate.  Daniel  Midlius 
exercised  sonae  supervision  in  the  erection 
and  repair  of  the  mills,  and  in  the  manage- 
ment of  the  plantation,  but  in  the  latter  par- 
ticular, at  least,  the  defendant  was  the  moi'e 
efficient  manager.  D.  Mullins  also  received 
the  proceeds  of  the  crops,  but  in  the  dis- 
bursement of  them,  as  in  payment  of  supplies 
for  the  family  and  plantation,  his  wife  gen- 
erally attended  and  co-operated.  All  debts 
for  such  supplies  have  been  paid  ;  I)ut  Mul- 
lins, at  his  death  in  1844,  left  unpaid  large 
liabilities  to  the  plaintiff  and  others,  con- 
tracted as  surety  for  one  Williamson,  who 
had  been  substituted  as  trustee  under  the 
aforesaid  post-nuptial  settlement.  These 
debts  have  no  connection  with  the  trust 
estate,  and  they  were  contracted  after  the 
registry  of  the  deed  in  the  office  of  tlie  Sec- 
retary of  State.  Williamson  is  dead,  insol- 
vent; and  D.  Mullins  is  utterly  insolvent, 
unless  these  two  tracts  of  land  are  made 
liable  for  his  debts. 

*83 

*It  was  not  contested  on  the  part  of  the 
plaintiff  that  if  these  two  tracts  of  land 
were  purchased  with  trust  funds,  the  trusts 
of  the  deed  would  be  imposed  upon  them; 
nor  was  the  fact  of  their  being  so  purchased, 
otherwise  contested  than  upon  the  assump- 
tion, that  D.  Mullins  was  entitled  to  receive 
and  disburse  the  proceeds  of  the  crops  of  the 
plantation  which  was  settled  ;  and  that  he 
was  entitled  to  one-third  of  the  corpus  of 
the  estate  in  remainder ;  and  that  he  ap- 
propriated his  interest  or  share  in  these  par- 
ticulars to  the  purchase  of  these  lands. 

But  under  the  deed,  D.  Mullins  was  not 
entitled  to  any  beneficial  interest  in  the  in- 
come of  the  trust  estate,  and  if  in  fact  he 
received  and  disbursed  this  income,  he  must 
be  considered  as  doing  so  in  the  character 
of  agent  or  trustee  for  the  cestui  que  trust ; 
and  it  is  at  the  option  of  the  cestui  que 
trust  to  pursue  him  for  the  debt  arising 
from  his  breach  of  trust,  or  to  claim  the 
lands  in  which  the  trust  funds  have  been 
invested.     (Story  Eq.  §  1210-11;   322.) 

It  is  true,  that  at  the  death  of  the  defend- 
ant, the  representatives  of  D.  Mullins  will 
be  entitled  to  a  reconveyance  of  one-third 
of  the  estate  settled,  which  defendant  might 
lawfully  dispose  of ;  but  this  estate  in  re^ 
mainder  being  unproductive,  afforded  Mul- 
lins no  means  or  resources  for  the  purchase 
of  property.  As  to  the  extent  and  particu- 
lars of  the  estate  in  which  Mullins  has  an 
interest    of    one-third    in    remainder    under 


BOMAR  V.  MULLIXS 


'fSG 


the  trust  deed,  some  perplexing;;  questions 
may  arise,  whicii  are  not  necessary  to  the 
determination  of  this  case.  E.xcept  as  to  the 
two  nejiroes  absolutely  helonicinj;  to  Jane 
Mullins  at  the  time  of  tlie  settlement,  tliere 
was  no  property  in  her  at  that  time  of  which 
.she  could  lawfully  dispose  at  her  deatii;  and 
as  it  is  not  dear,  that  beyond  one-third  of 
these  negroes.  Mullins  has  any  vested  inter- 
est or  remainder,  it  is  prudent  to  reserve 
auy  opinion,  until,  upon  the  determination 
of  the  life-estate,  the  proper  parties  can  be 
brought  before  the  Court. 

It  is  said,  however,  that  from  the  sale  of 
the  James  homestead  by  Mullins  and  wife, 
a  fund  came  into  the  hands  of  Mullins.  which 
he  was  entitled  to  appropriate  lo  his  own  use, 

*84 
adequate  for  the  *purchase  of  the  Mullinax 
and  Foster  tracts.  In  tiie  homestead,  under 
the  will  of  her  former  husband  and  the  set- 
tlement of  ^lullins.  Jane  Mullins  was  entitled 
to  a  life  estate.  By  the  deed  of  Austin  and 
wife  to  Mullins  and  wife,  executed  after  the 
settlement,  vhe  remainder  in  fee  was  convey- 
ed to  Mullins  and  wife;  and  such  convey- 
ance in  general  constitutes  a  peculiar  estate 
of  which  the  main  incidents  are,  that  both 
are  seized  of  the  entirety — neither  can  alien 
so  as  to  bind  the  other,  and  the  survivor 
takes  the  whole.  (2  Kent.  l.'>2 ;  4  Kent,  oG2.) 
As  the  conveyance  of  the  whole  e.state  in  this 
laud  to  Finch  was  apparently  with  the  con- 
sent of  the  husband  and  wife,  the  husband, 
prima  facie,  would  be  entitled  to  a  portion 
of  the  value  of  the  remainder  in  fee  in  the 
lands.  But  the  money  paid  as  the  considera- 
tion of  the  conveyance  of  the  land,  negroes, 
&c.,  in  fee  from  Austin  and  wife,  .i;3,200, 
must  have  been  derived  from  the  estate  set- 
tled to  the  separate  use  of  Jane  Mullins,  and 
the  estate  thus  purchased  should  be  charged 
with  the  trusts  of  the  settlement. 

It  is  ad.iudged  and  decreed  that  the  Mul- 
linax and  Foster  tracts  of  land  belong  to 
the  trust  estate  settled  by  the  deed  of  Daniel 
Mullins.  dated  September  5,  1829.  It  is  also 
ordered  that  the  plaintiff  pay  the  costs  of 
this  suit. 

Tlie  complainant  appealed,  on  the  grounds 

1.  Because  the  lands  in  dispute  were  tlio 
property  of  I).  Mullins,  and  there  is  no  proof 
that  they  were  paid  for  by  the  trust  funds ; 
the  titles  being  in  him,  the  decree  sliould  have 
been  for  plaintiff. 

2.  Because  D.  Mullins  was  entitled  to  one- 
third  of  the  entire  estate  which  he  conveyed 
in  trust,  wliich  gave  him  means  to  purchase 
this  property. 

."!.  Because  the  sale  of  the  homestead  in 
whicli  he  was  interested  to  the  extent  of  one- 
third,  was  ample  means  in  his  hands  to  pay 
for  these  two  small  tracts  of  land. 

4.  Because  the  decree  was  against  law  and 
evidence  and  the  facts  of  the  case. 

Bobo,  for  appellant. 

,  contra. 


*85 
*Tlie  opinion  of  the  Court  was  delivered  by 

WAliDLAW,  Cli.  The  parties  to  this  suit 
are  tlie  administrator  and  the  widow  of  Dan- 
iel Mullins.  who  died  intestate;  and  the  sub- 
ject of  the  suit  is  tlie  rents  and  profits  of 
land:  wliich  land  is  claimed  on  one  side  to 
belong  to  the  intestate,  and  on  the  other  to 
belong  to  the  trust  estate  of  defendant. 
Debts  of  the  intestate  are  incidentally  men- 
tioned in  the  course  of  the  proceedings,  but 
the  creditors  are  not  made  parties  to  the  bill ; 
and  the  case  is  to  be  determined  on  me  prin- 
ciples which  would  be  api)licable  to  a  suit 
between  the  intestate  and  the  defendant. 
The  riglit  of  an  administrator  to  interfere  at 
all  witli  the  lands  of  his  intestate,  is  so  eipiiv- 
ocal,  that  we  are  not  bound  to  recognize  liis 
claim  for  rents  and  profits,  where  the  lands 
are  held  by  a^^•erse  title.  The  circuit  de- 
cree refuses  to  the  plaintiff  the  relief  he 
seeks,  and  has  no  otlier  result.  It  does  not 
conclude  the  claims  of  any  person  who  is  not 
a  party  nor  a  privy  to  the  suit. 

Upon  the  question  of  fact,  whether  the  Fos- 
ter and  Mullinax  tracts  were  purchased  with 
the  trust  funds  of  the  defendant,  this  Court 
will  not  review  closely  the  judgment  of  the 
Chancellor.  The  proof  of  the  fact  is  not  di- 
rect and  precise,  but  is  .satisfactorily  deduc- 
ed from  all  the  circumstances  of  the  case. 
Granting  that  it  might  be  insuthcient  to  in- 
duce tlie  active  interposition  of  the  Court  in 
favor  of  the  defendant,  if  she  were  claiming 
a  remedy,  it  affords  abundant  justification 
to  the  Court  in  staying  its  hand,  and  leaving 
the  parties  where  they  are  found. 

The  conclusion  of  the  Chancellor  as  to  the 
fact,  is  assailed,  principally,  under  the  third 
ground  of  appeal,  upon  the  assumption,  that 
by  the  sale  of  the  homestead  to  Finch,  the  in- 
testate converted  into  money  an  interest  in 
remainder  to  which  he  was  legally  entitled; 
and  that  he  invested  this  money  in  the  two 
tracts  now  in  controversy. 

If  the  remainder  in  the  homestead  were  at 
first  purchased  by  Mullins  and  wife  from 
Austin  and  wife,  with  the  trust  funds  of  de- 
fendant, tlie  trusts  would  follow  the  re-in- 
vestment; upon  general  principles,  and  ac- 
cording to  the  express  terms  of  the  settle- 
*86 

*ment  of  D.  Mullins.  That  this  remainder 
was  so  purchased,  can  hardly  be  doubted,  if 
we  bear  in  mind  that  this  purchase  was  made 
three  montlis  after  the  settlement,  and  little 
longer  after  the  marriage  of  Mullins  and 
wife;  and  that  Mullins  had  no  means  of  his 
own. 

Supposing,  however,  that  D.  Mullins  con- 
tributed from  his  private  resources  to  the 
purcliase  of  this  remainder,  still  he  would 
not  be  entitled  in  equity,  to  any  portion,  dur- 
ing the  life  of  his  wife,  of  the  proceeds  of  a 
subsequent  sale  of  the  whole  estate  in  the 

35 


*86 


4  EICHARDSON'S  EQUITY  REPORTS 


land.  Jane  Mullins,  under  the  will  of  her 
former  husband,  was  entitled  to  an  estate 
for  life  in  this  land,  and  this  estate  was  set- 
tled to  her  sole  and  separate  use  by  the  deed 
of  D.  Mullins.  Afterwards  Mullins  and  wife 
acquired  an  estate  in  entirety  in  the  remain- 
der in  fee.  These  estates  will  not  be  suffered 
to  coalesce.  There  would  be  no  merger  of 
such  estates  at  law.  The  title  of  one  of  Mr. 
Preston's  chapters,  in  his  treatise  on  mer- 
ger, is:  'The  freehold  of  the  wife  will  not 
in  any  case  merge  in  the  freehold  of  the  hus- 
band.' Where  the  husband  has  a  freehold 
and  also  the  fee  in  right  of  bis  wife,  and 
there  is  no  particular  reason  for  keeping  the 
estates  apart,  the  law  permits  the  merger ; 
but  if  one  of  the  estates,  the  freehold  or  the 
fee,  be  held  by  entirety,  as  in  this  case,  the 
reason  for  exemption  from  merger  is  appli- 
cable. (Preston  on  Merger,  308  ;  Shep.  Touch. 
316.)  If  there  had  been  a  legal  merger,  that 
would  not  be  pei-mitted  in  this  Court  to  de- 
feat equitable  estates  and  interests.  (Thorn 
V.  Newman,  3  Swan.  603 ;  Nurse  v.  Yerworth, 
lb.  60S.)  Much  less,  where  there  is  no  legal 
merger,  will  this  Court  introduce  the  doctrine 
of  merger  into  trusts,  merely  for  the  purpose 
of  defeating  equities,  and  destroying  its  own 
jurisdiction  in  the  protection  of  the  interests 
of  married  women.  (Whittle  v.  Ilenning,  2 
Phil.  731.)  The  rules  of  this  Court  for  the 
protection  of  married  women  are  designed  to 
protect  them  against  the  influence  of  their 
husbands,  when  exercised  for  appropriating 
to  themselves  property  which  the  wives  ought 
to  enjoy.  The  Court  will  protect  the  rever- 
sionary interest  of  the  wife  in  personalty,  by 

*87 
considering  it  still  rever*siouary,  notwith- 
standing all  interested  in  the  precedent  es- 
tate, by  surrender  or  otherwise,  may  attempt 
to  unite  all  parts  of  the  estate  in  her  per- 
son, for  the  purpose  of  enabling  her  to  dis- 
pose of  the  whole.  (Whittle  v.  Ilenning.) 
The  Court  will  not  consent  that  she  shall 
waive  her  chances  of  survivorship.  The  wife, 
in  the  present  instance,  equally  needs  this 
protection  as  to  her  real  estate.  It  is  doubt- 
ful, whether  a  life  estate  in  the  wife  is  her 
inheritance,  in  the  sense  in  which  the  word 
is  used  in  our  statute,  prescribing  a  form  by 
which  she  may  convey  her  inheritance. («) 
At  least,  equity  requires  us  to  consider  the 
proceeds  of  the  sale  of  her  land  as  still  re- 
taining the  incidents  of  the  original  estate — 
and  that  she  is  still  entitled  to  the  income  for 
her  separate  use  for  life,  with  the  chance 
of  taking  the  whole  capital  by  survivorship, 
as  an  incident  of  the  estate  by  entirety.  Ac- 
cording to  this  view,  D.  Mullins  was  not  en- 
titled to  appropriate  to  his  own  use  any  por- 
tion of  the  money  received  from  Finch,  the 
vendee. 
We   concur  with  the   Chancellor,   that  D. 


(a)  Hays  v.  Hays,  5  Kich.  31. 


Mullins  is  not  entitled  to  a  present  interest 
of  one-third  of  the  estate  conveyed  by  his 
deed.  It  would  be  a  preposterous  construc- 
tion, which  would  give  him  a  right  to  imme- 
diate re-conveyance  of  one-third  of  the  estate, 
when  he  expressly  gives  the  whole  to  his  wife 
for  life,  and  also  gives  to  her  the  right  to 
dispose  of  two-thirds  thereof  by  will.  His 
claim  to  the  re-conveyance  of  one-third  is  sub- 
ject and  subsequent  to  these  rights  of  the 
wife. 

It  is  ordered  and  decreed,  that  the  decree 
be  affirmed,  and  the  appeal  be  dismissed. 

JOHNSTON  and  DARGAN,  CC,  concurred. 

DUNKIN,  Ch.,  absent  at  the  hearing. 
Decree  affirmed. 


4    Rich.  Eq.    *88 

*  SAMUEL  MEEK   v.   W.   H.    B.   RICHARD- 
SON  and   Others. 

(Columbia.     Nov.   and  Dec.  Term,  1851.) 

[Couris  (®=5S2.] 

The  practice,  under  the  rides  of  Court,  may 
be  moulded  at  the  discretion  of  the  Chancellor, 
so  as  to  meet  the  exigencies  of  the  case,  and  to 
promote  the  ends  of  justice:  and  with  this  pur- 
pose he  may  suspend  their  operation  iu  particu- 
lar cases,  where  justice  seems  to  require  it:  ob- 
serviug-  them  as  a  general  chart  by  which  the 
proceedings  of  the  Cou.'t  are  to  be  conducted, 
where  no  special  equity  makes  a  deviation 
proper. 

[Ed.  Note.— Cited  in  Messervev  v.  Hillier,  12 
Rich.  491:  Scott  v.  Davis.  9  Rich.  Eq.  40; 
Tiudal  V.  Tindal,  1  S.  C.  113. 

For  other  cases,  see  Courts,  Cent.  Dig.  § 
295  ;    Dec.  Dig.  (®=3S2.] 

[Appeal   and  Error   <©==>87.1 

From  the  exercise  of  such  discretion  on  the 
part  of  the  Chancellor,  in  enforcing  or  suspend- 
ing the  rules,  no  appeal  lies. 

[Ed.  Note. — For  other  oases,  see  Appeal  and 
Error,  Cent.  Dig.  §  5S6 ;    Dec.  Dig.  <©=>87.] 

Before  Dargan,  Ch.,  at  Sumter,  June,  1851. 

The  bill  in  this  case  was  filed  April  15, 
1851,  and  on  April  21,  subpoenas  to  answer 
were  duly  served  on  the  defendants,  who  re- 
sided about  thirty  miles  from  the  Court 
House.  On  June  2,  the  bill  was  taken  pro 
confesso.  On  Tuesday,  June  3,  the  sitting  of 
the  Court  for  Sumter  commenced,  and  on  that 
day  the  order  pro  confesso  was  set  aside  as 
to  the  defendant,  W.  H.  B.  Richardson,  and 
he  tiled  his  answer.  On  Wednesday,  the  case 
was  continued,  and  on  Friday,  June  6,  the 
other  defendants,  John  P.,  James  B.,  Thomas 
C.  and  Richard  C.  Richardson,  moved,  by 
their  solicitors,  F.  J.  &  M.  Moses,  that,  as 
aginst  them,  the  order  pro  confesso  be  set 
aside  and  that  they  have  time  to  answer.  In 
support  of  the  motion,  an  affidavit  and  state- 
ment were  submitted,  as  follows: 

"Thomas  C.  Richardson,  one  of  the  de- 
fendants to  the  case  of  Samuel  Meek,  makes 


oG 


(S=For  other  cases  see  same  topic  and  KEY-NUMBER  iu  all  Key-Numbered  Digests  and  Indexes 


MEEK  V.  RICHARDSON 


*91 


oath  that  on  21st  April  last,  he  was  served 
with  process  of  sulip.  ad  resp. ;  that  his 
brothers  John  and  James  R.  were  also  serv- 
ed. That  at  reipiest  of  his  brothers,  he 
wrote  to  Col.  Moses  to  entrage  his  services, 
and  bejijring  to  he  informed  what  they  must 
do  in  the  matter.  That  it  turned  out  that 
Col.  Moses  was  in  Charleston,  and  on  the 
first  Tuesday  of  the  sitting  of  the  Appeal 
Court,  he  met  Col.  Moses  at  the  depot,  who 
had  not  then  received  the  letter,  and  it  was 
agreed  between  him  and  Col.  M.,  that  as  soon 
as  Col.  M.  returned  from  Columliia  he  would 
write  by  mail  to  defendant  when  to  come  up. 
That  Col.  Moses  has  informed  him  that  he 
wrote    a    joint    letter    to    deponent    and    his 

*89 
♦brothers,  informing  them  he  was  at  home, 
and  they  must  come  up  before  first  Monday 
in  June  to  file  their  answers.  He  swears  that 
to  this  day  he  has  never  received  the  letter 
or  heard  of  it  from  either  of  his  l)roth(>rs. 
and  believes  it  was  never  received.  That 
waiting  to  hear  from  Col.  Moses  they  did  not 
come  up,  and  only  now  came  upon  his  .send- 
ing an  express  down  for  them.  He  swears 
it  was  entirely  from  the  fact  that  his  action 
was  to  depend  on  the  notice  of  Col.  Moses, 
tliat  he  did  not  come  up;  that  the  complain- 
ant lias  not  a  shadow  of  law,  justice  or  mo- 
rality in  the  claim  he  has  .set  up  against  him. 
and  to  deprive  them  of  the  opportunity  of 
answering,  under  the  circumstnnci's,  would  be 
inequitable.  This  deponent  further  says,  he 
informed  his  brothers  of  the  understanding 
with  Col.  Moses:  deponent  swears  he  did  not 
know  the  Court  was  sitting  until  the  messen- 
ger of  Col.  M.  came  down." 

"Defendants'  solicitor  stated  that  an  affi- 
davit was  then  in  the  course  of  writing,  near- 
ly completed  by  Richard  C.  Richardson,  an- 
other of  defendants. 

"The  Chancellor  said  it  was  unnecessary, 
as  he  would  regard  the  affidavit  already 
made  as  extending  to  all  the  defendants. 

"Mr.  F.  J.  Moses,  defendants'  solicitor, 
submitted  the  following  .statement,  affidavit 
to  which  was  disiiensed  with  by  complain- 
ant's solicitor, 

"That  about  the  last  of  April,  1851,  he 
met  Richard  C.  Richardson  in  Charleston; 
that  said  Richardson  expressed  gratification 
at  meeting  him,  stating  that  he  desired  to  see 
him  on  business;  that  he  had  been  served 
with  a  writ  by  one  Samuel  Meek,  requiring 
him  to  appear  at  Sumter  Court  House  in 
ten  days,  and  lie  did  not  desire  to  be  guilty 
of  any  neglect  in  making  his  defence;  wished 
it  attended  to.  Counsel  explained  the  pro- 
cess to  him,  infornung  him  he  would  have 
to  answer,  which  he  could  not  do  without 
a  coi»y  of  the  bill ;  that  he  would  leave 
Charleston  (as  \\<i  ovfiecte.d)  on  ."^Oth  April, 
go  to  the  Court  of  .\t:.jk'.V,3  at  Columbia  the 
week  foluiwing,  and  r,x>.  \iiM  return  from  Court 
of  Api)eais.  would  wrltr-  him  when  to  come 
up,   and  prepare  his  answer. 


'That  on  Tuesday  morninc 
*90 


the  Cth  May. 


Mr.  Moses,  on  his  *way  to  the  Court  of  Ap- 
peals, met  at  Middleton  depot,  the  defend- 
ant, Thomas  C.  Richardson,  who  informed 
him  of  the  suit  by  Meek,  and  the  wish  of  his 
brothers  and  himself  to  engage  his  profes- 
sional services ;  that  he  had  written  a  let- 
ter to  Mr.  M.,  on  the  subject,  which  letter 
Mr.  M.  had  not  then  received. 

"Mr.  M.  informed  him,  that  on  his  return 
fnmi  the  Appeal  Court,  he  would  write  t<) 
him  and  his  brothers,  informing  them  when 
they  must  come  up  and  attend  to  the  filing  of 
the  answer,  tfcc.  That  on  his  return  from 
Court  of  Aiipeals,  which  was  on  the  night  of 
May  8,  he  found  at  his  office  the  letter  allud- 
ed to  by  said  T.  C.  Richardson,  dated  April 
.30,   post-marked   May   1. 

"Mr.  M.  further  .states,  that  within  at  far- 
thest, as  he  thinks,  two  days  after  his  re- 
turn home,  he  wrote  a  letter  by  mail  ad- 
dressed to  John  P.  Richanlson,  James  B. 
Richardson,  and  Thomas  (\  Richardson,  at 
Fulton  post  office,  informing  them  they  nnist 
come  up  before  the  first  Monday  in  June,  to 
prepare  the  answer  in  the  Meek  case,  and 
that  by  same  mail,  he  addressed  a  letter  to 
the  same  effect  to  the  said  Richard  C.  Rich- 
ardson. 

"That  during  the  term,  as  they  did  not 
come  up,  on  Wednesday  evening,  he  sent  a 
letter  down  for  them,  and  three  of  them  ap- 
peared in  Court  at  its  oi>ening  on  Friday 
morning,  and  sulinntted  the  motion  above  set 
forth." 

As  stated  in  the  brief,  his  Honor  the  Chan- 
cellor said,  that  if  he  considered  lie  had  any 
discretion  in  the  matter,  the  cause  shewn 
was  abundant  for  its  exercise  in  favor  of  the 
application,  but  that  as  he  regarded  his 
hands  tied  by  the  rule  of  Court,  he  was 
obliged  to  overrule  the  motion. 

The  defendants  appealed,  on  the  grounds: 

1.  Because,  under  the  circumstances,  the 
said  order  should  have  been  granteil. 

2.  Because  the  Court  has  the  entire  con- 
trol over  the  pleadings  of  a  cause,  and  the 
right  to  permit  an  answer  to  be  filed  at  any 
time,  when  by  so  doing  the  complainant  could 
in  no  wise  be  prejudiced. 

3.  Because  the  cause  having  been  continu- 

*91 

ed,  the  complainant  *coul(l  not  have  lieen  de- 
layed or  otherwise  prejudiced  by  the  motion. 

4.  Because  the  failure  to  file  the  answer 
on  the  day  of  the  meeting  of  the  Court  was 
the  effect  of  accident  and  surprise,  from 
which  the  said  defendants  were  entitled  to 
relief,  and  the  refusal  of  leave  to  do  .so, 
would  seriously  affect  them  in  their  defence 
on  the  merits  of  the  case. 

F.  J.  Moses,  for  appellants. 
De.Saussure.  contra. 

The  opinion  of  the  Court  was  delivered  by 

37 


*91 


4  RICHARDSON'S  EQUITY  REPORTS 


DARGAN,  Ch.  I  did  not  hold  on  the  cir- 
cuit, as  the  brief  represents,  that  tliere  were 
no  circumstances  under  which  the  Chancel- 
lor could  exercise  the  discretion  of  relax- 
ing the  36th  rule  of  Court.  On  the  con- 
trarj',  I  said,  distinctly,  that  there  were  ex- 
traordinary circumstances,  such,  for  Instance, 
as  accidents  resulting  from  the  act  of  God, 
which  would  justify  the  Chancellor  pro  hac 
vice  to  set  aside  the  rule,  and  to  permit  the 
answer  to  be  filed  on  such  equitaljle  condi- 
tions as  he  might  think  proper  to  impose. 
And  I  put  cases  by  way  of  illustrating  my 
views.  I  said,  that  if  the  omission  was  oc- 
casioned by  sickness,  or  any  other  calamity 
or  misfortune,  which  occasioned  the  answer 
not  to  be  filed  in  time,  I  would  feel  myself 
authorized  to  interpose.  But  I  did  not  con- 
sider the  case  as  falling  within  that  class. 
It  was  an  omission,  which  did  not  result  from 
calamity,  misfortune,  sickness  or  inevitable 
accident.  In  the  case  made  by  the  affidavits, 
and  similar  cases,  I  considered  the  rule  as 
of  imperative  obligation,  and  in  reference 
to  such  cases,  used  language  very  much  like 
that  imputed  to  me  in  the  brief. 

It  is  the  opinion  of  this  Court,  that  the 
practice  under  the  rules,  may  be  moulded  at 
the  discretion  of  the  Chancellor,  so  as  to 
meet  the  exigencies  of  the  case,  and  to  pro- 
mote the  ends  of  justice.  And  with  this 
purpose  in  view,  he  may  suspend  their  oper- 
ation in  particular  cases,  where  justice  seems 
to  require  it ;  observing  them  as  a  general 
chart  by  which  the  proceedings  of  the  Court 

*92 
are  to  *be  conducted,  where  no  special  equi- 
ty makes  a  deviation  proper.  At  the  same 
time  it  is  the  clear  doctrine,  that  the  exer- 
cise of  such  a  discretion  on  the  part  of  the 
Chancellor,  in  enforcing  or  suspending  the 
rules,  is  not  a  matter  from  which  an  appeal 
will  lie.  Where  there  is  a  right  to  exercise 
discretion,  there  is  no  right  of  appeal  from 
its   exercise. 

I  am  now  persuaded,  that  I  had  a  greater 
latitude  of  discretion  than  I  had  supposed 
on  the  circuit.  As  the  parties  and  their 
counsel  did  appear  to  have  used  a  consider- 
able degree  of  diligence,  with  my  present 
views,  if  the  case  were  now  before  me,  I 
should  allow  the  defendants,  on  the  case 
made,  to  file  their  answers.  On  this  state- 
ment to  the  other  members  of  the  Court,  and 
on  my  own  motion,  this  Court  has  consented 
to  reverse  the  decision  of  the  circuit  Court, 
and  to  grant  the  defendants  leave  to  file 
their    answers. 

It  is  ordered  and  decreed,  that  the  order 
pro  confesso  be  set  aside;  that  the  defend- 
ants have  leave  to  file  their  answers  on  or 
before  the  first  day  of  March  next. 

JOHNSTON,    DUNKIN   and   WARDLAW, 
CC,  concurred. 
Decision  reversed. 


4    Rich.  Eq.   92 

JOHN  PETTUS  and  Otlieis  v.  W.  J.  CLAW- 
SON  and  Others. 

(Colimil)ia.      Nov.   and    Dec.   Term.  1851.) 

[Liniifation   of   Affions   ©3^102.] 

Where  on  the  last  annual  return  of  an  ad- 
ministrator with  the  will  annexed,  the  ordinary 
struck  a  balance,  and  gave  him  a  certificate 
that  the  balance  thus  ascertained  was  the  sum 
due  by  him  on  his  account.s, — held,  that  such  act 
of  the  administiator,  having  been  done  in  a  pub- 
lic office,  open  for  the  information  of  parties 
interested,  and  purporting  to  be  a  final  settle- 
ment, gave  currency,  from  its  date,  to  the  stat- 
ute of  limitations  :  and  that  such  of  the  legatees 
as  were  then  adult,  or,  being  infants,  failed  to 
prosecute  their  rights  against  the  administrator 
within  the  statutory  period  after  arriving  at 
age,   were  barred. 

[Ed.  Note. — Cited  in  Frieks  v.  Lewis.  "26  S. 
C.  239.  240,  1  S.  E.  SS4  :  Ariail  v.  Ariail,  2!) 
S.  C.  93,  7  S.  E.  35:  Boyd  v.  Munro.  32  S. 
C.  253.  10  S.  E.  9(J3:  Robertson  v.  Blair  & 
Co..  50  S.  C.  110.  34  S.  E.  11,  76  Am.  St. 
Rep.  543:  Kilgore  v.  Kirkland,  69  S.  C.  86, 
48  S.  E.  44. 

For  other  cases,  see  Limitation  of  Actions. 
Cent.  Dig.  §  505;    Dec.  Dig.  <g=»102.] 

{Equity   (S=>423.] 

I'pon  demands  not  bearing  interest  at  law, 
equity  usually  allows  interest,  but  may  in  its 
discretion   withhold  it. 

[Ed.  Note. — Cited  in  Tompkins  v.  Tompkins, 
IS  S.  C.  25:  Turnipseed  v.  Sirriue,  60  S.  C. 
287,  38  S.  E.  423:  Bowen  v.  True,  74  S.  C. 
489,  54  S.  E.  1018. 

For  other  cases,  see  Equity,  Cent.  Dig.  §§ 
986-990,  992-998.  1009-1014;  Dec.  Dig.  <^==> 
423.] 

*93 
[Infants  <®=:3l05.] 

*As  laches  cannot  be  imputed  to  an  infant, 
he  should,  it  seems,  always  be  allowed  interest 
where  he  prosecutes  his  rights  within  the  stat- 
utory period  after  arriving  at  age. 

[Ed.  Note. — For  other  cases,  see  Infants,  Cent. 
Dig.  §^  302-305.  307,  311-313,  322;  Dec.  Dig. 
<©=3l05.] 

[Executors   and  Administrators  <©=^104.] 

In  charging  an  administrator  with  interest, 
not  only  should  all  funds  received  in  the  current 
year  be  regarded  as  unproductive  until  the  chisc 
of  it,  but  all  expenditures  in  the  course  of  the 
year  should  be  regarded  as  made  before  the 
balance  is  struck,  to  bear  interest. 

[Ed.  Note. — Cited  in  Tompkins  v.  Tompkins, 
18  S.  C.  28;  Nicholson  v.  Whitlock,  57  S.  C. 
42,  35  S.  E.  412. 

For  other  cases,  see  Executors  and  Adminis- 
trators,  Cent.  Dig.   §  428;    Dec.  Dig.   <®=:3l04.] 

[Executors   and  Administrators  <©=>72.] 

Before  an  administrator  should  be  charged 
with  notes  marked  by  the  appraisers  on  the 
inventory  as  good,  there  should  be  some  proof 
of  their  collection,  or  of  negligence  in  collecting. 

[Ed.  Note. — Cited  in  Tompkins  v.  Tompkins, 
IS  S.  C.  27. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  321;    Dec.  Dig.  <®=>72.] 

Before  Wardlaw,  Ch.,  at  York,  June,  1851. 

Wardlaw,  Ch.  This  suit  is  brought  by  the 
legatees  and  representatives  of  legatees  of  J. 
D.  O.  K.  I'ettus  for  an  account  and  settle- 
ment of  his  estate. 

J.  D.  O.  K.  Pettus  died  October  29,  1821, 
leaving   of   force   his   will   dated    March   24, 


3S 


<g=;>For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


TETTUS  V.  CLAWSOX 


*9o 


ISIO,  whiToliy  ho  save  liis  estate,  aftiT  the 
payment  of  his  debts,  in  iine<iual  portions 
to  his  wife,  Violet,  and  his  two  children,  liv- 
ing at  the  date  of  the  will,  8tei)hen  and 
Hannah  M.  A.  Another  son.  John,  was  born 
to  the  testator  May  Ki.  ls:Jl,  about  3% 
years  after  the  birth  (if  Hannah,  and  5  years 
after  the  birth  of  Stephen.  Stephen  Pettus, 
senior,  administered  with  the  will  annexed, 
and  on  January  S.  iM'li.  sold  the  whole 
estate,  except  two  negroes,  Ellick  and  Venus, 
which,  after  beinij:  hired  out  one  year,  were 
delivered  to  the  widow,  Violet,  under  the 
becpiest  of  them  to  her  for  life.  The  said 
administrator  made  annual  returns  of  his 
transactions  for  several  years,  not  includ- 
iufi,  however,  charges  for  interest  on  annual 
balances,  nor  credits  for  connni.ssions.  In 
the  last  of  these  aimual  returns,  on  Janu- 
ary 5,  1S21),  the  balance  appearin^t  ajiainst 
the  administrator  on  his  whole  receipts  and 
expenditures,  is  .$2ss.<.»G%.  and  the  ordinary 
gave  the  administrator  a  certificate  that  this 
sum  was  the  balance  due.  Violet  Pettus 
removed  with  her  children  to  North  Carolina 
in  1822.  and  died  there  February  21,  1S29. 
No  administration  here  has  been  taken  out 
on  her  estate.  Her  sealed  note  for  $330.15, 
for  purchases  at  the  administrator's  sale 
of  her  husband's  estate,  is  produced  as  un- 
paid. In  1845,  Thomas  Koswell,  who  had 
*94 

married  *IIanHah,  daughter  of  testator,  cit- 
ed the  administrator,  Stephen  Pettus,  be- 
fore the  ordinary  to  account,  but  no  decree 
was  made  by  the  ordinjiry.  Stephen  Pettus, 
senior,  died  in  1S4G.  and  defendant,  Clawson, 
administered  upon  his  chattels  and  credits. 
Stephen  Pettus,  junior,  and  Hannah  Koswell 
have  also  died  at  dates  not  appearing.  The 
original  bill  in  this  case  was  tiled  May 
14,  1847,  by  John  Pettus,  Thomas  Roswell 
and  his  infant  daughter,  Mary  V.  Roswell, 
all  residents  of  North  Carolina,  against  W. 
J.  Clawson,  administrator  of  Stephen  I'ettus, 
senior ;  and  afterwards,  in  1848  or  1849,  on 
a  day  not  appearing  by  my  copy,  a  sup- 
plemental bill  was  liled  by  J.  C.  Smith,  as 
administrator  of  Hannah  Koswell  and  Ste- 
phen Pettus,  jr. 

The  connnissioner  of  the  Court  being  de- 
fendant, the  matters  of  account,  all  equities 
being  reserved,  were  referred  specially  to 
J.  B.  Smith,  a  solicitor  of  the  Court.  To  his 
report,  and  to  the  accompanying  evidence  in 
writing,  I  refer  for  any  further  .statement 
of  the  facts  which  may  be  necessary. 

The  report  of  the  special  connnissioner  is 
well  considered  and  clear,  but  I  think  fails 
in  giving  proper  intiuence  to  the  lapse  of 
time.  Applying  rules  fit  enough  for  recent 
administrations,  the  connnissioner  has  at- 
taincjd  Uie  startling  result,  that  the  estate  of 
Stephen  Pettus,  senior,  was  indebted,  on 
June  17,  1851,  on  his  administration  of  the 
estate  of  J.  D.  O.  K.  Pettus,  in  the  sum  of 
$4,268.10,   and   this   he   distributes,   on   prin- 


ciples which  seem  unexceptionable,  among 
the  widow  and  children  of  testator  or  their 
representatives.  At  the  day  of  tiling  the 
bill  in  this  case,  which,  when  tiled,  present- 
ed regularly  the  claim  of  John  Pettus  only, 
there  had  been  the  lapse  of  more  than  25 
years  from  the  grant  of  the  administration 
to  the  defendant's  intestate,  more  than  18 
years  from  the  last  authentic  act  of  the  in- 
testate in  the  adnnnistration.  and  five  years, 
lacking  a  day,  from  the  maturity  of  the  stat- 
utory legatee,  the  youngest  of  the  original 
parties  in  interest;  and,  in  the  meantime, 
trustee  and  beneficiaries,  except  one,  had 
all  died. 

The  citation  to  account  before  the  ordi- 
nary does  not  obstruct  the  innnunity  from 
time,  because  it  was  abortive  and   not  pur- 

*95 
sued  *within  reasonable  time  by  subseipient 
proceedings,  and  instituted  irregularly  by 
the  aiiplicant  alone,  if  his  wife  were  alive, 
and  not  officially  if  she  were  dead.  Acts  done 
in  a  public  oftice,  open  for  the  information 
of  parties  interested,  must  be  taken  notice 
of  by  them ;  (Payne  v.  Harris,  3  Strob.  Eq. 
42) :  and  if  Stephen  Pettus's  return  to  the 
ordinary  of  January  5,  1829,  had  purported 
more  clearly  to  be  a  full  execution  of  his 
trust,  the  claims  of  all  the  plaintiffs  mij^ht 
have  been  considered  as  barred  by  the  stat- 
ute of  limitations,  except  that  of  John  Pet- 
tus, saved  by  a  day.  Under  all  the  circum- 
stances, the  claims  of  the  plaintiffs  must 
be  restricted  to  the  narrowest  limits  con- 
sistent with  the  rules  and  principles  of  the 
Court.  In  my  judgment,  the  plaintiff's  are 
not  entitled  to  more  than,  taking  the  burden 
of  proof,  to  surcharge  and  falsify  the 
accounts  current  of  Stephen  Pettus,  in  or- 
der to  ascertain  the  amount  of  the  surplus 
he  owed,  as  administiator.  to  the  legatees, 
on  January  5,  1829,  allowing  the  defendant 
the  same  privilege  of  correction.  Thus  in- 
terest against  the  administrator  to  the  time 
mentioned  and  commissions  in  his  behalf, 
and  other  receipts  and  expenditures  by  him, 
actually  proved,  may  be  taken  into  the  cal- 
culation, and  other  mistakes  may  be  C(»r- 
rected.  I  am  not  satisfied  with  the  mode 
of  calculating  interest  pursued  by  the  com- 
missioner, in  ascertaining  the  balance  due 
on  January  5,  1829.  although  he  seems  to  be 
justified  by  the  ca.se  of  Davis  v.  Wright,  (2 
Hill,  5li0).  It  is  so  difficult  to  save  the  most 
honest  and  dili,gent  trustee  from  loss  by  the 
moth  of  interest,  that  not  only  shoiild  all 
funds  received  in  the  current  year  lie  re- 
garded as  unproductive  until  the  close  of  it, 
but  all  expenditures  in  the  course  of  the 
year  should  be  regarded  as  made  before  the 
balance  is  struck,  to  bear  interest;  such 
mode  of  calculation  is  adopted  in  the  offices 
more  particularly  under  my  obs(>rvation  (a). 

I  am   further  of  the  opinion,   that,   under 


(«)  Vide  Dixon  v.  Hunter,  3  Hill.  204;    Dun- 
can V.  Tobin,  Cbev.  Ey.  143  [34  Am.  Dec.  605]. 

39 


*95 


4  RICHARDSON'S  EQUITY  RKl'ORTS 


the  circumstances  of  this  ease,  the  sum 
thus  ascertained  to  be  in  the  liands  of  the 
administrator,  on  January  5,  1829,  should 
bear  interest  only  from  the  filing  of  the  l)ill. 
Interest    is    not    incident    in    strict    right   to 

*96 
■*mere  delay  of  payment,  unless  it  be  secured 
by  contract,  or  follow  a  breach  of  trust. 
<Bell  V.  Free,  1  Swan,  90;  Gittins  v.  Steele, 
lb.  199;  Payne  v.  Harris,  3  Strob.  Eq.  44; 
Smith  V.  Hunt,  3  Rich.  Eq.  4G5 ;  Davis  v. 
Wright,  2  Hill,  567.)  In  the  last  case  it  is 
said,  "Interest  is  given  as  legal  damages  for 
the  unlawful  detention  of  a  debt ;  can  there 
be  any  unlawful  detention  when  there  is  no 
one  authorized  to  receive?  It  is  clear  there 
cannot  be;  when  a  day  is  fixed  for  payment 
of  an  ascertained  sum,  and  it  is  not  then 
paid,  interest  is  generally  the  necessary  con- 
sequence of  the  neglect ;  but  to  this  position 
are  some  exceptions.  In  this  case,  when 
was  the  debt  payable?  'On  demand'  is  the 
answer.  There  could  be  no  demand  until 
administration  was  granted,  and  hence  in- 
terest was  not  recoverable  sooner."  So,  in 
the  present  case,  the  lack  of  authority  for 
any  person  to  receive  the  shares  of  the  in- 
fant legatees,  and  their  own  laches,  after 
maturity,  in  demanding  payment,  justify  the 
exercise  of  a  sound  discretion  in  refusing  in- 
terest. 

The  defendant  filed  various  exceptions  to 
the  commissioner's  report,  and  I  have  al- 
ready availed  myself  of  the  sixth  objection 
to  the  general  principles  of  the  report,  to 
express  my  views  on  the  equities  reserved. 
I  shall  notice  cursorily  some  of  the  others, 
principally  for  the  sake  of  illustration. 

The  first  objects  to  the  allowance  of  .$128.- 
89  of  notes,  and  $30.60  of  accounts,  marked 
by  the  appraisers  on  the  inventory  as  good, 
not  charged  by  the  ordinary,  nor  proved  to 
be  collected  by  the  administrator.  I  think 
plaintiffs  are  bound  to  furnish  some  proof  of 
the  collection  of  these  demands,  or  of  uegli- 
ligence  in  collecting. 

The  second  objects  to  the  allowance  of 
certain  sums  received  on  fi.  fas.  of  intestate, 
and  another  sum  for  rent.  These  items 
seem  to  be  fairly  proved  by  plaintiffs,  in 
surcharge  of  the  accounts  current. 

The  third  objects  to  the  omission  of  vari- 
ous items  of  credits  allowed  by  the  ordinary. 
The  omission  was  not  verified  to  my  satis- 
faction in  most  of  the  instances.     The  pay- 

*97 
ment  of  $66.72  on  *  Alexander's  note  was  suf- 
ficiently vouched,  and  was  omitted  by  in- 
advertence and  should  be  allowed.  Tlie 
items  of  .$683.64  and  .$78,  vouched  by  the 
receipts  of  Violet  Pettus,  as  paid  for  the 
board  of  her  children  and  medicines  for 
them,  are  not  sufiiciently  falsified  by  the 
proof  that  her  relations  and  neighbors  are 
ignorant  and  distrustful  of  her  receiving 
these  sums.  The  other  reason  assigned  for 
rejecting  these  items,  that  her  share  in 
40 


the  estate  should  be  set  off  against  these 
claims,  cannot  operate  in  a  suit  to  which 
she  is  no  party.  These  should  be  reconsid- 
ered. 

The  fourth  objects  to  the  exclusion  of  in- 
terest accruing,  after  the  sale  bill  fell  due,  on 
demands  bearing  interest,  and  the  costs  paid 
by  the  administrator  and  allowed  l)y  the 
ordinary.  On  this  point  the  commissioner 
has  followed  the  general  rule,  but  it  deserves 
his  reconsideration,  whether  actual  payments, 
so  long  made  and  .so  proved,  should  be  set 
afloat  on  a  naked  presumption.  It  would  be 
more  satisfactory  to  have  express  evidence 
that  the  administrator,  with  funds  in  his 
hands,  did  not  promptly  paj-,  when  presented, 
demands  so  obviously  just  as  to  need  no  liti- 
gation. An  original  debtor  is  in  default  if 
he  does  not  punctually  fulfil  his  contracts ; 
but  one  made  a  debtor  by  relation,  may  know 
nothing  of  the  justness  of  the  claims  upon 
him.  or  even  of  their  existence ;  some  of  the 
debts,  upon  which  the  interest  (which  has 
been  rejected)  accrued  after  the  sale  notes 
fell  due.  were  owing  to  CTeditors  in  another 
State.  We  nuist  not  expect  from  trustees 
more  than  the  ordinary  diligence  of  men  in 
their  own  affairs. 

The  fifth  exception  complains  that  the  com- 
missioner has  placed  the  debts  and  credits  in 
years  different  from  those  in  which  they  are 
set  down  in  the  accounts  current,  audited  by 
the  ordinary.  As  I  understand  the  matter, 
these  changes  have  been  made  in  conformity 
to  the  dates  of  the  vouchers  themselves,  and 
amount  merely  to  the  correction  of  mistakes. 

It  is  ordered  and  decreed,  that  the  report 
be  recommitted  to  the  special  commissioner, 
to  be  reformed  according  to  the  principles 
of  this  opinion,  with  leave  to  either  of  the 
parties  to  offer  additional  evidence. 
*98 

*The  complainants  appealed,  on  the  follow- 
ing grounds,  viz: 

1.  Because,  according  to  the  decree,  inter- 
est on  the  amount  in  the  hands  of  Stephen 
Pettus,  administrator  of  J.  D.  O.  K.  Pettus, 
on  5th  January,  1829,  is  only  to  be  calculated 
from  the  date  of  the  filing  of  the  bill  in  this 
case — when  it  is  submitted  that  interest 
should  be  charged  from  said  5th  of  January, 
1829,  and  that  under  the  circumstances  of  the 
case,  as  proved,  it  would  be  against  equity 
and  right  to  restrict  interest  as  allowed  in 
the  decree. 

2.  Because,  at  all  events,  interest  should 
be  allowed  from  the  time  of  the  citation  to 
account  before  the  ordinary,  and  it  is  respect- 
fully submitted,  that  the  Chancellor  was  mis- 
taken as  to  the  fact  of  said  citation  being 
irregularly  issued  and  not  prosecuted  with 
due  diligence,  it  being  proved  that  both  Ros- 
well  and  wife  were  parties  to  the  proceedings 
in  the  ordinary's  court,  and  that  the  bill  in 
this  case  was  filed  shortly  after  the  death  of 
Stephen  Pettus  and  in  due  time. 

3.  Because,  it  is  submitted,  that  tlie  mode 


PETTUS  V.  CLAWSON 


noi 


atraiiist   the  estate,   and   to  derive  beiietit   to 
hiiuself  from  his  iie>-'lifieiue. 

4.  liecanse  his  Honor  hehl  that  the  eoni- 
phiinants  shoidd  furnish  evidenei'  that 
Stephen  I'ettus,  administrator,  liad  eollected 
tile  notes  and  accounts  inventorii'd  by  liim 
as  good,  when,  it  Is  respectfully  sulmiitted, 
the  burthen  of  proof  sliould  be  thrown  on 
the  defendant,  and  the  complainants  showed 
enough  by  producing  the  inventory. 

5.  Because,  it  is  submitted,  his  Honor  er- 
red in  holding  the  defendant  was  entitled 
to  a  credit  of  -I^US."!,  and  also  of  ^IS  for  charges 
of  Violet  Tettus  against  her  children  for 
board  and  medicine,  when  there  was  not 
only  the  absence  of  all  proof  to  shew  the  pay- 
ment of  these  sums,  but  abundant  evidence 
to  shew  said  children  were  maintained  by 
their  grandfather,  and  not  by  A'iolet  I'ettus. 

*99 
*6.  Because,  if  said  sums  of  ifOS;;  and  $78 
are  allowed  as  credits  to  the  defendant,  the 
same  should  be  taken  from  the  share  of 
Violet  I'ettus,  and  the  complainants  should 
be  charged  with  no  part  of  same. 

Williams,  for  appellants. 
Witherspoon,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DAKCiAN,  Ch.  J.  D.  O.  K.  I'ettus  died 
L'9th  October,  1S21,  having  duly  executed  his 
will,  which  bears  date  the  24th  of  March, 
1819.  The  testator  disiioses  of  his  whole  es- 
tate in  une<iual  proportions,  in  favor  of  his 
wife,  Violet,  and  his  two  children  then  in 
esse:  namely,  Hannah,  born  in  1S17,  and 
Stephen,  born  in  the  year  1816.  After  the 
execution  of  the  will,  to  wit,  on  the  IGth  May, 
1821.  John,  another  son,  was  born  to  the  tes- 
tator; for  whom,  as  born  after  its  execution, 
the  will  made  no  provision.  As  a  pretermit- 
ted child,  (according  to  the  rules  of  law  upon 
the  subject,)  John  is  entitled  to  be  let  into 
the  possession  and  enjoyment  of  a  portion  of 
his  father's  estate  disposed  of  by  the  will. 
His  share  is  to  be  raised  by  contributions 
from  the  legacies  given  to  the  other  children  ; 
and  in  amount  must  equal  the  average  of 
those  legacies. 

One  Stephen  I'ettus  became  the  administra- 
tor, with  the  will  annexed,  and  on  the  Sth  Jan- 
uary, 1822,  sold  the  whole  estate,  with  the  ex- 
ception of  two  negroes,  which  were  disposed 
of  according  to  the  betiuests  of  the  will.  He 
made  annual  returns  of  his  accounts  with  the 
estate,  to  the  ordinary,  for  several  years; 
in  the  last  of  which,  made  on  the  ath  Janu- 
ary. 182!>.  the  balance  appearing  against  the 
administrator  on  account  of  his  whole  re- 
ceipts and  disbursements,  is  i);28S.!)(;.  The 
ordinary  then  gave  him  a  certificate,  that  this 


ruary.  I.s2!).  The  children,  and  the  heirs  at 
law  and  distributees  of  those  who  are  dead, 
have  resideil  in  that  State  ever  since.  There 
has  iieeii  no  administration  upon  the  estate  of 

*100 
Vio*let  I'ettus.  In  184rt.  Thomas  Koswell, 
who  had  intermarried  with  Hannah  I'ettus, 
(the  daughter  of  the  testator.)  cited  Stephen 
I'ettus,  the  administrator,  before  the  ordinary 
to  account ;  but  the  ordinary  made  no  decree, 
and  the  proceedings  had  no  result.  Stephen 
I'ettus.  jr.,  and  Hannah  Koswell  also  died  be- 
fore the  institution  of  this  suit;  and  their 
representatives  are  parties  to  this  bill,  claim- 
ing an  account  of  the  administration  of  the 
testator's  estate.  Stephen  I'ettus,  sen.,  also 
died,  (in  1846.1  and  Clawson,  the  defendant, 
is  the  administrator  of  his  estate;  and  re- 
sists the  claim  to  account  on  various  grounds; 
of  which.  tlu)se  that  are  deemed  material, 
will  be  hereafter  considered.  There  has  been 
a  report  upon  the  accounts  from  a  special 
referee,  (the  Connnissioner  of  the  Court  being: 
the  administrator  of  Stephen  I'ettus.  .senior. I, 
Exceptions  were  taken  to  the  report:  and 
from  the  Chancellor's  decree  upon  the  report 
and  exceptions,  an  appeal  has  been  brought 
before  this  Court. 

I  will  not  discuss  the  various  grounds  of 
appeal  seriatim;  but  will  confine  my  obser- 
vations to  such  of  the  questions  which  tlu'y 
raise,  as  I  deem  proper  for  serious  ct)nsidtra- 
tion. 

The  main  issue  involved  in  the  case,  is-- 
whether  the  parties  who  are  seeking  an  ac- 
count of  the  administration  of  the  testator's 
estate,  are,  under  the  circumstances  of  the 
case,  entitled  to  an  account  at  all.  The  orig- 
inal bill  in  the  cause  was  tiled  May  14.  1847, 
by  John  I'ettus,  Thomas  Boswell,  and  his 
infant  daughter  Mary  V.  Koswell,  (a  daugh- 
ter of  the  testator's  legatee,  Hannah  Kos- 
well,) all  residents  of  North  Carolina,  against 
Wm.  J.  Clawson,  the  administrator  of  Stephen 
I'ettus.  senior.  And  at  a  subsequent  day. 
(not  appearing  to  the  Court,)  a  supplemental 
bill  was  filed  by  J.  C.  Smith,  as  adminis- 
trator of  Hannah  Koswell  and  Stephen  I'et- 
tus. junior.  This  makes  the  record  complete, 
as  to  the  proper  parties  who  should  be  before 
the   Court. 

But  it  will  be  perceived,  that  from  the  date 
at  which  the  administration  was  committed 
to  the  defendant's  intestate,  more  than  the 
quarter  of  a  century  had  passed  away ;  and 
more  than  eighteen  years  had  elapsed  from 

*101 
the  date  of  the  last  act  of  administra*tion, 
when  Stephen  Pettus,  senior,  made  his  last 
return  to  the  ordinary,  and  when  that  of- 
fictn-,  on  what  purported  to  be  a  final  settle- 
ment, struck  a  balance  on  his  accouuts,  and 

41 


*101 


4  RICHARDSON'S  EQUITY  REPORTS 


gave  him  a  certificate,  tliat  tlie  .sum  of  .$288.- 
06  was  due  by  him  to  his  testator's  estate. 

I  do  not  say,  that  this  last  accounting  and 
settlement  before  the  ordinary  was  a  decree. 
I  do  not  think  it  was.  It  was  obviously  ex 
parte,  and  cannot  have,  and  probably  was 
not  intended  to  have,  the  force  of  a  judgment. 
But  it  was  a  transaction  which  purported  to 
be  a  final  settlement  of  the  estate.  "Acts 
done  in  a  public  office,"  as  the  Chancellor  in 
his  decree  has  said,  in  an  office  proper  for 
such  acts,  and  where  they  may  of  right  be 
done,  and  open  at  all  times  "for  the  informa- 
tion of  parties  interested,  must  be  taken  no- 
tice of  by  them."'  And  the  doctrine  is  fully 
sustained  by  the  authority  cited,  (Payne  v. 
Harris,  :i  Strob.  Eq.  42;)  to  which  others 
might  be  added.  The  Chancellor  proceeds  to 
say,  "if  Stephen  Pettus'  return  to  the  ordi- 
nary of  January,  1829,  had  purported  more 
clearly  to  be  a  full  execution  of  the  trust,  the 
claims  of  all  the  plaintiffs  might  have  been 
considered  as  barred  by  tlie  statute  of  limita- 
tions, except  that  of  John  Pettus,  saved  by  a 
day."  In  the  opinion  of  this  Court,  the  Chan- 
cellor did  not  give  sufficient  force  and  signif- 
icancy  to  the  facts  upon  which  tlie  question 
as  to  the  statute  of  limitations  will  turn.  I 
regard  those  facts  in  a  stronger  light.  They 
speak  an  unequivocal  language  to  the  effect, 
that  the  administrator  liad  wound  up  the  es- 
tate, and  had  fully  executed  the  trust,  with 
the  exception  of  the  balance  acknowledged  to 
be  due.  In  Brockington  v.  Camlin,  (4  Strob. 
Eq.  190,)  where  the  administrator  iiad  fully 
administered  the  estate,  with  the  exception 
of  some  negroes,  to  whicli,  in  the  presence  of 
the  distributees,  he  asserted  a  personal  and 
independent  claim,  the  assertion  of  tlie  claim 
was  held  to  have  given  currency  to  the  stat- 
ute. Suppose  that  in  this  instance,  the  ad- 
ministrator had  5.erved  the  parties  in  inter- 
est witli  a  copy  of  his  last  account  and  re- 
turn ;  or  that  he  had  given  tlieiu  notice  in 
writing,  or  by  parol,  that  he  had  fully  ex- 
ecuted his  trust,  with  the  exception  of  the 

*102 

*ba]ance  acknowledged  to  be  due,  could  it 
be  doubted,  that  the  effect  vvould  have  been, 
to  have  divested  him  of  his  fiduciary  char- 
acter, except  as  to  that  balance,  and  to  have 
placed  him,  to  use  the  quaint  but  expressive 
language  of  some  of  the  authorities,  "at  arm's 
length,"  with  the  beneficiaries  of  the  trust? 
Well ;  this,  or  a  similar  declaration,  the  ad- 
ministrator did  spread  upon  the  records  of 
the  ordinary's  ofiice.  And  if  there  be  any 
reason  or  force  in  the  decisions,  that  acts 
done  in  a  public  office  must  be  taken  notice 
of  by  the  parties  interested,  the  same  result 
must  follow. 

Independently  of  the  statute  of  limitations, 
it  appears  to  me,  that  except  as  to  the  claim 
of  John  Pettus,  the  demand  for  an  account  is, 
under  the  circumstances,  too  stale  and  ivn- 
tiiiuated  to  meet  with  favor  in  this  Court. 

42 


It  is  against  good  policy  to  lend  too  ready 
an  ear  to  an  ai)plication  to  rip  up  these 
long  standing  settlements  and  accounts.  The 
I  Court  cannot  proceed  to  render  judgment,  ex- 
cept at  the  risk  of  doing  great  injustice.  The 
transactions  under  investigation  are  obscured 
by  the  lapse  of  many  years.  TJie  administra- 
tor is  dead.  He  died  under  the  belief,  found- 
ed on  what  was  undoubtedly  a  bona  fide  set- 
tlement before  the  ordinary,  that  he  owed 
his  testator's  estate  only  .$288.96,  with  the 
subsequently  accruing  interest.  His  case  has 
been  defended  by  his  own  administrator,  aid- 
ed only  by  the  evidence  which  the  wreck  of 
eighteen  years  leaves  at  his  command.  Un- 
der the.se  circumstances  his  accounts  have 
been  examined,  and  on  June  17,  1851,  the  ref- 
eree reports  a  balance  due  by  the  estate  of 
the  administrator  of  J.  D.  O.  K.  Pettus  of 
$4,268.10.  Tills  is  a  most  startling  result, 
and  cannot  but  strongly  impress  one's  mind, 
with  the  danger  of  doing  great  injustice  in 
the.se  investigations.  The  case  itself  is  aptly 
illustrative  of  both  the  benignity  and  wisdom 
of  that  rule,  which  affords  to  persons  called 
upon  for  a  settlement  of  stale  and  antiquated 
demands,  the  protection  of  a  legal  oblivion. 
It  is  the  opinion  of  this  Court,  that  the  Chan- 
cellor should  have  sustained  the  plea  of  the 
statute  of  limitations,  and  dismissed  the  bill 
against  all  the  complainants,  except  John  Pet- 
tus.   The  case  of  John  I'ettus  stands  upon  a 

*103 
different  footing,  as  to  *this  ground  of  de- 
fence. He  was  an  infant,  and  on  account  of 
his  residence  without  the  limits  of  this  State, 
was  entitled  to  five  years  after  he  came  of 
age  to  bring  his  suit.  He  filed  his  bill  one 
day  before  the  removal  of  his  disability ; 
which  was  of  course  sufficient  to  save  his 
rights.  The  case  mu.st  go  on  as  to  him,  and 
he  will  be  entitled  to  recover  such  an  amount 
as  he  would  be  entitled  to  recover  if  the 
claims  of  his  co-plaintiff's  had  not  been  con- 
sidered as  barred. 

There  is  only  one  other  point  which  it  is 
my  purpose  to  discuss.  The  Chancellor,  in 
his  decree,  has  disallowed  the  charge  of  in- 
terest, except  from  Che  filing  of  the  bill.  He 
has  conclusively  shown,  by  the  authorities 
which  he  has  cited,  that  the  allowance  of  in- 
terest is  a  matter  within  the  discretion  of  the_ 
Court.  Equity  allows  interest  upon  demands, 
as  to  which,  interest  is  not  recoverable  at 
law ;  upon  the  principle,  that  it  would  be  in- 
equitable to  withhold  it ;  and  in  cases  of 
trust,  upon  the  maxim  which  prevails  in  this 
Court  that  a  trustee  shall  not  be  permitted 
to  make  a  profit  for  himself  out  of  the  trust 
estate.  This  Court  having  imposed  upon  it- 
self rules  for  the  allowance  of  interest  on  the 
ground  that  equity  demands  it,  can  refuse, 
and  has  refused  it,  where  in  the  judgment  of 
the  Court,  there  are  equitable  circumstances 
which  forbid  its  allowance.  The  equity  for 
interest  prevails,  unless  tliere  be  some  stron- 
ger  countervailing   ecpiity.      The   authorities 


MAYBIX  V.  KIRBY 


nob 


abundantly  prove,  that  the  allowance  of  in- 
terest in  this  Court  is  only  a  {general  rule; 
and  that  there  are  exceptional  cases.  It  is  a 
discretion  helou^'in;:  to  the  Court,  however, 
which,  in  my  judjiuient.  if  I  may  he  allowed 
to  use  an  expressive  tautolojxy,  should  he 
very  discreetly  exercised. 

80  far  from  impufiiiing,  1  sustain  the  doc- 
trine of  the  circuit  decree  in  this  respect  con- 
sidered as  an  abstract  proposition.  The 
claims  set  up  on  behalf  of  the  representatives 
of  Ilannaii  lloswell.  and  Stephen  I'ettus,  have 
been  disposed  of,  and  disailoweil.  If  the 
claims  on  their  part  had  not  been  considered 
as  barred,  and  it  were  necessary  to  state  an 
ac«-ount  as  to  them,  I  am  not  prepared  to  say, 
I  hat  it  would  not  be  proper,  as  the  Chancel- 

*104 
lor  decreed,  to  ^withhold  the  interest,  except 
from  the  time  of  (ilin.ij:  the  bill.  In  Smith  v. 
Hunt,  (3  liich.  E(i.  4(;.j.)  gn'at  laches  on  the 
part  of  the  complainants  in  the  prosecution 
of  their  demand  for  an  account,  until  the  in- 
terest accouiit  had  swelled  to  a  iu'reat  and  dis- 
l)roportionate  nias,'nivude,  was  held  to  be  a 
sufficient  reason  for  withholding  a  lar^e  por- 
tion of  the  interest.  In  reference  to  those 
parties,  whose  claims  have  been  dismissed, 
this  enquiry  wo\ild  be  speculative,  and  out- 
.>ide  of  the  record,  liut  it  is  very  material 
to  emiuire,  whether  under  any  circumstances, 
interest  can  be  withheld  from  .lohn  I'ettus, 
who  was  an  infant,  and  who  hied  his  bill  for 
an  account,  within  the  Hve  years  allowed 
him  by  the  statute  of  limitations  after  the 
removal  of  his  disability.  Laches  is  certain-- 
ly  not  predicable  of  an  infant  before  he  at- 
tains his  majority;  nor  is  it  imputable  to  him 
durin}:  the  iieriod,  in  which  the  statute  aftei-- 
wards  allows  him  to  brinu  his  suit.  There  is 
no  principle  or  precedent,  so  far  as  I  can  per- 
ceive, which  forbids  an  interest  account  to 
be  stated  in  favor  of  John  I'ettus.  In  stat- 
ing the  accounts,  interest  must  be  allowed  ac- 
cording to  the  rules  wbicli  prt'vail  in  this 
Court  on  that  subject. 

In  regard  to  the  other  (luestions  raised  In 
the  grounds  of  appeal,  it  is  sufficient  to  say, 
that  this  Court  concurs  with  the  Chancellor, 
and  is  satisfied  with  the  circuit  decree. 

It  is  ordered  and  decreed,  that  the  bills 
be  dismissed  as  to  all  the  complainants  in 
the  cause,  with  the  exception  of  John  I'ettus. 
It  is  further  ordered  and  decreed,  that  so 
much  of  the  circuit  decree  as  disallows  inter- 
est in  favor  of  .John  I'ettus  be  reversed,  and 
that  the  referee,  in  re-stating  the  accounts, 
as  is  herein  ordered  to  be  done,  do  charge 
interest  on  the  administration  accounts  of 
Stephen  Tettus,  senior,  according  to  the  usu- 
al practic*'  of  this  Court. 

It  is  further  ordered  and  decreed,  tliat  the 
report  be  referred  bark  to  the  special  referee, 
and  Inat  he  re-state  the  accounts,  and  make 
his  report  conformable  with  this  decree,  and 
with  the  circuit  decree  so  far  as  the  latter  is 


not  reversed  or  modittcd  by  this  ai>peal  de- 
cree. 

*105 
♦It  is  further  ordered  and  decreed,  that 
in  all  resiiects,  in  which  the  circuit  decree 
is  not  reversed  or  moditied  by  this  decree, 
the  said  circuit  decree  be  affirmed,  and  the 
aippcjil   dismissed. 

.lOIIN.STON.    IHNKIN    and    WAUI'LAW. 
CC.,  concurretl. 
Decree  modified. 


4    Rich.  Eq.    105 
iWILI.I.VM    .MAVI'.IX    V.    .lolIX    T.    KIUr.Y. 
Sl.MI'SdN.    l'.(»r.(».    Till-:    SOITII    CAUn- 
:      UNA  .MA.\n'ACTrKIN<;  COMrANY,  anil 
j      II.  AKNOM),  Admr. 
I        (Columbia.      Nov.   aud   lU-c.   Tcrni.  1851.) 

I  I'lcilties  C=>li'J.] 

licpdsit  of  certificate  of  stock  in  an  incor- 
poiiittd  Company,  in  consideration  of  a  lialality 
in<  urrcd  tor  the  depositor,  hchl.  to  create  a  lien 
in    tMiiiity    upon    tlie   stuck   to   tlic  extent   of   tlie 

1  liability;    and  siuli  lien  enforced  a;;ainst  a  sub- 

I  se(iueut  purchaser. 

!      I  Ed.     Note.— For     other    cases,     see     I'ledues. 

jCent.  Di?.  §  40;    Dec.  Dig.  ®=>2-J.] 

[.l»»K//l;»lf/^^s•  C=»102.1 

The  assignee  of  a  cho.se  in  action  is  not  witli- 
'  in  the  rule  which  |)rote(ts  a  purchaser  for  yahi- 
alile  consideration,  without  notice;  the  assignee 
takes  oidy  such  interest  as  the  assignor  has.  and 
is  bound  by  all  the  etpnties  binding  on  the  lat- 
ter. 

IKd.  Note.— Cited  in  Moffatt  v.  Hardin.  'Jli  S. 
C.  2t);  Patterson  v.  Kabb,  :{S  S.  C  147.  151, 
17  S.  E.  4(i.{.  1!)  L.  K.  A.  -SH  ;  Westbury  v. 
Simmons.  57  S.  C.  481.  :!5  S.  E.  704. 

For  other  cases,  see  Assiirnments,  Cent.  Dig. 
§   17!S;     Dec.  Dig.   ®=5l(i:i.] 

[Assiynmcnts   <@=3S5.] 

Where  the  equities  of  persons,  churning  un- 
der the  original  holder  of  a  chose  in  action,  are 
etpud.  the  maxim,  prior  in  tempore.  i)otior  in 
jure,  will  apply:  if  the  first  assignee  be  guilty 
of  fraud,  or  of  such  gross  neirligence  in  the  as- 
sertion of  his  right,  as  enahh's  tlie  assiunor  to 
practice  a  deceit  on  a  second  purchaser,  his 
etjuity  will  be  postponed  to  that  of  the  second 
bona  fide  purchaser. 

IE(1.  Note.— Cited  in  Maxwell  v.  Foster,  07 
S.  C\  :J80,  45  S.  E.  5tli7. 

For  other  cases,  see  Assignments,  Cent.  Dig. 
S  14!>;    Dec.  Dig.  <S='!S5.J 

[Sales  (S=>--">5.| 

A  plea  of  p\n-chase  for  valuable  considera- 
tion, without  notice,  is  no  protection  a^'ainst  an 
adverse  claim  of  which  the  i)urchasei'  miiiht 
have  had  notice,  by  using  due  diligence  in  iu- 
vestijiatini;  the  title. 

lEd.  Note.— For  other  cases,  see  Sales,  Cent. 
Dig.  §  Os:];    Dec.  Dig.  <©=>-_':}5.] 

I  This  case  is  also  cited  in  Hampton  &  R.  K.  & 
I>und)er  Co.  v.  Hank  of  Charleston.  48  S. 
C.  l.!4.  '2ii  S.  E.  -SS,  without  specific  ap- 
plication. I 

Before  Wardlaw,  Cli..  at  Spartanburg, 
June,  1851. 

Tlie  decree  of  bis  Honor  the  circuit  Chan- 
cellor, .states  till'  facts  in  the  case,  and  is  as 
follows: 


,g=>For  other  cases  see  same  topic  aud  KEY-NUMUliU  lu  all  Key-Numbered  Digests  and  Indexes 


43 


*105 


4  RICHARDSON'S  EQUITY  REPORTS 


Wardlaw,  Cli.     The  plaintiff,  as  surety  for  la  note  of  $500  to  Clevelan;!,  wiiercin  lie  was; 


one  William  Clarke,  has  paid  certain  sums  of 
money;  and  be  seeks  in  this  bill  to  be  reim- 
bursed out  of  shares  held  by  Clarke  in  the 
stock  of  the  S.  C.  Manufacturing  Company. 

This  Company  was  incoiiwrated  by  the 
Legislature  in  1826,  for  the  manufacture  of 
iron,  with  the  usual  powers  of  corporate 
bodies,  and  with  the  privilege  of  holding  es- 

*106 
tate  to  the  value,  at  first,  *of  $50,000,  and 
afterwards  of  $200,000,  (8  Stat.  350,  353). 
Of  this  Company,  Kirby  and  Bobo  were  large 
stockholders,  and  Clarke  was  a  stockholder 
to  the  extent  of  265  shares,  at  $100  a  share. 
Clarke  had  been  agent  of  this  Company  for 
several  years  before  1842,  when  he  became 
agent  of  the  Nesbitt  Manufacturing  Com- 
pany, of  which  Elmore,  Hampton  and  Nesbitt 
were  stockholders,  but  for  the  year  mention- 
ed, or  longer,  he  continued  his  agency  for 
the  former  Company.  i 

Josiah  Kilgore,  administrator  of  Hugh 
Bailey,  obtained  judgment  at  law  against 
Clarke  for  $6,738.30,  and  in  the  summer  of 
1843,  was  pressing  the  collection  of  this  mon- 
ey, but  on  September  10,  1843,  he  agreed,  in 
a  letter  to  the  sherift",  to  indulge  Clarke,  on 
his  payment  of  $2,000  within  twenty  days. 
Kilgore  at  this  time  held  sixty  of  Clarke's 
shares  in  the  S.  C.  Manufacturing  Company, 
as  collateral  security  for  his  debt,  although 
the  formal  assignment  of  these  shares  in  the 
stock  book  of  the  Company  was  not  made  by 
Clarke  to  Kilgore  until  February  16,  1S44. 

To  enable  Clarke  to  raise  the  money  neces- 
sary to  procure  indulgence  from  Kilgore.  the 
defendant,  Kirby,  made  a  note  for  $2,000, 
dated  September  27,  1843,  payable  to  Bobo 
90  days  after  date,  at  the  Commercial  Bank 
in  Columbia,  and  Bobo  endorsed  the  note, 
took  it  to  Columbia  and  delivered  it  to  May- 
bin,  with  a  letter  from  Clarke,  who  was  last 
endorser.  In  this  shape  the  note  was  first 
offered  to  the  Bank  for  discount,  and  the  of- 
fer declined  unless  a  town  endorser  was 
added.  Maybiu  then  endorsed  the  note  and 
it  was  discounted  at  the  Bank,  and  on  Octo- 
ber 5,  1843,  Maybin  received  the  proceeds 
and  sent  $1,950.3114  by  Caswell  Bogan  to  the 
sheriff  at  Spartanburg.  The  sheriff  received 
this  sura  October  7,  and,  the  balance  being 
advanced  by  Clarke,  on  October  10,  paid  $2,- 
000  to  Kilgore  on  his  fi.  fa.  This  note,  when 
discounted,  was  marked  "special,"  which, 
according  to  the  usage  of  the  Bank,  indicat- 
ed that  payment  was  expected  at  maturity, 
without  renewal.  The  note  was  protested  for 
non-payment,  on  December  29,  1843. 

In  contemplation  of  the  making  and  en- 
*107 
dorsement  of  this  note,  *Clarke,  on  Septem- 
ber 21,  184.3,  assigned,  in  the  stock  book,  100 
of  his  shares  in  the  S.  C.  M.  Co.,  to  Kirby 
and  Bobo  for  their  indemnification  on  this 
note,  and  for  the  iudemnilicatiou  of  Bobo  on 

44 


Clarke's  surety.  This  latter  note  lias  been 
paid  long  ago.  On  the  same  day,  Clarke  as- 
signed 100  shai'es  for  the  use  of  the  Com- 
pany, in  consideration  of  a  deljt  of  $4,000  to 
the  Company. 

On  January  6,  1844,  Clarke,  in  writing, 
promised  that,  if  Maybin  would  give  him 
the  use  of  his  name,  on  a  note  of  .$2,000  to 
be  discounted  in  the  Branch  of  the  Bank 
of  the  State  of  South  Carolina,  at  Columbia, 
and  on  the  renewals  of  the  same,  he  would 
immediately  deposit  with  him  a  certificate  of 
stock  in  the  S.  C.  M.  Co.  for  265  shares,  with 
power  of  attorney  to  sell  the  same,  if  default 
were  made  by  Clarke  in  paying  up  said  note 
and  renewals,  and  after  satisfying  such  debt 
to  return  the  ovei-plus  to  Clarke.  On  the 
same  day,  and  on  the  same  instruaput,  El- 
more, Hampton  and  Nesl)itt,  promised  iu 
writing  to  guarantee  to  Maybin  the  payment, 
by  Clarke,  of  such  note  and  renewals  on  the 
taking  of  the  security  aforesaid.  On  Janu- 
ary 9,  1844,  a  note  for  $2,000  was  made  by 
Maybin,  payable  in  60  days  to  Clarke,  at  the 
Branch  Bank  aforesaid  and  endorsed  by 
Clarke.  Hampton  and  nilmore.  On  this  note 
was  written  in  pencil,  by  one  of  the  officers 
of  the  Bank,  "Nett  proceeds,  $1,979,  W.  May- 
bin's  check  for  this  amount  on  10th  March, 
$1,979."  Maybin  drew  the  $1,979  from  the 
Branch  Bank,  Jan.  10,  1844,  and  on  the  same 
day  paid  to  the  Commercial  Jt>ank  $2,006.60, 
in  discharge  of  the  Kirby  note  and  interest 
and  protest,  received  that  note  and  deposited 
it  in  the  Branch  Bank,  saying  it  would  be  an 
additional  security.  On  the  26th  of  January, 
1844,  Clarke  wrote  a  letter  to  Maybin.  say- 
ing: "i  send  you  the  stock  named,  of  which 
I  hope  to  have  arranged  in  time  to  give  satis- 
faction. I  will  see  you  in  a  short  time ;" 
and  enclosing  a  certificate,  under  the  seal 
of  the  Company,  signed  by  Ben.  Wofford, 
President,  and  Simpson  Bobo,  Secretary,  dat- 
ed in  1843,  without  further  specification  of 
time,  that  William  Clarke  is  entitled  to  265 
shares  iu  the  S.  C.  M.  Co.,  on  each  of  which 

*108 

$100  *have  been  paid,  and  that  "this  cer- 
tificate is  transferable  in  person  or  by  at- 
torney, at  the  Secretary's  office,  on  the  sur- 
render hereof." 

On  April  19,  1844,  Kilgore,  in  presence  of 
Clarke  and  Kirby,  assigned  to  Kirby  his  fi. 
fa.  against  Clarke,  upon  which  the  balance 
then  due  was  $">,982,  taking  Kirby's  two  notes 
for  $982  and  $3,000,  and  delivering  to  him  the 
60  shares  of  Clarke's  stock,  wliich  he  held 
as  collateral  security,  although  he  took 
Clarke's  receipt  for  the.se  shares.  On  June 
19,  1844,  Clarke  assigned  to  Kirby,  in  the 
books  of  the  Company,  "subject  to  all  prior 
liens,"  his  265  shares  as  security  for  the 
Kilgore  debt.  On  April  18,  1847,  the  S.  C.  M. 
Co.  gave  their  note,  since  paid,  to  Kilgore,  iu 
place  of  Kirby's  note  for  $3,000. 


MAYinX  V.  KIRBY 


*110 


In  Decomlter,  1S44,  Gen.  B.  B.  Foster  heunl 
tilt'  following  conversation  between  M;\.vbin 
and  Kirby,  in  Cohiniiiin.  viz:  M.  Wl\ere  is 
Clarke?  K.  At  borne.  M.  He  must  be  the 
most  careless  man  in  the  world.  I  liave 
taken  up  a  note  for  bim  in  tlu'  r.ank.  K.  Is 
it  tbe  note  for  vvbieb  Hobo  and  my.self  were 
sureties?  M.  It  Is.  K.  (Jive  me  tbe  note. 
M.  No,  I  have  a  settlement  to  make  with 
Clarke,  and  I  wi.sb  to  see  bim  Ix'fore  I  j^ive 
up  tbe  note. 

On  October  10,  l.S4n,  Clarke,  recitinj,',  tbat 
as  af^ent  of  tbe  S.  C.  M.  Co.,  be  bad  used  the 
means  of  that  Company  for  tbe  lienetit  of 
tbe  Xe.sbitt  Manufactnrin;,'  Coniiiany,  to  tbe 
amount  of  .$10,147.T."»,  with  interest  from  Sep- 
tember 9,  1S44,  and  tbat  tbe  former  ('om- 
pany  had  agreed  to  prosecute  tliis  claim 
against  tbe  latter  Conijiany,  assi^'ned  to  tbe 
S.  C.  M.  Co.,  in  tbe  stock  Iiook.  ids  265  .shares 
in  tbe  Company,  for  tbe  security  of  tbe  sabl 
debt,  or  for  tbe  expen.ses  of  liti^ration,  as 
the  case  mijibt   be. 

On  January  1,  1S47.  Clarke  assigned  to  the 
Company,  on  its  books,  .SO  of  bis  shares  ab- 
solutely. 

Oil  .January  2.  1847,  about  .$1,075  remained 
due  upon  tbe  note  in  tbe  Branch  liank,  and 
the  renewal  note  for  tbat  sum  bad  been  pro- 
tested. Of  tbe  payments  made  for  the  reduc- 
tion of  tbe  note  from  the  original  principal' 
of  .$2,000  and  tbe  interest  accruing,  Maybin 
admitted  tbat  Clarke  had  paid  .$."!2.5  on  May 

*109 
lo,  1844,  *$10  in  Septemher  afterwards,  and 
at  other  times  .$G0,  but  claimed  that  all  other 
payments  had  been  made  by  himself,  and  the 
books  of  the  Bank  showed  tbat  the  payments 
had  been  made  by  bim.  and  there  was  no  evi- 
dence, beyond  his  admissions,  that  Clarke 
bad  furnished  him  with  money.  I  mention 
here,  without  understaniling  the  application 
of  the  evidence,  tbat  plaintiff  produced  a 
note  for  .$40.17,  dated  January  li),  1843,  by 
Clarke.  I'resident  of  tiie  Xesbitt  Manufactur- 
ing Company,  to  Stacker,  and  the  uote  of 
Clarke  to  Maybin,  dated  January  1!).  1840, 
for  .$11.'>.66.  Stacker  was  tbe  agent  in  Colum- 
bia of  a  stage  contractor,  and  Maybin  was  a 
tavern  keeper  there,  ami  it  .seemed  to  be  in- 
ferred that  these  notes  were  given  for  Clarke's 
jstage  and  tavern  expenses  in  attending  to 
bis  notes  in   Bank. 

On  this  January  2,  1847,  In  a  conversation 
between  Elmon-  and  Clarke,  Elmore  called 
Clarke's  attention  to  the  note  in  the  Branch 
15a nk,  suggested  the  injury  to  Maybin's  cred- 
it from  tbe  non-pSiynient  of  tbe  not*'  and  the 
projjriety  of  its  re-instatement  in  tiie  Bank. 
Clarke  acknowledged  Maybin's  kindness  in 
making  advance's  for  bim  on  the  renewals 
aiRl  his  oliligation  to  indenniify  .Maybin,  and 
be,  Clarke,  drew  a  note  to  .Mayi)in,  payable 
at  the  Branch  Bank,  which  was  left  in  blank, 
as  neither  Klniore  nor  Clarke  knew  tbe 
amount  that  bad  been  paid  by  Maybin.  and  he 
drew  a  power  of  attorney  to  Maybin.  author- 


izing Maybin  to  reinstate  and  renew  tbe  said 
note  as  often  as  might  be  necessary  and 
pledging  his  said  stock  anew  for  tbe  pre- 
vious advances  of  Maybin,  and  for  any  he 
might  make  sub.setpiently.  Both  Clarke  and 
Klmore  at  this  time  sui)posed  tbat  tbe  orig- 
inal note  of  January  9,  1S44,  had  been  made 
by  Clarke  and  endorsed  by  Maybin,  and  so 
described  it  in  tbe  power  of  attorney,  and 
from  this  nnsdescrii)tion  the  paper  was  un- 
suitable and  unused. 

On  January  l."».  1S47,  Clarke,  in  considera- 
tion of  bis  indebtedness  to  the  S.  C.  M.  Co. 
in  the  sum  of  .$17.7.j.''..20,  sold  and  transfer- 
red to  said  Company  his  -{>o  shares  in  tbe 
stock  of  said  Compan.v.  19  mules.  4  horses, 
stock  of  cows  and  calves,  all  his  wagons, 
carts  and  harne.ss,  all  his  corn,  fodder,  oats 

*110 
and  bay,  all  ♦his  wooil,  coal  and  ore  on  band, 
and  all  bis  tools  as  carpenter  and  farmer, 
and  for  tbe  furnace  or  for  coaling  or  raising 
ore  or  cutting  wood,  conditioned  tbat  uidess 
he  paid  his  debt  within  two  months,  tbe  agent 
of  the  company  might  .sell  the  same,  after 
two  months'  public  notice  of  the  time  and 
place  of  sale.  This  mortgage  was  executed 
by  Clarke,  during  his  last  illness,  in  the 
presence  of  one  J.  G.  Clowdy. 

Clarke  died  January  17.  1847,  and  admin- 
istration of  his  estate  was  granted  February 
22,  1847,  to  l{ol)ert  Arnold  who  is  a  defend- 
ant in  this  suit.  His  estate  is  utterly  in- 
solvent. - 

On  July  23,  1847,  Maybin  brought  suits  at 
law  as  second  endorser  of  tbe  note  in  tbe 
Conmiercial  Bank,  against  Kirby  as  maker 
and  Bobo  as  Hrst  endorser  of  said  note. 
Tbe  case  against  Kirby  was  tried  on  the  cir- 
cuit, at  March  term,  1840,  and  resulted  in 
a  verdict  for  defendant,  (which  was  conbrm- 
ed  by  tbe  Court  of  Appeals  at  December  term, 
1840,)  on  the  ground  tbat  tbe  note  in  tbe 
Commercial  Bank  was  in  fact  I»a1d  by  Clarke, 
for  whose  acconuuoilation  it  was  discounted. 
The  e<iuities  of  tbe  plaintift'.  growing  dut  of 
his  iiayment.s-on  the  note  in  the  Branch  Bank, 
were  not  concluded.  The  case  against  I'.i>b(> 
has  not  lieen  tried,  l)ut  on  tbe  motion  of  the 
defendant.  I  put  the  plaintiff  to  his  election 
as  to  I'lobo,  to  proceed  at  law  or  in  this  fo- 
rum: be  elected  to  proceed  in  eipiit.v.  I  also 
nienii.iii.  to  avoid  any  appearance  of  sup- 
pression, that  I  overruled  the  exception-: 
Hied  by  the  plaintiff  to  tbe  answers,  and  that 
I  rejected  the  deitositions  of  Colonel  Klmore. 
taken  in  the  cases  at  law.  but  not  read  there. 

On  December  0.  1847,  William  Walker,  as 
agent  of  tbe  S.  C.  M.  Co.,  under  tbe  mortgage 
of  January  15,  1847,  sold  at  public  outcry 
after  two  months'  public  notice,  185  shares 
in  the  st(H-k  of  said  Comi)any,  being  the  whole 
of  Clarke's  shares,  after  deducting  tbe  80 
assigned  to  tbe  Company  on  January  1.  1S47. 
and  they  were  bought  by  the  Company  at 
.'{5  dollars  a  share,  making  the  aggregate  sum 
of  .$0,475.     At  this  sale  it  was  announced  by 

45 


nio 


4  RICHARDSON'S  EQUITY  REPORTS 


the  agent  that  the  Company   would  assume ' 
the  risk  of  paying  or  discharging  all  preced- 
ent   liens,-  and    tliat    the    purchaser    should 

*111 
*have  an  unincumhered  title.  This  announce- 
ment, according  to  the  answer  of  Walker, 
Agent  and  President  of  the  Company,  was 
made  in  reference  to  any  claim  that  might 
be  set  up  under  the  mortgage  to  Kirby  and 
Bobo,  "as  the  plaintitt',  since  Clarke's  death, 
had  intimated  that  he  intended  to  make  the 
Company  pay." 

A.  W.  Thomson,  from  the  beginning  a 
stockholder  in  this  Company,  testified  that 
Maybin,  in  his  presence,  got  from  the  Branch 
Bank  the  orignal  notes  to  the  Commercial 
Bank,  and  the  Branch  Bank,  and  the  papers 
connected  therewith,  and  that  before  the 
suits  at  law  were  brought,  he,  the  witness, 
offered  on  the  part  of  Maybin  to  Bobo,  who 
was  Secretary  and  Solicitor  of  the  Company, 
to  surrender  the  scrip  for  Clarke's  shares  and 
all  liens  to  the  Company,  if  Maybin's  claim 
should  be  paid ;  but  he  mentioned  nothing  of 
Clarke's  payments  to  the  Branch  Bank,  nor 
of  the  note  to  the  Branch  Bank,  regarding 
the  note  in  the  Commercial  Bank,  as  the 
measure  of  ^lay Inn's  damages.  Bobo  and 
Walker,  in  their  answers  do  not  admit,  but 
deny  notice  of  ]Mayl)in's  possession  of  this 
scrip,  before  the  suits  at  law  or  the  sale  in 
December,  1847,  and  if  the  fact  be  important, 
it  is  not  proved  according  to  the  rules  of  evi- 
dence ;  in  my  view  the  fact  is  luiimportant. 
It  is  admitted  that  before  this  bill  was  filed 
the  Company  had  full  notice  of  Maybin's 
claim. 

At  a  meeting  of  the  stockholders  of  the  S. 
C.  M.  Company,  held  January  27,  1837,  a  bye- 
law  was  adopted,  "that  all  transfers  of  stock 
shall  hereafter  appear  on  the  books  of  the 
Secretary  by  the  certiHcate  of  the  pei-son  sell- 
ing." Again  at  the  meeting  in  January,  1839, 
these  bye-laws  were  adopted,  "that  the  trans- 
fer of  stock  shall  be  made  on  the  books  as 
now  required,  and  that  when  any  stockholder 
sells  less  than  the  amount  of  his  whole  shares 
he  shall  produce  his  certificate  to  the  Secre- 
tary, who  shall  indoi-se  thereon  the  number 
of  shares  sold,  and  to  whom  sold;  where- 
upon the  new  stockholder  shall  be  entitled  to 
his  certificate;  that  when  a  stockholder  sells 
out  his  whole  stock,  he  shall  transfer  in  writ- 
ing his  certificate  of  stock  to  the  purchaser ; 
whereupon  the  new  purchaser  may  demand 
his  certificate ;    that  so  far  as  the  Company 

*112 

*and  its  interests  are  concerned,  no  transfer 
of  stock  shall  be  considered  as  perfect  until 
the  foregoing  regulations  for  transfers,  are 
complied  with." 

In  this  state  of  facts  this  bill  was  filed  by 
Maybin  on  April  IS,  1850.  In  the  prayer  of 
the  bill  and  in  the  argument  of  his  counsel, 
his  claim  to  be  reimbur.sed  for  the  monies  he 
has  paid  on  account  of  Clarke  is  maintained 
16 


in  various  forms  and  on  different  grounds  of 
equity. 

First,  it  is  said  the  defendants  are  pei-son- 
ally  liable  to  him.  To  this  it  is  well  an- 
swered, that  Clarke's  estate,  represented  by 
defendant  Arnold,  is  utterly  insolvent;  that 
there  is  no  privity  of  contract  between  the 
plaintiff  and  the  S.  C.  M.  Co.,  and  that  the 
claim  liy  contract  against  Kirby  and  Bobo,  if 
not  determined  by  the  Court  of  Law,  is  bar- 
red by  the  plea  of  the  statute  of  limitations, 
of  which  these  defendants  have  availed  them- 
selves. 

Again:  It  is  strongly  urged  that  Maybin's 
note  in  the  Branch  Bank  was  merely  a  sub- 
stituti<ni  for  the  note  of  Kirby  endorsed  by 
Bobo  and  discounted  in  the  Commercial 
Bank,  and  that  the  latter  being  negotiated  for 
the  purpose  of  paying  a  portion  of  Kilgore's 
execution,  and  the  proceeds  being  so  actually 
used,  it  should  represent  so  much  of  this  ex- 
ecution as  it  paid,  with  all  its  collateral  se- 
curities;  consequently,  that  the  plaintiff,  by 
subrogation  or  substitution  is  entitled  to  the 
benefit  of  the  60  shares  in  the  stock  of  the 
S.  C.  M.  Co.,  assigned  by  Clarke  to  Kilgore 
as  collateral  security,  and  to  SO  of  the  100 
shares  assigned  to  Kirby  and  Bobo,  as  col- 
lateral .security  for  the  note  made  and  en- 
dorsed by  them,  granting  that  20  of  these 
latter  shares  were  assigned  to  Bol)o  individ- 
ually for  the  Cleveland  debt.  It  is  not  ray 
purpose  to  discuss  the  doubtful  doctrines  thus 
presented,  inasmuch  as  after  the  decision  at 
law  in  Maybin  v.  Kirby,  comity  requires  me 
to  determine  that  there  is  no  foundation  in 
fact  for  this  superstructure  of  principles. 
If  the  Kirby  note  were  discounted  for 
Clarke's  acconnnodation  and  paid  by  the  mon- 
ey of  him  as  endorser,  this  contract  with  all 
its  incidents  would  seem  to  be  extinguished, 

*113 
and  *the  note  in  the  Branch  Bank  is  a  new 
and  independent   arrangement. 

Finally,  the  plaintiff  rested  his  claim  to 
be  reimbursed  for  his  payments  on  the  note 
in  the  Branch  Bank  upon  the  deposit  with 
hiiu  by  Clarke,  in  January,  1S44,  of  his  scrip 
for  shares  in  the  S.  C.  M.  Co. 

This  scrip  was  the  title  of  Clarke  to  his 
shares  of  the  capital  of  said  Company;  and 
the  delivery  of  it  to  Maybin,  in  consideration 
of  the  liability  he  had  incurred  for  the  own- 
er, creates  a  lien  in  equity  upon  these  shares, 
to  the  extent  of  his  liability.  Ever  since 
Russel  V.  Russel,  (1  Bro.  C.  C.  269.)  it  has 
been  recognized,  that  a  deposit  of  title  deed, 
upon  an  advance  of  money  constitutes  an 
equitable  mortgage  even  of  lands  notwith- 
standing the  provisions  of  the  statute  of 
frauds.  See  Welsh  v.  Usher  (2  Hill  Eq.  170 
[29  Am.  Dec.  63])  where  at  the. time  of  the 
sale  of  a  ship  an  indorsement  was  made  on 
her  Register  that  the  vessel  should  not  be 
sold  until  the  notes  given  for  the  purchase 
money  were  paid;  and  the  Register  was  left 
with  the  vendor.     This  was  held  to   be  an 


MAYniNT  V    KIUnY 


*11G 


equitable  mortjiage  of  the  ship  to  tlie  vendor,  ] 
valid  af^ainst  the  claims  of  sulisctiueut  at-  | 
tachiiig  creditors.  Similar  liens  have  been  j 
recognized  in  Head  v.  Simons,  (U  I>es.  ij't'2:)  , 
Menude  v.  Dclaire.  (Id.  ")«>:>:)  Massey  v.  Mc- J 
Ilwain.  (:.'  Hill.  Kq.  4-_'l:)  Dow  v.  Ker,  (Sp.  | 
Eq.  417.)  ' 

Such  a  lien  would  not  prevail  against  a 
subsequent  purchaser,  for  valualde  considera- 
tion without  notice.  I'.nt  the  defendants 
cannot  Itring  them.selves  within  the  protec- 
tion of  this  plea.  Itecause  the.v  have  not  fonn- 
all.v  pleaded  the  plea,  nor  actuall.v  paid  any 
pait  of  the  purchase  money,  nor  a<quired  the 
legal  title.  (Williams  v.  Hollingsworth,  1 
Strob.  K<i.  11.".  [47  Am.  Dec.  r»-J7|:  Md'.ee  v. 
I.oftis  *:  IIanq)ton,  1  Strob.  Va{.  !>.-.;  ("rocker 
V.  Dillard  &  Kir1>y.  Sp.  Va\.  27:  Shultz  v. 
Carter.  Id.  541.';  Hush  v.  Hush.  :'.  Strob.  Eq. 
i:;5  [51  Am.  Dec.  (Jl'A-)  The  purcliase  of  a 
chose  in  action — and  such  I  consider  to  be 
the  character  of  the  contract  made  with  tlie 
S.  C.  M.  Co.  in  December.  1.S47— is  not  with- 
in the  rule  which  protects  purchasers  for  a 
valuable  consideration ;  and  the  vendee  takes 

*114 
only  such   in*terest  as  the  assignor  has  in 
the  subject,  and  he  will  be  bound  by  all  the 
eipiities   liinding  on   the  latter.     Where   the 
eipiities  of  persons,  claiming  under  the  origi- 
nal  holder  of  a   chose  in  action,  are  equal, 
the  maxim  prior  in  tempore,  potior  in  jure, 
will  apply.     If  the  first  piu-chaser  or  assignee 
be  guilty  of  fraud,  or  what  is  etiuivalent,  of 
such  gross  negligence  in  the  assertion  of  his 
right,  as  enables  the  assign<u-  to  practice  a 
deceit  on  a  second  purchaser,  his  equity  will 
i»e  postponed  to  that  of  the  second  bona  fide 
pnrchaser.      CJd    White   &   Tudor's   I-.   C.   pt. 
•_',  2:U.)     Thus,  where  a  party  suffers  stock, 
or  other  choses  in  action  belonging  to  him. 
to    stand   in   the  name   of   another,   perhaps 
his  ecpiity   may  be  postponed  to  that  of  an 
innocent  purchaser  from   the  latter.     It   was 
.•<o  decided   in    Hedfearn   v.   Ferrier.   (1   Dow. 
r,().)    under    the     S<'otch    law,    altlmugli     Sir 
Samuel   Komilly  treated   the  (loctriiie  as  un- 
known to  the  English  law. 

It  was  urged  in  this  case,  on  the  part  of 
the  S.  C.  M.  Co.,  that  the  plaiiitilT  by  neglect- 
ing to  give  notice  to  the  Company  of  his 
possession  of  Clarke's  scrip  until  they  had 
pnrchased,  and  by  neglecting  to  conqtly  with 
the  bye-laws  of  the  Company  as  to  trans- 
fers of  stock  had  forfeited  his  prior  eqnity. 
qMiere  would  have  Iteen  nuich  force  in  this 
argument  as  to  notice  if  the  plaintiff  had 
allowed  Clarke  to  retain  the  scrip,  which 
was  the  evidence  of  title,  and  thus  hold  him- 
self out  as  unincumbered  owner:  bnt  in  fact 
tlie  plaintiff  kept  the  scrip,  and  produced  it 
at  the  trial.  Tin*  argument  would  have  had 
some  weight  if  Clarke  had  practiced  upon 
the  credulity  of  the  Conu)any.  by  pretend- 
ing, at  any  time,  that  his  scrip  was  lost  or 
mislaid;  but  there  is  no  evidence  tliat  in 
any  of  the  transactions  between  Clarke  and 


tlie  Comiiany,  any  inquiry  or  representation 
was  made  as  to  the  scrip.  If  the  Couqiany, 
in  taking  transfers  from  Clarke,  had  pursued 
the  terms  of  their  bye-laws,  and  of  their 
certificates  of  sto<k,  l>y  re<iuiring  the  produc- 
tion of  Clarke's  certificate,  they  might  have 
ascertained  the  plaintiff's  mortgage.  A  plea 
of  i)urchase  for  valuaitle  consitlerati<m,  with- 
out notice,  is  no  protection  against  an  ad- 
verse claim  of  which  the  purchaser  might 
have   had    notice,    by    using  due  diligence    in 

♦115 
♦investigating  the  title.  (Jackson  v.  Rowe,  2 
Sim.  and  Stn.  47'_'.  1  C.  E.  C.  C.  550;  Crocker 
v.  Dillard.  Sp.  E(i.  Ii7— Hoyce  v.  Coster's 
Ex'rs,  MSS.  Charleston.  l.s,50  [4  Strob.  Eii. 
25].)  Again:  Thom.son,  one  of  the  stock- 
holders of  the  Company,  had  explicit  notice 
of  plaintiff's  mortgage;  and  it  is  manifest 
from  the  answer  of  the  I'resident  of  the 
Company,  that  the  Company,  bef(U-e  the  sale, 
knew  the  plaintiff's  intention  to  make  the 
Company  pay  in  some  mode  or  other. 

It  is  not  clear  that  the  bye-laws  of  the 
Conq)any,  concerning  transfers  of  stock,  ex- 
tend beyond  the  case  of  absolute  sales;  but  it 
is  unnecessary  to  determine  any  thing  on  this 
point— for  if  they  include  conditional  sales, 
as  mortgages,  the  Company  has  violated 
them,  at  lea.st  as  much  as  the  plaintiff,  in 
negleW^ing  to  have  Clarke's  certificate  pro- 
duced and  assigned.  It  does  not  appear  that 
the  sale  of  I)ecend)er,  1S47,  has  l)een  entered 
in  the  biioks  of  the  Company.  lUit  on  what 
s(mnd  principle  can  it  be  maintained,  that 
the  private  regulations  of  a  corporate  Ixxly, 
bind  other  persons  than  stockholders,  who 
have  no  notice  of  such  regulationsV 

I  conclude  that  the  plaintiff  and  the  Com- 
pany have  both  merely  etpiities  as  to  Clarke's 
stock,  and  that  there  is  no  circumstance  to 
rebut  the  prevalence  of  the  plaintiff's  e<piity. 
according  to  its  date. 

In  this  view,  and  regarding  the  liens  of 
Kilgore  and  Kirby  and  H.olio  as  extinguished 
—the  plaintift"s  mortgage  is  anterior  to  all 
other  liens  or  assignments,  except  those  to 
the  Company  of  1(K)  shares,  on  September  IM. 
ISV.i.  As  to  this  last,  no  proof  was  offered 
Iteyond  the  execution  of  the  assignment:  but 
its  validity  may  \^e  conceded,  as  the  remain- 
ing shares  are  adequate  to  satisfy,  many 
times  over,  the  ]ilaintilT's  claim. 

As  to  the  amount  for  which  plaint  iff  is 
entitled  ti>  reimbursement,  there  nmst  be  a 
reference  to  the  wnunissioner.  A  mortgagee 
coming  into  etjuity  for  foreclosure,  can  de- 
nnintl  only  the  deltt  secured  by  the  mortgage. 
(Walling  V.  Aiken.  McMnll.  E.i.  1.)  The 
plaintiff  here  must  be  limited  to  his  payments 
on   the   note   in  the   Hranch   Bank.     It    was 

♦116 
said  in  the  argument,  that  on  the  *renewal 
note  in  the  Hank,  simiething  still  remained 
uiqtaid.  Hut  as  the  plaintiff  produced  the 
original  note,  I  conclude  that  the  renewal 
note  of  Maybiu  was  accei>ted  by  the  I'.ank.  in 

47 


416 


4  RICHARDSON'S  EQUITY  KKPORTS 


satisfaction  of  the  original  liaJiility,  and  tliat 
the  plaintiff  is  entitled  to  reimbursement  for 
the  whole  of  the  original  sum,  with  interest 
and  legal  expenses,  except  such  sums  as  by 
his  admissions,  or  other  proof,  have  been 
paid  by  Clarke,  or  other  persons  for  him. 

It  is  ordered  and  decreed,  that  it  be  re- 
ferred to  the  commissioner  of  this  Court,  to 
inquire  and  report  as  to  the  sums  paid  by 
the  plaintiff  on  the  note  to  the  Branch  Bank, 
of  January  9,  1844,  and  the  renewals  there- 
of; and  that  if  the  South  Carolina  :\Ianu- 
facturing  Company  do  not  pay  to  the  plain- 
tiff the  amount  of  such  sums,  with  interest, 
when  ascertained,  the  commissioner  of  this 
Court  proceed  to  sell  so  many  of  the  shares 
held  by  said  William  Clarke,  in  the  stock 
of  said  Company,  not  exceeding  105  shares, 
as  will  satisfy  the  amount  due  to  the  i)lain- 
tiff.  It  is  also  ordered,  that  the  said  S.  C. 
M.  Company  pay  all  the  costs  of  this  suit. 

The  South  Carolina  Manufacturing  Com- 
pany appealed,  and  moved  this  Court  to  re- 
verse the  circuit  decision,    on   the   grounds: 

1.  Because  the  deposit  of  the  scrip  with 
the  complainant  created  no  lieu  upon  the 
stock  of  Clarke. 

2.  Because  the  defendants  had  the  first 
and  only  legal  lien  upon  the  stock  of  William 
Clarke;  and  having  sold  the  stock  under 
their  lien,  and  being  the  purchasers  thereof 
without  notice  of  the  complainant's  claim, 
they  ought,  in  .justice  and  equity,  to  hold  it. 

3.  Because,  if  the  complainant  ever  had 
any  just  claim  upon  the  stock,  he  forfeited 
it  by  neglecting  to  give  notice  of  his  claim 
in  a  reasonable  time. 

4.  Because  the  decision  was  against  law 
and  equity,  and  the  usages  and  practice  of 
this  Court. 

Bobo,  for  appellants. 
Thomson,  contra. 

*117 

*PER  CURIAM.  This  Court  concurs  in  the 
decree  of  the  Chancellor ;  and  it  is  hereby 
affirmed  and  the  appeal  dismissed. 

JOHNSTON,     DUNKIN,     DARGAN     and 
WARDLAW,  CO.,  concurring. 
Appeal  dismissed. 


4   Rich.  Eq.    117 

A.  McMULLEN  et  al.  v.  .JAMES  CATHCART 

et   al. 

(Columbia.     Nov.   and  Dec.  Term,  1851.) 

[Equity  <S=»375.] 

It  would  be  ucplete  with  inconvenience  to 
sanction  a  practice  of  hearing  a  cause  piece- 
meal, or  by  detached  parts.  It  is  the  duty  of 
the  plaintiff  to  be  fully  prepared  at  the  hearing; 
and  if  from  the  death  of  a  party  and  the  want 
of  time  to  bring  new  parties  before  the  Court, 


the  cause  cannot  be  fully  heard,  leave  will  be 
given  to  postpone. 

[Ed.  Note. — For  other  cases,  see  Eiputy,  Cent. 
Dig.  §^  785,  786;    Dec.  Dig.  <S='375.] 

[Execution  (S=>348.] 

A  having  an  execution  against  B's  testator, 
B  bori'owed  money,  giving  A  as  liis  surety,  and 
l)ai(l  the  money  to  A  on  the  execution  :  B  died 
insolvent,  and  A,  as  his  surety,  was  compelled 
to  pay  the  mone.v: — Held,  that  the  execution  of 
A  against  the  testator  was  satisfied  to  the 
amount  of  the  money  borrowed  by  B  and  paid 
to  A. 

[Ed.    Note. — For    other   cases,    see    Execution, 
Cent.  Dig.  §  10G4  ;    Dec.  Dig.  (S=j348.] 

Before  Dargan,  Ch.,  at  Chester,  .Tul.v,  1850. 

Dargan,  Ch.  Hugh  McMullen,  late  of 
Chester  District,  died  in  December,  1841, 
testate.  He  was  seized  and  possessed  of  a 
good  real  and  personal  estate  at  the  time  of 
his  death.  By  his  will,  he  directe<l  tliat  his 
estate  should  be  kept  together  and  euq)loyed 
in  agricultural  operations,  to  be  conducted  by 
his  executors  until  a  sufficient  fund  was  rais- 
ed for  the  payment  of  his  debts.  In  aid  of 
the  fund  thus  to  be  raised  for  the  payment  of 
debts,  his  executors  were  authorized  to  sell 
certain  lands  of  the  testator  in  Lancaster 
dislrict,  and  if  both  of  these  sources  were  in- 
sufficient to  raise  the  adequate  amount,  the 
executors  were  authorized  to  sell  any  portion 
i  of  the  personal  estate.  The  testator,  after 
the  payment  of  debts,  gave  his  large  and 
valuable  plantation  on  the  Catawba  river, 
on  which  he  dwelt,  and  the  whole  of  his  per- 
sonal estate,  consisting  of  26  negroes,  stock, 
&c.,  to  his  two  sons,  Joseph  J.  McMuUeu  and 
James   C.    McMullen,    for  life,   and  at   their 

*118 

deaths  *respectively,  to  such  lawful  issue  of 
their  bodies,  as  may  be  living  at  their  death ; 
with  a  power  to  the  said  Joseph  and  James 
C.  ]\IcMullen,  to  sell  the  said  estate,  and  to  re- 
invest the  proceeds  of  the  sale,  on  the  same 
conditions  and  limitations. 

James  Cathcart  and  Caleb  Clark,  sen., 
were  nominated  executors  of  the  will.  They 
declined  the  trust,  and  administration,  with 
the  will  annexed,  was  granted  to  Joseph  J. 
McMullen — James  Cathcart,  Robert  Cathcart, 
Caleb  Clark,  and  the  complainant,  James  C. 
McMullen,  being  the  sureties  on  his  adminis- 
tration bond.  Joseph  J.  Mc^NIullen  having 
thus  qualified,  assumed  upon  himself  the  exe- 
cution of  the  will,  and  continued  to  act  in  the 
character  of  administrator,  with  the  will  an- 
nexed, from  the  death  of  testator,  in  the  ear- 
ly part  of  the  year  1842,  until  his  own 
death,  which  occurred  on  the  5th  of  October, 
1845. 

Joseph  J.  MclNIuUen  had  a  sale  of  some  of 
the  personal  property,  on  the  15th  of  Febru- 
ary, 1842,  and  hired  out  the  negroes,  and 
rented  the  land  for  that  year  and  for  1843. 
His  estate  is  also  to  account  for  the  rent  of 
land  and  hire  of  negroes,  for  the  years  1844 
and   1845,   and  for  any   choses  in  action  or 


48 


<S=^For  other  cases  see  same  toijic  and  KEY-NUMBER  iu  all  Key-Numbered  Digests  and  Indexes 


McMULLEN  v.  CATHCART 


*121 


ns:«iets  which  may  have  come  into  liis  pos- 
session. 

On  the  first  day  of  Dt'cemher,  lS4o,  the 
said  Joseph  J.  McMulleii  (•ft\'ic<l  the  Catawha 
phmtation.  consisting  of  alumt  IL'OO  acres,  at 
public  sak>,  and  l)ecame  hini.self  the  purchas- 
er tliereof.  at  ^U.'.)0  per  acre,  he  lieini:  at  that 
price  tlie  hifrliest  lii(hler.  This  plantation  he 
claimed,  cultivated,  and  used  as  his  own.  to 
the  day  of  his  death.  He  divid<>d  the  negroes, 
deliverinj;  about  one  half  to  his  brother  and 
co-lefratee,  James  C.  McMullen,  one  of  the 
complainants.  Hut  whether  this  was  intend- 
ed as  a  final  or  provisional  partition  of  the 
negroes,  does  nfit  appear. 

On  the  oth  of  October.  lS4r(.  h(>  died  inti>s- 
tate  and  insolvent,  Univini:  his  wife,  Mrs. 
Jemima  Mc.Mullen.  and  two  children,  Alex- 
ander and  Lucy  McMullen,  wlio  are  infants, 
and  complainants  in  this  bill.  No  application 
for  h^tt(>rs  of  administration  ui)on  liis  estate 
having  been  made.  James  Withei-siioon,  ordi- 
nary Lancaster  district,  where  the  intestate 

*119 
resided,  has  taken  the  poss('s*sion  and  man- 
agement of  the  estate,  as  a  derelict  estate, 
according  to   the   Act   of   Assembly,   in   such 
case  made  and  i»rovided. 

After  '.he  death  of  Joseph  J.  McMullen.  in 
1845,  Caleb  Clark  and  James  Cathcart.  on  .*}d 
November,  1S45,  obtained  letters  of  adminis- 
tration of  the  estate  of  Hugh  McMullen,  de 
bonis  non,  and  with  the  will  annexed,  and 
assumed  upon  themselves  the  execution  of 
that  trust. 

The  next  event  was  the  levy  and  sale  by 
the  sheriff  of  Chester  district  of  the  Cataw!>a 
plantation,  and  the  negroes  of  the  estate 
that  had  remained  in  possessicm  of  J.  J.  Mc- 
Mullen, being  eleven  in  number.  Tlie  sales 
were  made  to  satisfy  executions  in  force 
against  the  estate  of  the  testator.  A  very 
large  proportion  of  the  indebtedness,  to  satis- 
fy wliich  the  sales  were  made,  was  due  to 
Caleb  Clark  himself,  on  an  outstandng  and 
old  execution  that  had  existed  against  the 
testator  for  years  before  his  death.  This  was 
the  senior  execution.  It  had.  before  the  sale, 
been  assigned  to  the  Bank  for  .$4,r)00,  with  a 
guaranty  ity  Clark  to  the  Baid<  for  its  ulti- 
mate payment.  The  amount  due  to  the  Rank 
was  not  eipial  to  tlie  balance  remaining  due 
upon  the  execution.  This  balance  belonged  to 
Clark.  After  the  sale,  Clark  and  James 
Cathcart  paid  to  the  Bank  the  amount  of  its 
claim,  and  obtained  a  discharge.  There  were, 
at  the  time  of  the  sale,  other  executions  In 
the  sheriff's  office,  namely,  ouo  in  favor  of 
•Robert  Cathcart,  one  in  favor  of  John  K(>iuie- 
dy,  one  in  favor  of  James  K.  Ma.ssey,  one  in 
favor  of  Wm.  Dunlap,  and  one  in  favor  of 
J.  N.  Smith.  This  last  had  been  assigned  to 
C.  Clark,  and  belonged  to  him  at  the  time  of 
the  sale. 

William  A.  Rosborougb,  a  former  sli(>riff, 
testified,  that  when  Clark  lodged  the  exeuu- 
tion  in  the  case  of  C.  Clark  v.  Hugh  McMul- 

4  Rich. Eq.— 4 


len.  in  the  sheriff's  office,  he  informed  him 
that  there  were  several  credits  to  go  (m  it. 
lie  said  he  did  not  recollect  the  amounts,  but 
he  had  a  memorandum  of  them  at  home. 
The  witness  did  not  recollect  whether  this 
conversation  occurred  while  he  was  sheriff 
hini.self,  ()r  while  he  was  acting  as  the  deputy 
of  his  predecessor.  R  C  Cabeen.  It  was  aft- 
er the  death  of  II.  McMullen. 
*120 

♦On  the  5th  of  January,  1^40.  the  Catawba 
plantation,  containing  about  1200  acres,  and 
the  negroes  aforesaid,  were  sold  by  the  sher- 
iff to  satisfy  the  executions  aforesaid,  then 
remaining  in  his  olfice.  On  the  day  of  sale, 
a  claim  was  publicly  set  up  to  the  land,  or  a 
part  of  it,  in  b«'balf  of  the  gi'and-children  of 
Mrs.  Charlotte  McMullen.  wife  of  the  testa- 
tor, Hugh  McMullen.  This  claim  was  inter- 
po.sed  on  the  part  of  the  children  of  her 
daughters.  Mrs.  Woodward  and  Mrs.  Clark, 
both  deceased.  It  seems  that  a  portion  of 
the  Catawba  plantation,  known  as  the  Leon- 
ard tract,  containing  about  200  acres,  was  the 
inheritance  or  real  estate  of  Mrs.  C.  McMul- 
h'U.  She  died  in  the  life-time  of  her  said 
husband.  On  her  death.  Hugh  ^IcMullen  be- 
came seized  of  one-third,  and  James  ('.  Mc- 
Mullen, Joseph  J.  Mc.MulhMi.  INIrs.  Woodward 
and  Mrs.  Clark,  (or  their  children  rei)resent- 
ing  them,)  became  entitled  each  to  one-fourth 
of  two-thirds.  James  C.  and  Jos.  McMullen. 
had,  by  a  deed  duly  executed,  conveyed  all 
their  share  or  interest  in  their  mother's  real 
estate,  to  their  father,  Hugh  .McMullen,  in 
his  life  time.  So  that  at  the  time  of  tbe  sale, 
the  only  real  claim  outstanding  against  the 
title  of  the  testator  to  the  whole  of  the  Ca- 
tawba plantation,  was  that  on  the  part  ftf  the 
Woodwards  and  Clarks  to  one-third  of  the 
two  hundred  acres,  known  as  tlie  Leonard 
tract. 

These  adverse  claims  were  made  to  assume 
a  formidable  and  exaggerated  asiiect.  The 
sale  of  the  whole  plantation  was  forbid  by 
a  written  notice  .served  on  the  sheriff.  Neith- 
er the  character  nor  extent  of  the  adverse 
claims  was  explained.  It  was  not  shown 
how  the  adverse  claimants  derived  tlieir  ti- 
tle. It  is  charged  in  the  bill,  and  admitfed 
by  C.  Clark,  that  he  was  fully  acqinunted 
with  the  nature  and  extent  of  these  adverse 
claims. 

D.  G.  Stinson,  testified,  that  he  was  present 
at  a  trial  in  the  Court  of  Common  I'leas  for 
Lancaster,  when  Caleb  Clark  produced  a 
deed  of  assignment  by  James  C.  and  J.  J.  Mc- 
Mullen, to  their  father,  of  all  their  right  in 
their  mother's  part  of  the  Ix>onard  tract  of 
land.  Yet  Clark  made  no  explanations  as  to 
the  nature  and  extent  of  the  outstanding  and 

♦121 
adverse  claims.  He  was  asked  *to  consent 
that  the  sale  should  be  postponed,  in  order 
that  the  adverse  claims  niiglit  be  examined 
and  ascertained.  This  he  refused,  and  insist- 
ed that  the  sale  should  go  ou.     His  execu- 

48 


•121 


4  RICHARDSON'S  EQUITY  REPORTS 


tion,  the  oldest  in  the  office,  was  open  for  the  i 
full  amount  clue  upon  its  face,  according  to 
the  original  confession,  though  there  were 
iai'ge  credits  that  should  have  been  endorsed 
upon  it.  At  the  sale,  there  was  no  explana- 
tion made  as  to  the  actual  amount  due  upon 
the  execution.  It  was  originally  for  a  large 
sum.  It  had  been  drawing  interest  for  a 
great  many  years,  (from  27th  February, 
1822,)  and  the  amount  apparently  due  was 
very  large ;  not  less,  in  fact,  than  $9,000. 
All  these  circumstances  tended  in  a  very  con- 
siderable degree  to  damp  and  injure  the  sale. 
They  had  such  an  effect  upon  the  sheriff, 
(James  Pagan,)  that  he  thought  it  best  to  of- 
fer only  the  right  and  interest  of  Hugh  M'c- 
Mullen  in  the  laud.  The  land  was  thus  of- 
fered—a mode  of  selling  which  had  a  still 
further  tendency  to  prejudice  the  title  in  the 
estimation  of  bystanders  and  bidders,  and  to 
cool  the  ardor  of  comiietition.  Under  tliese 
circumstances,  C.  Clark  became  the  purchaser 
of  tlie  Catawba  plantation  for  the  sum  of 
$3,700,  took  sheriff's  titles,  and  has  been  in 
the  possession  and  use  from  tliat  time  to 
the  day  of  his  death  :  and  his  heirs  and  rep- 
resentatives, since  his  death,  to  the  present 
time,  have  continued  to  use  and  cultivate 
the  said  plantation  for  the  benefit  of  his  es- 
tate. This  is  a  valuable  property,  and  I  am 
satisfied  from  the  evidence,  was  worth,  at 
the  time  of  the  sale,  $10  per  acre,  or  .$12,000. 

It  is  impossible  that  this  sale  should  stand. 
The  property  was  worth  more  than  three 
times  the  amount  it  brought  at  the  sale.  It 
was  an  unconscionable  speculation  by  the  ad- 
ministrator, against  the  estate  he  represent- 
ed. If  the  sale  had  been  fair,  under  tlie  Act 
of  1839  C.  Clark  would  have  been  entitled 
to  hold  the  property,  and  the  title  would 
have  vested  in  him,  on  the  condition  of  his 
being  charged  with  and  paying  the  actual 
value  at  the  time  of  the  sale.  But  I  do  not 
think  that  tne  purchase  was  fairly  made. 
And  this  is  shown  by  the  circumstances  which 
I  have  narrated.  I  am  satisfied,  if  the  ad- 
ministrator,   C.    Clark,    had    performed    liis 

*122 
*duty  on  that  day,  in  stating  the  actual 
amount  due  to  himself,  and  in  clearing  his 
testator's  title  of  the  suspicions  and  doubts 
that  were  cast  upon  it.  the  land  would  have 
sold  for  a  much  larger  price.  The  transac- 
tion wears,  in  my  judgment,  the  appearance 
of  finesse,  and  there  was  a  concealment  of 
circumstances  on  the  part  of  the  administra- 
tor, which  prejudiced  the  estate,  and  secured 
to  him  the  benefits  of  a  gi-eat  bargain. 

This  [leing  my  conclusion,  the  sale  must  be 
.set  aside,  and  the  sheriff's  conveyance  deliv- 
ered up  to  be  cancelled.  And  it  is  so  order- 
ed and  decreed. 

It  appears  from  the  answer  of  C.  Clark 
and  James  Cathcart,  that  there  was  another 
small  tract  of  land  of  testator's,  in  Chester 
district,  containing  40  acres,  which  was  sold 
on  the  same  day  by  the  sheriff.  This  tract 
50 


was  bid  off  by  Mrs.  Jemima  McMullen,  (the 
widow  of  Jos.  J.  McMullen,)  for  what  price 
does  not  appear.  She  transferred  lier  bid  to 
Richard  Cathcart,  by  whom  it  was  transfer- 
red to  Caleb  Clark,  who  took  sheriff's  titles 
for  the  same,  and  still  held  it  in  his  posses- 
sion at  the  date  of  his  answer.  There  being 
no  allegations  in  the  bill,  impugning  the  sale 
of  this  tract  of  land,  nor  in  fact  any  proof 
that  it  was  not  fairly  sold,  and  for  full  val- 
ue, it  is  not  my  purpose  in  this  decree  to 
disturb  that  sale. 

The  negroes  of  the  testator,  sold  by  the 
sheriff  on  the  first  Monday  in  January,  1846, 
(eleven  in  number,)  were  all  bid  off  by  the 
other  administrator,  James  Cathcart,  with 
the  exception  of  one  negro  boy  named  Hor- 
ace. He  was  bid  off  by  A.  Q.  Dunovant,  but 
the  boy  being  anxious  to  go  with  his  kindred, 
James  Cathcart  purchased  him  from  Duno- 
vant, at  an  advance  upon  his  bid.  The  an- 
swer states,  that  some  of  the  eleven  negroes 
were  old  and  some  young.  That  they  brought 
the  aggregate  sum  of  $4,414,  equal  to  an  aver- 
age of  $416,  and  that  this  price  was  full  and 
fair.  It  seems,  on  the  same  authority,  that 
after  the  negroes  were  bid  off  by  James 
Cathcart,  and  without  any  previous  under- 
standing to  that  effect,  he  and  Caleb  Clark 
agreed  to  divide  the  negroes.  Under  this 
agreement,  the  negroes  were  divided ;  James 
Cathcart   taking    five    at    $1,865,    and    Clark 

*123 
taking  six  at  the  price  of  *$2,549.  The  only 
evidence  on  the  subject  of  the  price  of  the 
negroes,  besides  the  statement  of  the  answer, 
is  that  of  James  Pagan,  the  sheriff,  who 
made  the  sale.  He  says,  that  "the  negroes 
sold,  not  for  a  high  price,  but  for  a  pretty 
fair  price,  considering  the  time  at  which  they 
were  sold."  I  see  no  unfairness  in  the  sale 
of  the  negroes.  They,  as  well  as  the  land, 
were  sold  under  bona  fide  executions,  at  the 
suit  of  other  persons  than  the  administra- 
tors. There  were  no  attempts  or  circum- 
stances to  depreciate  their  value,  or  to  throw 
doubt  and  suspicion  on  the  title.  The  price 
given  was  adequate,  and  though  purchased 
by  an  administrator,  we  have  seen,  that,  un- 
der the  provisions  of  the  Act  of  1839,  (11 
Stat.  62,)  an  administrator  is  permitted  to 
purchase  the  property  of  his  testator  or  in- 
testate, under  whatsoever  authority  the  sale 
shall  be  made ;  provided,  he  gives  the  actu- 
al value  of  the  property  at  the  time  of  the 
sale.  I  see  no  reason,  therefore,  for  the 
Court  to  interpose  in  regard  to  the  sale  of 
the  negroes ;  and  so  much  of  the  bill  as 
prays  that  the  sale  of  the  negroes  be  set 
aside,  is  dismissed. 

There  were  two  tracts  of  land  owned  by 
Hugh  McMullen,  in  Lancaster  district.  Both 
of  these  were  sold  by  the  sheriff  of  that  dis- 
trict. The  complainants  cliarge  in  their  bill, 
that  these  lands  were  purchased  at  very  in- 
adequate prices,  for  the  benefit  of  the  sure- 
ties to  the  administration  bond  of  Jos.  J.  Mc- 


McMULLKX  V.  CATIICART 


*12G 


Mnlloii.  Tlierp  Is  no  evidence  before  me  of 
file  «ni:intit.v  of  tln'se  two  tracts  of  laiul.  their 
valn«'.  file  prices  at  which  they  sold,  at  whose 
instance,  or  when  they  were  sold,  further 
than  what  is  to  he  found  in  the  answer  of 
("lark  and  James  rathcart.  They  state,  that 
the  tracts  contained  ahout  ri(M»  acres  each, 
that  they  were  sold  hy  the  sheriff  of  Lancas- 
ter, under  e.\e<utions  in  his  ollice,  and  that 
one  of  the  tracts  was  punhased  hy  Itichard 
Cathcart  for  $()"».  and  the  other  hy  the  same 
Iiarfy  for  .$(;0.  It  is  denied  l>y  Caleh  Clark, 
in  his  answer,  that  the  sale  was  made  under 
his  execution,  or  that  he  knew  of  the  sale 
mitil  some  time  afterwards.  He  says  that  he 
has  been  informed,  that  the  sale  was  made 
under  the  execution  of  Wm.  Dunlai).  He  fur- 
ther states,  that  the   sale   of  the   I^incaster 

*124 
♦tracts  was  long  anterior  to  flie  Chester 
sale,  in  the  life-time  of  Joseith  .1.  McMuUen, 
the  late  administrator,  and  before  the  said 
Clark  represented  the  estate,  or  bore  any 
other  relations  to  the  estate  than  those  of  a 
creditor.  There  is  no  proof  to  the  contrary 
of  this  statement,  and  if  it  is  not  to  be  tak- 
en as  evidence,  there  is  no  evidence  at  all 
upon  tlie  subject.  Kichard  Cathcart  bore  no 
fiduciary  relations  to  the  estate  of  Hugh 
.Mc.Mullen,  which  woukl  forbid  his  purchas- 
ing his  lands  at  sheriffs  sale  at  an  inade- 
•  luate  price.  I  say  inadequate,  though  there 
is  no  evidence  of  inadecpiacy.  besides  the 
simple  statement  of  <piantity  and  price,  from 
which,  I  jiresume,  that  the  price  was  inade- 
quate. I  do  not  know  but  tluit  the  sale  was 
cctnducted  in  a  manner  most  perfectly  fair. 
In  the  ah.seiice  of  proof,  I  am  bound  to  con- 
clude that  it  was.  I  perceive  no  grounds, 
therefore,  for  supjiosing  that  Uichard  Cath- 
cart had  not  a  legal  right  to  take  titles  for 
J  he  land  that  he  had  purchased  at  sheriff's 
sale,  on  the  payment  of  his  bid.  Nor  do  I 
perceive  any  imi)ediment,  after  he  had  thus 
accpiired  by  contract  of  purchase  a  perfect 
right  to  take  titles,  to  his  transferring  that 
right  to  Caleb  Clark,  on  any  consideration 
that  might  be  agreed  on  between  them.  It 
will  be  remembered,  that,  at  that  time.  Clark 
occupied  no  conlidential  positiiui  towards  the 
estate.  And  if  he  had,  after  the  right  and 
title  of  the  estate  was  gone,  without  default 
in  the  administrator,  and  before  his  adminis- 
t ration,  and  had  vest(>(l  in  a  third  person, 
there  is  nothing  to  forbid  the  administrator, 
iindi'r  those  circumstances,  to  purchase  for 
liis  own  benefit.  The  sale  of  the  Lancaster 
lands  may  have  been  fraudulent ;  but  if  so, 
it  has  not  been  made  to  appear.  There  is. 
in  the  judgment  of  the  Court,  no  ground  for 
vacating  or  disturbing  the  sale  of  the  Lan- 
caster lands,  and  .so  much  of  the  complain- 
ants' bill  as  relates  thereto  is  dismis.sed. 

The  original  bill  in  this  ca.se  was  filed  on 
the  l-'lst  May,  1.S47,  by  James  C.  McMullen, 
the  son  and  devisee  of  the  testator,  and  by 
Alexander  and  Lucy  McMullen,  the  children 


of  .Tos.  J.  Mc.Mullen,  against  Caleb  Clark, 
James  Cathcart,  Robert  Cathcart  and  Rich- 
ard Cathcart.    The  prayer  of  the  bill  is,  that 

•125 
the  sale.s  of  *the  lands  and  negroes  should  be 
vacated,  and  for  account  and  relief.  The 
children  of  Jos.  J.  Mc.Mullen  are  interested 
and  claim  under  the  liniifations  of  the  will 
of  their  grandfafher.  Hugh  McMullen.  Jame.'% 
Witherspoon  is  also  made  a  party,  because 
as  ordiiijiry  he  took  possession  of  some  por- 
tion of  the  goods  of  Jos.  J.  Mc.Mullen.  He 
states  that  Jos.  J.  McMullen  dii'd  insolvent; 
that  there  were  .some  executions  out-standiug 
against  him  at  the  time  of  his  death,  by  vir- 
tue of  which  the  sheriff  levied  upon  and  sold 
all  his  visible  property.  He  further  states 
that  the  .said  Jos.  J.  Mc.Mullen,  at  the  time 
of  his  death,  was  a  practicing  attorney,  and 
that  he  had  ii<)ssession  of  various  cho.ses  in 
action  belonging  to  his  clients,  all  of  which 
the  .said  Withersfioon  has  delivered  over  to 
their  jjropt-r  owners.  He  further  .states  that 
the  said  Jos.  J.  McMullen  was  an  attorney 
in  copartnershii)  with  Thos.  J.  Wright,  who 
survived  him;  and  that  the  said  Thos.  J. 
Wright,  as  the  surviving  partner,  was  enti- 
tled to  the  possession  and  control  of  the 
choses  in  action,  fees  and  costs  due  to  the  co- 
partnership ;  that  besides  these,  there  were 
no  choses  in  action  due  to  the  said  Jos.  J. 
McMullen ;  that  he  has  not  received,  and 
does  uot  expect  to  receive,  a  dollar  from  the 
estate  of  the  .said  Jos.  J.  McMullen ;  and 
that  the  said  Jos.  J.  McMullen  is  said  to  be 
largely  indebted  to  the  said  firm  of  which  he 
was  a  co-partner. 

After  the  said  Caleb  Clark  and  Robert 
Cathcart  had  filed  their  answer  to  the  com- 
plainants' bill,  and  before  trial,  C.  Clark 
died  10th  January.  A.  D.  1S.50.  The  said 
Robert  Cathcart  also  died,  in  1819.  intestate, 
leaving  his  children,  John  and  Nancy  Cath- 
cart, his  only  distributees.  The  .said  Caleb 
Clark  also  died  intestate,  leaving  his  chil- 
dren and  grand-children  named  in  the  liijl 
of  revivor,  as  his  distributees,  and  Henry 
II.  Clark  has  become  his  administrator.  On 
the  li.'Jd  March,  1850.  the  eomplainints  re- 
vived their  bill  against  the  legal  repre- 
sentatives, heirs-at-law  and  distributees  of 
the  .said  Caleb  Clark  and  Robert  Cathcart. 
On  this  state  of  the  pleadings,  the  case  came 
on  for  trial,  all  persons  in  esse  with  a  pos- 
sible interest,  being  iiarties  before  the  Court. 
It  is  nowhere   stated   in  the  ^tleadings,    nor 

*126 
shown   in   the  evidence,    *that  James  C.   Mc- 
Mullen  has  any  children  who  may  claim   as 
remainder-men  under  the  will  of  Hugh  Mc- 
Mullen. 

Having  vacated  the  sale  of  the  Catawba 
plantation.  I  am  next  to  empiire  what  is 
liost  to  bo  done  for  the  relit-f  and  .satisfac- 
tion of  creditors,  and  the  adjustment  of  the 
conflicting  claims  of  the  vanous  jiarties  to 
the  suit.    1  am  impressed  that  the  estate  has 

51 


426 


4  RICHARDSON'S  EQUITY  REPORTS 


been  badly  managed;  liut  it  is  premature 
to  express  an  opinion  on  this  subject.  Fi'om 
evidence  before  me,  it  appears  tlaat  the  in- 
debtedness is  lai-ge.  The  chiinis  of  the  cred- 
itors are  of  course  paramount  to  those  of 
the  de^•isees  and  legatees  under  the  will. 
And  I  do  not  think  that  the  debts  can  be 
satisfied  without  a  sale  of  the  lands  and 
negroes. 

It  is  therefore  ordered  and  decreed,  that 
the-  commissioner  of  this  Court  do  proceed 
to  sell  the  plantation  of  the  said  Hugh 
McMuUen.  on  which  he  lived  at  his  death, 
on  a  credit  of  one  and  two  years,  with  in- 
terest from  the  day  of  sale ;  and  the  negroes 
that  are,  or  have  been  in  the  possession  of 
the  said  James  C.  McMullen,  on  a  credit  of 
one  year,  with  interest  from  the  day  of 
sale;  and  that  the  said  James  C.  McMulleu 
deliver  up  said  negroes  to  the  said  commis- 
sioner for  this  purpose.  It  is  also  ordered, 
that  the  commissioner  take  bond  and  per- 
sonal security  and  a  mortgage  of  the  prop- 
erty to  secure  the  payment  of  the  purchase 
money,  of  both  the  real  and  personal  estate, 
hereby  ordered  to  be  sold.  And  in  reference 
to  the  said  plantation,  it  is  ordered,  that  the 
commissioner  give  only  a  quit-claim  title  to 
any  part  thereof,  to  which  the  right  may  be 
seriously  disputed. 

It  is  further  ordered  and  decreed,  that 
the  administrator  of  Robert  Cathcart  and 
the  administrator  of  Caleb  Clark,  be  en- 
joined from  enforcing  their  executions  at 
law  against  the  estate  of  the  said  Hugh  Mc- 
Mullen.  It  is  further  ordered,  that  all  the 
other  creditors  of  the  said  Hugh  McMullen, 
whether  by  execution,  by  specialty  or  simple 
contract,  be  also  enjoined  from  proceeding 
at  law  against  said  estate.  It  is  further  or- 
dered and  decreed,  that  all  the  creditors  of 
the  said  Hugh  JNIc^IuUen  do  prove  and  estab- 
lish their  demands  in  this  Court  before  the 

*127 
*Connnissioner  in  lOcputy.  before  the  next 
term  of  the  Court;  and  that  the  said  com- 
missioner give  due  notice  thereof  by  ad- 
vertisement in  the  newspapers ;  and  that 
the  commissioner  rejiort  thereon  at  the  next 
term  of  the  Court. 

It  is  also  ordered  and  decreed,  that  the 
commissioner  enquire  and  report  the  bal- 
ance due  on  the  execution  of  the  said  Caleb 
Clark  v.  Hugh  McMullen,  after  allowing  all 
proper  and  legal  credits  and  discounts ; 
and  tliat  he  afeo,  in  the  same  way.  enquire 
and  report  the  amount  due  upon  the  execu- 
tion of  Robert  Cathcart  and  the  other  exe- 
cutions out-standing  against  the  estate. 

It  is  further  ordered  and  decreed,  that 
the  administrator  of  the  said  Caleb  Clark 
account  befoi'e  the  commissioner  of  this 
Court  for  the  rents  and  profits  of  the  plan- 
tation, (the  s-ale  of  which  is  herein  vacated,) 
from  the  time  that  the  said  Caleb  Clark  be- 
came a  purchaser  thereof,  to  the  time  of  ac- 
counting, with  interest  on  the  annual  bal- 
ances, 
52 


It  is  further  ordered  and  decreed,  that  the 
accounts  of  Joseph  J.  McMullen,  as  admin- 
istrator with  the  will  annexed  of  Hugh  Mc- 
Mullen, be  referred  to  the  connnissioner, 
and  that  he  report  thereon ;  and  if  any  bal- 
ance shall  be  found  due  on  the  administra- 
tion accounts  of  the  said  Joseph  J.  McMul- 
len, i.t  is  ordered  that  such  balance  shall  con- 
stitute a  fund  for  the  payment  of  the  claims 
of  creditors,  and  that  for  this  object  the  es- 
tate of  each  of  the  four  sureties  on  the  ad- 
ministration bond  of  the  said  Joseph  J.  Mc- 
Mullen, shall  be  liable  jointly  and  .severally. 

It  is  further  ordered  and  decreed,  tliat  the 
amount  that  may  be  found  due  by  Caleb 
Clark  for  the  rents  and  profits  of  the  plan- 
tation, as  well  as  his  ali(iuot  or  fourth  part 
of  any  balance  that  may  be  found  due  on  the 
administration  accounts  of  said  Joseph  J.  Mc- 
Mullen, shall  apply  as  a  credit  or  payment 
on  his  execution  against  tlie  estate  of  Hugh 
McMullen,  if  so  much  be  necessary.  If  all 
or  a  part  should  not  be  necessary  for  this 
purpose,  it  shall  constitute  a  general  fund 
for  the  payment  of  debts,  or  of  the  claims  of 
the  devisees  or  legatees  under  the  will.  In 
like  manner,  it  is  ordered,  that  the  aliquot 

*128 

or  fourth  part  of  the  liability  *of  the  said 
Robert  Cathcart  for  any  balance  that  may 
be  found  due  upon  the  administration  ac- 
counts of  the  said  Joseph  J.  ]McMullen,  shall 
apply  as  a  credit  or  payment  on  his  execu- 
tion against  the  estate  of  the  said  Hugh  Mc- 
Mullen, if  so  much  be  necessary ;  and  if  not, 
then  it  shall  constitute  a  general  fund  for 
the  payment  of  the  creditors  or  devisees 
and  legatees  under  the  will,  as  hereinbefore 
provided. 

It  is  further  ordered  and  decreed,  that  it 
be  referred  to  the  commissioner  to  enquire 
and  report  the  amount  due  by  the  complain- 
ant, James  C.  McMullen,  to  the  estate,  for 
land  rent  and  negro  hire,  during  the  admin- 
istration of  Joseph  J.  McMulleu ;  and  also, 
the  hire  of  the  negroes  that  have  been  in 
the  possession  of  the  said  James  C.  McMul- 
len, from  the  time  that  the  same  were  de- 
livered into  his  possession  to  the  time  of  the 
sale  hereby  ordered. 

All  the  funds  of  the  estate,  from  whatso- 
ever source  derived,  shall  be  applicable  to 
the  payment  of  the  debts,  as  the  Court  shall 
appoint  and  direct.  The  residue,  if  any  re- 
mains, shall  be  a  fund  for  division  among 
the  persons  entitled  under  the  will,  whose 
rights  as  among  each  other,  are  hereby  re- 
served for  future  adjudication  by  the  Court. 

From  this  decree  the  complainants  appeal- 
ed, on  the  grounds: 

1.  Because  the  Chancellor  erred  in  refus- 
ing to  set  aside  the  sale  of  the  slaves  be- 
longing to  the  estate  of  Hugh  McMullen, 
made  by  the  sheriff,  and  which  were  pur- 
chased by  Caleb  Clark,  Esq.,  and  James 
Cathcart,  administrators  of  the  said  McMul- 
leu, as  the  writs  of  fi.  fa.,  under  which  said 


McMULLEX  V.  CATIICART 


*131 


slaves  were  sold,  were  satisfied  liefore  the 
tinie  of  said  sale:  or  if  not  actually  satis- 
fied, they  were  satisfied  in  law.  the  said 
Caleb  Clark  and  Ilobert  Cathcart,  to  whom 
all  the  executions  in  the  sheriff's  otfice  l)e- 
longed.  liein^  lar^'c  debtors  to  the  estate  of 
the  said  Hush  McMulien ;  and  their  indebt- 
edness at  the  time  of  said  sale,  amounting 
to  more  than  the  i)a!ances  due  on  said  writs 
of  fi.  fa.,  under  which  said  slaves  were  sold. 

2.  Because  the  Chancellor  erred  in  decid- 

*129 

ing  that  there  was  no  *fraud  in  said  sale, 
and  that  the  said  slaves  sold  for  a  fair  price, 
when  from  the  proof  in  the  cause,  it  i.s  re- 
.spectfully  sulimitted.  that  said  sale  was 
fraudulent;  the  time  when  said  sale  was 
made,  the  large  payments  made  on  the  exe- 
cutions under  which  they  were  sold,  not 
being  credited  thereon,  and  other  circum- 
stances, show  that  the  said  sale  was  a  mere 
contrivance  to  secure  all  the  property  of  said 
estate  to  the  benefit  of  said  administrators, 
made  below  its  value,  and  to  the  great  in- 
jury of  the  estate  of  which  the  said  Clark 
and  Cathcart  were  the  trustees. 

3.  Because  the  said  decree  is  erroneous  in 
ordering  a  sale  of  the  slaves  in  the  possession 
of  James  C.  McMuUen,  until  it  shall  be  as- 
certained whether  a  sale  of  the  same  may  be 
necessary  for  the  payment  of  debts,  and  until 
it  shall  be  ascertained  what  amount  of  assets 
are  in  the  hands  of  Joseph  J.  Mc^Mullen,  as 
former  admiuistratori  of  said  estate,  and 
the  proceeds  of  the  sales  of  the  land,  ordered 
to  be  sold  by  said  decree  may  be  insufficient 
for  tiiat  purpose. 

4.  Because  the  Chancellor  erred  in  dismiss- 
ing, without  prejudice,  so  much  of  the  bill 
as  relates  to  the  sale  of  the  lands  in  Lancas- 
ter, inasmuch  as  the  complainants  stated  at 
the  hearing  of  the  cause,  that  tiiey  were  not 
prepared,  and  would  not  go  into  that  part  of 
the  case,  and  would  not  and  did  not  offer  any 
evidence  or  argument  in  that  part  of  the  case. 

Upon  so  much  of  the  de<ree  as  directed  the 
commissioner  to  eniiuire  and  report  the  bal- 
ance due  upon  the  judgment  of  Caleb  Clark, 
tile  comnnssioner  reported  as  follows: 

"Mr.  Clark's  judgment  and  execution  was 
for  .$.'5,;>1(),  with  kiterest  thereon  from  the 
27th  February.  1.sl'l>.  Mr.  Clark  had  received 
various  sums  of  money  on  account  of  Mr. 
McMulien,  which  were  not  credited  on  said 
execution.  At  the  reference,  Mr.  Clark  fur- 
nished a  statement  of  a  settlement  of  his 
claims  against  Hugh  McMulien.  made  with  J. 
J.  McMulien,  the  administrator.  t»n  tiie  l.'ith 
^larch,  1X44.  In  this  statement  he  credits 
his  execution  with  the  following  sums  re- 
ceived, to  wit:  June  G,  is:js,  .'i;;{.:no.O();  April 
6,  1838,  29:!.00;  January  <J,  1.S41.'.  L'.(X)0.00. 
*130 

♦"According  to  the  calculation  then  made, 
the  balance  due  at  the  time  of  the  last  i)ay- 
meut  was  $2,735.73.     But  to  this  statement 


I  was  added  some  balances  due  to  Mr.  Clark  on 
former  settlement,  viz:  one  of  .$4.T»..S0,  Nov. 
f>.  1835,  and  one  of  .?103.00.  due  March  13, 
18.30.  and  other  amounts,  which  with  interest 
thereon  and  on  the  above  balance  of  execu- 
tion, made  the  amount  of  .$4,038.87,  due  to 
Mr.  Clark,  on  the  said  13th  March,  1844,  the 
day  of  the  settlement.  On  the  part  of  the 
complainants,  it  is  alleged  that  the  balance 
of  the  accounts  are  not  allowable,  as  they  are 
not  sustained  by  evidence  of  the  former  set- 
tlement referred  to,  and  were  barred  by  the 
statute  of  linntations  anterior  to  the  testa- 
tor's death.  It  appears  to  the  commissioner 
that  these  objections  are  fatal,  and  that  the 
balance  of  these  accounts  cannot  he  allowed 
to  Mr.  Clark.  On  the  other  hand,  it  is  urged 
by  the  defendant  that  the  sum  of  .$2,000,  ac- 
knowledged to  have  been  received  on  the  19th 
January,  1842,  should  not  be  allowed  as  a 
credit,  inasmuch  as  the  money  was  never 
actually  received. 

"The  admin.istrator,  J.  J.  McMulien.  credit- 
ed himself  with  the  sum  of  two  thousand  dol- 
lars in  his  returns  to  the  ordinary,  and 
which  Mr.  Clark  also  exhibited  as  a  voucher 
at  the  reference.  It  appears  that  the  pay- 
ment was  made  by  J.  J.  McMulien  giving  hij> 
note  in  Bank  for  .$2,000,  witli  Clark  and 
Robert  Cathcart  as  his  sureties,  and  that  the 
money  drawn  on  that  note  was  applied  to  the 
payment  of  Mr.  Clark's  note  then  in  Bank  for 
the  same  sum.  This  note  was  renewed  several 
times  with  .some  payments  until  the  2d  April, 
1845,  when  it  was  protested  for  $1,300,  which 
balance  with  interest  and  protest,  was  settled 
by  Mr.  Clark  giving  his  own  note  in  Bank 
for  $1..3,59.37,  on  the  19th  Xovemlier,  1845. 
Mr.  Clark  insisted  that  his  execution  should 
be  credited  with  only  $G40.G3.  the  amount 
paid  by  J.  J.  :McMullen  on  his  note,  as  the 
other  suin  of  $1,359.37  was  not  really  paid. 
The  commissioner  inclines  to  this  view  of 
the  case,  and  is  of  opinion,  that  only  .$(540.63 
should  be  credited  on  the  execution  instead  of 
$2,000." 

♦131 

*To  the  report  of  the  commissioner  the 
complainants  and  the  defendant.  James  Cath- 
cart, excepted  on  the  gromid: 

Because  the  connuissioner  erred  in  not 
crediting  the  execution  of  C.  Clark  with  the 
sum  of  $2,000,  on  January  19,  1842.  being 
the  amount  of  C.  Clark's  note  in  the  Camden 
Bank,  paid  by  J.  J.   McMulien  on  that  day. 

The  report  was  heard,  upon  the  exception, 
before  bis  Honor,  Chancellor  Wanllaw.  at 
July  sittings.  1,S51.  His  Honor  overruled  the 
exception,  and  the  complainants  and  James 
Cathcart  appealed. 

Gregg  &  :\IcAliley,  for  complainants. 
Boylston,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DtWKIX,  Ch.  The  first  ground  of  appeal 
is  an  attempt  to  urge  the  principle  of  Sim- 

53 


*131 


4  RICHARDSONS  EQUITY  REPORTS 


kins  V.  Cobb,  (2  Bail.  GO.)  to  a  ease  not  witbin 
that  rule  of  law,  or  the  reason  of  it.  It  is 
true  that  Caleb  Clark  and  James  Cathcart, 
together  \vitb  two  other  persons,  were  sure- 
ties on  the  administration  bond  of  Joseph  J. 
McMullen,  deceased.  But  at  the  time  of  the 
sheriffs  sale  in  January,  1846,  J.  J.  McMul- 
len bad  been  dead  but  a  few  months — no  ac- 
count had  been  taken  of  his  administration- 
no  default  ascertained— nor  bis  inability  to 
discharge  bis  debts  established.  In  this 
Court  all  these  should  appear  before  any 
actual  indebtedness  could  be  said  to  exist 
on  the  part  of  bis  sureties.  Their  liability  to 
the  estate  of  Hugh  IMcMullen,  deceased,  was 
purely  contingent,  and  afforded  no  ground  for 
the  legal  inference  insisted  on,  that,  in  Jan- 
uary, 1846,  they  were  in  possession  of  assets 
belonging  to  that  estate.  The  distinction  is 
adverted  to  in  O'Neall  v.  Herbert,  INIcM.  Eq. 
499. 

The  second  ground  is  answered  by  the  facts 
detailed  in  the  Chancellor's  decree.  The 
sales  of  the  slaves  were  made  under  the  au- 
thority of  other  executions  in  the  sheriff's 
office  as  well  as  those  of  Clark  and  of  Cath- 
cart. "There  were  no  attempts,"  says  he, 
"to  depreciate  their  value,  or  to  throw  doubt 

*132 
or  suspi*cion  on  the  title.     The  price  given 
was  adequate."     This  Court  concurs  in  his 
conclusion  that  there  was  no  ground  to  in- 
validate this  sale. 

The  third  ground  of  appeal  is  well  taken. 
It  is  now  conceded  that  the  order  for  the 
sale  of  the  slaves  in  the  possession  of  James 
C.  McMullen  was  premature,  and  may  prove 
unnecessary.     It  is,  therefore,  rescinded. 

The  Chancellor  decreed  that,  from  the  evi- 
dence before  him,  he  saw  no  ground  to  im- 
peach the  sale  of  the  lands  in  Lancaster 
district.  Robert  Cathcart  was  the  purchas- 
er of  those  lands  at  sheriff's  sales,  and  he 
was  originally  a  defendant  in  the  suit.  He 
died  before  the  hearing  of  the  cause,  to  wit, 
in  January,  1850,  and  though  a  bill  of  re- 
vivor had  been  tiled  against  his  infant  heirs, 
they  had  not  bad  an  opportunity  to  answer 
or  defend  the  cause.  The  fourth  ground 
is  because  the  Chancellor  erred  in  dismissing 
the  bill  as  to  the  sale  of  the  Lancaster  lands, 
"inasmuch  as  the  complainants  stated  at  the 
bearing  of  the  cause,  that  they  were  not  pre- 
pared, and  would  not  go  Into  that  part  of 
the  case,  and  would  not  and  did  not  offer  any 
evidence  or  argument  on  that  part  of  the 
case.'' 

It  may  not  be  amiss  to  repeat  what  is  said 
in  Bierdermann  v.  Seymour,  17  Eng.  Ch.  R. 
594,  that  "it  is  the  duty  of  the  complainant 
to  come  fully  prepared  at  the  hearing  to  ask 
the  Court  for  a  decree,  and  if  he  is  not  so 
prepared,  and  the  suit  appears  defective 
from  his  default,  it  is  then  a  matter  of  dis- 
cretion or  indulgence  to  grant  him  leave  to 
supply  the  defect."     So,  if  the  cause  is  not 

54 


ready  for  bearing  in  consequence  of  such, 
casualty  as  here  occurred,  and  the  want  of 
time  to  bring  the  new  and  necessary  parties 
into  Court,  leave  would  be  given  to  post- 
pone the  cause.  But  it  would  be  replete 
with  inconvenience  to  sanction  a  practice  of 
hearing  a  cause  piece-meal,  or  by  detached 
parts.  It  is  manifest,  however,  that  the  error 
in  this  case  originated  in  a  misapprehension 
on  the  part  of  the  Solicitor,  and,  moreover^ 
as  the  heirs  of  Robert  Cathcart,  deceased, 
were  not,  in  fact,  repi-esented,  they  would 
not  be  bound  by  the  decree.    So  much  of  the 

*133 

*decree,  therefore,  as  dismisses  the  claim  is 
opened,  and  the  matter  ordered  to  be  set 
down  for  bearing  on  the  proper  parties  being 
represented. 

Bush  and  Massey  interposed  a  claim 
against  the  estate  of  Hugh  McMullen,  de- 
ceased, for  moneys  which  they  had  i)aid  on 
account  of  the  Lancaster  lands  purchased 
by  them  from  Hugh  McMullen,  and  which 
had  been  taken  from  them  for  defect  of  ti- 
tle in  their  vendor.  The  Chancellor  ordered, 
the  claim  to  be  investigated  by  the  commis- 
sioner. It  is  now  asked,  and  it  is  so  decreed, 
that  the  connnissioner  have  leave  also  to  re- 
port, whether  any  of  the  payments,  alleged 
to  have  been  made  by  Bush  and  Massey, 
were  received  by  Joseph  J.  McMullen  as  ad- 
ministrator of  Hugh  McMullen  deceased,  and 
not  heretofore  charged  against  him,  and 
that  he  have  leave  to  surcharge  him  accord- 
ingly. 

The  only  remaining  ground  of  appeal  is 
that  submitted  on  the  part  of  James  Cath- 
cart. It  appears  that,  at  the  death  of  Hugh 
McMullen,  and  for  some  time  previously, 
Caleb  Clark  held  an  execution  against  him  ta 
a  large  amount.  On  the  2d  January,  1842, 
Caleb  Clark  having  a  note  of  !!;2,000  falling 
due,  or  then  due,  in  the  Bank  of  Camden, 
applied  to  Joseph  J.  McMullen,  who  was 
then  the  administrator  of  his  father's  estate. 
McMullen  put  his  individual  note  in  the  Bank 
of  Camden,  with  C.  Clark  and  Robt.  Cathcart 
as  his  sureties,  which  note  was  discounted, 
and  the  proceeds  applied  to  the  payment  of 
Clark's  note  in  that  institution.  Clark  gave 
to  J.  J.  McMullen,  as  administrator  of  Hugh 
McMullen  his  receipt  for  two  thousand  dol- 
lars on  account  of  his  execution.  In  the  re- 
turns of  J.  J.  McMullen  to  the  ordinary  he 
credited  himself  with  this  payment  as  made 
on  account  of  the  estate,  and  Mr.  Clark  ex- 
hiliited  it  as  a  voucher  at  the  reference.  He 
also  furnished  at  the  same  time  a  statement 
of  a  settlement  of  his  claims  against  Hugh 
McMullen,  deceased,  which  he  had  made  with 
J.  J.  McMullen,  his  administrator,  on  the 
13th  March,  1844 ;  and  in  this  statement 
Clark  credited  on  his  execution  this  pay- 
ment of  .$2,000,  as  made  9th  January,  1842. 
McMullen'snote  to  the  Camden  Bank  was  sev- 


CUNNINGHAM  v.  SHANNON 


•1:^8 


•134 

*ral  times  renewed  with  tlu'  saiiio  *t'iitlorsers, 
and  Sfveral  itaynu'iits  tlieivon  wore  made  by 
him:  but.  on  tlie  I'd  April,  1S45,  the  last  re- 
newal of  .$1,;!.j1)..';7  was  protested  for  non-pay- 
ment, and  was  taken  up  by  Clark's  note  for 
that  amount.  It  was  insisted,  and  so  the 
c-onnnissioner  hesitatinj^ly  determined,  that 
<'Iark's  execution  aj,'ainst  Ihmh  M<Mullen 
.should  not  be  credited  with  the  .$1J,(X)(>,  but 
only  with  $(J40.f,;i,  the  ditTerenee  between 
that  sum  and  .$l,;5r»'.).:i7;  and  the  exception 
in  this  respect  was  overruled. 

This  is  not  like  the  ease  of  Dogan  v.  Ash- 
bey,  1  Rich.  36,  where  a  note  a^'reed  to  be 
taken  in  payment  on  a  judgment  was  held 
to  be  payment,  althouj,'h  that  would  be  suffi- 
ciently decisive  of  the  case.  There  was  no 
individual  indebtedness  on  the  part  of  J.  J. 
Mc.Muileii  to  Caleb  Clark.  But  the  latter 
holdiuLr  an'  execution  a;:ainst  Hugh  McMul- 
len  deceased,  J.  J.  McMullen  borrows  money 
from  a  third  person,  pays  it  to  Clark  on  ac- 
count of  hi.s  execution,  takes  his  receipt  to 
that  effect,  and  enters  it  as  a  credit  in  his 
account  as  adnnnistrator,  and,  two  years  aft- 
tM-wards.  in  an  adjustment  or  settlement  of 
the  amount  due  on  the  execution,  the  credit 
is  set  down  and  admitted  by  Mr.  Clark.  It 
was  no  sub.stitutiou,  but  an  actual  payment. 
Three  years  after  the  payiiient.  McMullen 
fails  to  pay  to  the  third  person  the  money 
which  he  had  borrowed  and  paid  on  Clark's 
execution.  In  reference  to  the  credit  on  the 
execution,  is  it  of  any  importance  that  ClarK 
was  one  of  the  persons  who  had  become  se- 
curity for  the  loan  which  McMullen  made  in 
1842  in  order  to  enable  him  to  pay  the  ex- 
ecution? If,  in  January,  1S42,  the  amount 
due  on  Clark's  execution  ajiainst  Hush  Mc- 
Mullen deceased,  had  lieen  .^li.tKX),  would  not 
his  receipt  to  the  administrator  for  that  sum 
have  entitled  the  administrator,  not  only 
to  credit  in  his  account,  but  to  have  had  sat- 
isfaction entered  on  the  judf-'uientV  In  order 
to  raise  the  money  to  pay  the  jud,i,'ment,  J. 
J.  McMullen  had  not  only  incurred  au  indi- 
vidual liability  which  did  not  before  ex- 
ist, but  he  had  involved  another  person  be- 
sides Mr.  Clark  as  his  surety.  It  api>ears 
to  the  Court  that  the  payment  of  the  $2.(X)0 
on  !tth  .lanuary,  1.S42,  was  an  extinguish- 
♦135 

juent  of  the  execution  of  ♦Calelt  Clark  to 
that  extent,  and  should  have  been  so  rejiard- 
ed  in  takini;  an  account  of  the  amount  due. 
It  is  ordered  and  decreed,  that  the  decrees 
of  the  Circuit  Court  be  modified  as  herein 
before  expressed,  and  that,  in  all  other  re- 
spects, the  same  be  affirmed. 

JOHNSTON,   DAHGAN    and    WAKDLAW. 
CC,  ((incurred. 
l)(H?n'e  modified. 


4   Rich.  Eq.    135 

ESTHER   A.    CrNMMJH.VM   v.   CHARLES 
J.    SHANNON   and   Others. 

(Columbia.     Nov.  and  Dec.  Term,  1851.) 

[Dower  «S=>41.1 

Hy  antp-niiptial  contract,  husband  agreed, 
that,  if  his  wife  shouhl  survive  liim.  and  no 
provisimi  sii(iidil  In-  madi'  for  her  in  his  will  in 
an  aiiioimt  e(iiud  to  .'<L").CXX);  or.  if  he  should 
di(>  intestate,  and  she,  as  his  heir,  should  not 
receive  from  his  estate  an  amount  equal  to  .$l!0,- 
0(l(>:  then,  he  ehaiKed  his  estate  with  the  pa.v- 
nitiit  of  .$!.'< »,()0(>.  or  sii.h  sum  as  will  make  up 
that  amount,  to  lie  held  liy  the  trustee  for  her 
use  for  life,  with  remainder  to  the  issue  of  the 
niarria:ie;  provided,  that,  if  she  survived,  she 
should  have  no  part  of  the  estate  then  owned  by 
him,  or  wiiich  siiould  be  iiurehased  by  him  after 
the  first  day  of  January  then  next  eusuinp. 
llusliand  purchased  lands  after  th<>  first  day 
of  .January  sucecedinfj  the  date  of  the  niarriajie 
contract,  and  died  leaving  a  will,  by  which,  'in 
addition  to  the  provisions  nuide  for  his  wife  by 
the  niarriajje  contract,'  he  devised  and  be- 
qiieathed  to  her  some  nejiroes  and  other  person- 
alty and  an  interest  in  some  of  his  real  estate: 
— Ilchl^  that  the  wife  was  entitled  to  the  provi- 
sions made  for  her  by  the  marriage  contract,  to 
the  devises  and  bequests  in  her  favor,  and  to 
dower  in  all  the  lands  purchased  by  the  husband 
after  the  first  day  of  .January  succeeding  the 
date  of  the  marriage  contract,  so  far  as  such 
claim  of  dower  was  con.dstent  with  the  devises 
in  her  favor. 

[Kd.  Note.— Cited  in  Shelton  v.  Shelton,  20 
S.  C.  506:  Hiers  v.  Gooding,  4:5  S.  C.  4.34.  435, 
21  S.  E.  310. 

For  other  cases,  see  Dower,  Cent.  Dig.  §  114; 
Dec.   Dig.    <g;=>41.] 

[Wills  <S=>T82.] 

Testator  devised  his  planta^on  and  his  town 
house  to  his  daughter  for  life,  for  her  sole  and 
separate  use.  with  limitations.  iVLc.  and  provided 
that  his  wife  should  be  entitled,  for  life  to  use, 
occupy  and  cultivate  four  hundred  acres  of  the 
plantation,  to  cut  and  haul  from  the  plantation 
such  fire  wood  and  such  timber  for  buildings 
or  rejiairs  as  she  may  desire,  and  either  to  use 
and  enjoy  his  town  house,  or.  to  reside  on  his 
lilantation.  as  she  may  choose: — Held,  that  there 
was  nothing  in  the  provisions  of  the  will  which 
excluded  the  wife  from  her  right  of  dower  in  the 
plantation,  except  in  so  much  thereof  as  she 
elected  to  take  for  life  under  the  will;  and  that 
she  was  hound  to  elect  whether  she  would  take 
the  town  house  for  life,  or  reside  on  the  planta- 
tion. 

I  Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  S  2022;    Dec.  Dig.  (©=782.] 

*136 

[Wills  (3=».j25.] 

''10 very  devise  which  a  husi)and  makes  of 
land  niton  which  his  wife's  right  of  dower  at- 
taches, is  presinned  to  be  made  suhjint  to  the 
ri^ht  of  dower,  uidess  the  contrary  aiJi)ears  on 
the  face  of  the  will,  in  express  words,  or  hy  the 
.strongest   kind  of  imi)lication. 

[Ed.  Note. — Cited  in  Braxton  v.  Freeman,  6 
Rich.  .36,  57  Am.  Dec.  775;  Beaty  v.  Richard- 
son. 56  S.  C.  191,  34  S.  E.  73,  46  L.  R.  A.  517. 

For  other  cases,  see  Wills,  Cent.  Dig.  §  1130; 
Dec.  Dig.  (S=>i5'25.] 

[Doircr  (g=>12.] 

A  widow  is  not  entitled  to  take  dower  in  the 


<3=5>For  other  taaes  see  saiuo  lopic  aud  KKV-NUMUEK  In  all  Key-Numbered  Digests  and  Indexes 


55 


*ir>c 


4  RICHARDSON'S  EQUITY  REPORTS 


same  lands  in  whirh  she  takes  an  estate  for  life  i 
under  her  husband's  will. 

[Ed.   Note.— Cited  in   Braxton   v.   Freeman,   6 
Rich.  36.  57  Am.  Dec.  775 ;    Bannister  v.  Ban-  | 
nister,  37  S.  C.  533,  16  S.  E.  6112. 

For   other    cases,    see    Dower,    Cent.    Dig.    §-i  | 
36-43,   48;    Dec.   Dig.   <©=:5l2.1 

[This  case  is  also  cited  in  Tibbetts  v.  Langley 
Mfff.  Co.,  12  S.  C.  480:  Shell  v.  Duncan. 
31  S.  C.  5(!6.  10  S.  E.  .330,  5  L.  R.  A.  821; 
Elder  v.  Mcintosh,  S8  S.  C.  289,  70  S.  E. 
807;  Brown  v.  Brown,  94  S.  C.  494,  78 
S.  E.  447,  as  to  the  inchoate  right  of  dower.] 

Before    Dargan,    Ch.,    at"    Kershaw,    June, 
1851. 

Dargan,  Ch.  .loseph  Cunningham  being 
about  to  solemnize  a  marriage  with  complain- 
ant, Esther  Cunningham,  on  the  20th  day 
of  July,  1841,  entered  into  an  ante-nuptial 
marriage  contract  with  the  said  Esther  Cun- 
ningham, (then  Niles,)  and  William  McWillie, 
the  trustee  of  the  .said  marriage  settlement; 
by  which  the  said  Cunningham,  in  consider- 
ation of  the  intended  marriage,  did  stipulate 
and  agree,  that  in  case  the  said  intended  mar- 
riage should  take  effect,  and  the  said  Jo- 
seph should  thereafter  die,  (the  said  Esther 
then  living.)  not  having  made  provision  by 
his  last  will  and  testament  for  the  said  Es- 
ther, in  a  sum  of  money  or  an  amount  of 
property  equal  to  .'i'20,000 ;  or  in  case  tlie  said 
Joseph  should  die  intestate,  and  the  said 
Esther  shall  not  receive  from  his  estate,  as 
one  of  his  heirs  at  law,  a  sum  of  money,  or 
an  amount  of  property,  e(pial  to  .'f20,000 ; 
that  then,  and  in  that  case,  the  said  Joseph 
Cunningham  charges  his  estate  with  the  pay- 
ment to  the  said  William  McWillie,  trustee 
as  aforesaid,  &c.,  of  .$20,000,  or  such  sum  of 
money  as  will  make  up  the  sum  of  $20,000, 
when  added  to  what  the  said  Esther  may 
otherwise  receive  from  the  estate  of  her 
said  intended  husband.  The  deed  of  settle- 
ment then  further  provides,  that  the  said 
sum  of  money  shall  be  held  for  the  sole  and 
separate  use  of  the  said  Esther,  &c.,  for  the 
term  of  her  natural  life;  and  from  and  im- 
mediately after  her  death,  the  said  sum  of 
$20,000,  or  so  much  thereof  as  may  be  held 
in  trust,  shall  go  to  the  issue  of  the  intend- 
ed marriage,  share  and  share  alike,  to  them, 
■  their  heirs  and  assigns  forever ;  provided, 
alw^ays,  that  in  case  the  said  Esther  shall 
survive  her  said  Intended  husband,  that  then 
and  in  that  case,  the  said  Esther  shall  have 
no  part  or  parcel  of  the  real  or  personal  es- 

*137 
tate  of  the  said  Joseph,  now  ow'ned  by  *him; 
nor  of  such  as  he  may  purchase  before  the 
first  day  of  January  next,  or  of  the  increase 
of  the  negroes  now  owned  by  him,  by  virtue 
of  any  right  of  dower,  distribution  or  other- 
wise ;  the  said  sum  of  $20,000  being  settled 
upon  and  secured  to  the  said  Esther  in  con- 
sideration of  the  said  intended  marriage, 
and  in  further  consideration  of  her  hereby 
relinquishing  such  claim. 

The  marriage  took  place,  and  the  parties 
lived  together  until  the  day  of  May, 

56 


18.50,  when  Joseph  Cunningham  departed 
this  life,  leaving  one  child  by  the  aforesaid 
marriage,  and  several  other  children  by  a 
former  marriage;  leaving  also  a  large  real 
and  per.sonal  estate,  all  of  which  w'as  dis- 
posed of  by  his  last  will  and  testament. 

It  will  be  unneces.sary  for  me  to  notice  any 
portions  of  this  will,  but  such  as  bear  upon 
the  issues  involved  in  these  pleadings.  In 
the  first  clause,  the  testator  makes  provision 
for  his  wife  as  follows:  "In  addition  to  the 
provisions  made  for  my  wife,  Esther  A. 
Cuiuugham,  by  virtue  of  a  deed  of  mar- 
riage settlement,  or  antenuptial  agreement, 
dated  the  20th  day  of  July,  eighteen  hundred 
and  forty-one,  executed  by  myself,  the  said 
Esther  A.  (then  Esther  A.  Niles,)  and  AVil- 
liam  McWillie,  I  give  and  bequeath  to  my 
said  wife  the  fcdlowing  named  negroes,  to 
\^it :  Al)ram,  Frankey,  Betsey,  Lucy,  Tom, 
William,  Thomas,  Martha,  Jim*  Williams, 
and  Hannah  Williams,  for  and  during  the 
term  of  her  natural  life ;  and  from  and 
immediately  after  her  death,  I  give  the 
saiil  negroes  to  such  of  my  children  as 
may  be  living  at  the  time  of  her  death," 
with  various  limitations  over.  In  the  lat- 
ter part  of  the  same  clause  he  also  gives 
her  his  library,  his  two  carriages,  and  a 
pair  of  hor.ses ;  and  he  says,  "she  .shad  be 
further  entitled  to  the  benetits  reserved  for 
her,  in  the  clause  of  this  will,  devising  the 
planration  called  Betty's  Neck." 

In  the  second  clause  of  his  will,  the  testa- 
tor gives  to  his  daughter  Elizabeth,  during 
the  term  of  her  natural  life  only,  with  sun- 
dry restrictions  and  linutations.  all  that 
plantation  lying  on  the  western  side  of  the 
Wateree.  usually  called  the  Betty's  Neck 
place,  purchased   ))y  him   from  William  Mc- 

*138 
Willie,  including  all  the  swamp  *and  all  the 
high  lands  purchased  from  said  McWillie, 
and  embracing  all  the  land  then  owned  by 
him  on  the  west  side  of  said  river ;  also  his 
dwelling  house  in  the  town  of  Camden,  on 
De  Kalb  street,  together  with  all  the  prenu- 
ses  thereto  attached: — and  proceeds  by  the 
same  clause  to  give  to  his  daughter  Elizabeth 
a  large  legacy  of  negroes  with  limitations 
over;  and  to  her  absolutely,  all  the  live 
stock,  provisions  and  implements  to  be  found 
on  the  said  plantation  at  his  decease.  The 
testator  concludes  the  said  clause  as  fol- 
lows: "It  is,  however,  my  will,  desire  and  di- 
rection, and  the  devise  in  this  clause  contain- 
ed, is  made  subject  thereto,  that  my  said 
wife,  Esther  A.  Cunningham,  shall  be  enti- 
tled to  use,  occupy  and  cultivate,  for  and  dur- 
ing the  term  of  her  natural  life,  four  hun- 
dred acres  of  the  Betty's  Neck  place,  to  wit: 
two  hundred  acres  of  swamp  land,  two  hun- 
dred acres  of  high  land,  adjoining  the  land 
of  Powell  McRae ;  and  also  for  and  during 
the  term  of  her  natural  life,  to  cut  and  haul 
from  the  said  Betty's  Neck  place,  such  tire 
wood,  and  such  timber  for  buildings  or  re- 


CLXXIXGIIAM   V.  SIIAXXOX 


»141 


pairs,  for  licr  own  use,  as  sho  may  desire; 
fliid  also,  that  my  said  wife  sliall  liave  tlie 
•ise  and  enjoyment,  for  her  natural  lift>,  of 
either  my  Camden  house,  in  this  elause  men- 
lioned,  or  she  may  reside  for  life  on  the  Het- 
ty's Xeek  place,  as  she  may  choose;  and 
with  the  house  so  occupied  hy  my  said  wife, 
she  shall  have  the  use  (without  heinfj  ac- 
countahle  for  the  waste)  of  the  household 
and  kitchen  furniture  found  in  such  house, 
and  on  the  premises,  for  her  luitural  life ; 
and  from  and  immediately  after  her  death,  I 
{live  the  same  or  so  much  thereof  as  re- 
mains, to  my  daughter  Elizaheth." 

By  the  third  clause,  the  testator  gave 
to  his  daughter.  Mary  M.  Cureton,  with  vari- 
ous limitations  and  reniiiinders,  a  large  real 
and  personal  estate,  and  included  in  the  de- 
vise is  the  testator's  "house  and  premi.ses 
situate  in  Kirkwood.  lately  purchased  by  him 
from  William  McWillie." 

Hy  the  11th  clause  of  his  will,  he  gave,  in- 
ter alia,  to  his  grand  son,  Cunningham  R. 
Cureton.  a  tract  of  land,  designated  therein 
"as  the  Stark  plantation,  situated  near  Cam- 
den, on  the  Wateree  river,  and  known  as  the 

M39 
Belton  place ;"  and  hy  a  codicil  to  his  *will, 
he  gave  to  his  daughter  Elizabeth,  a  tract  or 
plantation,  designated  therein  as  the  Stock- 
ton place,  and  called  Red  Hill,  lately  pur- 
chased from  W.  J.  Taylor;  and  also  a  tract 
designated  in  the  codicil  as  the  piece  or  par- 
cel of  land  situate  in  Kirkwood,  near  the 
town  of  Camden,  lately  purchased  from  Wil- 
liam E.  Johnson,  and  a  tract  of  land  inirdias- 
ed  in  Jaimary,  1X40,  by  .Tames  B.  Cureton  and 
Joseph  Cunningham,  jointly,  from  Saml.  F. 
Hurst,  trustee  of  W.  K.  Young  and  wife. 
and  containing  one  thousand  acres. 

All  the  various  portions  of  the  testator's 
real  estate  which  have  been  thus  particularly 
noticed,  and  which  have  been  devised  by  him 
as  has  been  stated  in  my  preceding  re- 
marks, have  been  acquired  by  the  testator  aft- 
er the  first  day  of  Jaiuiary  next  succeeding 
the  date  of  the  execution  of  the  deed  of  mar- 
riage .settlement,  and  the  solemnization  of  the 
marriage,  and  are  therefore  not  subject  to  the 
inhibitions  of  the  deed  of  marriage  settle- 
ment, as  to  the  complainant's  claim  of  dow- 
er;  and  she  has  filed  this  bill,  inter  alia, 
for  the  inirpose  of  having  lier  dower  assigned 
to  her  in  said  lands,  which  she  claims  as 
not  inconsistent  with  the  provisions  of  the 
will. 

She  prays,  that  the  executors  of  the  said 
Josei)h  Cunningham  may  he  decreed  to  jiay 
the  said  sum  of  twenty  thousand  dollars,  and 
the  interest  due  thereon  to  a  trustee  to  be 
sultstituted  in  the  place  of  William  McWillie. 
who  has  left  the  State,  and  that  her  dower 
nu\y  be  assigned  her  in  all  the  lands  Mciinired 
by  the  t' stator.  suliscciuent  to  the  first  day 
of  January  next  suciH-cdin-,'  the  date  of  the 
marriig'  seltlenient,  and  fo:-  an  acco  nt  of 
the  rents  and  profits:    auil  that  she -may  be 


permitted  to  take  the  same,  together  with 
the  provisions  made  for  her  by  the  said  will, 
and  by  the  said  deed  of  n  arriagi^  >ettle- 
nient,  &c. 

'1  h  '  claim  of  dower  is  highly  favored  in 
e  uity,  whose  du'y  it  is  p-ihaps.  above  all 
f)tber  jnrisdi(  tions  of  the  country,  to  afford 
its  protection  to  the  weak  against  the  strong. 

Dower  is  not  unfrecpi  ntly  the  only  re- 
source of  the  unfortunate  widow,  under  the 
double  calamity  of  the  lo-s  of  husband  and 
property.     And  she  is  sometimes  driven   to 

•    *140 
resort  to  it,  where  an  in*considerate  or  un- 
kind husband  has  despoiled  her  of  her  legiti- 
mate rights  in  his  estate  by  the  provisions  of 
his  will. 

Dower  is  a  right,  which,  inchoate  during 
the  coverture,  becomes  absolutely  vested  in 
the  wife  as  an  estate,  on  the  death  of  her 
husliand ;  and  is  as  much  beyond  his  con- 
trol or  power  of  disposition  as  her  own  in- 
heritance. It  not  being  bis  to  give,  every  de- 
vise which  he  makes  of  the  land  upon  which 
the  right  of  dower  attaches,  is  presumed  to  be 
given  subject  to  the  legal  estate,  unless  the 
contrary  appears  on  the  face  of  the  will,  in 
express  words,  or  by  the  strongest  kind  of 
Imidication. 

In  Park  on  Dower,  2,37.  it  is  .said  to  be  "a 
right  attaching  by  implication  of  law  ;  which, 
although  it  may  possibly  never  be  called  into 
effect,  (as  where  the  wife  dies  in  the  life- 
time of  the  husband.)  yet  from  the  moment 
that  the  fact  of  marriage  and  of  seisin  have 
concurred  is  so  fixed  on  the  land,  as  to  be- 
come a  title  paramount  to  that  of  any  other 
person  claiming  under  the  husband  by  a 
sui)sequent  act." 

"To  exi  lude  a  widow  from  her  legal  right, 
(of  dower)  either  th(>re  must  be  an  express 
declaration  to  that  efftct.  or  it  mrst  clearly 
appear  from  the  whole  frame  of  the  will, 
that  it  was  the  testator's  intention  to  give 
her  somethin.g.  wholly  inconsistent  with  her 
enjoyment  in  that  le,gal  right."  See  the  au- 
thorities establishing  this  luinciple,  collected 
in  1  Roper  on  Ilnsb.  and  Wife.  .579,  et  seq. ;  U 
Roi)er  on  Legacies.  5'10,  et  seq. 

"It  is  to  be  collected  from  all  the  cases, 
that  as  the  right  to  dowser  is  of  itself  a  clear 
legal  right,  an  intent  to  exclude  that  right 
by  voluntary  gift  must  be  demonstrated,  ei- 
tluM-  by  exiii-ess  words  or  l)y  clear  and  mani- 
fest inii)lication.  If  there  be  any  thing  am- 
biguous or  doubtful ;  if  the  Court  cannot 
say.  that  it  was  clearly  the  intention  to  ex- 
clude, then,  the  averment  that  the  gift  was 
made  in  lieu  of  dower,  cannot  be  sujiiwrted ; 
and  to  make  a  case  of  election,  that  is  nec- 
essary; for  a  gift  nnist  be  taken  as  pure 
until  a  condition  appear.  This  I  take  to  be 
the  ground  of  all  the  authorities."  Per  Lord 
Redesdale  in  Burmingbam  v.  Kirwiu,  (2  Sch. 
and  Lef.  4."):.'.) 

*141 

*It   was  contended  in   the  argument,  that 

57 


nn 


4  KIChARDSON'S  EQUITY  REPORTS 


the  En;;llsli  as  well  as  American  decisious  on 
this  subject  are  discordant,  and  that  it  is 
dithcult  to  extract  from  them  any  settled 
lirinciiile.  To  me  it  appears,  that  there  has 
heen  little  or  no  ditference  in  tlie  decisions, 
as  to  the  general  principles  by  which  ques- 
tions of  this  sort  have  been  adjudged.  On 
the  contrary,  there  has  been  a  remarkable 
harmony  among  the  Judges  in  the  acknowl- 
edgment of  the  great  and  leading  doctrines 
upon  which  they  have  uniformly,  and  for 
several  centuries,  professed  to  have  been  gov- 
erned. The  discord,  ii  any.  has  arisen  from 
the  different  and  ever  varying  circumstances 
of  the  cases ;  and  the  difficulty  has  always 
occurred  in  the  practical  application  of  es- 
tablished and  acknowledged  principles.  It 
is  very  easy  with  the  charts  before  us,  to 
define  and  express  the  general  rules  appli- 
cable to  the  subject.  But  when  the  task  is 
to  construe  the  will,  for  the  purpose  of  as- 
certaining whether  the  claim  of  dower  be 
inconsistent  with  tlie  intention  of  the  testator 
clearly  expressed,  or  necessarily  implied ; 
hoc  opus  est,  hie  labor.  That  cases  have  been 
erroneously  decided  none  can  doubt  who  will 
read  the  reports.  But  the  conflict  in  the  de- 
cisions has  arisen,  for  the  greater  part,  in 
the  manner  and  for  the  causes  that  I  have 
stated.  Those,  too,  who  preside  in  Courts, 
possess,  like  other  men,  differently  consti- 
tuted minds.  Two  strong-minded  and  learned 
Judges,  basing  tneir  judgment  upon  the  same 
general  principles,  may  rise  from  the  con- 
struction of  a  deed  or  will  with  opinions  as 
opposite  as  the  antipodes.  It  is  obvious  that 
these  difficulties  are  inherent  in  the  nature 
of  the  human  mind,  and  must  continue  to 
exist  in  the  practical  enforcement  of  this, 
as  of  all  other  legal  rights,  by  human  tribu- 
nals, as  long  as  the  intellectual  condition 
of  man  remains  unchanged. 

But  to  recur  to  the  more  immediate  subject. 
That  the  Iilnglish  law  has  been  correctly  de- 
fined in  my  preceding  remarks,  is  abundantly 
proven  by  the  British  Statute  which  alters  it, 
(3  and  4  Will.  4  ch.  105,  sec.  9.)  By  this,  it 
was  enacted,  that  where  a  husband  shall  de- 
vise any  land  out  of  which  liis  widow  would 
be  entitled  to  dower,  if  the  same  were  not  so 
devised,  or  any  estate  or  interest  therein  to 

*142 
*and  for  the  benefit  of  the  widow,  such  widow- 
shall  not  be  entitled  to  dower  out  of,  or  in 
any  such  land  of  the  said  husband,  unless  a 
contrary  intention  be  declared  by  his  will. 
The  statute  proceeds  upon  the  assumption, 
that  the  law  before  was  the  reverse  of  that 
which  was  therein  enacted,  and  contained  a 
clause  restricting  it  to  a  prospective  opera- 
tion. The  statute  itself  proves  that  the  re- 
verse of  the  provision  therein  enacted  was  the 
acknowledged  principle  of  the  common  law. 

In  South  Carolina,  there  has  been  no  leg- 
islation materially  affecting  the  widow's 
right  of  dower;  and  the  case  liefore  me  must 
be  adjudged  by  the  principles  of  the  English 
58 


I  conniKin  law,  as  they  have  expounded  in 
I  Westmin.ster  Hall.  Gordon  v.  Stevens,  2 
Hill  Eq.  47  [27  Am.  Dec.  445],  2  Johns.  Ch. 
I  448.  I  cite  these  cases  for  the  purpose  of 
shewing  the  source  to  which  American  Courts 
I  resort  for  illumination  on  this  subject. 

I  have  shewn  that  the  rule  of  the  c-ommon 
law  is,  that  the  claim  of  dower  will  prevail, 
unless  it  will  defeat  the  intention  of  the 
testator  clearly  expressed  upon  the  face  of 
the  will,  or  appearing  by  necessary  implica- 
tion. 

There  are  other  cases,  (some  of  which  will 
be  hereafter  cited,)  by  which  this  abstract 
proposition  has  been)  more  distinctly  and 
particularly  illustrated,  and  its  meaning  ex- 
plained. Aided  by  the  light  reflected  from 
these,  I  will  proceed  to  adjudge  the  case  in 
hand. 

And  first,  as  to  the  Betty's  Neck  place  lying 
on  the  western  side  of  the  Wateree  river, 
purchased  from  William  McWillie,  the  testa- 
tor gave  this  place  to  his  daughter  Elizabeth 
Cunningham  for  life,  to  her  sole  and  separate 
use,  with  remainders,  «&c.,  embracing  the 
whole  fee,  subject  to  a  right  on  the  part  of 
his  wife,  the  complainant,  to  use,  occupy  and 
cultivate,  for  and  during  the  term  of  her 
life  four  hundred  acres  of  the  said  place,  two 
hundred  acres  of  the  swamp  and  two  hundred 
acres  of  the  high  lands  adjoining  the  land  of 
Powell  McRae,  with  the  right  to  cut  firewood, 
timber  for  repairs,  «Jcc.,  with  also  the  right 
to  liave  the  use  and  enjoyment  for  life  of 
either  his   Camden   House,   or  to   reside  for 

*143 
*life  on  the  Betty's  Neck  place,  as  she  may 
choose.  The  four  hundred  acres  thus  givea 
to  the  widow  for  life,  constitutes,  as  I  under- 
stand, but  an  inconsiderable  proportion  of 
the  whole  value  of  the  place.  The  question 
here  is,  whether  the  gift  of  such  a  life  inter- 
est or  estate  in  the  Betty's  Neck  place 
amounts  to  a  clear  and  manifest  intention  on 
the  part  of  the  testator  to  exclude  her  right 
of  dower,  or,  in  other  words,  is  the  right  of 
dower  so  inconsistent  with  the  provisions  of 
the  will  as  to  put  the  widow  to  her  election'.'' 
The  gift  of  the  whole  fee  to  a  third  person 
without  condition  or  restriction,  with  gifts  of 
other  property  to  the  wife  in  the  same  will, 
is  not  incompatible  with  the  claim  of  dower 
in  the  land  so  disposed  of  in  fee  to  the  said 
third  person.  And  I  do  not  know  that  this 
has  been  doubted  within  the  authentic  period 
of  the  English  Common  Law.  Does  the  gift 
of  a  subordinate  interest  to  the  widow  for 
life  in  the  land  given  to  another  in  fee,  alter 
the  case"?  Are  the  two  rights  incompatible? 
Does  such  a  provision,  according  to  the  au- 
thorities, amount  to  a  clear  and  manifest 
intention,  on  the  part  of  the  testator,  to  ex- 
clude the  widow  from  her  right  of  dower,, 
or  to  put  her  to  her  election? 

The  leading  case  in-  the  reports,  where  the 
testamentary  disposition  to  the  widow  is  an 
estate  or  interest  less  than  the  fee  in  lands. 


CUNXIXGIIAM  V.  SHANNON 


*146 


of  whifh  she  is  dowahle,  with  a  devise  to 
js::(irlu'r.  (if  the  residue  of  the  estate  in  said 
hinds,  is  the  case  of  Lawreiiee  v.  Lawrence, 
•_•  \ern.  .;(>".;  S.  C.  3  Bro.  I'ar.  Ca.  4.S.!.  The 
testator  jrave  his  wife  an  estate  viduitate 
duranfe.  in  the  whole  of  the  premises,  with 
reinain(h'r  to  anotlier  on  tlie  death  or  mar- 
riage of  the  widow.  lie  also  sJive  t<»  his  wife 
the  whole  of  his  personal  estate.  She  proved 
the  will,  jiosst'ssed  herself  (jf  the  personal 
estate,  and  entered  upon  the  lands  devised 
to  her  durinj;  widowhood.  Siie  afterwards, 
hy  an  ae4^ion  at  law,  recovered  her  dower 
in  the  same  lands,  which  was  assij;ned  tt»  her. 
The  remainderman  tiled  a  bill  to  he  relieved 
afjainst  the  judj,'nient  at  law,  and  the  case 
connnj;  liefore  Lord  Somers,  he  decided  that 
tiie  testamentary  dispositions  in  favor  of  th«' 
wife  were  in  satisfaction  of  her  claim  of 
dower.     This   decree   was   reversed    by   Lord 

*144 
Keeper  *Wrij;ht,  on  the  ground,  that  there 
was  nothing  in  the  will  which  manifested  a 
sutliciently  clear  intention  that  the  widow 
was  to  be  excluded  frtim  her  dower.  The 
matter  rested  here.  No  appeal  was  taken 
to  the  House  of  Lords.  In  a  question  which 
was  res  Integra,  and  totall.v  iviaffected  by  an- 
tecedent or  subsequent  authorities.  I  should 
have  no  hesitation  in  following  the  opinion 
of  the  able  and  accomplished  Somers,  in 
preference  to  that  of  Lord  Keepi-r  Wright. 
The  latter  was  a  man  totally  unfit  for  his 
high  station,  and  owed  his  elevation,  and  his 
possession  of  the  great  seal  for  five  y*'ars, 
lo  his  obscurity,  and  liis  utter  want  of  qual- 
ification. The  seeming  paradox  may  l)e  ex- 
plained by  the  fact,  that  the  great  men  of 
the  day  were  deterred  by  the  perilous  nature 
of  the  times,  and  the  instaltility  of  the  public 
administration,  from  accepting  this  high  ant! 
responsible  olHce. («)  But  the  principle  does 
not  rest  upon  the  authority  of  Lord  Keeper 
Wright. 

On  the  death  of  the  plaintiff  in  the  former 
suit,  one  A.  Lawrence,  who  was  next  in 
remainder,  became  entitled.  He  also  insti- 
tuted a  suit  to  be  relieved  against  the  judg- 
ment in  dower.  The  case  came  before  Lord 
Cowper.  who  refused  to  reverse  the  judgment 
of  Lcn-d  Keeper  Wright,  and  on  appeal  tt) 
the  House  of  Lords,  the  decree  of  r>»rd  Cow- 
per  was  anirmed.  This,  it  must  be  admitted, 
was  a  very  .solemn  and  authoritative  settle- 
ment of  the  question,  and  the  rule  thus  estab- 
lished has  continued  to  be  the  law  of  KnglaMd 
from  that  day  to  the  third  and  fourth  of  Wil- 
liam IV.  and  to  the  present  time,  in  regard  to 
the  wills  before  the  passage  of  that  statute. 
Ilitchin  V.  Ilitchin,  I're.  Ch.  1.'!.'! ;  Brown  v. 
I'arry,  2  Pick,  (is.");  Birnnngham  v.  Kirwin. 
li  Siho.  and  Lef.  444;  Ix»mon  v.  Lemon,  s 
Vin.  Abr.  ;\m\  Ilolditch  v.  lloir.itcii.  l' 
Young  &  Col.   IS.     Of  these  ciiscs.   ilic   last 

(«)  4  L(l.  Ciiinp.   Lives  of  the  Cliau.   I'.jU ;    3 
liurnct  Hist.  335. 


cited,  Ilolditch  v.  Ilolditch,  as  one  strongly  in 
point,  an<l  of  a  recent  date,  I  Avill  notice  more 
particularly. 

The  testator.  .Tohn  Ilolditch,  devised  to  his 
wife,  Mary  Hoblitch,  a^  house  during  her 
widowhood — he  also  gave  her  an  ainuiity  of 
£.jO  for  life,  whidi,  after  death,  was  to  sink 

♦145 
into  and  form  a  jtart  *of  his  residuary  estate. 
The  annuity  was  charged  upon  his  freehold 
estate  in  the  Parish  of  Klton,  which  was  de- 
vised, subject  to  such  charge,  to  the  testator's 
son.  .John   Ilolditch,  in  fee. 

The  bill  was  filed  by  .Mary  Ilolditch,  the 
wi<low,  against  .John  Ilolditch,  the  sou  and 
devisee  of  the  testator,  claiming  dower  out 
of  all  the  testator's  freehold  estate,  the  an- 
nuity of  £~j()  for  life,  and  the  use  of  the 
house  during  her  widowhood. 

The  \'ice  Chancellor,  (Sir  Knight  Bruce,) 
said:  "I  feel  Ijound  by  the  present  state  of 
the  authorities  to  say,  that  a  mere  gift  of 
an  annuity  to  the  testator's  widow,  although 
charged  on  all  the  testator's  propertj',  is  not 
sutficient  to  put  her  to  her  election ;  and  I 
Consider  my.self  e<iually  bound  by  the  author- 
ities to  say  that  a  mere  gift  to  the  widow  so 
charged,  and  a  gift  of  the  whole  of  testator's 
real  estate,  though  specified  by  name,  to  some 
other  person,  are  not  together  of  themselves 
sulficient  to  put  a  widow  to  her  election. 
And,  moreover,  a  gift  of  a  porticui  of  the 
real  estate,  whether  for  life  or  during  widow- 
hood, is  not  sutficient  as  to  the  residue,  to 
put  the  widow  to  her  election  in  respect  of 
dower." 

"It  is  clear,  therefore,  that  the  annuity 
does  not  bar  the  wife  of  her  dower.  The 
testator,  however,  has  given  her  his  house, 
(which  is  admitted  to  be  freehold.)  during 
lu  r  widowhood ;  and,  after  her  marrying 
again,  he  directs  that  the  same,  (that  is  the 
house.)  shall  fall  into  and  form  a  part  of 
his  residuary  estate.  Now,  if  the  testator 
had  pointed  to  a  particular  mode  of  using 
and  enjoying  the  house  as  t)ne  entire  thing, 
after  the  widow's  second  marriage,  it  might 
be  possihl.v  right  to  hold,  that  the  will  con- 
tained a  declaration,  as  in  Roadly  v.  Dixon, 
that  she  should  not  many  again  and  also 
claim  her  right  of  dower ;  because,  by  so  do- 
ing, she  would  disappoint  the  intention  of 
the  testator,  that  the  property  should  be 
used,  and  enjoyed  in  a  particular  manner. 
The  testator  has  not  done  thi.s." 

"To  i»ut  the  widow  to  her  election,  on  the 
ground  that  her  claim  of  dower  is  incou- 
sistent  with  the  intention  of  the  testator, 
as  to  some  other  legatee  or  devisee,  there 
nnist  be  something  beyond  the  mere  gift  to 
the  legatee  or  devisee.     There  must  be  such 

*146 
♦circumstances    attending   the   gift,    as   that 
if  dower  be  admitted,  the  legatee  or  devLsee 
will  be  disappointed  in  enjoying  the  proper- 
ty in  the  mode  pointed  out  by  the  testator. 

59 


Me 


4  RICHARDSON'S  EQUITY  REPORTS 


No  such  circumstances  occur  in  this  case. 
Therefore,  I  consider  myself  bound  by  the 
authorities  to  say,  that  this  will  does  not 
exhibit  an  intention  to  exclude  the  wife  from 
dower,  to  which  she  is  prima  facie  entitled." 
It  was  decreed  that  the  widow  was  entitled 
to  the  annuity  for  life,  to  the  house  during 
widowhood,  and  to  dower  out  of  all  the 
testator's  lands  of  which  she  was  dowable. 

Upon  the  authority  of  the  cases  I  have 
cited,  to  which  many  others  intermediate  be- 
tween Lawrence  v.  Lawrence,  and  Holditch 
V.  Holditch,  mii,'ht  be  added,  I  hold  that  the 
interest  in  the  Betty's  Neck  place,  devised 
to  the  widow,  is  not  inconsistent  with  her 
legal  claim  of  dower  in  the  same  premises, 
by  metes  and  bounds,  or  by  assessment,  as 
the  case  may  be. 

The  devise  of  the  Betty's  Neck  place  pre- 
sents the  strongest  case  against  the  claim  of 
dower.  And  if  the  widow  is  not  put  to  her 
election  in  reference  to  the  Betty's  Neck 
place,  a  fortiori,  she  is  not  bound  to  elect 
in  regard  to  any  other  of  the  testator's  lands 
of  which  he  became  seized  after  tlie  1st 
January,  1842. 

It  may  not  be  amiss  to  notice  an  objection 
urged  against  the  claim  of  dower  as  to  the 
Betty's  Neck,  and  the  house  and  premises 
situated  in  Kirkwood,  purchased  from  Wil- 
liam McWillie.  The  first  was  given  to  the 
testator's  daughter,  Elizabeth,  during  her 
natural  life,  with  remainders  over,  "for  her 
sole  and  separate  use ;"  and  the  second  was 
given  to  his  daughter,  Mary  M.  Cureton,  for 
lier  life,  "to  her  sole  and  separate  use," 
with  remainders  over.  It  was  supposed  that 
the  circumstance,  that  tliese  devises  were  to 
the  sole  and  separate  use  of  the  devisees, 
rendered  the  case,  as  to  these  devisees,  an- 
alogous to  the  case  of  Miall  v.  Brain,  4  Madd. 
119.  In  the  latter,  the  testator  devised  his 
real  and  personal  estate  in  trust  among  other 
things,  to  permit  his  daughter  to  use  and 
occupy  a  certain  house,  (being  a  part  of  the 
estate  devised,)  for  her  life.  It  was  held  l)y 
the  Vice  Chancellor,  (Sir  J.  Leach,)  that  the 
testator  intended   that   his   daughter   should 

*147 

have  the  per*sonal  use  and  occupation  of 
that  house  during  her  life ;  which  would  be 
inconsistent  with  the  right  of  the  widow  to 
be  endowed  of  the  same  house.  There  is  no 
analogy  in  the  cases.  Here  the  gift  to  the 
devisees,  to  their  sole  and  separate  use,  was 
intended  only  to  exclude  the  marital  rights, 
and  not  to  secure  to  them  the  personal  u.se 
and  occupation  of  the  premises.  Lands  de- 
vised in  this  mode,  if  there  be  no  other  quali- 
fying circumstances,  are  as  much  subject  to 
the  claim  of  dower,  as  if  the  legal  estate 
were  directly  given. 

It  is  ordered  and  decreed,  that  the  com- 
plainant is  entitled  to  retain  all  the  interest 
and  estates  given  to  lier  in  the  devises  of 
Joseph  Cunningham's  will;  and  also  to  have 
60 


her  dower  assigned  to  her  in  all  the  lands 
acquired  by  the  said  Joseph  Cunningham, 
after  the  first  day  of  January  succeeding  the 
date  of  the  deed  of  marriage  settlement  be- 
tween him  and  the  complainant.  It  is  fur- 
ther ordered,  that  a  writ  for  the  admeasure- 
ment of  dower  do  issue  according  to  the  usu- 
al forms  and  practice  of  this  Court. 

The  next  question  which  I  am  to  consider 
arises  on  the  claim  set  up  by  the  complainant 
for  rents  and  profits.  It  is  not  denied,  that 
if  she  is  entitled  to  dower,  she  is  also  en- 
titled to  an  account  for  rents  and  profits. 
But  what  is  to  be  the  measure  of  her  com- 
pensation and  the  mode  by  which  it  is  to  be 
ascertained?  At  common  law,  no  commuta- 
tion in  lieu  of  dower  was  allowed ;  but  the . 
widow  was  only  entitled  to  recover  her  dower 
by  real  action,  without  damages  or  costs. 
The  statutes  of  Mertou  and  Gloucester  gave 
her  an  action,  by  which,  (where  the  husband 
was  seized  at  his  death.)  she  was  entitled  to 
recover  one-third  part  of  the  land  for  life; 
with  one-third  part  of  the  annual  value  of 
the  land,  or  uiesne  profits  from  her  husband's 
death  until  she  recovered  judgment  of  seisin, 
together  with  costs  of  suit.  Her  recovery  of 
one-third  of  the  mesne  profits  was  by  way  of 
compensation  or  damages,  for  the  time  she 
was  kept  out  of  the  possession  and  enjoyment 
of  her  right.  1  Rop.  Ilusb.  and  Wife,  439. 
For  the  wife  had  no  right  to  enter  until  her 
judgment  of  seisin. 

Our  statutes  allow  a  sum  of  money  to  be 

*148 

assessed  in  lieu  of  *dower  when,  in  the  judg- 
ment of  the  commissioners,  to  whom  the  writ 
for  admeasurement  of  dower  has  been  direct- 
ed, partition  cannot  be  made,  and  dower  as- 
signed without  injury  to  some  of  the  parties 
in  interest.  But  no  change  has  been  made  in 
the  lavv^  in  regard  to  the  mode  of  conqiensat- 
iug  the  widow  during  the  time  her  riglit  has 
been  withheld,  with  the  exception  of  the  case 
specifically  provided  for  by  the  Act  of  1S24. 
This  Act  provides  alone  for  the  case,  where 
the  husband  has  alienated  in  his  life  and 
does  not  die  seized.  And  under  these  circum*- 
stances,  in  addition  to  her  share  of  the  value 
of  the  land,  she  is  entitled  to  interest  therpoiL 
from  the  time  of  the  accrual  of  her  rigbt ; 
that  is  to  say,  from  the  death  of  the  husband. 
In  all  other  cases  she  is  comix-nsated  for  the 
detention  of  her  right  by  estimating  her 
share  of  the  rents  and  profits.  In  a  Court  of 
Law  this  is  done  by  the  jury.  In  Equity, 
the  commissioners  appointed  to  assign  dowei', 
though  Ihey  may,  under  certain  circumstanc- 
es, assess  a  sum  of  money  in  lieu  of  dower, 
have  no  power  or  authority  to  go  into  the 
question  of  mesne  profits,  or  to  estimate  the 
damages  or  compensation  to  be  allowed  the 
widow  for  the  detention  of  her  right.  Gor- 
don V.  Stevens,  2  Hill  Eq.  429.  That  is  done 
in  this  couit,  by  reference  to  the  master,  with 
directions  to  take  an  account  of  the  rents 


CUNXIXGIIAM  V.  SHANNON 


♦151 


and  profits,  aiiti  to  estimate  niul   report  the 
widow's  shiirc  tlu'reof.     It  is  acvonlinj.'ly  or- 
dered, that   tlu"   master  do  talie  an  areoiint 
of  the  rents  and  profits  of  all  the  lands  of 
Joseph  Cunnin^'ham.  of  which  by  this  decree 
the   compljiinant   is   entitled   to   he  endowed, 
eoiumen<-ini,'  said  account   from  the  death  of  i 
the  said   Joseph   Cuinun..'iiam ;    and   that   he  i 
report  the  «)ne-tlurd  part  tliereof  to   Ite  due 
to    the   complainant    for    her    share   thereof. 
It  is  further  ordered  and  decreed,  that  the  j 
share  of  the  complainant   in  said  rents  and  \ 
profits,  so  to  he  ascertained,  be  paid  to  her  by 
the  executors  of  the  last  will  and  testament  | 
of  the  said  testator.  | 

It  is  further  ordered  and  decreed,  that  i 
the  said  e.\ecutors  do  pay  to  the  trustee  of 
the  coinidainant,  the  sum  of  twenty  thousand 
dollars,  secured  to  her  by  the  terms  of  the 
deed  of  marriage  settlement,  with  interest 
thereon  from  the  death  of  the  said  Jo.seph 

*149 
♦Cunninjrham ;    the  said  sum  of  .$iiO.(MK)  and 
the  interest  to  be  held  by  the  said  trustee 
for  the  uses  of  the  trust. 

It  is  further  onlered.  that  the  costs  of  this 
suit  be  paid  by  the  said  executors  out  of  the 
assets  of  the  testator. 

Elizabeth  Cuuninjiham  appealed,  on  the 
grounds: 

1.  Because  the  complainant  is  not  entitled 
to  dower  in  the  plantation  called  Betty's 
Neck,  and  to  the  devises  and  bequests  under 
the  will,  but  must  elect. 

2.  Because,  upon  a  just  construction  of  the 
niarriaiie  contract,  complainant  (if  dower  is 
assipied  her)  is  only  entitled  to  receive  under 
the  covenants  of  the  deed,  such  sum  of  money 
as  will  make  up  the  sum  of  twenty  thousand 
dollars  when  added  to  the  value  of  the  dow- 
er assitrned  her. 

3.  Because  the  rents  and  profits  of  the 
lands  for  the  year  Is.'jO  are,  by  the  Act  of 
1789,  to  be  first  applied  to  the  payment  of 
•'taxes,  overseer's  waires.  expenses  uf  physic, 
food  and  clothinf:."  and  compliiinant  can  only 
take  tif  at  all)  one-third  of  the  profits  of  1S50, 
after  deducting'  therefrom  the  exiienses  so 
charged  thereon. 

The  executors  appealed  and  moved  the 
Court  to  modify  that  part  of  the  decree, 
which  orders  the  executors  to  pay  to  com- 
plainant the  rents  and  profits  on  certain 
lands,  from  the  death  of  the  testat<tr  up  to 
the  time  the  sanu-  may  be  paid  to  her.  in 
which  lands  she  is  declari'd  by  the  decree  to 
be  endowed.  Because  it  is  alleged  in  the  an- 
swer of  the  ex»'cutors  and  was  established  at 
the  hearing,  that  on  the  first  of  January, 
1851.  they  had  delivered  up  to  the  devisees  of 
those  lands  the  possession  thereof,  who  are 
therefore  liable,  not  the  exeiutors. 

The  executoi-s  also  moved  to  add  to  the  de- 
cree, an  order  that  complainant  be  charged 
with  the  supplies  furnished  to  luT  from  the 
plantations  in  IsijO.  to  be  deduc-ted  from' the 


rents  and  profits  ordered  to  be  paid  to  her  by 
the  executors. 

Kershaw,  for  Elizabeth  Cunningham. 

J.  M.  DeSaussure,  for  the  executors. 

Gaston,  for  complainant. 

♦150 
•The  opinion  of  the  Court  was  delivered  by 

DARGAN,  Ch.    As  to  the  right  of  the  coni- 
plainant  to  be  endowed  of  the  lands  of  her 
deceased   husband,   Joseph   Cunningham,   ac- 
<iuired  after  the  first  day  of  January,  A.  D. 
is4i;,   this   Court   concurs   in    the   circuit   de- 
cree, and  the  gi'ueral  reasoning  on  which  it  is 
founded.    I  will,  on  the  present  occasion,  add 
notiiing  in  the  way  of  argument  to  what  has 
iieen  said  in  the  circuit  decree  on  this  branch 
of  the  case,  though  the  sui>jeot  is  by  no  means 
exhausted.     On   the   complainant's   claim   of 
dower,  the  judgment  of  the  Circuit  Court  Is 
rendered  in  the  following  language:     "It  is 
,  ordered   and   decreed,   that   the   complainant 
I  is  entitled  to  retain  all  the  inten>sts  and  es- 
1  tates  given  to  her  by  the  devises  of  Joseph 
(^nminghani's   will;    and   also   to   have  her 
dower  assigned   to  her  in  all   the  lands  ac- 
quired by  the  .said  Jo.seph  CuniiinL'ham.  after 
the  first  day  of  January  succeeding  the  date 
of  the  deed  of  marriage  settlement  between 
him  and  the  complainant."     This  is  perhaps 
not  sufiiciently  explicit  upon  one  point,  and 
may  by  construction  be  made  to  mean  more 
than  was  intended,  though  no  such  construc- 
tion of  the  decree  has  been  contended  for  on 
the  part  of  the  complainant.     It  was  not  in- 
tended to  say,  that  she  should  take  un«ler  the 
will  the  landed  estates  given  to  her  by  that 
instrument;   and  al.so  to  be  endowed  of  those 
same  estates.    It  has  been  settled,  that  where 
the  testator  gives  lands  to  his  wife  for  life 
by  his  will,  it  is  repugnant  to  his  intentions 
manifested  by  a  plain  imi)lication.  that  she 
'  should  b(>  endowed  of  those  .same  lands.    Wil- 
son V.  Ilayne,  (Chev.  Eq.  liO;)    Caston  v.  Cas- 
ton,  (12  Rich.  Eq.  1;)   Lord  Dorchester  v.  Earl 
of  Etfingham,  (Coop.  Rep.  319.) 

The  testator  gave  to  the  conq)lainant,  for 
lite,  the  use  of  four  hundred  acres  in  the  Bet- 
tys  Neck  place.  He  also  gave  her  the  priv- 
ilege of  residing  in  the  mansion  bouse  on 
that  place,  for  life,  or  in  his  bouse  and  lot, 
in  the  town  of  Camden,  for  her  life,  as  she 
might  choose.  She  is,  in  the  first  place,  of 
coui-se,  to  eli'ct,  whether  she  will  take  the 
mansion  house  and  the  easements,  on  the 
Betty's  Neck   place  or  the  house  and  l<>t  in 

*151 
Camden.  To  'this  election  slie  is  put  by  the 
will.  She  is,  in  the  next  place,  to  elect 
whether,  as  to  the  lands  given  to  her  by  the 
will,  she  takes  them  under  the  provisi.ms  of 
the  will,  or  by  her  right  of  dower  in  those 
same  lands.  To  the  extent,  that  she  elects  to 
take  the  real  estate  given  to  her  for  life  by 
tile  will,  she  is  not  to  be  emlowed;  and  it  is 
so  ordered  and  decreed.     It  is  further  order- 


61 


'^151 


4  RlCIIxVRDSONS  EQUITY  REPORTS 


ed  and  decreed,  that  she  make  the  elections 
herein  designated,  by  the  first  day  of  June 
next,  unless,  before  that  date,  she  applies 
for  further  time,  on  reasonable  cause  shown. 

Aj?  to  the  (luestiou  raised  in  the  defendant's 
third  ground  of  appeal,  and  also  as  to  that 
made  in  the  first  ground  of  appeal  taken  by 
the  executors,  it  is  ordered  and  decreed,  that 
the  case  be  remanded  to  the  Circuit  Court  for 
a  trial  de  novo;  that  the  commissioner  take 
the  accounts  of  the  rents  and  profits  as  or- 
dered by  the  circuit  decree,  and  that  he  re- 
port thereon,  with  leave  to  state  any  special 
matter ;  the  equities  of  all  the  parties  being 
reserved.  It  is  also  ordered  and  decreed,  that 
the  accounts  for  supplies  furnished  by  the 
executors  to  the  complainant,  mentioned  in 
the  executors'  second  ground  of  appeal,  be 
referred  to  the  commissioner,  and  that  he  re- 
port thereon,  with  any  special  matter;  the 
equities  of  the  parties  to  be  reserved. 

It  is  further  ordered  and  decreed,  that  the 
circuit  decree  be  so  modified  as  to  conform 
to  the  decree  of  this  Court ;  and  that  in  all 
other  respects  the  circuit  decree  be  affirmed 
and  the  appeals  be  dismissed. 

JOHNSTON,    DUNKIN    and   WARDLAW, 
CC.  concurred. 
Decree  modified. 


4  Rich.  Eq.  *I52 

*A.   .J.  McQueen  and  Wife  v.  JOSHUA 
FLETCHER  and  Others. 

(Columbia.     Nov.   and  Dec.  Term,  1851.) 

[Evidence  (®=>178.] 

The  existence  of  a  judgment  and  other  pro- 
ceedings iu  partition,  in  the  Common  Pleas, 
established   on  parol  evidence. 

LEd.  Note.— Cited  in  Brown  v.  Coney,  12  S. 
C.  151. 

For  other  cases,  see  Evidence,  Cent.  Dig.  §§ 
583,  585 ;    Dec.  Dig.  <®=>178.] 

[Partiiioii  <©=3llG.] 

Qiicre:  Where,  on  proceedings  in  partition 
under  the  Act  of  1791,  land  is  allotted  to  one 
distributee,  and  he  is  required  to  pay  another 
distributee  a  sum  of  money  in  lieu  of  his  share 
of  the  land,  does  the  judgment  transfer  the  ti- 
tle, irrespective  of  the  payment  of  the  purchase 
money,  and  establish  only  a  lieu  on  the  land,  or 
is  the  title  not  vested  until  pavmeut  of  the  mon- 
ey ?(«). 

LEd.  Note. — Cited  in  Kerngood  v.  Davis,  21 
S.  C.  203;  Simms  v.  Kearse,  42  S.  C.  48,  49, 
20  S.  E.  19. 

For  other  cases,  see  Partition.  Cent.  Dig.  §§ 
315,  4.50-453;    Dec.  Dig.  (S=>116.] 

[Payment  d^^^GG.] 

The  presumption  of  payment  which  arises 
from  the  lapse  of  twenty  years,  is  not  a  pre- 
sumption of  law,  but  a  strong  presumption  of 
fact,  which  shifts  the  burden  of  proof. 

[Ed.  Note.— Cited  in  Wright  v.  Eaves,  10 
Rich.  Eq.  597. 

For  other  cases,  see  Pavment,  Cent.  Dig.  § 
176;    Dec.  Dig.  <©=6(3.] 


[Payment  <©=:366.] 

In  considering  admissions,  relied  on  to  rebut 
the  presumption  of  payment,  the  same  prin- 
ciples are  applicable  which  apply  where  admis- 
sions are  relied  on  to  take  a  case  out  of  the 
statute  of  limitations. 

[Ed.  Note.— For  other  cases,  see  Payment, 
Cent.  Dig.  S§  176-188;    Dec.  Dig.  <g=>66.] 

[Evidence  <®=>265.] 

So  long  as  the  lapse  of  time  is  less  than 
twenty  years,  any  admissions  which  oppugn  the 
inference  of  payment  drawn  from  it,  go  to  the 
jury  along  with  it,  and  all  are  weighed  together 
according  to  their  natural  force:  but  when 
full  twenty  years  have  expired,  an  admission, 
that  the  payment  has  not  in  fact  been  made, 
cannot,  of  itself,  destroy  the  effect  of  the  pre- 
sumption. 

[Ed.  Note.— Cited  in  Dickson  v.  Gourdin,  26 
S.  C.  397,  2  S.  E.  303. 

For  other  cases,  see  Evidence,  Cent.  Dig.  § 
1032;    Dec.   Dig.   (©=:3265.] 

[Infants  <©=»105.] 

In  estimating  the  time  sufficient  to  raise  the 
presumption  that  a  judgment  has  been  paid,  the 
period  during  which  the  plaintiff  was  under  dis- 
ability from  infancy  must  be  deducted:  Sem- 
ble  {b) 

[Ed.  Note. — For  other  cases,  see  Infants,  Cent. 
Dig.  S  322;    Dec.  Dig.  <S=5l05.1 

[Infants  <®=>105.] 

A  judgment  iu  partition  vesting  the  land  in 
W.  A.  on  his  paying  C.  A.  a  sum  of  money  in 
lieu  of  her  share,  held,  as  against  a  purchaser 
of  the  laud  from  W.  A.,  not  to  be  satisfied,  al- 
though twenty-four  years  had  elapsed  siu'^'e  the 
judgment  was  rendered, — it  appearing  that  C.  A. 
was  an  infant,  about  two  years  old,  when  the 
judgment  was  rendered,  and  W.  A.  having  ad- 
mitted the  non-payment  of  the  money. 

[Ed.  Note.— Cited  in  Burris  v.  Gooch,  5  Rich. 
6;  Smith  v.  Tanner,  32  S.  C.  264,  10  S.  E. 
1008. 

For  other  cases,  see  Infants,  Cent.  Dig.  § 
322;    Dec.  Dig.  <S==>105.] 

[Limitation  of  Actions  <g;=::>72.] 

In  1833,  defendant  purchased  land  on  which 
plaintitt,  then  an  infant,  had  a  lieu  under  a 
judgment  iu  partition:  in  October,  1845^  plain- 
tiff arrived  at  age,  and  in  September,  18.j0,  filed 
her  bill  against  defendant,  held,  that  defendant 
was  not  protected  by  the  statute  of  limitations. 
[Ed.  Note. — For  other  cases,  see  Limitation  of 
Actions,  Cent.  Dig.  §  392;    Dec.  Dig.  <S=»72.] 

[Evidence  <©==5l78.] 

[It  was  permissible  to  prove  the  contents 
of  a  record  of  proceedings  and  judgment  in 
partition  by  the  testimony  of  the  commission- 
ers appointed  in  such  proceedings,  where  it  was 
shown  that  no  recoi'd  could  be  found,  though 
diligent  search  had  been  made  therefor.] 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent.  Dig.  §  583;    Dec.  Dig.  <s=>178.] 

[Evidence  <©=>S2.] 

[Cited  in  Sasportas  v.  De  La  Motta,  10 
Rich.  Eq.  52;  Boyce  v.  Lake,  17  S.  C.  488, 
43  Am.  Rep.  618;  Gardner  v.  Cheatham,  in 
concurring  opinion,  37  S.  C.  SO,  16  S.  E.  368, 
to  the  point  that  an  order  of  a  court  of  com- 
petent jurisdicti(m  is  presumptive  of  the  regu- 
larity of  proceedings  leading  up  thereto.] 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent.  Dig.  §  104  ;    Dec.  Dig.  <S=>82.] 

[This  case  is  also  cited  in  Roberts  v.  Smith,  21 
S.  C.  456,  and  distinguished  therefrom,  and 
in  Clark  v.  Smith,  13  S.  C.  600,  as  to  no- 
tice of  statutory   mortgages.] 


(fl)   Burris  v.  Gooch,  5  Rich.  1. 


(l,)   Vide  Lamb  v.  Crosland,  4  Rich.  536. 


62 


^=:3For  other  cases  see  same  topic  and  KICY-N UMBER  in  all  Key-Numbered  Digests  and  Indexes 


McQueen  v.  fletcher 


*155 


Hcfore  .T«)hnst<»n,  Cli..  at  Marlboroujjh.  Feb- 
ru:iiy.  INHI. 

This   case    will    lie   suHicifiitly    uiidtTstood 
liom  tlii^  lU'cn-e  of  the  circuit  ("hiinccllor  and 
tlu"  (ipiiiion  di'livcn'd  in  the  ("oint  of  Ainteals. 
Tlu'  circuit  decree  is  as  follows: 
♦153 

♦Johnston,  Ch.  I  do  not  deem  it  necessary 
to  state  every  i)articular  point  or  fact  hrou«lit 
to  my  view  at  the  hearing;  I  shall  state  only 
the  substance,  leavinj;  the  rest  to  ai^iear  in 
the  iileadinL;s  and  notes. 

The  case  is  shortly  this: 

The  plain! itr.  Mrs.  Caroline  McQueen,  Is 
one  of  the  dau;.'hters  of  Shockley  Adams,  late 
of  Marll)orou;:h  district,  who  died  intestate, 
the  lOlh  of  October,  1S24.  At  his  (i«'ath,  he 
left  as  his  distriimtees,  his  wife.  Isabella, 
and  ei;.'ht  children,  of  whom  it  is  necessary 
to  mention  only  three,  namely:  Wm.  L. 
Adams,  (who  became  his  administrator.)  Har- 
ris U.  Adams  and  Mrs.  McQueen. 

The  intestate  was.  at  liis  death,  the  owner, 
in  fee  simple,  of  three  tracts  of  land,  lyinj? 
in  MarllM»rou),'h.  and  which  are  the  subjects 
of  liti;:ation  in  this  case,  viz: 

1.  The  jilantation  denominated  in  the 
pleading's  the  Home  Tract,  or  House  IMace, 
containiiij:  two  hundred  acres,  more  or  less. 
This  tract,  the  widow,  who  was  in  possession 
of  it  at  the  time,  and  had  been  from  18L'5, 
sold  to  the  defendant.  Bethea.  in  1S.S6;  and 
he  took  possession,  which  he  still  retains. 

2.  The  tract  called  the  Mill  Tract,  of  six 
hundred  and  two  acres,  more  or  less.  This 
tract  was  levied  on  by  the  sheriff  as  the 
jiroperty  of  Wm.  L.  Adams,  and  sold  to  the 
defendant,  Fletcher,  the  liOtli  of  December, 
IS'W,  at  the  price  of  three  thousand  dollars. 

3.  A  tract  called  Easterlinj?,  containing 
three  hundred  acres,  more  or  less.  This 
tract  was  levied  on  and  sold  as  the  property 
of  Harris  K.  Adams,  and  l>ou^'ht  by  the  de- 
fendant, Joel  I^asterlinj;.  for  six  hundred 
dollars,  to  whom  the  sheriff  conveyed  it  the 
4th  of  March,  is:'.);. 

It  is  admitted,  that  by  tliese  purchases,  the 
defendants  ac<piired  not  only  the  title  of 
those  from  whom  they  l)ouf;ht.  but  of  all 
the  other  distril)utees  of  the  intestate,  except 
Mrs.  McQueen.  The  contest  is  as  to  her  rights 
in  the  land.  The  plaintiffs  contend  that  she 
is  still  tMititled  to  a  distributive  share  of  the 
l;ui(ls.   and   to  a   partition   of  tbeiii    with   the 

♦154 
defendants,  respectively:  and  for  this  ♦pur- 
pose the  bill  (which  was  liled  the  14th  of 
September,  is.'id.i  is  brought.  The  defend- 
ants, on  the  coidrary.  maintain  that  the  wid- 
ow and  the  two  .sons,  whose  title  they  twik, 
held  and  were  entitled,  at.  the  time  of  their 
sales,  to  a  full  and  complete  title,  in  exclu- 
sion of  Mrs.  Mct,>u«'en.  and  not  suii.ject  to  a 
partition   with  lier. 

The  (juestion  in  this  <ase  is.  whether  the 
plaintiffs  or  the  defendants  are  correct  iu  the 
positions  taken  by  them. 


Mrs.  McQueen  was  once  entitled  to  a  dis- 
tributive share  of  the.se  lands,  and  if  this 
right  has  been  defeated,  or  she  has  been  sat- 
islied  for  it,  it  is  incumlu-nt  on  the  defend- 
ants to  shew  how  this  has  been  effected. 
Being  sensible  of  this,  they  have  undertaken 
to  nmke  tlie  shewing  required. 

They  allege,  that  as  far  back  as  iSliG.  a 
pnx-eeding  in  [lartition  was  had  Lii  the  Court 
of  Common  I'leas,  by  which  the  lands  bought 
by  them  from  tlie  widow  and  the  two  sons. 
were  allotted  to  tho.se  parties,  respectively, 
who  took  possession  luider  the  judgment  in 
partition  and  held  the  property  as  their  own. 
and  it  was  .so  bought,  and  has  been  so  held 
by  the  defendants. 

The  plaintiffs  reply  to  this,  that  if  there 
was  any  such  proceeding. — which  they  do  not 
adndt,— Mrs.  McQueen  was  no  party  to  it,  ana 
was  not  Itound  by  it:  and  they  demand  the 
production  of  the  record. 

Again.  They  insist  she  was  entitled  to 
have  either  a  portion  of^  the  land.  <)r  comj)en- 
sation.  That  no  portion  was  ever  assigned 
to  or  received  by  her;  and  \^f  any  comitensa- 
tion  was  ever  adjudgeil  to  her.  it  has  never 
been  paid. 

Thirdly.  They  say  that  Mr.s.  McQueen  was 
a  minor  until  l.S4."».  (and  this  is  not  deided  in 
the  answer,  though  allege<l  in  the  bilhi — and 
that,  therefore,  no  presumption  can  arise 
against  her,  of  accpiiescence,  or  forfeiture  of 
right,  by  reason  of  adverse  pos.session,  or 
any  other  transaction  by  which  she  may  V)e 
supposed  to  have  attirmed  the  supi»osed  par- 
tition. It  was  also  proved  that  she  intermar- 
ried with  her  co-plaintiff  as  far  back  as  l!sJS 
or  1841,  during  her  nnnority. 
♦155 
♦No  record  in  partition  has  l)een  produced: 
— and  yet  I  think  there  is  evidence  to  es- 
tablish a  partition,  and  that,  uuiler  the  nec- 
essary presumptions  of  law.  it  nuist  be  held 
conclusive  of  the  rights  claimed  in  the  pres- 
ent bill. 

The  following  extract  from  the  pro<eedii;gs 
of  Spring  term.  ISi'ti.  was  given  in  evidence: 

"Isabella  Adams  and  others.^ 

vs.  [  Writ   in  parti- 

W.  L.  Adams,  adm'r.  of     "  tion. 

Shockley  Adams,  J 

The  conunissioners  appointed  to  <livide  the 
real  and  personal  estate  in  the  writ  mention- 
ed, having  nnide  their  return,  certifying  a 
partition  of  said  estate: — on  motion  of  Mr. 
F.rvin,  attorney  for  plaintiffs,  ordered,  that 
the  said  return  be  confirmed:  and  that  they 
have   leave   to   enter   up   judgment    thereon." 

It  is  true,  there  is  no  record  of  any  other 
part  of  the  lU'oceeding  produci'd:  and  if  we 
are  to  know  what  the  proceeding  was, — 
what  iiartition  was  nnide,  and  its  terms, — 
who  were  parties, — and  who  are  bound. — we 
nuist  learn  it  from  parol  or  depend  upon 
legal  presumptions  and  inferences  to  he 
drawn  from  the  anticiuity  of  the  proceeding. 

63 


^55 


4  RICHARDSON'S  EQUITY  REPORTS 


This  is  all  very  lame.  It  exhibits  a 
wretched  state  of  neglect;  and  it  exhibits  to 
what  a  most  shocking  state  of  precarious- 
ness  the  rights  of  citizens,  that  ought  to  be 
strictly  guarded  by  pul)lic  oflicers,  may  be 
reduced  by  the  carelessness  and  criminal  in- 
dolence of  those  officers.  But,  still,  I  think 
the  rights  of  other  citizens  are  equally  to  be 
regarded;  and  that  their  security  demands, 
that  such  inferences  should  be  drawn,  from 
what  little  of  the  record  is  preserved,  as  are 
material  and  reasonable. 

It  has  been  shown  that  Mr.  Ervin,  the  at- 
torney in  the  record,  is  dead ;  that  his  office 
and  papers  have  been  searched,  and  no  other 
traces  of  the  proceeding  found ;  that  the 
clerk's  office  at  the  time,  and  for  years  be- 
fore and  after,  was  negligently  kept ;  that 
Wm.  L.  Adams,  in  whose  hands  some  of  the 
papers  might  have  been,  in  order  to  accounts 
and  settlements  in  the  ordinary's  office,  is 
out  of  the  State;   and  that  such  papers  as  he 

*156 
left  behind  him  *have  been  searched  without 
effect.  The  present  clerk  has  made  diligent 
.search,  and  can  find  no  further  fragments 
of  the  record.  The  ordinary's  office  has  been 
seached  in  vain. 

That  there  was  a  writ  of  partition,  and 
that  it  was  returned  to  the  Court,  and  an 
order  granted  upon  the  reading  and  inspec- 
tion of  the  return,  we  cannot  doubt:  for  that 
order  is  produced.  That  every  thing  was 
regular  up  to  that  time,  we  are  bound  to  pre- 
sume. The  record  being  lost,  we  must  re- 
sort to  secondary  proof  of  its  purport  and 
contents.  One  of  the  commissioners  was 
sworn,  and  proved  that  a  writ  Issued,  and 
that  he  assisted  in  executing  it.  Mr.  McCol- 
lum  testified  that  the  Home  Tract  was  al- 
lotted to  the  widow  at  .$.3,.300.  He  does  not 
remember  whether  a  contribution  was  requir- 
ed of  her;  but,  from  other  evidence  showing 
the  value  of  the  real  and  personal  estate,  the 
subject  of  division,  it  would  appear  that  the 
tract  assigned  was  less  than  one-third  part 
of  the  estate.  He  says  the  300  acre  tract 
(Easterling)  was  assigned  to  Harris  R. 
Adams;  and  he  was  to  contribute  something 
under  .$1000  for  equality  of  partition.  That 
the  Mill  Tract  was  assigned  to  Wm.  L. 
Adams  at  about  $4500;  but  what  he  was  to 
contribute  witness  does  not  remember.  The 
return  specified  the  sums  to  be  paid  by  the 
different  parties  for  equality  of  partition. 

It  appears,  also,  that  Mrs.  McQueen  receiv- 
ed certain  negroes  in  the  division,  which  are 
now  in  her  husband's  possession ;  and  that 
in. an  account  stated  before  the  ordinary,  by 
Wm.  L.  Adams,  the  administrator,  with  Dr. 
Malloy,  who  either  was  or  assumed  to  act  as 
her  r  -ardian,  the  administrator  was  charged 
with  the  balance  due  her  of  the  whole  real 
and  personal  e.state,  after  deducting  the  spe- 
cific property  which  she  received,  and  the 
payments  that  had  been  made;  and  the  ordi- 
nary gave  a  decree  for  the  balance,  (about 

64 


$1000).  For  this  balance,  suit  was  brought 
by  her  and  her  husband,  after  her  marriage. 
The  suit  was  against  a  surety  to  the  admin- 
istration, who  showed  on  the  trial  that  in 
the  sum  of  $1000,  sued  for,  was  included 
$687.05  for  her  share  of  the  realty,  which 
was  accordingly  deducted  from  the  surety's 
liability.     This  was  shown  by  the  testimony 

*157 
of  Gunter,  a  husband  of  one  of  in*testate's 
daughters.     On  that  occasion,  he  also  testi- 
fied to  the  division,  as  proved  by  McCoUum. 

Now,  under  this  evidence,  (throwing  out 
that  of  Wm.  L.  Adams,)  would  it  be  reason- 
able to  say  there  was  no  partition,  or  that 
the  lands  were  not  assigned  as  the  defend- 
ants insist  they  were? 

The  fact  of  partition  is  still  further  con- 
firmed by  the  pregnant  circumstance,  that, 
though  the  parties  to  whom  the  property  was 
allotted  were  in  possession,  as  of  their  own 
property,  from  1826  until  the  day  of  their 
alienations,  no  application  was  made  by  any 
one  of  the  numerous  distributees  for  another 
division;  and  though  the  widow  alienated 
her  land  in  1833,  and  those  of  the  two  sons 
were  publicly  sold  as  their  property  in  1836, 
no  question  was  raised  by  any  distributee  as 
to  the  exclusiveness  of  their  titles,  'till  the 
filing  of  this  bill  in  1850. 

Was  Mrs.  McQueen  a  party?  Am  I  not 
bound  to  presume  that  the  Court  did  its 
duty,  and  that  it  would  not  have  authorized 
the  entering  up  of  judgment  Avithout  seeing 
that  all  proper  parties  were  before  it?  Is 
not  the  presumption  of  her  participation  in 
the  proceeding  confirmed  by  the  reception 
and  retention  of  the  negroes  allotted  to  her 
in  the  division,  and  by  the  accounting  before 
the  ordinary,  especially  as  suit  was  brought 
by  her  on  that  accounting? 

Assuming  that  there  was  a  partition,-^ 
that  concludes  her  right  to  have  another  par- 
tition. Her  right  in  the  land  is  gone,  and  is 
vested  in  the  parties  to  whom  it  was  assign- 
ed. Transit  in  rem  judicatam;  and  when 
a  judgment  has  been  rendered  upon  any 
right  or  claim,  that  claim  cannot  again  be 
stirred  or  litigated.  The  remedy  is  by  en- 
forcing the  judgment.  This  is  very  clear. 
If  by  the  partition  made,  any  sum  was  de- 
creed to  Mrs.  McQueen  for  equality  of  par- 
tition, that  is  another  matter.  Her  right  was 
in  that  case  reduced  to  a  mere  money  claim. 

If  she  claims  for  money  due  her,  the  bur- 
den is  upon  her  to  shew  the  decree  for  it,  and 
the  amount  decreed.  I  am  not  sure  that  the 
evidence  is  sufficiently  explicit  as  to  this 
point. 

Suppose  it  to  be  so.  That  judgment  should 
*158 
be  regarded  as  *having  been  entered  up  in 
1820 ;  and  the  legal  presunq)tion  of  satisfac- 
tion arose  before  1850,  when  her  bill  was 
filed.  I  am  not  aware  of  any  authority  or 
principle  by  which  the  vigor  of  this  presump- 


McCiLKKX   V.  FLKTClIEll 


'160 


tion  would  he  iniiiaiied,  or  its  curivncy  sus- 
pended  liy   iier  iiifaiity   or  covertiiie. 

Hut  tlie  statute  of  17!U  ^ives  a  lieu  for  the 
l)ur<hase  money  of  an  intestate's  land  sold 
for  partition  :  and  l)y  a  fair  construction.  I 
suiipose.  such  lands  are  liahle.  also.  f«)r  sums 
necessary  ti»  produce  etpiallty  of  partition; 
;ind  1  may  he  told.  that,  independently  of  tlie 
.iu<l;;ment  In  partition  in  tlds  case,  tiiis  lit'u 
still  suhsists: — hut  1  hold  that  the  same  lai)se 
of  time  whiili  would  presume  satisfaction  of 
a  judgment,  a  mortt,'aj;t'.  or  specialty  deht, 
will  raise  a  similar  presumption  under  a  stat- 
utory litMi.  A  period  of  twenty-four  years 
had  elapsed  hefore  the  hill  was  tiled:  and 
the  claim  is  stale. 

It  is  ordered  that  the  hill  he  disnussed. 

The  complainants  apjiealed,  on  the  follow- 
inir  frrounds: 

1.  IVcausc  it  did  not  siilliciciitly  ajipear 
from  the  ca.se  made  hy  the  pleadinu's  and  evi- 
dence, that  any  partition  of  tlic  lands  named 
in  the  l)ill.  hiiidin^  ujion  raroline  Mct^ueeu, 
the  comiilainant.  and  divestin;;  her  tiHe  in 
sai<l  lands,  was  made  in  iSL'f;.  as  his  Honor 
has  decreed. 

2.  Because  even  if  tliere  had  heen  a  valid 
partition  of  the  said  lands  made  in  l.Slifi,  yet 
as  it  clearly  appeared  that  no  land  was  al- 
lotted to  Caroline,  hut  in  lieu  thereof  a  sum 
of  money  was  ordered  to  he  paid  her,  and 
it  clearly  appeared  that  the  said  sum  of 
money  was  never  i)aid.  hut  is  still  due :  his 
Honor  should  not  have  dismissed  complaiU' 
ant's  hill.  Imt  should  have  ordered  a  refer- 
ence ti>  the  conunissioner.  to  ascertain  and  re- 
port the  sum  actually  tluc  to  the  said  Caro- 
line, and  should  have  suhjected  said  lands 
to  the  payment  of  said  sum  of  money. 

3.  liecause  his  Honor  was  in  error  in  pre- 
suminj;  satisfaction  and  payment  of  the  sup- 
posed conunon  pleas  judjiment  of  1X20.  in  fa- 
vor of  the   complainant.    Caroline,    from   the 

*159 
lapse    of    time    since    *it    was    rendered,    al- 
thou^'h  the  said  Caroline  was  an  infant  for 
nearly  the  whole  of  that  time. 

Thornwell.  for  appellants. 
.  contra. 

The  opinion  of  the  Court  was  dtdivered  by 

I)rXI\'I.\.  Ch.  This  Court  is  entirely  sat- 
isfied with  the  judgment  of  the  Chancellor  in 
relation  to  the  proceedin^rs  in  partition.  The 
piirol  testimony  was  properly  received  un- 
der the  circumstances,  and  very  fully  estab- 
lished the  existence  of  the  record.  Snuth  v. 
Smith.  Kice.  '2:V2.  is  an  authority  for  tlie  ad- 
nussihility  of  the  evidence,  and  for  settini; 
up  a  judtrnieiit  in  jtartition  on  less  satisfac- 
tory proof. 

The  A<t  of  17!H.  (.")  .Stat.  1(;4.)  provides 
that,  where  the  land  cannot  he  fairly  and 
e(pially  divided,  the  conunissioners  shall 
make  a  special  return,  certifyin;;  to  the 
Court  their  opinion,  whether  it  will  be  more 
4  Ricu.Kq.— 5 


I  for  the  l)enefit  of  the  parties  to  deliver  over 
to  one  or  more  of  them  the  property  which 
cainiot  le  fairly  tllvided.  iu>on  the  payuu'ut 
of  a  Sinn,  of  money  to  Ik«  asses.sed  hy  the 
conunissioners.  or  to  .sell  the  .same  at  iiuMi'- 
auction;  and,  if  the  Court  shall  he  of  opin- 
ion that  it  would  l»e  for  the  Iteuetit  of  the 
parties,  tliat  the  same  shall  he  vested  in  one 
pers(»n  or  more  persons  entitled  to  a  portion 
of  the  same,  on  the  payment  of  a  sum  of 
money,  th««y  .^hall  deterndne  acciM-dini,'ly ; 
and  the  said  jiersou  or  persons,  on  the  pay- 
ment of  the  consideration  money,  shall  he 
vested  with  the  estate  so  adjudired  to  them, 
as  fully  and  absolutely  as  the  ajice.stor  was 
vested.  Hut.  if  it  shall  appear  to  the  Court 
to  be  more  for  the  interest  (»f  the  jiarties 
that  the  same  slutuld  lie  .sold,  they  shall 
direct  a  sale  on  such  credit  as  tliey  shall 
deem  rlsht :  and  the  property  so  sold  shall 
stand  pled«»>d  for  the  payment  of  the  pur- 
chase money.  In  this  ease.  thi>  intestate  left 
a  widow  and  i'i;iht  children.  It  aitiiear.s, 
that  at  the  time  of  the  partition  in  IsiN;. 
the  comitlainant.  Caroline,  was  about  two 
years  of  a^'e,  and  was  represented  by  her 
brother  and  guardian  ad  litem.  William  I.. 
Adams.     The  testimony  shows  that  the  eom- 

*160 

missioners  executed  *the  writ  by  .setting  olf 
the  three  tracts  of  land  to  three  of  the  par- 
ties in  interest,  to  wit.  tlie  widow  and  two 
of  the  .sons.  The  evidence,  both  of  William 
L.  Adams  liiniself,  and  of  John  McCollum, 
one  of  the  commissioners,  proves  that  Wil- 
liam L.  Adams,  who  took  the  tract  valued 
at  .$4n00,  was  to  pay  to  his  sister,  the  com- 
plainant, tlie  sum  assessed  to  her  in  lieu  of 
her  interest  in  the  land.  The  other  evidence 
shews,  with  reasonable  certainty,  that  this 
sum,  after  deductini:  her  share  of  the  costs, 
was  six  hundred  and  eijihty-seven  dollars 
and  live  cents  (.^tJST.O,")).  Hy  the  order  of 
the  Court  of  Common  Pleas,  at  Si)ring  term. 
1S2(;,  this  return  of  the  commissioners  was 
made  the  judj;ment  of  the  Court.  On  the 
part  of  the  complainants,  it  is  insisted,  that 
by  the  terms  of  the  Act,  no  title  vested  in 
William  L.  Adams,  until  payment  of  the 
consideration  money.  While  the  defendants 
urge,  and  .so  the  Chancellor  held,  that,  by 
the  judgment  in  partition,  the  right  of  the 
minor  in  the  land  was  gone,  and  that  her 
only  renu'dy  was  by  enforcing  the  judg- 
ment, and  that  although  the  statute  gave  a 
lien  upon  the  land,  both  the  judgment  and 
statutory  lien  must  be  presiuned  to  be  sat- 
istied  from  the  lapse  of  time.  It  is  not  Im- 
portant  in  this  case  to  determine  whether 
the  judgment  transferred  the  title,  irrespec- 
tive of  the  payment  of  the  purclia.se  nir)ney, 
and  established  a  lien  on  the  premises,  or 
whether  the  title  was  only  to  be  absolute  on 
compliance  with  the  condition.  If  the  Court 
is  sjitislied.  whether  by  presumption  or  posi- 
tive proof,  that  the  purchase  money  wa.s 
paid,  the  title  in  William  L.  Adams,  by  the 

65 


»160 


4  RICHARDSONS  EQUITY  REPORTS 


terms  of  the  law,  was  as  full  and  absolute 
as  his  father's  had  been.  And  so,  if  the 
judgment  transferred  the  title  and  created 
a  lien,  and  yet  the  Court  is  satisfied,  by 
presumption  from  lapse  of  time  or  other- 
wise, that  the  debt  has  been  paid,  the  judg- 
ment is  gone,  and  the  lien,  which  is  merely 
an  incident,  has  ceased  to  exist. 

It  Is  admitted,  that  there  is  no  positive 
proof  of  payment  to  the  complainant,  (Caro- 
line,) or  to  any  other  person  acting  for  her, 
of  the  sum  assessed  to  her  and  adjudged  to 
be  paid  to  her  by  William  L,  Adams.  But  it  is 
said  that  more  than  twenty  years  have  elaps- 
ed since  the  entry  of  the  judgment,  and  that, 

*161 

after  this  *lapse  of  time,  it  must  be  pre- 
sumed to  be  satisfied.  The  Court  of  law  had 
occasion  to  consider  this  doctrine  in  the  re- 
cent case  of  Stover  v.  Duren,  3  Strob.  448 
[51  Am.  Dec.  634].  It  is  there  said,  "The 
presumption  of  payment,  which  arises  after 
the  lapse  of  twenty  years,  is  not  a  presump- 
tion of  law,  but  is  a  presumption  of  fact, 
recognized  by  law,  from  which  a  conclusion 
ought  to  be  deduced  by  a  jury.  It  is,  how- 
ever, one  of  those  strong  presumptions  which 
shift  the  burden  of  proof,"  &c.  In  that  case 
some  twenty-six  years  had  elapsed  since  the 
entry  of  the  judgment,  and  the  presiding 
judge  had  held  that,  after  the  lapse  of  twen- 
ty years,  mere  acknowledgments  were  in- 
sufficient to  rebut  the  presumption ;  that 
if  there  had  been  no  payment  of  interest, 
no  promise  to  pay,  no  other  sufficient  rebut- 
ting circumstance,  then  an  acknowledgment, 
in  order  to  suffice  for  rebutting  the  pre- 
sumption, should  be  a  distinct  admission  of 
the  subsisting  legal  obligation  of  the  debt, 
unaccompanied  by  any  conduct  or  expres- 
sions indicative  of  an  unwillingness  to  pay. 
The  Court  saj^  "We  perceive  no  objection  to 
the  rule  thus  stated  to  the  jury.  The  pre- 
sumption is  no  legal  bar,  but  it  was  original- 
ly admitted  in  analogy  to  the  statute  of  lim- 
itations, and  in  considering  admissions  which 
rebut  it,  the  same  principles  are  applicable 
as  in  considering  admissions  which  take 
the  case  out  of  the  statute  of  limitations." 
So  long  as  the  lapse  of  time  is  less  than 
twenty  years,  any  admissions  which  oppugn 
the  inference  of  payment  drawn  from  it, 
go  to  the  jury  along  with  it,  and  all  are 
weighed  together  according  to  their  natural 
force.  But  when  full  twenty  years  have 
expired,  an  admission  that  the  payment  has 
not  in  fact  been  made,  cannot,  of  itself,  de- 
stroy the  effect  of  the  presumption.  Upon  a 
similar  analogy  it  has  been  held  in  this 
Court,  that  the  period  during  v,'hich  a  plain- 
tiff was  under  disability  from  non-age,  shall 
be  deducted  in  estimating  the  lapse  of  time 
sufficient  to  create  a  presumption  of  ouster, 
&c.  In  Gray  v.  Givens,  2  Hill  Eq.  514,  it  is 
said,  the  time  during  which  the  party  to  be 
affected  was  under  disability  must  be  de- 
ducted in  computing  the  lapse  of  time,  in 
66 


analogy  to  the  statute  of  limitations — other- 
wise,   as    Chancellor    Harper    hypothetically 

*162 
stated  in  that  case,  and  *might  very  well 
have  happened  in  this,  a  party  may  be 
barred  before  he  had  an  opportunity  of  ei- 
ther asserting  or  knowing  his  rights.  A 
judgment  entered  in  favor  of  an  infant 
twelve  months  old,  and  represented  only  by 
a  guardian  ad  litem,  would  be  presumed  to 
be  paid  by  lapse  of  time,  before  she  was  of 
age  or  had  any  authority  to  receive  the 
money,  or  could  execute  a  valid  acquittance. 
But  apart  from  this.  It  has  been  said 
that  the  complainant,  (Mrs.  McQueen,)  was 
an  infant  about  two  years  old  at  the  time  of 
the  partition  in  1S2G.  She  became  of  age 
in  October,  1845.  William  L.  Adams  was 
also  administrator  of  the  estate  of  his  fa- 
ther (the  intestate.)  On  the  2d  December, 
1834,  a  settlement  took  place  before  the  or- 
dinary between  William  L.  Adams  and  John 
Malloy  styling  himself  guardian  of  Caroline 
F.  Adams,  (the  complainant,)  on  account  of 
her  share  of  the  real  and  personal  estate  of 
her  father  to  which  she  was  entitled.  After 
deducting  payments  a  balance  was  admitted 
to  be  due,  and  a  decree  entered  by  the  ordi- 
nary for  $1,069.50.  In  September,  1847,  suit 
was  instituted  by  the  complainants,  in  the 
name  of  the  ordinary,  against  the  surety  of 
William  L.  Adams  as  administrator,  on  the 
decree  made  in  December,  1834.  A  verdict 
was  obtained  against  the  surety  of  the  ad- 
ministrator deducting  the  value  of  the  com- 
plainant's intex'est  in  the  real  estate  which, 
(as  proved  by  the  defendant's  solicitor  in 
this  case,)  was  shown  on  the  trial  to  be 
.$687.05.  It  was  proved  at  the  hearing  that 
William  L.  Adams  left  the  State  in  Febru- 
ary, 1836,  and  was  insolvent  at  that  time. 
He  was  examined  by  commission.  Among 
other  things  he  says  that,  in  the  partition 
of  his  father's  estate,  no  land  was  allotted 
to  the  complainant ;  that  the  witness  acted 
as  her  guardian  ad  litem  in  the  proceedings ; 
"that  a  sum  of  money  was  ordered  to  be 
paid  to  her  in  lieu  of  the  land ;  does  not 
recollect  what  her  portion  came  to ;  it  was 
to  have  been  paid  by  witness ;  does  not 
recollect  how  much  was  paid ;  it  has  all 
been  paid  except  about  eight  hundred  dol- 
lars," &c.  The  complainants  reside  in  Rich- 
mond   county,    North    Carolina.      Failing    to 

*163 
recover  under  the  suit  *instituted  in  Septem- 
ber, 1847,  from  the  surety  of  the  administra- 
tor, the  sum  due  for  her  share  of  her  fa- 
ther's real  estate,  this  bill  was  filed  on  the 
14th  September,  1850.  The  principal  prayer 
is  for  partition,  complainants  averring  that 
none  was  made.  But  they  also  charge  that, 
if  partition  was  made,  they  received  no  land, 
and  have  received  no  compensation  in  lieu 
thereof,  and  they  pray  for  general  relief. 
The  Court  is  of  opinion  that  the  circum- 
stances proved,  as  well  as  the  admissions  of 


ZIMMERMAX  v.  HARMON" 


4G.- 


tlie  delttnr.  fully  rolnit  the  iircsuuiption  aris- 
froin  the  lapse  of  twenty  years.  In  1S;}4, 
eight  years  after  the  entry  of  the  ju«l«inent, 
and  less  than  sixteen  years  l)efore  this  hill 
was  filed,  the  debtor  admitted  the  existence 
of  his  indebtedness,  and  the  ordinary  de- 
creed a  sum  to  he  due  by  him,  including 
the  sum  due  for  the  complainant's  share  of 
the  real  estate.  There  is  no  proof  tliat  Dr. 
Malloy  was  the  guardian  of  the  comiilainant, 
although  lie  assumed  t(t  aet  as  such.  Rut 
still  less  is  tlu-re  jiroof  of  any  payment  to 
him  of  this  sum;  and  up  to  the  time  of  his 
examination  the  debtor  admits  about  eight 
hundred  dollars  to  have  been  unpaid  wlien 
he  left  the  State,  insolvent,  in  ls.'{(j.  and  that 
he  has  not  since  paid  any  thing  on  account 
of  It.  If  this  wiM-e  a  proceeding  to  recover 
from  William  I..  Ad.ims  the  amount  dtie  on 
the  judgment,  it  would  seem  very  clear  that 
the  presumption  of  payment,  arising  from 
the  lapse  of  time,  is  fully  rel-utted,  and  the 
Hen  being  coexistent  with  the  debt,  this 
would  lie  conclusive  on  the  defendant,  un- 
less, as  he  suitmits.  he  is  protwted  by  an 
adverse  possession  of  ten  years.  In  is;}.'',  he 
purchased  the  land  at  sheriff's  sales,  under 
an  execution  against  William  I..  Adams; 
and  he  insists,  on  the  authority  of  McKaa 
v.  Smith.  2  P.ay,  IIV^.  that  he  is  entitled  to 
protection  by  a  possession  of  ten  years  after 
the  marriage  of  the  complainant.  In  Mc- 
Raa  V.  Smith,  the  defendaiit  was  a  pur- 
chaser from  the  defendant  in  the  judgment, 
and  his  possession  was  held  to  be  adver.se 
to  all  the  world,  except  as  the  Court  say, 
where  there  are  infants,  femes  covert  or 
persons  beyond  the  seas.  The  lien  on  which 
the  complainants  here  insist,  is  a  statutory 
mortgage  of  which  the  imrcliaser  would  have 
*164 

notice  in  examining  *his  title.  In  Thayer 
V.  Cramer.  1  McC.  Etj.  :;<).-),  it  was  held  that 
the  mortgagor  of  real  estate  was  a  trustee 
for  the  mortgagee,  and  that  the  purchaser 
from  him  was  in  no  better  situation,  the 
mortgage  being  recorded,  and  could  not 
avail  himself  of  the  statute  of  limitations. 
I  should  hesitate  to  apply  the  doctrine  of 
McRaa  v.  Smith  to  the  case  of  a  purchaser 
from  the  mortgagee  with  notice  of  the  mort- 
gage. Hut  it  is  unnecessary  to  express  any 
opinion  upon  such  case.  The  statute  ex- 
lu-essly  saves  the  rights  of  infants.  In  is;',:}, 
when  the  defendant  purchased.  Caroline  F. 
Adams  w;is  an  infant  mortgagee,  about  nine 
years  of  age,  and  did  not  attain  majority 
until  October,  lS4.'j,  less  than  live  years  be- 
fore tiling  the  bill.  It  is  said,  however,  that, 
in  the  m(>antime,  to  wit,  at  some  iteriod  be- 
tween ls."..s  and  1841,  she  had  bt'come  a 
married  woman,  and  that,  from  this  time, 
the  possession  of  the  defendant  was  adver.se. 
Without  di.scussing  this  point  it  is  only  nec- 
essary to  say  that,  in  September.  1S4().  ten 
years   befc>re   the   bill    tiled,   the   complainant 


was  not  sixteen  years  of  age,  and  there  is 
no  proof  that  slie  was  then  married. 

Tins  Court  is  of  opinion  that  the  com- 
plainants have  a  valid  subsisting  lien  on  the 
land  .set  oflF  to  William  L.  Adams  by  the 
judgment  in  partition  and  subsetiuently  pur- 
chased liy  the  defendant,  Joshua   Fletcher. 

It  is  therefore  ordered  and  decreed,  that 
it  be  referred  to  the  commission«»r  for  Marl- 
iiorough  District  to  a.se«'rtain  and  report  tiie 
amount  due  to  the  complainants,  calculating 
interest  from  tlu'  rendition  of  the  ju  Igment 
in  partition,  and  that  the  same  be  paid  out 
of  the  jiroceeds  of  the  land  in  the  po.ssesslon 
of  the  defeialant,  Joshua  Fletcher,  upon  con- 
tirmafion  of  the  said  rep<»rt.  and  that  the 
costs,  other  than  those  of  the  defendants, 
Rethea  and  Fasterling,  be  paid  by  the  de- 
fendant,  Joshua    Fletcher. 

It  is  liujilly  ordered  and  decreed,  that  so 
nnich  of  tln>  Chan<ellor's  decree  as  dismisses 
the  bill  in  relation  to  the  defendant.s.  Rethea 
and  Fasterling.  be  alHrmed;  in  other  re- 
spects the  same  is  reformed  as  is  herein  be- 
fore declared. 

JOII\.STi>\.    DAR(;AX   and    WARDLAW. 
CC,   concurred. 
Decree  modified. 


4   Rich.  Eq.  •165 

*MAR(;aRFT  ZIMMKRMAX.  bv  Xoxt  Friond. 

V.  JUIIX  1'.  lIAKMd.V  and  DAVID 

ZIMMERMAX. 

(Columbia.     Nov.  and   Dec.  Term.  1851.) 

[Trusts  C=>1!)8.] 

If  a  trustee  purcha.se  the  tru.st  property  in 
send  faith,  and  pay  for  it  a  full  price,  it  Ls 
iH'vcrthele.ss  optional  wtb  the  cestui  (pie  trust 
whether  the  sale  shall  stand.  A  trustee  so 
purchasing  a  slave,  and  afterwards  selling  liim 
at  an  advanced  price,  ordered  to  account  for  the 
hire  of  the  slave,  and  for  the  advanced  price. 

[Ed.  Xote.— For  other  cases,  see  Trusts,  Cent. 
Dig.  S  l.'(54;    Dec.  Dig.  <S=>1!)8.] 

Before  \\ardlaw,  J.,  at  Spartaniturg,  June, 
1851. 

Wardlaw.  Ch.  David  Zimmerman,  then  of 
Orangeburg  district,  and  husband  of  the  plain- 
tiff, in  February,  is;;;),  conveyed  by  deed  to 
Conrad  Kennerly,  three  slaves  and  their  fu- 
ture increase,  namely:  Henry,  about  12  years 
old;  Jenny,  about  10  years  old;  and  Lewis, 
about  S  years  old:  "in  trust  for  the  S(de  and 
.sei)arate  use,  benefit  and  behoof  of  my  (his) 
wife,  Margaret,  notwithstanding  her  c<iver- 
ture,  for  and  during  the  term  of  her  natural 
life,  and  after  her  death,  then  for  the  use. 
benefit  and  behoof  of  her  lawful  issue,  as 
well  that  she  now  has.  as  those  she  may  here- 
after have,  sliare  and  share  alike,  or  of  the 
survivors  or  survivor  of  them."  After  the 
execution  of  this  deed,  D.  Zimmerman,  with 
his  family  and  slaves,  removed  to  Spartan- 
burg district,  and  he  there  purchased  a  tract 


©=»For  other  cases  see  same  topic  aud  KEY-NL.MUEU  iu  all  Key-Numbered  Digests  aud  Inde.xes 


C7 


465 


4  RICHARDSON'S  EQUITY  REPORTS 


of  land  from  one  Ralph  Smith,  and  mort- 
gaged the  land  to  secure  the  purchase  money. 
Smith  afterwards  obtained  judgment  at  law 
against  Zimmerman,  for  the  price  of  the 
land,  and  in  execution  of  his  judgment  levied 
on  Lewis,  one  of  the  slaves  named  in  the 
deed.  Defendant,  Harmon,  was  substituted 
as  trustee,  in  said  deed,  in  place  of  Kenner- 
ly,  by  certain  proceedings  in  equity,  in  Spar- 
tanburg district,  at  June  Term,  184.3.  Har- 
mon, Zimmerman  and  wife,  September  4, 
1843,  filed  their  bill  against  Smith,  to  restrain 
him  from  enforcing  his  judgment  against  the 
trust  estate ;  and  at  June  Term,  1844,  it  was 
decreed,  that  such  injunction  should  be  ex- 
tended, until  the  mortgaged  land  should  be 
sold,  and  that  if  the  proceeds  of  sale  were 
insufficient  to  pay  his  debt,  Smith  might  pro- 
ceed for  the  balance  on  his  levy.     The  land 

*166 

was  accordingly  sold,  but  did  not  bring  *mon- 
ey  enough  liy  about  .$400  to  satisfy  Smith's 
judgment.  Thereupon  it  was  agreed  between 
Harmon  and  Zimmerman,  that  the  former 
should  t&ke  the  slave,  Henry,  at  the  price 
of  $400,  and  pay  that  sum  to  Smith;  this 
was  done,  and  a  bill  of  sale  executed  from 
Zimmerman  to  Harmon,  July  26,  1844.  Har- 
mon retained  the  slave  Henry  in  his  posses- 
sion until  December,  1850,  when  he  sold  him 
to  one  who  has  removed  him  from  the  State, 
for  the  price  of  -$700.  The  value  of  Henry's 
services,  while  in  Harmon's  possession,  was 
about  double  the  interest  on  the  money  ad- 
vanced by  Harmon. 

Margaret  Zinnuerman,  who  sues  in  this  be- 
half by  her  next  friend,  Ransom 'L.  Kirby, 
files  this  bill  to  compel  her  trustee,  Harmon, 
to  account  for  the  profit  he  has  made  on  the 
sale  of  Henry,  and  for  the  hire  and  wages  of 
the  slave ;  and  for  tlie  substitution  of  Kirby, 
as  her  trustee.  The  bill  alleges  that  the  slave 
was  not  sold  to  Harmon,  but  was  delivered  to 
him  as  a  pledge  to  secure  the  repayment  of 
the  $400  advanced  to  Smith. 

The  answer  of  D.  Zimmerman,  is  a  mere 
echo  of  the  bill.  The  answer  of  Harmon  in- 
sists, that  he  purchased  the  slave  in  good 
faith,  for  the  preservation  of  the  rest  of  the 
trust  estate,  at  a  full  price ;  and  that  as  he 
ran  all  the  risks  from  the  death  of  the  slave 
and  other  casualties,  he  should  be  allowed 
the  advantages  which  have  accrued  from  his 
bargain.  The  answer  assents  to  the  change 
of  trustee. 

My  judgment,  from  the  evidence,  is,  that 
Harmon  took  the  slave  as  a  purchase,  and 
not  as  a  pledge, — that  he  paid  a  full  price 
for  him, — and  that  his  conduct  in  the  trans- 
action was  without  intentional  bad  faith. 

Nevertheless,  according  to  the  rules  of 
Courts  of  Equity,  founded  on  general  policy, 
and  so  prescribed  to  avoid  the  necessity  of 
scrutiny  into  the  fairness  of  every  particular 
ti'ansaction  of  the  kind,  the  purchase  of  this 
slave,   by   the   trustee,   cannot   stand.     If  a 

68 


trustee,  strictly  honest,  buy  for  himself  the 
trust  property  from  his  beneficiary,  and  then 
sell  it  for  more  money,  the  character  of  trus- 
tee remains  fixed  upon  him,  and  he  must  ac- 

*167 
count  for  the  pro*fits  of  his  management  of 
the  property.  It  is  not  indispensable,  in  oi'- 
der  to  avoid  such  purchase,  that  advantage 
to  the  trustee  shall  be  proved.  The  infirmity 
of  the  contract  grows  out  of  the  fiduciary  re- 
lation between  the  parties.  To  guard  against 
the  hazard  of  abuse,  and  to  keep  the  trustee 
from  temptation,  the  rule  allows  the  bene- 
ficiary, at  his  own  option,  to  set  aside  the 
sale,  whether  made  bona  fide  or  not:  "So  a 
trustee  will  not  be  permitted  to  obtain  any 
profit  or  advantage  to  himself  in  managing 
the  concerns  of  the  cestui  que  trust,  but 
whatever  benefits  or  profits  are  obtained,  will 
belong  exclusively  to  the  cestui  que  trust. 
In  short,  it  may  be  laid  down  as  a  general 
rule,  that  a  trustee  is  bound  not  to  do  any- 
thing which  can  place  him  in  a  position  in- 
consistent with  the  interests  of  the  trust,  or 
which  has  a  tendency  to  interfere  with  the 
discharge  of  his  duty."  Story  Eq.  §  321,  .322, 
So  that  if  the  plaintiff  here  had  been  sui 
juris,  and  had,  herself,  sold  tbe  slave  to  her 
trustee,  it  would  be  at  her  option  whether 
the  sale  should  stand ;  and  her  title  to  re- 
lief is  strengthened  by  the  considerations, 
that  she  was  under  the  disability  of  cover- 
ture, and  that  the  sale  was  effected  by  the 
confederacy  of  her  husband  and  trustee. 

It  is  ordered  and  decreed,  that  the  defend- 
ant, Harmon,  account  for  the  hire  of  the 
slave  Henry,  from  July  26,  1844,  to  Decem- 
ber, 1850:  and  for  the  sum  of  $700,  with  in- 
terest from  the  latter  date,  and  that  he  be 
allowed  credit  for  $400,  with  interest  from 
the  former  date. 

It  is  also  ordered,  that  it  be  referred  to  the 
commissioner  of  this  Court,  to  take  the  ac- 
count ;  and  to  enquire  and  repoi't  as  to  the 
fitness  of  the  trustee  proposed  to  be  substi- 
tuted, and  as  to  the  amount  and  nature  of 
security  that  should  be  given. 

Also  ordered,  that  defendant,  Harmon,  pay 
the  costs  of  this  suit,  except  the  costs  of 
David  Zimmerman,  which  must  be  paid  by 
himself,  and  the  costs  of  substitution  of  trus- 
tee, which  must  be  paid  from  the  trust  es- 
tate. 

The  defendant,  J.  P.  Harmon,  appealed  and 
moved  this  Court  to  reverse  the  circuit  de- 
cree, on  the  grounds: 

*168 

*1.  Because,  from  the  case  made,  the  deed 
to  Kennerly  was  void  as  to  the  creditors  of 
D.  Zinnuerman,  who  sold  the  boy  in  dispute 
to  Harmon  at  a  full,  fair  price,  to  save  the 
remainder  of  the  trust  proi)erty. 

2.  Because,  as  the  trust  property  was  sub- 
ject to  be  sold  by  the  sheriff  at  a  sacrifice, 
the  purchase  by  defendant  was  a  benefit  to 
the  trust  estate,  and  ought  to  be  sustained. 


GLENN   V.  CALDWKLL, 


'170 


8.  Bt'causo  flir  (k'<Tee  makes  tlu'  trustee 
pay  costs  out  <>f  his  own  funds,  iKitwithstaiiil- 
inj?  it  is  most  t-vident  that  the  trust  estate  is 
greatly  benefitted  liy  the  course  he  pursued, 
and  that  lie  acted  in  ;:ood  faith. 

4.  liinanse  the  decree  is  not  sustained  by 
hiw  or  the  justice  and  equity  of  tlie  case, 

liobo,  for  appellant. 
.  contra. 

I'KIJ  ("I'KIAM.  This  Court  concurs  in  the 
decree  of  tlie  Chancellor:  \vhi«li  is  liereby 
affirmed,  and  the  appeal  di.smisse<l. 

.TOII.NSTOX.      IHWKIN.     DAUGAxN     and 
WAUDI^VW,  CC.  concurring. 
Appeal  dismissed. 


4    Rich.  Eq.   168 

PATSKY    CLKSS    v.    I).   CALDWRLL   and 

()th«'rs. 

(Coluiiiliia.      Ni.v.   and    Hcc   Term.   1851.) 

[Bonds  <©=»11!>:  lAitiitntioii  of  Actionn  <C=5-2.1 
J.  CJ.  and  fi)urtoen  other  pt'rsnns  ix'ini;  about 
to  form  a  cnniiiany  for  certain  purposes.  a^Meerl 
to  punhase  from  .1.  (J.,  fur  the  use  of  the  eoin- 
pan.y,  a  tract  of  land,  and  they  all.  including 
J.  C;.,  executed  to  .1.  G.  their  joint  and  several 
instrument  under  seal,  in  the  form  of  a  single 
bill,  for  .$1.">.(KMI.  the  amount  <if  liie  purchase 
money  of  the  tia<  t  of  I:iii<l:  Hr'il.  that.  althoU!;h 
J.  (}.,  who  united  in  himself  the  characters  of 
both  obligor  and  obligee,  could  not  maintain 
an  action  at  law  upon  the  instrument,  yet  in 
etiuity  a  suU  could  i)e  maintained  upon  it:  and 
that,  in  e(iuit,v.  it  should  he  tre.-ited  as  a  single 
bill,  against  an  afti.m  on  which  the  statute  of 
limitations  c<udd  not  be  pleaded  in  bar. 

I  Ed.  Note.— Cited  in  Keith  v.  Executors  of 
Keith,  11  Ki<h.  Eq.  S.j. 

Eor  other  cases,  see  Bonds,  Cent.  Dig.  §  133; 
Dec.  Dig.  <S=5liy;  Limitation  of  Actions,  Cent. 
Dig.  §  1(»;5 :    1  lec.  Dig.  <g=>2l.'.] 

[Bonds  (g=>r):i] 

Held.  also,  that  each  party  was  liable  for 
the  whiilc  amount  due,  after  deducting  .7.  (J.'s 
aliquot   portion:    and,    per   Dargan    and    Ward- 

*I69 
law,  CC  that  J.  G.  was  *rateably  liable,  with 
the  solvent  parties,  for  tlie  proportions  of  such 
as  wore  insolvent. 

[Ed.  Note. — Cited  in  Whitm«n  v.  Howden,  27 
S.  C.  GO.  2  S.   K.  080. 

Ffir  other  ca.ses,  see  Bonds,  Cent.  Dig.  §§ 
57,  09;    Dec.  Dig.  <©=>58.] 

[Hills  and  Xotrs  (©=>4.'ir).l 

'I'lie  company  was  afterwards  incorporated, 
— the  obligors,  (except  one  who,  by  general  con- 
sent, was  released  and  audtlier  substituted  in 
her  place,)  paid  up  the  amounts  of  their  sub- 
scriptions to  the  company,  and  .1.  (J.  conveyed 
the  land  to  the  coritoration,  taking  from  it  a 
mortgage  to  secure  the  debt:  /It Id,  that  the  ob- 
ligors were  not  thereby  released. 

[l']d.  Note. — For  other  cases,  see  Bills  and 
Notes,  Cent.   Dig.   §   124«;    Dec.   Dig.   «g=9435.] 

Before  Dargau.  Ch.,  at  Union,  .June,  1850. 

Dargan,  Ch.  The  tract  of  land  on  which 
Glenn's  Spring  is  situated,  (u-iginally  Ixdong- 
ed  to  .John  B.  Glenn,  coniidainant's  intestate. 
In  1«.'{7,  a  comr)any  was  formed  for  the  pur- 


chase of  the  land,  and  the  erection  of  build- 
ings and  various  other  improvements  at  tlie 
Spring,  with  the  view  of  establishing  it  as  a 
watering  place,  and  opening  and  keeiiing  a 
hotel  for  the  entertainment  «)f  visitors.  The 
(•ompany  consistexl  of  fifteen  in'i-soiis.  of 
whom  .Ifdin  B.  (Jlenn  was  one.  Their  names 
are  as  follows:  D.  Caldwell.  H.  D.  Vanh'W. 
U.  H.  N«itt.  L.  N.  Shelton,  M.  A.  Moore.  .1. 
(J.  Well.s,  I{.  Mo«)reman.  .1.  B.  (ilenn,  n.  B. 
Irvine,  J.  K.  B.  Sims,  W.  C.  IVarson.  Ge»). 
Ashford.  R.  S.  Brown,  Ann  Sims.  J.  Wiim- 
smitli,  B.  Ligon  ami  William  B.  Thorn. o/) 
These  persons  «ipened  a  book  for  subscription 
of  stock,  in  which  each  sul>scribed  for  stock 
to  the  amount  of  one  thousand  dollars.  The 
stock  b(M)k  is  without  date:  it  contains  a 
brief  statement  of  the  purposes  of  the  asso- 
ciation, to  which  «'acli  of  tlie  ineml>ers  of  the 
company  attixed  his  name,  and  opposite  to  the 
name  aiii)ended  the  amount  of  .stock  for 
which  he  sub.scribed.  Alxnit  this  time,  or  per- 
haps a  little  while  before,  John  B.  Glenn  had 
made  a  parol  contract  for  the  sale  of  tin-  land 
to  this  company,  for  the  sum  of  tiftecn  tliou- 
.sand  dollars. 

With  the  view  of  securing  to  (ileiin  the 
payment  of  the  purchase  money,  tlie  company, 
on  the  15th  Septendier,  18;!7.  executed  and 
delivered  to  him  an  instrument,  of  wliich  the 
following  is  a  lopy:     "We.  either  of  us,  proni- 

*170 
ise  to  pay  .Tohn  B.  Glenn  the  *sum  of  fifteen 
thcaisand  dollars,  viz.:  Three  thousaiul  dol- 
lars on  the  first  day  of  .lanuary  next:  three 
thousand  d(dlars.  January.  1880:  three  thou- 
sand dollars.  January.  1840;  three  tlKuisand 
dollars.  January.  1841;  three  thousand  dol- 
lars, January.  1842,  with  interest  annually 
for  value  received,  as  witness  our  liands  and 
.seals,  September  15,  1887."  To  this  instru- 
ment each  memlK'r  of  the  company,  including 
(Jlenn  himself,  afhxed  his  hand  and  seal,  and 
it  was  attested  by  John  V.  (Jleiin.  On  this  in- 
strument are  indorsed  credits,  as  follows: 
."f2,800  received  from  M.  A.  Moore,  treasurer, 
the  1st  January.  ls;i8;  .$205.s5  re«-eiveil  from 
the  same,  l.st  May.  18:!.S;  .5i.0(M)  received 
from  P.  M.  Ilu.son,  trea.surer.  2_'d  January. 
lN..r»:  ."Pl.OtM)  received  from  1'.  .M.  Ihison. 
treasurer,  Augu.st,  18.8!>. 

In  December.  1.S87.  the  company  was  in- 
C(»rporjited  with  a  capital  of  .^75.000.  On  the 
(ifli  IVbruary.  18.88.  John  B.  Glenn,  by  a  deed 
bearing  that  date,  coiivi'yed  the  land  to  the 
incorjiorated  company.  On  the  8d  October, 
18;{n.  the  company  adopted  the  following 
resolution,  which  is  entered  on  their  journal: 
"Ki'scdved,  That  the  President  of  the  (J.  S. 
Company  execute  a  mortgag*'  of  the  (Jlenn's 
Spring  tract  of  land  to  J.  B.  (ilenn.  as  addi- 
tional security  to  a  note  of  baud  given  l)y  the 
sttK'kludders  of  the  said  company  to  tlie  said 


(o)  Ligon  &  Thorn  were  not  original  signers. 
They  came  in  afterwards.  See  Chancellor  Ward- 
law's  decree,  infra. 


®=>For  other  cases  see  same  topic  and  KEV-NUilBEK  i-^     'i  Key-NumoereU  Dlgesis  aud  Indexes 


U'J 


*170 


4  RICHARDSON'S  EQUITY  REPORTS 


John  B.  Glenn."  In  pursuance  of  this  resolu- 
tion, the  President  of  the  company,  (O.  B. 
Irvine,)  did,  on  the  same  day,  execute  and  de- 
liver a  mortgage  to  John  B.  Glenn  of  the 
Glenn's  Spring  tract  of  land,  to  secure  the 
payment  of  the  sum  of  $12,840,  with  interest 
on  $12,000  from  1st  January,  1839.  The 
mortgage  recited  no  note  or  instrument  and 
referred  to  none;  but  stated  the  considera- 
tion of  the  mortgage  to  be  $12,000  "as  in 
hand,  paid  by  John  B.  Glenn,"  and  after  con- 
veying the  land  in  the  usual  form,  it  pro- 
ceeds to  express  the  conditions  of  defeasance, 
which,  in  the  payment  of  the  $12,000  in  an- 
nual instalments,  correspond  with  the  four 
last  instalments,  as  secured  in  the  instrument 
of  15th  September,  1837. 

Glenn  obtained  a  judgment  at  law  upon  the 
mortgage  for  $12,840,  with  interest  from  1st 

*171 
January,  1839,  which  was  signed  *24th  July, 
1841.     So  that  at  this  time,  Glenn  held  the 
note,  a  mortgage  and  judgment  to  secure  the 
purchase  money  of  the  land. 

The    original    stock  of   the   company    was 
called  in  or  paid,  in  the  manner  following: 

1837,  October  9,  $100  per  share $1,500.00 

"    November  J  3,  500           do 7,500.00 

1838,  January  8,     300           do 4,500.00 

"    March   10,         100           do 1,500.00 


$15,000.00 
The  whole  of  this  sum,  with  the  exception 
of  $3,005,  was  expended  upon  improvements 
by  the  order  of  the  company,  and  under  the 
supervision  of  its  agents.  The  company  be- 
ing in  want  of  other  funds  to  carry  on  its 
improvements,  resolved  to  negotiate  a  loan 
for  $10,000  from  the  Bank  of  the  State  of 
South  Carolina.  The  preliminary  resolutions 
as  to  this  measure  are  as  follows: 

"Resolved,  That  each  member  sign  a  note 
to  the  Bank  of  the  State  for  $10,000."  And 
again,  at  another  time:  "Resolved,  That 
each  member  sign  a  bond,  binding  each  mem- 
ber for  his  proportion  of  a  note  given  by  the 
company  to  the  Bank  of  the  State  for  ten 
thousand  dollars."  It  seems  that  the  loan 
liom  the  Bank  was  obtained  on  the  note  of 
O.  B.  Irvine,  the  President  of  the  company, 
payable  to  P.  M.  Huson  and  endoi-sed  by  him. 
It.  S.  Brown,  John  B.  Glenn,  M.  A.  Moore,  I). 
Caldwell,  R.  Mooreman  and  George  Ashford. 
These  facts  are  recited  in  a  resolution,  re- 
corded in  the  journal ;  and  the  resolution 
provides,  that  the  President  of  the  company 
is  authorized  to  execute  a  note  in  the  name  of 
the  company,  as  collateral  security  for  the 
said  debt,  "signing  the  same  officially  direct- 
ly to  the  President  and  Directors  of  the 
Bank  of  the  State,  for  the  payment  of  the 
said  debt,  and  to  confess  a  judgment  there- 
for, the  Bank  being  permitted  to  retain  the 
original  note,  the  parties  thereto  continuing 
their  present  liability  until  the  debt  is  paid." 
The  company  had  now  become  greatly  em- 
*172 
barrassed,  and  re*solved  to  sell  the  Glenn's 

70 


Spring  property.  And  a  resolution  was  adopt- 
ed to  apply  to  the  Bank  for  its  consent  that 
the  sale  of  the  property  shall  be  made  on 
the  following  terms,  to  wit:  $5,000  to  be 
paid  In  cash,  and  $4,000  on  the  1st  January 
of  each  year,  until  the  whole  be  paid,  with 
iiicerest  on  the  whole  from  the  date,  paya- 
ble annually,  &c.  The  resolution  provides 
that,  of  the  cash  instalment,  $2,000  shall  be 
paid  to  the  Bank,  and  $3,000  to  J.  B.  Glenn 
on  the  first  of  January,  1842.  The  purchaser 
was  to  give  bond  to  the  Bank  with  satisfac- 
tory personal  security  for  $4,000  on  the  1st 
January,  1843;  $4,000  on  the  1st  January, 
1844 ;  and  the  balance  on  the  1st  January, 
1845,  with  interest,  and  each  payment  first 
to  extinguish  the  interest,  &c.  It  was  also 
provided,  that  the  purchaser  was  to  execute 
to  the  Bank  a  mortgage,  which  was  to  have 
the  first  lien  on  the  property.  The  same  reso- 
lution then  proceeds  to  provide  for  the  pay- 
ment of  Glenn's  debt  out  of  the  sales  of  the 
property,  but  he  is  postponed  to  the  Bank,  to 
whose  debt  a  preference  is  given.  The  pur- 
chaser at  the  sale  was  to  give  bond  and  mort- 
gage to  the  Bank,  which  was  to  have  prec- 
edence in  the  way  of  lien,  over  that  which 
was  to  be  given  to  Glenn.  It  was  further  "re- 
solved, that  John  B.  Glenn  be  requested,  in 
assenting  to  this,  to  enter  satisfaction  on 
his  mortgage,  as  a  condition  to  the  forego- 
ing." 

A  correspondence  was  opened  with  F.  H. 
Elmore,  the  President  of  the  Bank,  as  to  the 
proposals  contained  in  the  resolution  of  the 
Glenn's  Spring  Company.  The  Bank,  by 
resolution,  acceded  to  the  terms  proposed ; 
Glenn  also  assented  to  the  arrangement,  by 
which  his  debt  was  postponed  to  that  of  the 
Bank;  and  in  pursuance  of  the  request  of  the 
Glenn's  Spring  Company,  as  expressed  in 
their  resolution,  he  entered  satisfaction  on 
his  mortgage,  by  which  he  also  discharged  his 
judgment.  The  property  was  sold  by  the 
sheriff,  according  to  the  agreement  between 
the  parties.  The  company  was  greatly  disap- 
pointed in  the  amount  of  the  sales. 

The  sale  took  place  on  the  4th  of  January, 
1842.  The  land  sold  for  $15,000,  and  the  per- 
sonal    property     for     $3,521.23;      the     total 

*173 
*amount  of  sales  was  $18,521.23.  The  costs 
were  $224.44.  The  Bank  received  $11,526.34, 
and  the  balance  $6,970.53  was  applied  accord- 
ing to  the  terms  of  sale  to  Glenn's  debt.  But 
nothing  is  intended  to  be  concluded  as  to  the 
amount  of  the  payments  that  have  been  made. 

Glenn  brought  an  action  of  debt  upon  the 
instrument  of  the  15tli  September,  1837,  as 
upon  a  sealed  note,  against  Sims,  (1  Rich. 
39,)  one  of  the  obligors.  He  obtained  a  ver- 
dict in  the  Circuit  Court,  which  on  appeal 
was  set  aside,  on  the  ground,  that  Glenn  be- 
ing one  of  the  obligors,  as  well  as  the  obligee 
of  the  instrument,  it  was  not  a  note  or  single 
bill,  and  that  no  action  upon  it  coidd  be 
maintained  at  law.     He  then  filed  this  bill 


GLEN'X  V.  CALHWELL 


475 


for  the  pnforccmt'nt  of  tlie  claim  asainst  smh 
(if  the  pa  It  it's  to  tlie  contract  as  are  solvent 
and   within   the  jurisdiction  of  the  Court. 

To  this  hill  several  <if  the  def»'ndants  have 
answered,  namely:  O.  R.  Irvine,  M.  A.  Moore, 
.1.  Winnsmith.  H.  Mooreman,  Joseph  Cald- 
well, executor  of  H.  S.  Hrown,  J.  K.  H. 
Sims  and  Ann  Sims.  wh(»  has  intermarried 
with  J.  C.  Caldwell,  and  who  has  answered 
jointly  with  tiie  said  J.  C.  Caldwell,  and 
(leor^'e  Ashford.  The  exectition  of  the  note 
nr  instrument  is  not  disputed  hy  any  of  the 
defendants:  nor  is  it  denied  that  the  (h'ht 
due  to  (ileiin  for  the  purchase  money  of  the 
land  remains  for  the  {,'reater  part  unjiaid. 
The  grounds  assumed  in  the  defence  are.  that 
the  note  or  instnnnent  is  a  nullity,  hecause 
Glenn  was  one  of  tlie  oMijiors  and  at  the 
same  time  the  tiliiiiroe,  or  payt'c ;  that  the 
I>arties  to  it  never  intended  to  i>e  jointly  and 
severally  hound;  that  if  they  ever  were 
hound  at  all,  they  were  not  hound  each  for 
the  whole ;  that  if  they  were  jointly  and 
severally  hound.  orif:inally,  they  ceased  to  he 
.so  hound  when  the  company  was  incorporat- 
ed, and  when  the  company,  throu.^h  its  I'res- 
ident,  pave  a  mortf,'aj.'e  of  the  land  to  secure 
the  payment  of  the  deht :  Into  which  said 
mortpige,  it  is  contended,  the  lialiility  on 
the  note  merged.  It  was  further  contend- 
ed, that  when  (ilenn  released  his  ri;.'hts  un- 
der the  mortpaj-'e  and  judmnt-nt.  he  released 
tlierehy  the  liability  of  the  drawers  or  obli- 
gors of  the  said  seale<l  instrument.     Some  of 

*174 

the  defeii*(lants  jilead  tlie  statute  of  limita- 
tions to  the  coiuplainanfs  bill,  namely:  J. 
C.  Caldwell  and  wife,  J.  K.  B.  Sims,  and  O. 
V>.  Irvine.  On  the  hearing,  it  was  said  that 
the  defendants,  M.  A.  Moore,  J.  Winnsmith. 
K.  Mooremau,  and  .Joseph  Caldwell,  executor 
of  K.  S.  Brown,  had  also  pleaded  the  stat- 
ute of  limitations.  This  was  denied  on  the 
jiart  of  the  complainant.  It  appeared  that 
the  solicitor  for  the  last  named  defendants, 
after  the  tiling  of  their  answers,  had  ob- 
tained two  orders  on  different  occasions,  for 
leave  to  file  the  plea  of  the  statute  of  liuii- 
tation.s.  The  commissioner  said  there  were 
no  such  records  in  his  otlice,  and  he  did  not 
remember  that  there  ever  were.  On  this  state 
of  facts,  the  solicitor  of  the  last  named  de- 
fendants submitted  his  own  attidavit,  stating 
his  belief,  that  the  plea  of  the  statute  of 
limitations  had  been  filed  in  behalf  of  each 
of  the  said  last  named  defendants.  This  I 
considered  insufficient  to  establish  the  ex- 
istence of  a  record.  It  can  only  be  proved 
by  a  profert,  or  hy  positive  proof  of  its  hav- 
ing once  exi.'<te<l:  after  which,  proof  of  its 
loss  or  destriicti<ni  and  of  its  contents  is  ad- 
missible. 

Having  thus,  at  some  length,  givt'ii  a  his- 
tory of  the  tran.sactions  of  the  company  that 
relate  to  the  claim  of  the  comphiiiiant,  1  must 
now  consider  the  rights  of  the  parties  grow- 
ing out  of  the  facts  which  I  have  presented. 


Partners  may  even  at  law  maintain  ac- 
tions against  each  other  on  contracts,  or  for 
the  recovery  of  debts,  where  it  is  obvious 
that  the  subject  matter  of  the  contract  or 
indebtedness  was  not  intended  to  constitute 
a  part  of  the  capital  or  stock  in  trade.  In 
tiiis  case  it  is  clear,  that  (Jlenn  was  a  part- 
ner to  contribute  one  thousand  dollars,  and 
no  more  to  the  common  fund;  that  being 
the  amount  wliich  by  the  articles  each  mem- 
ber of  the  association  was  to  pay  in.  The 
balance  of  the  purchase  money  of  the  land, 
namely,  .<14.(MX>,  was  due  to  him.  as  a  pri- 
vate individual,  was  to  he  his  own  private 
projK'rty.  and  not  to  he  subjected  to  the  haz- 
ards of  the  enten>rise.  This  was  to  he  paid 
to   him   by    the  other  members   of  the  firm. 

*175 
For  independently  of  this  contract  and  ♦con- 
veyance of  the  land.   Cilenn   contributed  and 
paid  in  his  rateable  proportion  of  the  stock. 

Though  the  instrument  of  the  loth  Sep- 
tember, 18.37,  is  not  a  sealed  note  or  single 
bill,  it  does  not  follow  that  it  is  a  nullity  ; 
on  the  contrary,  it  is  clearly  a  binding  agrei'- 
meiit  or  covenant,  which  has  been  expressed 
in  the  form  of  a  sealed  note.  It  is  not  any 
the  less  binding  on  account  of  its  having  as- 
sumed that  form.  For  being  an  intelligible 
contract  entered  into  for  valuable  considera- 
tion, it  is  to  he  enforced  by  courts  of  justice 
according  to  its  true  and  just  imi>ort.  It 
IS  certainly  not  a  sealed  note  or  single  bill, 
an  1  an  action  upon  it.  as  upon  a  sealed  noti- 
or  single  bill,  could  not  be  maintained.  But 
I  am  not  .satisfied.  If  an  action  had  been 
brought  at  law  upon  it.  as  upon  a  covenant 
or  agreement  inider  seal,  with  proper  aver- 
ments, that  such  an  action  would  not  have 
been  sustained.  At  all  events,  there  can  be 
no  doubt  about  the  right  of  the  complainant 
to  come  into  this  Court  to  enforce  tliis  agree- 
ment according  to  its  true  interpn-tation,  i£ 
indit'd  his  original  rights  under  it  have  not 
bei'U  waived  or  lost.  When  money  has  been 
loaned,  or  property  sold  to  a  partmMship  by 
one  of  its  members,  the  price  of  which  was 
not  designed  to  be  a  part  of  the  capital  or 
stock  in  trade,  he  is  entitled  to  have  it  back 
unconditionally,  while  the  co-partnershi)»  is 
going  on.  If  he  waits  until  after  its  dissolu- 
tion or  in.solvency,  his  claim  would  be  sub- 
ject to  all  the  tHjuities  against  him  in  favor 
of  the  partnership;  to  any  debt,  for  exam- 
ple, which  he  as  a  member  might  owe  the 
comiiany.  or  a  contribution  to  pay  debts,  if 
there  were  a  deficiency  of  as.sets  to  satisfy 
the  demands  of  creditors.  In  the  case  be- 
fore me.  it  was  not  shown  or  alleged  that 
(Jlenn  owed  any  thing  to  the  company,  or 
that  there  was  any  outstanding,  unsatisfieil 
debt.  iK'sides  that  of  Glenn  himself.  The  re- 
sult of  the  enterprise  is,  that  the  company 
have  got  from  him  his  large  and  valuable 
property,  have  speculated  upon  it:  and  tlie 
speculation  having  proved  disastrous,  they 
refuse    to    pay    for   it   the    stiimlated    price, 

71 


*175 


4  RICHARDSON'S  EQUITY  REPORTS 


olaiin  to  consider  the  agreement  under  which 

*176 
they  acquired  it  a  uullitj',  and  if  *they  can- 
not   he    relieved    from    it    on    that   or   otlier 
grounds,  tliey  plead  tlie  statute  of  limitations. 

Before  I  proceed  to  gfve  my  views  as  to 
the  construction  of  the  agreement  of  the 
15th  September,  1837,  I  will  premise  that 
however  tixed  and  established  the  rules  by 
which  the  liabilities  of  partners  are  regard-, 
ed  as  to  the  rest  of  the  world,  they  may,  as 
among  themselves,  make  whatever  contract 
they  please,  and  such  contracts  become  the 
law  of  the  case  to  them.  Their  contract 
among  themselves,  and  their  mutual  liabil- 
ities and  obligations  to  each  other,  may  as- 
sume all  the  infinite  variety  as  to  form,  sub- 
ject matter  or  stipulation,  which  belongs  to 
the  contracts  of  persons  acting  as  individu- 
als. 

But  to  recur  to  the  construction  of  the 
note — my  opinion  is,  that  the  just  and  legal 
import  is  this:  The  subscribers  to  the  note 
(of  which  Glenn  was  one)  agreed  to  purchase 
the  land  at  a  valuation  of  fifteen  thousand 
dollars,,  of  which  Glenn  himself  was  to  pay 
one  thousand  dollars.  The  balance,  namely, 
$14,000,  they  all  become  jointly  and  several- 
ly bound  to  pay,  each  in  the  whole  and  for 
the  whole.  It  is  in  the  nature  of  a  contract 
for  mutual  in.surauce,  and  eSch  signer  be- 
came a  guarantor  for  the  solvency  of  all  the 
rest.  It  follows,  that  those  who  are  solvent 
and  within  the  jurisdiction  are  liable  for 
those  who  are  insolvent  and  removed  from 
the  State,  or  who  may  hereafter  become  so. 
But  from  the  terms  of  the  agreement,  and 
Glenn's  having  affixed  his  own  signature  to 
it,  Glenn  himself  is  an  insurer  or  guarantor 
for  all.  And  in  aid  of  those  who  are  solvent 
and  within  the  State,  he  would,  by  the  terms 
of  the  agreement,  be  bound  to  contribute  his 
rateable  proportion  of  the  deficit  of  those 
who  are  insolvent  and  out  of  the  State. 

Such  I  think  would  be  the  original  rights 
and  liabilities  of  the  parties  to  this  contract. 
Nor  do  I  think  that  the  subsequent  incorpo- 
ration of  the  company  would  have  the  effect 
of  varying  those  rights  and  liabilities.  Have 
they  been  lost  or  waived? 

It  was  contended  that  when  Glenn  took  a 
mortgage  from  the  corporation  for  the  debt, 

*177 
the  liability  of  the  subscribers  of  the  *con- 
tract  of  15th  September,  1837,  was  discharg- 
ed and  merged  in  a  debt  of  the  corporation, 
secured  by  the  mortgage ;  and  one  of  the 
witnesses,  P.  M.  Huson,  testified  that  this 
agreement  was  to  be  held  until  the  incorpo- 
ration of  the  company ;  from  which  it  was 
inferred,  that  after  the  incorporation  of  the 
company  the  note  was  to  be  given  up,  and 
other  secui'ities  given.  If  this  was  the  con- 
clusion, I  do  not  perceive  that  it  would  help 
the  defendants.  The  debt  of  Glenn  is  con- 
fessedly unpaid.  To  the  amount  thereof,  he 
is  a  bona   fide  creditor  of  the  corporation. 

V2 


The  company  was  incorporated  with  a  capi- 
tal stock  of  .$75,000.  of  which  only  .$15,000 
has  been  called  in.  And  the  corporation 
would  now  be  compelled  to  call  in  enough  of 
its  capital  to  pay  this  unsatisfied  <lemand. 

But  there  was  evidence  of  a  liigh  character 
before  me  that  the  note  was  not  to  be  given 
up ;  that  it  was  to  be  detained  in  Glenn's 
hands,  and  that  the  mortgage  was  intended 
as  cumulative  security.  This  evidence  is  de- 
rived from  the  authentic  and  unequivocal 
acts  and  declarations  of  the  corporation  it- 
self, as  spread  upon  its  journal.  On  the  3d 
of  October,  1839,  the  company  adopted  a  res- 
olution, of  which  I  have  already  spoken,  that 
"the  President  of  the  company  should  exe- 
cute a  mortgage  of  the  Glenn's  Spring  tract 
of  land  to  J.  B.  Glenn  as  additional  security 
to  a  note  of  hand,  given  by  the  stockholders 
of  the  said  company  to  the  said  J.  B.  Glenn." 
The  debt  had  been  reduced  by  payments. 
The  mortgage  was  accordingly  given  for  the 
balance ;  upon  which  said  mortgage  Glenn 
afterwards  recovered  a  judgment,  as  has 
been  before  stated.  How  can  it  be  said  that 
the  mortgage  was  a  discharge  of  the  pre-ex- 
isting obligation,  when  it  appears  from  the 
resolution  which  authorized  it  to  lie  given, 
that  it  was  intended  to  be  additional  or  cu- 
mulative security'/ 

Then  it  was  urged  that  Glenn  had,  in  his 
mortgage  and  judgment,  the  first  lien  on  the 
land,  and  in  this  a  most  ample  security  of  his 
debt,  which  he  waived  by  giving  the  Bank 
debt  a  preference,  and  thus  discharged  these 
parties  from  their  original  liability  on  the 
note.  If  the  doctrine  is  at  all  applicable  to 
the  case,  it  will  not  apply  under  theparticu- 

*178 
lar  circumstances.  The  Bank  being  a  *more 
urgent  creditor,  Glenn  consented  to  waive 
his  prior  lien  in  favor  of  the  Bank  for  the 
special  benefit,  and  at  tiie  special  instance 
and  request  of  these  parties.  See  the  reso- 
lution of  the  company. 

The  last  question  which  it  is  necessary  for 
me  to  consider  is  the  statute  of  limitations, 
which  has  been  pleaded  in  behalf  of  some  of 
these  defendants.  The  plea  of  the  statute 
cannot  prevail.  In  October,  1S43,  Dr.  M.  A. 
Moore  and  J.  Winnsmith  offered  to  pay  to 
the  administratrix  of  ,J.  B.  Glenn,  the  amount 
of  their  respective  contributions.  Before  a 
debt  is  actually  barred,  one  of  several  joint 
obligors  can  renew  it  by  pi-omise  or  offer  to 
pay.  Pearce  y.  Zimmerman.  Harp.  305.  This 
was  the  case  of  two  joint  makers  of  a  note 
who  were  not  partners.  The  doctrine  does 
not  apply  to  co-partners,  except  during  the 
continuance  of  the  partnership.  After  a  vast 
deal  of  discussion  and  a  great  contrariety  of 
decisions  and  of  opinions,  the  doctrine  seems 
now  to  be  well  settled ;  that  after  the  disso- 
lution, one  partner  cannot  bind  the  firm  so 
as  take  tlie  contract  from  the  operation  of 
the  statute  of  limitations.  So  firmly  had  the 
contrary    doctrine    taken    root    iu    England, 


GI.ENN  V.  CALDWELL 


*18I 


that  the  iriteiiiositioii  of  Pailhiiueiit  was  nee- 1 
essary  to  »)Verturu  it.  Stat.  !»,  <Jeo.  4.  The  | 
adnii.>Jsioii  «»f  two  of  these  defeiuhiiits,  I  con- 
ceive insulticient  to  renew  this  daiui  a;:ainst 
tile  others,  so  as  to  prevent  tlie  statute  from  , 
rutniin;:  apiin.st  the  otiiers.  excejit  from  the  ^ 
(late  of  that  acknowletl;xnient.  ] 

liut   there   is   another    fart    which    I    think  | 
jirevents  the  statute  from  operating  as  a  har  j 
to  the  claim.     In  the  year  1X41.  while  the  or-  | 
pinization  of  the  company  still  existed,  and  | 
liefore  any  dissolutittn.  the  comjiany  adt>pted  i 
i-esolntions    for    the    sale    of   their    property.  , 
Amonj:  other  thint;s,  they  made  arrans^'uients  j 
for  the  jiayment  of  <Jlenns  claim  out  of  the 
proceeds   of  these   sales,   to   this   effect.     He  | 
wa.s  to  have  three  thousand  dollars  in  cash  | 
from  the  purchase  money.     The  halance  of  j 
the  purchase  money,  that  was  to  he  applied 
to  Glenn's  claim,  was  to  l)e  iiaid   in   instal- 
ments hy  the  purchaser,  on  the  first  of  Janu- 
ary, l.s4o,  on  the  first  of  January.  1S44,  and 
on  the  first  of  January,   l.s4r>.  with  interest. 
This  was  the  arran;-'ement  that  was  carried 

*179 
into  effect,  and  what  *(;ienn  did  actually  re- 
ceive from  these  sales,  was  paid  to  liim  in 
this  way.  Thus  he  has  received  payments  as 
late  as  January,  184"),  made  hy  authority  of 
and  under  an  arrangement  with  the  company 
hefore  its  disstdution.  Tlii)u;,'h  the  arranye- 
inent  was  made  in  1S41,  it  was  not  consum- 
mated luitil  1845;  iiayments  were  made  in 
that  year  under  the  authority  of  the  compa- 
ny, which  in  my  jud'-'ment,  is  the  same  as  if 
the  company  had  at  that  time  itself  made  the 
payment.  It  is  from  that  time  only  that  the 
statute  olitained  currency,  and  the  lapse  of 
time  has  nol  heen  Ionic  enoujih  to  create  the 
statutory  har,  the  Mil  iiavinj?  heen  filed  the 
I'Tth  January.  1847.  The  plea  of  the  statute 
is  therefore  overruled. 

Ann  Sims,  (who  has  since  intermarried 
with  the  defendant,  J.  C.  Caldwell.)  was  one 
of  the  orifrinal  suhscrihers  to  tlie  ajireenient, 
and  one  of  the  stockholders.  She  paid  up 
one  hundred  dollars  on  her  stock.  But  fail- 
ing to  pay  the  other  instalments  as  they  ' 
were  called  in,  by  one  of  the  regulations  of 
the  corporation,  her  stock  was  forfeited. 
The  company  procee<lcd  to  forfeit  her  stock 
for  their  own  benefit,  and  to  appropriate  it 
to  themselves.  Thus  Ann  Sims  was  e.vcom- 
municated  and  cast  olT  hy  these  parties, 
((Jlenn  being  one  of  them.)  from  all  benetit  in 
a  coiwiection  with  the  company.  Under  these 
(ircunistances.  1  cannot  perceive  that  it  is 
e(iuifable  that  she  should  contribute.  Indeed, 
it  was  admitted,  on  the  trial,  that  she  is  not 
liable.  The  bill  as  to  her  and  her  husband, 
J.  C.  Caldwell,  is  disnussed  with  costs. 

It  is  declared  and  decreed,  that  each  of 
the  defendants,  with  tlie  excejition  of  the 
said  J.  C.  Caldwell  and  Ann  Caldwell,  are 
liable  jointly  and  .severally  fur  the  balance 
«lue  on  the  aforesaid  agreeiiu-nt  of  the  ir>th 
September,   18o7,   and   that   the  complainant 


do  contribute  a  rateable  proportion  towards 
the  shares  of  those  that  are  insolvent  an, I  be- 
yond the  jurisdiction  of  the  Court,  and  also 
the  share  of  Ann  Sims. 

It  is  further  ordered  and  decreed,  thait  the 
connnissioner  imiuire  and  report  the  balance 
due  to  the  com|tlainant  on  tlie  .said  agree- 
ment. And  the  (((mmissioner  is  directed  to 
rei»ort  the  balance  due  on  the  purt  luis-  mon- 

♦180 

ey  for  the  land,  to  wit:  !i;i."».(KM),  afler  ♦de- 
ducting payments  made  by  the  fumls  of  the 
company.  Krom  this  balance  he  is  directed 
t«»  deduct  one-fifteenth  i>art.  on  account  of 
the  share  of  the  said  J.  H.  (Menu;  and  con- 
sidering (Jlenn  as  one  of  the  solvent  parties, 
the  commissioner  is  directed  to  deduct  al.sy 
from  said  lialance.  his  ratable  proportion  of 
the  liability  of  the  parties  insolvent  or  out 
of  tlie  State,  namely.  II.  D.  Vaidew.  R.  A. 
Nott.  L.  X.  Shelton,  Wra.  C.  I'earson,  H. 
Ligon,  W.  L?.  Thorn  and  J.  C.  Caldwell  and 
wife;  after  which  deductions  the  balance  re- 
maining shall  be  the  debt  due  to  the  com- 
plainant by  the  defendants  jointly  and  sev- 
erally. 

The  defendants  appealed,  on  the  grounds: 

1.  Because  the  parties  to  the  agreement  of 
the  loth  September.  18."{7.  were  released  aft- 
er the  Act  of  incorporatitai.  and  tla-  debt 
then  became,  by  the  consent  of  all  i)arties, 
the  debt  of  the  corporation.  an<l  not  of  the 
individual  Hiembers. 

'2.  Because  the  coinplainanfs  intestate  re- 
leased the  parties  to  the  agreement,  by  tak- 
ing a  mortgage  from  the  corporation,  exe- 
cuting a  deed  to  the  same,  and  ea<ii  one  of 
the  subscriliers  having  paid  the  amount  of 
their  subscriptions  and  proportionate  part  of 
the  agreement,  are  no  further  liable. 

l^.  Because  if  defendi'iits  are  liable  at  all, 
they  are  only  liable  for  their  proportionate 
amount  due  on  the  agreement. 

4.  Because  the  complainants  claim  is  bar- 
red by  the  statute  of  limitations. 

The  defendant,  J.  K.  B.  .sinis,  appealed,  on 
the  further  ground: 

5.  Because  the  complainant  should  have 
heen  ordered  to  pay  the  costs  expended  hy 
him  in  defending  himself  at  law  on  the 
agreement  now  sued  on. 

The  defendants,  J.  Winnsmith,  .M.  A. 
Moore,  (ieorge  A.shford.  K.  Mooreman.  and 
Joseph  Caldwell,  executor  of  Brown,  appeal- 
"td,  on  the  further  ground,  viz: 

6.  Because  the  release  of  Ann  Sims,  now 
Mrs.  Caldwell,  from  any  liability  on  the  sub- 
.scription,  or  on  the  agreement  of  the  l.jth 
September,  1N.*>7,  was  a  release  (»f  tni-m. 

♦181 

♦The  app'.^-il  was  heard  at  November  ternu 
18.")(».  when  the  cause  was  remanded  irmeral- 
ly  to  the  circuit  Court,  with  leave  to  all  the 
defendants  to  plead  the  .statute  of  liuiita- 
tions. 

At  June  term,   ls.")l,  the  cau.se  was  agnin 


nsi 


4  RICHARDSONS  EQUITY  REPORTS 


heard,  in  the  circuit  Court  for  Uiiion.  by 
Wardlaw,  Cli.,  who  pronounced  the  following 
decree : 

Wardlaw,  Cli.  This  cause  was  lieard 
first  by  Chancellor  Dargan,  in  June,  1S50, 
and  he  delivered  a  decree  for  the  plaintiff. 
Upon  appeal  from  tliis  decree,  the  Court  of 
Appeals,  at  November  term.  1S50.  gave  all 
the  defendants  leave  to  plead  the  statute  of 
limitations,  and  remanded  the  cause  general- 
ly to  the  circuit  Court.  At  the  present  hear- 
ing, this  plea  was  found  to  be  pleaded ;  but 
in  other  respects  the  case  made  was  sub- 
stantially the  same  as  that  presented  to 
Chancellor  Dargan,  and  I  refer  generally  to 
his  statement  of  tlie  pleadings  and  evidence. 
Some  remarks,  however,  explanatory  of  this 
statement,  nuist  be  made. 

The  agreement  in  tlie  stock  book  without 
date,  it  is  manifest  from  the  internal  evi- 
dence, and  from  the  direct  testimony  of  P. 
M.  Huson,  was  subscribed  by  fifteen  persons 
before  the  single  bill  of  September  15,  1S37, 
was  executed.  George  Ashford  was  one  of 
the  original  subscribers  to  both  instruments. 
B.  Ligon  came  in  afterwards  and  signed  the 
single  bill  but  never  subscribed  the  stock 
book.  William  B.  Thorn  also  came  in  after- 
wards, in  the  place  of  Ann  Sims,  and  sub- 
scribed both  instruments. 

The  company  was  incorporated  December 
20,  1837.  for  fourteen  years,  in  the  following 
terms:  "That  Dr.  Morris  Moore  and  his  asso- 
ciates and  their  successors  be,  and  they  are 
liereby  constituted,  a  body  corporate,  under 
the  name  and  style  of  the  Glenn's  Spring 
Company,  with  power  to  hold  property,  real 
and  personal,  of  the  value  of  seventy-live 
thousand  dollars."    S  Stat.  457. 

At  the  meeting  of  the  company,  Aug.  16, 

1838,  a  resolution  was  adopted,  that  the  Pres- 
ident of  the  company  communicate  to  Ann 
Sims,  that  her  share,  with  $100  paid  thereon, 
was  liable  to  forfeiture,  but  that  she  might 
redeem  by  paying  the  $900  due  on  lier  share, 
by  September  10,  ensuing,  or  that  the  com- 

*182 

pany  would  *release  her  from  all  her  re- 
sponsibilities on  Capt.  Glenn's  note,  if  she 
would  relinquish  in  writing  all  her  interest 
in  the  company.  Iluson  thinks  she  gave  such 
relinquishment,  but  the  instrument  was  not 
produced  nor  accounted  for.  At  the  meeting 
on  the  second  Monday  in  November,  1838, 
resolutions  were  adopted  forfeiting  Ann 
Sims's  share  to  the  company,  and  selling  and 
tj-ansferring  the  same  to  W.  B.  Thorn.  The 
said  Thorn  attended  meetings  of  the  com- 
pany on  January  21,  1839,  and  October  17, 

1839.  It  does  not  appear  what  members  were 
present  at  the  meeting  of  August  16,  1838, 
although  officers  were  elected  at  that  meet- 
ing. At  the  other  meetings  named,  as  well 
as  tliose  whicli  acted  concerning  the  debt  to 
the  Bank,  and  the  sale  of  the  assets  of  the 
company,  Glenn  himself  attended,  with  a  ma- 

74 


I  jority  of  the  share  holders.  Ann  Sims  at- 
tended no  meeting  of  the  company  in  person 
I  or  by  proxy.  Appended  to  Thorn's  snbscrip- 
1  tion  in  tlie  stock  book,  is  this  memorandum: 
1  "It  is  understood  that  W.  B.  Thorn  take  the 
I  sliare  forfeited  b>  Mrs.  Sims :  on  or  before 
!  the  first  of  November  next  he  is  to  pay  the 
I  subscription." 

All  the  credits  indorsed  on  the  single  bill 
'  purport  to  be  received  from  ^loore  or  Iluson, 
as  treasurers  of  the  company. 

Otlier  explanations  may  be  made  inciden- 
tally in  considering  the  rights  of  the  parties. 
I  concur  in  the  views  presented  in  tlie  for- 
mer circuit  decree,  that  by  the  just  construc- 
tion of  the  single  bill  of  September  15,  1837, 
the  obligors  are  jointly  and  severally  liable 
to  Glenn  and  his  representatives,  for  the 
balance  remaining  unpaid  of  tlie  $15,000, 
and  interest,  agreed  to  be  paid  by  that  in- 
strument ;  and  that  such  of  them  as  are 
solvent,  and  within  the  jurisdiction,  are  li- 
able for  those  who  are  or  may  be  hereafter 
insolvent  or  without  the  limits  of  tliis  State. 
Glenn  being  himself  one  of  these  obligors, 
made  himself  equally  liable  with  the  others, 
and  his  representative  must  abate  from  any 
recovery  to  which  she  may  he  entitled  a  rate- 
able proportion,  so  as  to  make  lier  loss  and 
liability  equivalent  to  the  liability  of  each 
of  tlie  solvent  obligors  within  the  jurisdic- 
tion. 

*183 

*I  likewise  agree  that  the  liability  of  the 
obligors  of  this  instrument  is  not  restrictCvt 
to  the  terms  of  the  original  subscription  in 
the  stock  book,  nor  extinguished  by  any  sub- 
sequent act  of  the  company.  In  the  absence 
of  all  proof  of  fraud  or  mistake,  or  of  any 
reference  to  another  paper,  the  constru(?tiou 
of  the  single  bill  must  be  collected  from  its 
own  terms.  The  impression  of  Huson  that 
this  instrument  was  executed  as  an  arrange- 
ment ad  interim,  until  the  company  might  be 
incorporated,  and  execute  another  obligation, 
is  contradicted  by  the  whole  proceedings  of 
the  company ;  particularly  by  their  resolu- 
tion of  October  3,  1839,  to  execute  a  mort- 
gage as  additional  security  for  this  single 
bill,  and  by  tlieir  resolution  of  September  21, 
1841,  pro^■iding  for  its  payment  after  the 
debt  to  the  Bank.  That  Glenn  was  anxious 
to  obtain  a  mortgage  from  the  company, 
evinces  only  the  caution  of  a  slirewd  creditor 
desiring  to  accumulate  securities  for  his 
debt.  Ilis  anxiety  about  the  mortgage,  Hu- 
son informs  us,  was  fully  shared  by  Dr. 
Moore,  and  perhaps  by  other  solvent  mem- 
bers of  the  company,  who  could  have  had 
no  anxiety  on  the  subject,  except  to  secure 
themselves  from  liability,  on  account  of 
I'earson  and  other  obligors,  the  solvency  of 
whom  was  suspected. 

In  my  judgment,  the  remedy  of  the  plain- 
tiff depends  exclusively  on  the  single  bill. 
The  otlier  grounds  upon  which  her  right  of 


(ilA.SS   V.  CALIiWKLL 


►isr, 


rpoovery  nro  pinned  In  argument,  I  supi)Ose 
to  l»e  unteniibh'. 

It  Is  said  that  tlic  coinpiiiiy  was  iiicorpo- 
nitwl  witli  a  caiiifal  (if  $7r.,(K)0.  aii<l  that  as 
only  $in,fK»0  of  fills  sum  had  hwM  actually 
paid  in.  tin*  plalnfilT  nii^lit  (oniiM'l  the  stock- 
holtlors  to  raise  so  niuch  <»f  the  Italance  of 
capital  as  was  nece>;.sary  for  the  payment  of 
dehts.  It  seems  to  me  to  he  a  ndsaiiprehen- 
slon  of  the  terms  of  the  charter,  to  say  that 
this  company  was  incorporated  with  any 
su<h  capital.  Tlie  Li'^islature  in  this  case, 
as  ill  many  other  <harters,  proceedln;;  upon 
tlie  imjiollcy  of  allowing;  estates  to  he  held 
in  mortmain,  has  prescril  ed  a  sum  as  the 
maximum  value  of  the  pntperty  which  mlKht 
lie  owned  liy  the  company,  hut  there  is  no 
intimation  tliat  the  c<impai!y  must  liold  that 
amount    and   no  less.     'I'lif  disiildllty   of  the 

*184 
company  to  hold  in  succession,  is  re*moved 
t«»  a  limited  extent.  A  privile;:e  to  invest 
the  jirodts  of  successful  luamiKcuHMit  in  cer- 
tain estate,  at  the  option  of  tiie  done<^s.  can 
be  converted  bj-  torture  only  into  a  require- 
ment to  make  the  particular  investment. 
The  case  is  altogether  unlike  Ilaslett  v. 
Wotherspoon.  (2  Rich.  E(|.  :',or>.)  There  the 
company  was  incorporated  with  a  present 
cjiiiital  of  .$(iO,(K)().  upon  the  faith  of  which, 
as  capital  invested,  the  debts  were  contract- 
ed;  and  tlie  creditors  mi;^ht  well  Insist  that 
the  cori»orators  should  make  fiood  their 
pledfies  to  the  c<)mmuiiity.  Here  the  creditor 
was  himself  a  corporator,  and  no  representa- 
tion as  to  capital  was  made  calculated  to 
deceive  any  creditor,  even  one  not  cojinizant 
of  the  transactions  of  the  company.  It  is 
hardly  necessary  t(»  reply  to  the  su^Kestion. 
that  the  charter  contains  no  limitation  of  the 
personal  responsibility  of  the  members  of  the 
company.  The  main  object,  and  the  effect  of 
a  charter,  are  to  limit  responsiliility  to  the 
extent   of  the   corporate  assets. 

It  is  likewise  urp-d,  that  this  company, 
by  engaging?  in  the  business  of  merchants  and 
bankers,  as  by  the  proof  it  did  to  some  ex- 
lent,  forfeited  the  charter,  and  subjected  the 
members  individually  to  the  deltts  of  the 
plaintiff  and  otlier  creditors.  It  may  be  ob- 
served tliat  the  charter  does  not  indicate  the 
purposes  for  whidi  the  company  was  incor- 
porated ;  and  if  the  object  to  establlsli  a 
watering  place  had  been  distinctly  set  forth, 
it  would  not  be  clear  that  the  purchase  and 
sale  of  goods,  and  the  issuing  of  notes,  might 
not  be  incidental  to  tlie  object.  Hut  if  the 
charter  might  lie  forfeited  at  the  Instance 
of  tlie  granting  power,  for  abuse  of  the 
privileges  conferred,  such  complaint  cannot 
lie  lieard  from  the  nmuth  of  a  corporator  who 
concurred  in  the  abuse  of  the  charter. 

I  do  not  perceive  the  force  of  another  argu- 
ment that  the  plaintiff  is  entitled  to  be  sub- 
rogated to  the  rights  of  the  I'.ank  in  this 
matter,  'nie  Bank  had  no  lien  by  mortgage 
or  judgment,  except  upon  the  corporate  as- 


sets of  the  company,  and  these  assets  have 
been  administere<l  with  the  consent  of  the 
plaint llT's  intestate;  and  the  in»te  to  the 
Hank    by    iiulividual    corporators,    has    lieeii 

♦185 
ex'tiiiguished  by  payment,  and  if  not.  is 
liarred  Ity  tlie  statute  of  limitations.  The 
Iilaintiff,  representing  the  intestate,  lias  no 
e<iuity  to  recover  from  these  corporators  who 
have  biH-n  exonerated  by  his  con.seiit. 

The  plaintifT  must  stand  upon  tlie  obliga- 
tion of  September  !.">.  ls;',7 ;  and  the  main 
(piestion  in  the  case  is  whether  she  is  barred 
from  her  remedy  by  the  «»iKTation  of  tlie 
statute  of  limitations. 

The  counsel  for  the  jiiaintilT  urges  tliat. 
granting  this  single  bill  to  be  a  mere  covenant 
which  would  be  barred  by  the  statute  for 
non-claim  within  four  years  before  .lanuary 
li7.  ISIT.  when  this  bill  was  fileil.  the  bar  has 
be«'ii  removed  by  certain  promi.ses.  and  pay- 
ments made  in  that  interval  of  time. 

The  otter  of  Drs.  Moore  and  Winnsmitli.  in 
the  fall  of  IM;:,  each  to  pay  one-fifteenth  of 
the  single  bill  if  they  Were  discharged  from 
fuitlier  liability,  was  rejected  by  the  plain- 
titT  as  conditional;  and  in  my  opinion,  such 
an  offer  to  buy  peace,  when  rejected,  cannot 
be  construed  into  an  acknowh'dgment  of  sub- 
sisting liability  so  as  to  create  a  new  start- 
ing point  for  the  statute. 

Reliance  is  placed  on  the  fact,  that  of  tlie 
obligations  and  notes  placed  in  the  hands  of 
(ileiiii  for -payment  of  this  single  bill,  on  Jan- 
uary 4,  IMli.  when  the  whole  assets  of  tlie 
company  were  sold,  and  wlieii  the  company 
was  111  fact  di.s.solved.  some  of  the  obligations 
and  notes  were  not  payable  nor  jiaid  to  liim 
until  lK4r).  Hut  I  consider  this  tran.sactlon 
to  have  no  operation  ujion  the  statute,  as  a 
point  of  origin  for  the  bar,  beyond  the  date 
January  4.  is41i.  when,  so  far  as  (ileiin  and 
the  company  were  coiKerned,  the  payment 
was  made.  X«)  acknowledgment  or  pr<»iuise 
on  the  part  of  the  company  or  its  members 
then  made,  is  prospective;  the  subsequent 
dealings  of  (Jleiin  witli  the  obligors  or  malvers 
of  these  chos*>s,  accepted  by  him  in  iiayment, 
were  res  inter  alios  acta.  (Jleiin  himself, 
with  new  associates,  purcha.sed  the  Springs 
at  tills  sale,  and  thus  united  the  character 
of  (h'btor  and  creditor,  but  to  what  extent 
was  not  iiroved. 

The  <|uestion  recurs,  whether  the  statutu 
of  limitations  is  at  all  apiilicable  in  this  case; 
or,  in  otlier  words,  whether  the  instrument 

•186 
♦in  question  is  a  covenant  or  a  bond.  "The 
statute  of  limitations  does  not  appl.v  in 
terms  to  proce«'dings  in  the  Courts  of  I':<iuity. 
It  applies  to  iiarticular  actions  at  common 
law,  and  limits  the  time  within  which  they 
shall  be  brought  acc(»nling  to  the  nature  of 
tlio.se  actiiMis,  but  it  does  not  say  there  shall 
be  no  rec<jvery  in  any  other  mode  of  proct-ed- 
ing."  Hond  v.  Hopkins,  (1  Sch.  &  I.ef.  4128) ; 
Smith  V.  Smitli,  (McMul,  Eq.  134).    Courts  of 

75 


*186 


4  RICHARDSON'S  EQUITY  REPORTS 


Equity,  in  analogy  to  tlie  statute  of  limita- 
tions, will  regard  any  legal  demand  as  barred, 
by  the  same  time  in  which  it  would  be  barred 
at  law.  Now,  by  our  Act  of  limitations,  ac- 
tions of  covenant  are  barred  within  four 
year«  from  the  accrual  of  the  right  to  sue. 
but  actions  of  debt  upon  specialty  are  not 
barred  at  all,  being  left  to  the  presumption  of 
satisfaction  at  ct)mmon  law  from  non-claim 
for  twenty  years.  Is  the  instrument  in  ques- 
tion one  upon  which  an  action  of  covenant  at 
law  could  be  ^maintained?  ;I  think  not. 
Wherever  at  law  one  occupies  both  sides  of 
the  contract,  unless  exception  be  made  as 
to  certain  commercial  instruments — when  he 
is  at  once  entitled  to  demand  fulfilment  of 
the  contract,  and  is  bound,  whether  jointly 
with  others  or.  not,  to  fulfil  the  contract  ac- 
cording to  the  demand ;  when  he  is  obligor 
and  obligee,  or  covenantor  and  covenantee — 
the  contract  is  ipso  facto  extinguished,  and 
no  suit  whatever  can  be  maintained.  Such 
is  the  effect  of  the  decision  of  our  Court  of 
Law  in  Glenn  v.  Sims,  (1  Rich.  .34  [42  Am. 
Dec.  405],)  upon  this  very  instrument.  In 
the  report  of  the  case,  the  form  of  the  action 
is  not  stated,  and  the  defeat  of  the  plaintiff 
is  placed  upon  general  principles,  and  in  no 
respect  upon  the  pleadings.  In  Rambo  v.  Metz, 
(5  Strob.  110  [53  Am.  Dec.  694],)  the  former 
case  is  interpreted  as  deciding  that  Glenn, 
or  his  administrator,  "could  not  have  main- 
tained any  action  on  the  specialty,  because 
he  united  in  himself  the  character  of  -both 
obligor  and  obligee,  so  that,  if  he  only  did 
what  he  promised,  the  obligation  was  fulfill- 
ed." I  conclude,  as  well  from  comity  to  the 
Court  of  Law,  as  from  my  own  notions  of 
doctrine,  that  this  instrument  is  not  the 
basis  of  a  legal  demand  by  covenant  or  other 
form  of  action. 

The  instrument  has  the  form  of  a  single 
*187 
bill,  except  that  J.  B.  *Glenn  is  the  obligee 
as  well  as  one  of  the  obligors ;  the  plaintiff" 
comes  into  this  Court  on  account  of  this 
legal  ditriculty,  and  is  confessedly  entitled  to 
have  substantial  performance  of  the  contract 
according  to  the  intention  of  the  parties.  The 
Court  of  Law,  on  the  ground,  tliat  the  remedy 
there  is  confined  to  the  written  form  to  which 
the  contract  has  been  reduced,  remits  her  for 
proper  relief  to  the  Court  of  E(iuity.  Is  she 
to  be  told  here  that  the  mistake  of  form, 
of  Avhich  she  complains,  shall  be  corrected 
only  if  the  whole  form  is  changed?  I  do  not 
perceive  the  equity  of  thus  converting  a 
single  bill  into  a  covenant,  merely  for  the 
purpose  of  bringing  the  instrument  within 
the  bar  of  the  statute.  It  is  incongruous  to 
change  a  defective  instrument  into  a  legal 
demand  so  onerous,  while  we  are  professing 
to  relieve  against  the  strict  rules  of  the  com- 
mon law.  There  is  no  reason  why  we  should 
not  give  effect  to  the  intention  of  the  parties, 
that  the  creditor  might  safely  indulge  his 
debtors  for  twenty  years. 

76 


Courts  of  equity  sometimes  interfere  to 
prevent  the  bar  of  the  statute  of  limitations 
when  it  would  be  unjust  or  ineciuitable ; 
and  especially  they  will  not  allow  it  to  pre- 
vail by  mere  analogy  in  suits  in  e(iuity, 
where  it  would  be  in  furtherance  of  manifest 
injustice,  (Story  Eq.  §  1521);  Bond  v.  Hop- 
kins, (1  Sch.  &  Lef.  413).  Here  the  debt 
of  the  plaintiff"  is  unpaid;  and  the  justice, 
if  not  the  law,  of  the  case,  is  aft'ected  by  vhe 
facts,  that  within  four  years  before  the  filing 
of  this  bill  the  plaintiff"  has  prosecuted  her 
suit  at  law,  and  certain  promises  and  pay- 
ments have  been  made  to  her. 

The  plea  of  the  statute  is  overruled. 

It  remains  to  enquire  as  to  the  liability  of 
Ann  Sims,  now  the  wife  of  J.  C.  Caldwell. 
There  was  no  appeal  irom  the  former  decree 
dismissing  the  bill  as  to  Caldwell  and  wife. 
She  never  accepted  the  charter  of  the  com- 
pany, so  far  at  least  as  members  of  the  com- 
pany are  concerned.  The  .$15,000  for  which 
she  was  liable,  have  been  paid  in  full,  and 
appropriated  without  her  consent,  and  with 
the  consent  of  plaintiff""s  intestate,  to  improve- 
ment  of  the   corporate   estate.     William    B. 

*188 
Thorn  was  accepted  as  her  *substitute  upon 
the  single  bill,  with  the  concurrence  of  the 
plaintiff''s  intestate,  and  of  most  of  the  de- 
fendants ;  and  with  like  concurrence  she  was 
repudiated  as  a  member  of  the  company  as  to 
its  profits  and  liabilities,  and  another  put  in 
her  stead.  It  seems  reasonable  that  she,  as 
well  as  the  other  party,  should  be  allowed 
to  avail  herself  of  this  arrangement.  The 
proof  does  not  show  that  all  the  defendants 
concurred  in  this  substitution,  but  it  does 
show  that  the  plaintiff's  intestate,  and  nearly 
all  the  defendants  so  concurred,  and  that  all 
had  agreed,  Aug.  16,  183S,  mat  a  majority 
of  the  whole  compan.v  should  constitute  a 
quorum  to  do  business.  In  this  respect,  I 
concur  with  the  judgment  of  the  former 
Chancellor. 

It  is  ordered  and  decreed,  that  the  commis- 
sioner of  this  Court  enquire  and  report  as 
to  the  balance  due  upon  the  single  bill  in 
question,  after  deducting  all  payments  made 
thereon  by  the  treasurers  of  the  Glenn's 
Spring  Company,  or  from  the  funds  of  the 
company  or  otherwise ;  and  that  this  lialance 
be  paid  by  the  solvent  defendants  within  this 
State,  not  enunierating  J.  C.  Caldwell  and 
wife,  to  the  plaintiff",  after  deducting  an  ali- 
quot portion  for  the  liability  of  plaintiff's 
intestate ;  it  being  understood  that  such 
solvent  defendants  within  the  State,  (except 
J.  C.  Caldwell  and  wife,)  and  the  plaintiff, 
are  rateably  liable  for  the  pi'oportions  of  such 
of  the  obligors  as  may  be  eventually  insol- 
vent or  out  of  the  State ;  among  whom  are 
now  named,  II.  D.  Vanlew,  R.  A.  Nott,  L,  N. 
Shelton,  W.  C.  Pearson,  B.  Ligon.  and  W. 
B.  Thorn. 

The  defendants  appealed,  on  the  following 
grounds,  viz: 


GLEXN  V.  CALDWELL 


4;)i 


1.  r?efa\iso  the  parties  to  tlie  agreement  of 
the  inth  Seiit<'jnl)er,  18.'i7,  were  released  after 
the  Aet  of  incorporation,  and  the  debt  then 
heeanie.  by  the  consent  of  all  parties,  the  debt 
of  the  incorporation  and  not  of  the  individual 
members. 

12(1.  Reeaus«'  the  complainant's  intestate  re- 
leased the  partitas  to  the  a«reenient.  by  tak- 
Ini;  a  mort^'aj,'e  from  the  corporation,  execut- 
ing a  deeil  to  tiie  same,  and  each  one  of 
the  subscribers  havinj;  paid  the  amount  of 
their  subscriptions,  and  i)n>p(irtionate  part  of 
tlie  agreement,  are  no  furtlier  liable. 
♦189 

*:i  Hecause  if  defendants  are  liable  at 
all.  they  are  only  liable  for  their  proiior- 
tionate  amount  dm*  on  tlie  agreement. 

4.  Re«ause  tlie  complainant's  claim  is  bar- 
red by  the  statute  of  limitations. 

The  defendant  J.  K.  B.  Sims.  a|ipealed  on 
the  further  ground  : 

o.  Because  the  complainant  siioiibl  have 
been  ordered  to  i>ay  the  costs,  expended  by 
him  in  defending  himself  at  law  on  the 
agreement  now  sued  on. 

Tlie  defendants  J.  Winnsmith.  M.  A. 
Moore.  TJeorge  Ashford.  R.  Moon'Uian.  and 
Joseph  Caldwell,  executor  of  lirown.  api>eal- 
ed  on  the  further  ground,  viz : 

fi.  Because  the  release  of  Mrs.  Ann  Sims, 
now  Mrs.  Caldwell,  from  any  liability  on 
the  suiiscription.  or  on  the  agreement  of 
the  loth  September,  1837.  was  a  release  of 
them. 

Herndon.  Dawkins.  for  ai»pellants. 

Tlioinson.  Bobo,  contra. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW.  Cli.  On  the  (juestions  pre- 
sented by  this  appeal,  we  are  content  gen- 
erally with  the  reasoning  and  conclusions 
of  the  circuit  decrees:  and  none  requires 
additional  observations,  exceitt  that  in  the 
fourtli  ground  of  api)eal,  as  to  the  bar  of  the 
statute  of  limit.itions. 

In  <;ienn  v.  Sims.  1  Rich.  .".4  |4li  Am.  Dec. 
4051,  the  single  bill  which  is  the  cause  of 
action  in  the  present  suit,  came  under  dis- 
cus.sion  in  our  Law  Court  of  Appeals,  and 
it  was  determined  in  that  case,  that  as  J.  B. 
Clciui  united  in  himself  the  diaracters  of 
obligor  and  obligee,  no  suit  at  law  could  be 
maintained  on  the  specialty.  This  imiter- 
fcction  in  the  form  of  the  instrument.  i)re- 
veiits  the  remedy  of  the  jilaintiff.  I'itiier  hy 
del)t  or  covenant,  according  to  the  procedure 
of  the  Court  of  Law;  l)ut  it  does  not  annul 
the  contract,  nor  hinder  tiie  execution  of  it 
here,  according  to  the  intention  of  the  par- 
ties. Judge  Richardson,  in  delivering  the 
opinion  of  the  Court,  speaks  of  the  incon- 
sistent relations  of  Glenn  to  the  obligation, 
as    making   a    case    very    like    that    where   a 

♦190 
testator    aiipoints    ♦his    debtt)r    «'xecutor    of 
his  will.    The  case  thus  i>ut,  aptly  illustrates 


the    power    of    this    court    to    afford    relief, 
wliere  the  formal  inconsistency  of  l)eing  i)oth 
idaintiflf  and   defendant   obstructs  a    suit   at 
law.     The  aitpointment  of  a  debtor  to  be  ex- 
ecutor, even  if  he  l)e  one  of  several  joint  or 
joint  and  several  del)tors,  or  one  of  several 
executors,   operates   at   law   as  a    release  or 
extinguishment  of  the  del)t ;    and  this  is  on 
the  principle  that  a  debt  is  merely  a  right  to 
recover   the  amount   i)y   way  of  action,   and 
as   an    executor   cannot    maintain    an    action 
again.st  himself  tlie  action  is  suspended  ;  and 
a  iiersonal  action  once  suspended  by  the  vol- 
untary act  of  the  imrty,  entitled,  is  forever 
gone    and    discharged.      12    Wins,    on    Ex'ors. 
(»;>7.     But  in  equity,  an  executor  is  accounta- 
ble for  his  debt  as  general  assets  of  the  e.s- 
tate.     lyord  Thurlow,  in  Carey  v.  (loodinge. 
(:5   Bro.  C.  C.   111.)    and  Sir  William  Crant, 
in    Berry    v.    T'.sher,    (11    Ves.   90,)    treat   the 
point  as  perfectly  settled,  that  the  apiioint- 
ment  of  a  debtor  to  be  executor  is  no  more 
than  a  iiarting  with  the  action,  and  that  it 
shall  not  operate  as  a  relea.se  against  credi- 
tors or  legatees.     If  an  executor  should  die 
indelited    to   his   testator    by   bond,   could   it 
be  doubted  that   the  debt   would   be  set    up 
in  equity  as  a   specialty  against   the  execu- 
tor's estate?     The  contract  under  considera- 
tion has  in  every  respect  the  form  of  a  sin- 
gle hill,  except  that  the  name  of  the  obligee 
is   added   as  one  of   the   oliligors.     It    is   an 
agreement  to  pay  money — a  debt  hy  special- 
ty— and  -is    in    no   other    sense    a    covenant, 
than   as  every   bond   is   a  covenant.      I   sup- 
pose  that  the   adion   of  covenant    might   he 
brought    upon    a    bond    for    the    payment    of 
money,  and  that  if  such  form  of  action  were 
adojited.  the  statute  of  limitations  would  be 
ajiplicable.      It    is    not    the    usual    course   of 
equity  to  torture  into  a  covenant  an  instru- 
ment susceptible  of  a  different  construction, 
merely    for    the    purpose    of    defeating    the 
remedy   of  the  party  entitled.     What   other 
roiison    is   there    for   denominating    this   sin- 
gle bill  a  covenant,  than   to  bring  it   within 
the  operation  of  the  statute  of  limitations? 
It  may  certainly  be  construed  otherwise.     If 
we    should    express     the    contract    between 
these  parties  by  two  instruments,  we  would 

♦191 
then  have  in  one,  the  iiromise  ♦under  seal 
of  the  other  obligors  to  pay  (xlenii  .^l.l.OOO. 
a  mere  debt ;  and  in  the  other  the  agree- 
ment of  Glenn  to  incur  a  rateable  share 
with  the  obligors  of  loss  and  liability.  Or 
.>-npi)ose  we  consider  Glenn's  name  struck 
out  from  one  of  the  two  sides  of  the  con- 
tract, the  result  would  be  the  same.  If  his 
name  as  an  obligor  be  canci'lled.  he  would 
still  be  bound  in  this  Court,  on  ju-oof  of  the 
intention  of  the  parties,  while  seeking  e(iui- 
ty  to  do  equity,  by  assuming  his  just  share 
of  res|)onsibility.  It  may  be  urged  with 
much  i)lausibility.  and  upon  gowl  authority, 
that  tlu  effect  of  Glenn's  execution  of  the 
iiislrumeut  as  an  obligor,  is  to  expunge  his 

11 


*191 


4  RICHARDSON'S  EQUITY  REPORTS 


name  as  obligee.  In  Devore  v.  Mundy,  4 
Strob.  15,  the  payee  of  a  note,  payable  to 
himself  or  bearer,  transferred  it  to  a  third 
person,  and  intending  to  bind  himself  as  sure- 
ty of  the  original  maker,  signed  his  name  as  a 
maker.  The  Court  say:  "The  rule  in  such 
cases  as  this,  is  to  give  effect,  if  possible,  to 
the  intention  of  the  parties.  The  intention  of 
the  defendant  to  bind  himself  being  ascertain- 
ed, our  business,  if  we  legally  can,  is  to  give 
it  effect.  The  note  may  be  very  well  read  un- 
der such  circumstances,  as  if  the  name  of  the 
payee  were  struck  out;  his  signature  as 
maker  may  very  well  have  that  effect ;  and 
it  would  then  stand  as  a  naked  promise  on 
his  part  to  pay  the  bearer.  This  must  be 
so,  as  is  said  in  Stoney  v.  Beaubien,  2  McM. 
313  [39  Am.  Dee.  128],  because  otherwise 
no  legal  effect  would  result  from  the  defend- 
ant's signature  as  maker."  The  application 
of  this  case  may  be  impugned,  as  being  up- 
on a  commercial  instrument,  in  relation  to 
which  the,  rules  of  the  Court  of  law  are 
less  stringent  than  as  to  obligations.  Grant- 
ing this,  it  is  difficult  to  perceive  any  rea- 
son why  a  Court  of  Equity  should  not  ex- 
tend such  liberal  construction  to  all  instru- 
ments. The  case  of  Cockrell  v.  Milling,  1 
Strob.  444,  demonstrates  the  disposition  of 
our  Law  Court  to  give  effect  to  the  inten- 
tion of  the  parties,  at  the  sacrifice  of  form, 
eA'en  in  sealed  instruments.  It  was  held 
there,  that  one  writing  his  name  on  the 
back  of  a  single  bill — which  purports  of  it- 
self to  be  a  mere  assignment  without  guar- 
anty— was  liable  as  surety  or  indorser  of 
the  obligor,  upon  proof  of  his  intention  to 
be  so  bound. 

*192 
*If  we  may  consider,  then,  this  instru- 
ment as  being  in  blank  as  to  the  name  of 
the  obligee,  there  is  no  difficulty  in  main- 
taining it  as  a  single  bond.  In  Gray  v. 
Rumph,  2  Hill  Eq.  6,  a  bond  was  set  up  in 
this  Court,  although  it  was  in  blank  as  to 
the  obligee  and  penalty.  This  is  a  mere  il- 
lustration of  the  principle  that  equity  will 
not  permit  a  trust  to  fail  for  the  lack  of  a 
trustee.  If  this  single  bill  had  been  drawn 
payable  to  some  stranger,  in  trust  for 
Glenn,  undoubtedly  effect  would  have  been 
given  to  it  as  a  debt  by  specialty,  and  yet 
it  is  the  same  thing  in  substance.  If  a  tes- 
tator should  give  to  a  married  woman,  for 
her  sole  and  separate  use,  the  note  or  bond 
of  her  husband,  it  will  not  be  contested 
that  equity  would  supply  a  trustee  and  give 
effect  to  the  legacy.  Lord  Hardwicke  says, 
in  Skip  V.  Huey,  3  Atk.  93,  there  are  many 
cases  where  equity  will  set  up  debts  ex- 
tinguished at  law  against  a  surety  as  well 
as  against  a  principal,  as  where  a  bond  is 
burnt  or  cancelled  by  mistake,  or  delivered 
to  the  obligor  by  his  fraud. 

In  Hill  V.  Calvert,  1  Rich.  Eq.  56,  the  or- 
dinary struck  out  the  name  of  one  of  the 
obligors   in   a   guardianship   bond,    and   per- 

78 


mitted  another  to  sign  as  a  substitute ;  yet 
although  the  ordinary  was  the  nominal 
obligee  and  legal  owner,  it  was  held  that 
the  first  obligor  was  not  discharged,  nor  the 
second  bound. 

The  survivor  only  of  several  obligors  of  a' 
bond  is  liable  at  law,  yet  the  representative 
of  a   deceased   obligor   may   be   successfully 
pursued  in  equity. 

All  these  cases,  and  many  others  might 
be  cited  in  illustration,  establish  the  general 
principle,  that  the  intention  of  parties,  safe- 
ly deduced  from  the  instruments  of  con- 
tract, shall  not  fail  in  equity,  by  reason  of 
defect  of  form,  which  might  defeat  recovery 
at  law.  In  the  present  case,  my  mind  forms 
the  conclusion,  from  the  instrument  itself, 
that  it  was  the  intention  of  the  parties  to 
create  a  debt  by  specialty,  not  within  the 
statute  of  limitations,  and  to  be  barred  only 
by  lapse  of  time. 

The  same  conclusion  may  be  attained  by 
a  different  course  of  reasoning. 
*193 

*Courts  of  Equity  will  grant  relief  in  cases 
of  mistake  in  written  contracts,  not  onlj 
where  the  fact  of  mistake  is  expressly  es 
tablished,  but  also  where  it  is  fairly  implied 
from  the  nature  of  the  transaction.  Thus, 
in  cases  where  there  has  been  a  joint  loan 
of  money  to  two  or  more  obligors,  and  they 
are  by  the  instrument  made  jointly  liable, 
but  not  jointly  and  severally,  the  Court  will 
reform  the  bond,  and  make  it  joint  and  sev- 
eral, upon  the  reasonable  presumption  from 
the  nature  of  the  transaction,  that  it  was 
so  intended  by  the  parties,  and  was  omitted 
by  want  of  skill  or  mistake.  1  Story  Eq.  § 
162. 

In  Simpson  v.  Vaughan,  2  Atk.  31,  where 
there  was  an  actual  loan  to  partners,  and 
their  joint  bond  was  taken.  Lord  Hardwicke 
inferred  mistake  in  the  form  of  the  bond,  with- 
out express  proof,  and  said:  "The  debt  arises 
from  the  contract  itself,  and  if  there  is  any 
defect  in  the  bond,  the  Court  will  resort  to 
what  was  the  principal  intention  of  the  par- 
ties, that  they  should  be  severally  and  jointly 
bound."  The  cases  on  this  point  are  well 
collected  and  explained  by  Chancellor  Har- 
per, in  Pride  v.  Boyce,  Rice  Eq.  2SS  [33  Am, 
Dec.  78].  See  also  King  v.  Aughtry,  3  Strob. 
Efc[.  156. 

Where  a  bond  is  executed  by  one  partner 
in  the  name  of  the  firm,  all  the  partners  in- 
tending to  be  bound  by  the  obligation,  the 
obligee  has  no  remedy  at  law  against  the 
firm,  but  may  charge  them  in  equity  on  the 
ground  of  mistake.  McNaughten  v.  Par- 
tridge, 11  Ohio,  223.  In  such  case,  there 
would  be  a  merger  at  law  of  the  original 
simple  contract,  and  the  partner  executing 
the  bond  would  be  alone  liable.  [.Jacobs  v. 
McBee]  2  McM.  348.  Gardner  v.  Hust,  2 
Rich.  601. 

Where  a  bond  is  intended  to  be  executed, 
but  the  seal  is   omitted   by  accident,   relief 


GLEXN  V.  CALDWELL 


*193 


will  be  granted  In  equity,  althoujih  tlie  luirty 
might  proceed  at  law  upon  the  simple  con- 
tract, on  the  ground,  that  the  consideration 
of  the  bond  cannot  be  enipiired  into;  and 
it  might  lie  added,  because*  a  bond  is  not 
within  the  statute  of  limitations.  Montville 
V.  Ilaughton.  7  Conn.  R.  54U ;  Wadsworth 
V.  Wendell.  .5  John.  Ch.  225. 

In    Argenbright    v.    Campbell,    3    Hen.    & 

*194 
Munf.  144,  a  written  *instrument  was  declar- 
ed to  be  a  good  bond,  with  colhiteral  condi- 
tion for  the  benefit  of  the  obligee,  although 
the  obligor's  name  was  not  signed  opposite 
to  the  seal,  but  between  the  penal  part  anil 
the  condition,  and  the  name  of  the  obligee 
was  signed  at  the  foot  of  the  condition, 
opposite  to  the  seal ;  both  signatures  being 
attested  by  the  same  witnesses. 

In  every  case  where  an  imperfect  bond  is 
set  up  in  e<iuity,  it  is  established  with  all  the 
incidents  of  a  specialty. 

In  the  case  before  us,  it  is  not  necessary, 
in  my  opinion,  to  look  beyond  the  instrument 
itself  in  order  to  ascertain  the  mistake  of 
the  parties.  But  if  proof  of  mistake  by  ex- 
trinsic evidence  is  needed,  I  think  it  is  afford- 
ed by  Huson,  tiie  witness  of  defendants;  and 
his  testimony  is  competent  to  show  mistake, 
but  incompetent  to  give  construction  to  the 
instrument.  He  testifies  that,  after  the  re- 
jection of  several  other  forms.  Dr.  AVinn- 
smith  objected  to  the  form  of  obligation 
finally  adopted,  as  on  his  construction  he  was 
liable  for  the  whole,  and  that  tiiis  was  the 
reason  that  Glenn  signed  the  sealed  note — 
that  Glenn  was  retiuired  to  sign  the  note 
in  order  to  put  all  on  e<iuality,  as  he  retained 
one  share.  It  is  obvious  from  this  testimony, 
that  tile  only  purpose  of  (Jlenn's  signature 
to  the  specialty  was  to  furnish  evidence  of 
his  rateable  liability.  The  substance  of  Dr. 
Winnsnuth's  objection  to  the  obligation  is, 
not  that  he  was  bound  for  the  whole,  but  that 
Glenn,  a  partner  in  the  enterprise,  was  not 
also  bound.  To  avoid  the  inference  of  mis- 
take, one  of  the  counsel  for  defendants  sug- 
gests to  us  that  it  was  the  deliberate  purpose 
of  some  of  the  obligors,  in  requiring  Glenn's 
signature  as  co-obligor,  to  render  the  instru- 
ment a  nullity,  upon  wiiich  no  suit  could  be 
brought,  l)Ut  we  cannot  presume  so  gross  a 
fuaud  as  this  would  imply  on  the  part  of  re- 
spectable gentlemen,  without  some  pri>of. 

We  are  further  of  oi)inion.  that  there  is 
neither  need  nor  propriety  to  look  beyond  the 
single  bill  itself,  and  the  circumstances  con- 
nected with  its  execution,  to  ascertain  tiie 
intention  of  the  parties,  as  the  instrument 
is  sufiiciently  definite  in  itself,  and  contains 
no  reference  to  any  other  contract. 

*1S5 

*It  is  ordered  and  decreed,  that  the  decree 
be  atfirmed  and  the  appeal  be  dismissed. 

JOHNSTON,  Ch.,  concurred. 


f  DARGAX,  Ch.  I  concur  in  the  judgment 
of  this  Court,  that  this  suit  is  not  barred  by 
the  statute  of  lin)itations.  I  do  not  concur, 
liowever.  on  the  ground,  that  the  instrument 
of  the  27th  of  October,  1887,  is  a  single  bill 
or  a  specialt.v.  In  my  view,  it  has  none  of 
the  characteristics  of  such  an  instriunent.  ex- 
cept the  form.  But  when  examined  in  refer- 
ence to  the  obligations  it  creates,  it  is  found 
that  the  oitligee  is  one  of  the  obligors.  He 
binds  himself  with  the  other  fourteen  obli- 
gors, jointly  and  severally,  to  pay  to  himself 
the  sum  of  fifteen  thousand  dollars.  Ho 
binds  faim.self  with  the  others  in  the  whole 
and  for  the  whole  sum.  We  have  put  that 
construction  upon  it.  For  we  have  held,  that 
the  representative  of  the  obligee  is  bound 
to  bear  a  proportionate  share  of  the  loss 
resulting  from  the  in.solvency  or  absence  of 
some  of  tiie  joint  and  several  obligors. 

This  point  has  been  decided  at  law.  In 
a  suit  between  these  .same  parties,  (Glenn  v. 
Sims,  1  B'ich.  34  [42  Am.  Dec,  405],)  it  was 
decided,  that  this  instrument  was  a  nullity 
in  that  Court.  The  only  ground  upon  which 
such  a  decision  could  have  been  rendered, 
and  the  plaintiff  tui-ned  out  of  that  Court,  is 
because  it  was  not  a  single  bill.  If  it  was  a 
single  bill,  or  a  sealed  note  under  the  Stat. 
4  Ann,  what  was  the  impediment  to  a  suit 
upon  it  at  law'^  It  is  clear,  that  the  Court 
of  Law  did  not  regard  it  in  that  light,  or 
they  would  not  have  granted  a  nonsuit  on 
the  ground  that  it  was  a  nullity  at  law.  I 
entirely  concur  in  the  view  wiiich  the  Law 
Court  has  taken  as  to  the  legal  construction 
of  the  instrument.  But  even  if  the  case  had 
been  erroneously  decided  at  law,  it  is  the  law 
of  the  case  as  to  these  parties. 

But  if  it  be  not  a  single  bill  or  sealed  note, 
what  is  it?  It  is  certainly  not  a  nullity  in 
every  sense.  For  the  Law  Court  did  not  so 
regard  it,  and  recommended  the  plaintiff'  to 
this  Court.     The  instrument  is  valid  as  an 

*196 
agreement  between  the  parties,  ac*cording  to 
the  true  intent  and  meaning,  deduced  from 
the  legal  inq)ort  of  the  terms.  If  it  does  not 
fall  under  that  classification  of  contracts 
called  covenants,  it  is  an  anomaly  for  which 
I  am  at  a  loss  to  find  a  name.  It  is  not  an 
assumpsit,  for  it  is  under  seal.  In  order  to 
determine  its  true  character,  we  are  to  sup- 
po.se  all  the  obligations  which  it  creates 
among  the  different  parties,  according  to  our 
construction,  to  be  reduced  to  writing,  and 
executed  by  the  parties  under  their  hands 
and  seals.  Then,  it  would  be  an  agreement 
in  writing  under  seal,  imposing  upon  the 
parties  to  it  their  several  duties  and  obliga- 
tions: and  such  an  agreement  would  be,  in 
my  view,  a  covenant. 

But  an  action  at  law  upon  a  covenant  is 
subject  to  the  plea  of  the  statute  of  limita- 
tions. And  it  is  a  rule  in  this  Court  to  apply 
the  bar  of  the  statute  of  limitations,  wherev- 
er upon  the  same  cause  of  action,  the  plea 

79 


*196 


4  RirilARDSOWS  EQl'ITY  REPORTS 


of  the  statute  would  be  sustained  in  a  Court 
of  Law.  And  the  plea  of  the  statute  of  limi- 
tations, I  think,  should  have  l)een  sustained 
by  the  Court  of  Equity  in  tliis  case,  but  for 
the  view  which  I  have  taken  of  some  portion 
of  the  evidence. 

Glenn  had  a  mortgage  of  the  Glenn's 
Spring  property  to  secure  the  payment  of  his 
debt ;  and  also  a  judgment  for  the  lialance 
of  his  demand,  which  were  precedent  in  tne 
way  of  lien  to  all  other  claims.  There  was 
a  judgment  in  favor  of  the  Bank  of  the  State 
of  South  Carolina  for  a  large  amount  that 
was  pressing  upon  the  Glenn's  Spring  Com- 
pany for  payment.  The  company  desired  to 
make  sale  of  the  Glenn's  Spring  property  to 
meet  the  exigency  arising  from  demands  of 
the  Bank.  Glenn,  under  these  circumstances, 
consented  that  the  property  should  be  sold 
In  part  for  cash  and  in  part  on  a  credit  un- 
til the  first  day  of  January,  A.  D.  1S45.  He 
consented  to  release,  and  did  release,  his 
prior  liens  in  favor  of  the  claim  of  tlie  Bank. 
He  consented  that  tlie  Bank  shouhl  receive 
the  cash  instalment  of  the  sale,  and  the  bal- 
ance of  that  claim  out  of  the  credit  instal- 
ment, and  that  the  whole  of  his  demand 
should  be  paid  out  of  the  proceeds  of  tlie 
credit  instalment  falling  due  on  1st  January, 

*197 
1845.  The  company,  consisting  *of  tlie  same 
persons  with  the  obligors  of  the  original 
agreement,  (with  the  exception  of  Ann  Sims, 
who  had  forfeited  her  stock,  and  had  been 
released  from  her  lial)ility  on  the  agreement.) 
passed  resolutions  for  the  payment  of  the 
Bank  debt,  and  of  Glenn's  claim  in  the  man- 
ner above  stated.  The  resolutions  and  the 
agreement  which  they  carried  out.  modified 
the  agreement  of  2Tth  October.  18;>7,  as  to 
the  time  of  payment  of  the  balance  due 
thereon.  The  original,  and  this  new  agree- 
ment, are  to  be  construed  in  pari  materia, 
and  as  forming  one  whole  agreement.  By  the 
terms  of  the  new  agreement,  Glenn  agreed  to 
receive  the  balance  due  him  on  the  1st  Jan- 
uary, 1845.  From  this  agreement  to  the 
filing  of  the  bill,  the  time  was  not  sutficieut 
to  create  the  statutory  bar.  And  on  this  state 
of  facts.  I  concur  in  the  decree  overruling 
the  plea  of  the  statute,  and  the  general  al- 
firmation  of  the  circuit  decree. 

Appeal  disu  'ssed. 


4   Rich.  Eq,   197 

JOHN  G.  PETTUS  v.  THOMAS  SMITH  and 

Others. 

ELIZA  SMITH  v.  JOHN  G.  PETTUS. 

(Columbia.     Nov.  ani  Dec.  Term,  1851.) 

[Fraudulent   Conveyances   <@==>241.1 

A  plaintifif  iu  a  judgment  at  law,  seeking 
the  aid  of  the  Court  of  Equity,  is  not  bound  to 
show  a  fi.  fa.  issued  on  his  judgment  and  re- 
turned nulla  bona — a  ca.  sa.  may  be  as  well,  if 
not  better,  adapted  to  show  that  the  plaintiff 
could  not  have  satisfaction  by  legal  process,  and 


that  lie  needs  the  assistance  of  the  Court,  of 
Equity. 

[Ed.  Note. — Cited  in  Attornev  (Jenera!  v. 
Baker,  9  Rich.  Eq.  534;  Eno  v.  Calder,  14 
Rich.  Eq.  155:  Bird  &  Co.  v.  Calvert,  L'2  S.  C. 
2116;  Austin,  Nichols  &  Co.  v.  Morris.  2:5  S.  C. 
40:;;  Miller  v.  Hughes,  lili  S.  C.  5:!".).  12  S. 
K.  41J) ;  Meinhard  Bros.  v.  Youngblood,  :J7  S. 
C.  238,  15  S.  E.  950,  Hi  S.  E.  771. 

For  other  cases,  see  Fraudjdent  Convevances, 
Cent.  Dig.  §§  694,  096-726;    Dec.  Dig.  C=>2H.l 

\Frauduleni   Conveyanres   <g=>243.] 

A  plaintiff  in  a  judgment  at  law  having  his 
debtor  in  custody  under  a  ca.  sa.  ma.v  file  a 
bill  to  have  a  previous  conveyance  by  the  debtor, 
and  a  previous  judgment  confessed  by  him,  set 
aside  for  fraud. 

I  Ed.  Note. — For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  §  692 ;  Dec.  Dig.  <g=» 
243.] 

[Judfnnent    (©==>(il7.    678.] 

Every  defence,  such  as  fraud,  «S:c..  bearing 
upon  the  validity  of  a  contract,  is  concluded  by 
a  judgment  upon  the  contract — the  creditors  of 
the  party  defrauded  have  no  right.  (»'xce|)t  where 
the  fraud  was  perpetrated  with  an  intent  to 
affect  creditors. I  to  question  the  validity  of 
the  contract,  and  the  part.v  defrauded  is  con- 
cluded by  the  judgment. 

[Ed.  Note. — For  other  cases,  see  .Judgment, 
Cent.  Dig.  §§  1134,  1199;  T)ec.  Dig.  (S=»(jl7, 
678.] 

[Fraudulent  Conveyances  <©=5(;G.] 

A  purchase  made  to  enable  a  debtor  to  re- 
move his  property  out  of  the  way  of  a  coming 
judgment,  is  fraudulent. 

[Ed.  Note. — For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  §  169 ;  Dec.  Dig.  ©=> 
6U.] 

*I98 

[Fraudulent  Conveyances  <S=>G6.1 

*The  assisting  a  debtor  to  remove  his  prop- 
erty from  Florida  to  this  State,  and  taking  from 
him  a  confession  of  judgment  here — the  object 
being  to  defeat  the  lien  of  the  judgment  about 
to  be  obtained  in  Florida,  and  to  obtain  a  prefer- 
able lien  in  this  .State, — is  fraudulent. 

[Ed.  Note. — Cited  in  Anderson  v.  Aiken,  11 
Rich.  Eq.  237. 

For  other  cases,  see  Fraudulent  Conveyances, 
Cent.  Dig.  §  169;    Dec.  Dig.  <S=>66.] 

[Fraudulent  Conveyances  <S=>1S4.] 

Where  a  sale  of  negroes  is  set  aside  for 
actual  fraud  upon  creditors,  an  expenditure 
made,  such  as  paying  a  previous  mortgage,  for 
the  purpose  of  forwarding  the  fraud,  will  not 
be  reimbursed  to  the  purchaser  when  the  sale  is 
set   aside. 

[Ed.  Note. — For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  §  583;  Dec.  Dig.  <©=> 
184.] 

[Vendor  and  Purchaser  (@==>121.] 

Where  a  vendee,  discovering  a  defect  in  his 
vendor's  title  to  part  of  the  land,  sues  at  law 
upon  the  contract  and  recovers  judgment  for, 
and  collects  the  damages  sustained,  by  reason  of 
the  defect,  he  thereby  elects  to  treat  the  con- 
tract as  valid,  and  cannot  aftenvards  sustain 
a  bill  in  equity  to  have  it  rescinded. 

[Ed.  Note. — Cited  in  Godfrev  v.  E.  P.  Burton 
Lumber  Co.,  88  S.  C.  141,  70  S.  E.  39G. 

For  other  cases,  see  Vendor  and  Purchaser, 
Cent.  Dig.  §  219;    Dec.  Dig.  <S=j121.] 

[Judr/moit  <g=>S90.] 

[Cited  in  Hamilton  v.  Bredeman,  12  Rich. 
469,   to   the    point   that   an   arrest   (under   a   ca. 


80 


«S=:=>For  other  cases  see  same  topic  aud  KEY-NUMBER  in  all  Key-Numbered  Digests  and  lude.xes 


PETTUS  V.  SMITH 


200 


sa.)   is  a   satisfaction   only   if  it   produces   pay- 
ment or  the  debtor  be  not  released.] 

[Ed.  Note.— For  otlier  cases,  see  Judgment, 
Cent.  Difi.  M  l(;s9-17(»l  :    Dec.  Dig.  <©=3Syo.] 

Before  Johnston,  Cli.,  at  Abbeville,  June, 
1851. 

In  November.  1S4.5.  John  O.  Tettus  recov- 
ered jiKlKHient.  in  Florida,  against  Thomas 
Smith,  for  .$4,27S.78.  with  interest  and  costs ; 
and  in  October.  1848,  recovered  judfiment  in 
Abbeville  district,  in  this  State,  on  the  Flori- 
da juditiment.  The  Florida  .iud.i,'ment  was 
recovered  on  a  prtJiuissory  note,  .niven  by 
Smith  to  Pettus,  for  part  of  tlie  purchase 
money  of  a  tract  of  land.  Pending  the  ac- 
tion, of  Pettus  against  Snnth  in  Florida, 
Smith  removed  his  negroes,  about  thirty  in 
number,  acro.ss  tlie  line  into  (Jeorgia.  and 
there  executed  a  bill  of  sale  of  the  negroes 
to  one  Bryan;  and  Bryan  advanced  to  him 
$5,000,  out  of  which  sum  he  satisfied  a  mort- 
gage, for  about  .$4.(500,  to  one  P.ellamy,  of 
part  of  said  negroes.  A  few  days  afterwards 
Charles  Smith,  a  brother  of  Thomas  Smith, 
received  from  Bryan  a  bill  of  sale  of  the  ne- 
groes, and  paid  him  the  .fJ.l.OOO  he  liad  ad- 
vanced to  Thomas  Smith,  with  interest. 

The  negroes  were  brought  by.  Charles  and 
Thomas  Smith  into  Abbeville  di.strict,  in  this 
State,  where,  on  January  5.  1846.  the  said 
Thomas  confessed  to  the  said  Charles  a  judg- 
ment for  $3,121.  with  interest  and  costs;  and 
also,  in  March.  1846.  confessed  another  judg- 
ment to  his  mother.  Lucy  Smith,  for  .$:{.:i66.- 
30,  with  interest  and  costs.  The  original 
indebtedness,  on  which  each  of  these  judg- 
ments was  founded,  was  bona  fide. 

On  the  South  Carolina  judgment,  of  Pettus 
against    Sinith.    f1.    fa.    was    lodged.    October 

*199 
23,  1848;  and  ca.  sa.  January  25,  184!).  *  Ten- 
der the  ca.  sa.  Smith  was  arrested  January 
29,  1S49 — gave  bond  for  the  prison  bounds, 
filed  a  schedule,  and  gave  notice  that  he 
would  apply,  at  the  next  Fall  Court  for  Abbe- 
ville, for  the  benefit  of  the  insolvent  debtor's 
Act.  He  died  two  days  before  the  sitting 
of  the  said  Court. 

The  first  bill,  above  stated,  was  filed  April 
26,  1840;  its  prayer  was.  that  the  sale  of 
the  negroes  by  Thomas  Smith  be  set  aside 
for  fraud;  also  that  the  judgments  confes.sed 
by  him  to  Charles  and  Lucy  Smith  be  .set 
aside  for  the  same  cause. 

The  second  bill,  above  stated,  was  a  cross 
bill,  filed  February  21.  1851,  by  the  adminis- 
tratrix of  Thomas  Smith;  Its  object  was  to 
procure  a  rescission  of  the  contract  lietween 
Smith  and  Pettus  in  Florida,  for  the  pur- 
chase of  the  land. 

Johnston.  Ch.  I  shall  not  attempt  to  state 
these  cases,  but  shall  proceed  imniediat«>ly 
to  deliver  my  judgment,  leaving  the  pleadings 
and  the  evidence,  which  is  all  in  writing,  or 
on  my  notes,  to  exhibit  and  explain  the  de- 
tails of  the  litigation. 

4Kicn.EQ.— 6 


In  the  first  of  the  two  ca.ses.it  appears  that 
Pettus,  on  the  20th  of  Novend)er.  1S45.  ob- 
tained a  judgment  at  law  against  Tb.omas 
Smith,  in  Florida,  for  !?4.278.78.  bearing  in- 
terest from  that  date,  with  costs;  but  could 
not  obtain  payment  of  it.  because  Ins  debtor 
had,  pendente  lite,  removed  property,  neces- 
sary for  its  satisfaction,  beyond  the  jurisdic- 
tion of  the  Court.  He  followed  the  debtor  to 
South  Carolina,  and  sued  him  ui)on  his  Flor- 
ida judgment;  and  on  the  23d  of  October.  1S48. 
obtained  a  judgment  upon  it  in  the  Court  of 
Law  for  Abbeville  district.  But  here  he  en- 
countered new  difficulties.  The  property  re- 
moved was  now  claimed  by  Charles  Smith,  a 
brother  of  tlie  debtor,  as  a  purchaser.     This 

,  was    one    impediment.      If,    disregarding   the 

I  pretended  purchase,  he  proceeded  to  levy  the 
execution    he    had    obtained    here    upon    the 

j  property,  he  had  to  encounter  another  im- 
pediment, consisting  of  two  judgments  con- 
fe.s.sed  by  Thomas   Smith,   which    took   legal 

,  precedence  over  his  Hen.  to  wit:  a  judgment 
confessed  to  Charles  Smith  the  6th  of  Jami- 
ary,  1846,  for  .$3,121  with  interest  an<l  costs; 
and  a  judgment  confessed  to  Lucy  Smith,  the 

*200 

*mother  of  his  debtor,  the  2d  of  March.  1846, 
for  .$3,666.30.  with  interest  and  costs. 

It  is  to  .set  aside  the  pretended  purchase 
of  Charles,  and  to  remove  out  of  his  way  the 
two  judgments  of  Charles  and  Lucv.  that 
this  bill  is  filed. 

Before  we  proceed  to  consider  the  validity 
of  this  purchase,  and  of  the  judgments  of 
these  parties,  it  is  necessary  to  dispose  of 
an  objection  interposed  at  the  hearing,  (for 
it  was  not  taken  in  the  answers.)  to  his  gen- 
eral right  to  maintain  his  bill. 

Before  the  bill  was  filed.  Pettus  had  arrest- 
ed Thomas  Smith,  his  debtor,  iiy  a  ca.  sa. 
taken  out  under  the  judgment  recovered  by 
him  in  South  Carolina;  and  the  defendant 
was  in  custody  at  the  time  the  bill  was  filed. 
He  had  not  taken  out  a  fi.  fa.,  or,  if  he  had, 
it  was  not  returned  "nulla  bona.'* 

The  objection  is  two  fold: 

1.  That  a  creditor  coming  here,  for  aid  to 
enforce  a  legal  demand,  for  which  he  has  a 
judgment,  properly  operating  at  law.  nni.st 
.show  that  he  really  needs  the  a.ssistance  of 
this  Court ;  and  that  in  this  ca.se,  the  plain- 
tiff having  omitted  to  take  out  a  fi.  fa.,  and 
causing  it  to  be  pro.secuted  and  returned, 
has  not  shown  that  there  was  not  a  full 
remedy  for  him  at  law. 

I  have  an  impression  that  some  of  the  cas- 
es quoted  in  suppcn-t  of  this  objection  were 
strained  beyond  principle.  The  principle  is 
sound,  that  a  party  holding  a  legal  demand, 
and  especially  if  he  hold  a  legal  remedy  for 
it,  Is  not  entitled  to  call  on  this  Court  to 
aid  him,  unless  he  can  show  that  he  needs  its 
assistance.  He  mu.st  state  such  a  case:  and, 
if  recpiired,  he  must  give  reasonable  proof 
of  its  existence.     But  a  party  undoubtedly 

81 


*200 


4  RICHARDSON'S  EQUITY  REPORTS 


does  need  equitable  assistance,  if  his  debtor 
is  insolvent,  except  as  to  property  so  covered 
or  encumbered  that  it  cannot  be  reached 
without  the  intervention  of  this  Court.  The 
only  question  is,  whether  there  is  any  princi- 
ple restricting  the  proof  of  the  insolvency  to 
any  particular  method.  Can  it  be  proved 
only  by  the  actual  issuing  and  the  actual  re- 
turn of  process  for  the  seizure  and  sale  of 
property?     Suppose  that,  before  a  fi.  fa.  can 

*201 
be  issued,  or  after  the  *issue  of  a  fi.  fa.  and 
before  it  is  returnable,  a  fraud  is  discovered, 
consisting  in  a  combination  of  third  persons 
with  the  debtor,  by  which  the  property  is 
secreted,  and  about  to  be  removed  out  of 
reach,  can  no  application  be  made  to  this 
Court  until  the  fi.  fa.  is  returned,  and  the 
fraud  actually  and  perhaps  irremediably 
completed? 

The  true  doctrine,  it  appears  to  me,  is, 
that  the  party  asking  the  aid  of  equity,  in 
such  cases  as  this,  is  bound  to  show  that, 
v.ithout  fault  on  his  part,  and  after  the  ex- 
ercise by  him  of  reasonable  diligence,  he  has 
no  means  of  obtaining  satisfaction  of  his 
claims  without  the  aid  of  this  Court ;  and, 
as  to  the  insolvency  of  his  debtor,  he  is  bound 
to  make  such  proof  only  as,  under  the  cir- 
cumstances, is  reasonable  and  satisfactory — 
such  proof  of  insolvency  as,  in  all  other  cas- 
es, is  competent  and  satisfactory,  and  no 
more. 

In  this  case  a  ca.  sa.  was  as  well  adapted 
to  test  whether  Thos.  Smith  was  possessed 
of  any  property  beyond  that  which  he  had 
conveyed  away  as  a  fi.  fa. ;  and  indeed  bet- 
ter. Besides  the  ordinary  information  as  to 
the  existence  of  such  property,  as  the  sher- 
iff or  any  friend  of  the  plaintiff  might  hap- 
pen to  possess,  it  was  calculated  to  draw  on 
the  conscience  of  the  debtor  for  such  addi- 
tional information  as  he  alone  could  afford. 
I  am  therefore  of  opinion,  that  the  deficiency 
of  the  plaintiff''s  legal  remedy,  and  his  need 
for  the  interference  of  this  Court,  is  made 
out  in  this  case  by  even  better  and  more  sat- 
isfactory evidence  than  would  have  arisen, 
if  a  fl.  fa.  had  been  issued  and  returned,  as 
required  by  the  objection. 

2.  The  second  branch  of  the  objection  is 
that  the  plaintiff's  legal  demand,  which  is  the 
only  just  foundation  of  his  application  to 
this  forum,  was  satisfied  and  extinguished  at 
the  time  he  filed  his  bill ;  and  therefore  he 
came  here  without  cause. 

The  argument  i.s,  that  the  debtor  being  un- 
der arrest  at  the  filing  of  the  bill,  his  debt 
was  at  that  juncture  of  time  satisfied  and  ex- 
tinguished ;  so  that  no  bill  could  be  exhibited 
in  that  posture  of  affairs  to  enforce  the  pay- 
ment of  that  debt. 

*202 

*This  Court  looks  at  the  substance  of 
things,  and  not  at  n)ere  forms  and  technical- 
ities.    It  may  be  true,  that  if  an  action  of 

82 


debt  had  been  brought,  in  a  Court  of  Law, 
upon  the  judgment,  while  the  debtor  was  in- 
carcerated by  virtue  of  process  issued  under 
it,  the  suit  might  have  been  stayed  until  the 
debtor  should  be  released.  But  such  order, 
or  pi'actice,  if  made  or  adopted,  must  be  re- 
ferred rather  to  the  administrative  than  to 
the  purely  judicial  functions  of  the  Court. 

If  the  debtor  made  no  objection  on  ac- 
count of  the  arrest  to  the  suit's  proceeding, 
the  Court  could  not  notice  it,  and  the  suit 
must  proceed  until  tlie  period  of  trial  upon 
the  merits  arrived.  Then,  for  the  first  time, 
the  question  now  made  before  i  -whether 
the  arrest  was  a  satisfaction  <_,  ..>  debt — 
could  possibly  be  presented  for  the  decision 
of  the  Court. 

And  I  apprehend,  a  Law  Court  as  well  as 
this  Court,  must  decide  that  question  in  the 
negative. 

An  ai'rest  is  a  merely  conditional  satisfac- 
tion. It  is  a  satisfaction  if  it  produces  pay- 
ment, or  if  the  debtor  be  not  released.  At 
common  law,  if  the  debtor  died  in  custody — 
that  is  to  say,  if  the  creditor  never  released 
him — the  debt  was  extinguished.  But  if  it 
were  shown  that  the  arrest  terminated  other- 
wise than  by  the  death  of  the  debtor  in  cus- 
tody, and  without  a  payment  of  the  demand, 
it  was  not  satisfied  or  extinguished. 

Arrests  stand  upon  the  same  footing  as  lev- 
ies upon  property.  While  a  levy  is  undispos- 
ed of,  the  debt  is  suspended.  There  is  a  qual- 
ified or  conditional  satisfaction ;  but  where 
it  is  shown  that  the  levy  has  not  produced 
satisfaction,  the  creditor  may  proceed  with 
his  execution,  or  by  suit  upon  his  judgment, 
for  what  remains  due  to  him.  I  have  used 
the  words  satisfaction  and  conditional  satis- 
faction in  confornuty  to  common  usage ;  but 
the  true  view,  upon  ])rinciple,  is  that  neither 
a  levy  nor  an  arrest  has  any  direct  influence 
upon  the  debt,  so  as  to  extinguish  or  satisfy 
it,  either  conditionally  or  unconditionally.  It 
suspends  the  remedy,  but  the  debt  remains 
until  actually  satisfied. 

*203 

*I  must  therefore  overrule  the  objection, 
and  proceed  to  consider  the  case  before  me 
upon  its  merits. 

And  in  adjudicating  upon  Pettus'  bill — 
which  is  the  one  I  am  now  considering — I 
nuist  regard  his  claim  (now  in  judgment, 
both  in  Florida  and  in  this  State,)  as  a  good 
legal  demand,  and  as  valid  and  effectual  in 
law  as  any  other  legal  claim. 

While  the  contract  subsists,  it  is  conclu- 
sive in  law  not  only  against  Thomas  Smith, 
the  debtor,  but  against  the  other  defendants 
to  this  suit,  even  though  it  should  have  tlie 
effect  of  diminishing  their  means  of  being 
paid  as  his  creditors. 

Nor  can  either  Thomas  Smith,  (now  repre- 
sented by  his  administratrix,)  or  the  other 
defendants,  his  creditors,  under  the  bill  which 
I  am  now  considering,  raise  an  objection  out 


PETTIS  V.  SMITH 


205 


of  <xiuitable  ciroum>>tancos.  connected  with 
the  purchase  of  lands,  upon  which  the  plain- 
tiffs demand  arose,  to  prevent  the  enforce- 
ment of  tile  di-mand  Itself. 

Any  fraud  that  may  have  existed  in  the 
orij^'inal  contract,  all  oi)pression  or  usury,  ev- 
ery thinj,'  bearing  upon  the  validity  of  the 
contract— all  tlu-se  wen-  as  availalile  in  the 
Court  of  Law  of  Florida,  where  the  contract 
was  sueti  on,  as  they  could  have  been  in  e<i- 
uity  ;  and  the  judjjment  of  that  Court  con- 
cludes Thomas  Smith  upon  all  stich  points. 
As  for  his  creditors,  they  never  had  the  rij,'ht 
to  raise  any  objections  of  the  sort.  I'icliett 
V.  I'ickett,  li  Hill.  Kq.  471. 

Creditors  of  a  party  defrauded  have  no 
ri^dit — even  though  the  fraud  have  the  effect 
to  dimitdsh  his  means  of  paying  them — to  look 
into  the  fraud  or  unravel  it.  It  is  for  him.  and 
for  him  alone,  to  do  so  ;  and  if  he  chooses  to  ac- 
ipiiesce  in  tlie  fraud,  or  has  suffered  himself 
to  be  concluded  of  his  right  to  investigate  or 
undo  it.  his  cnnlitors  must  be  content  to 
.ibide  by  the  legal  rights  remaining  in  him. 
as  they  happen  to  stand.  In  one  case,  and 
only  one.  that  now  occurs  to  me.  has  a  cred- 
itor a  right  to  ask  redress  in  relation  to  a 
fraud  upon  his  debtor;  and  it  is,  where  the 
fraud  was  perpetrated,  not  only  with  the 
view  of  injuring  the  debtor,  but  also  with  an 
intent  to  affect  the  creditor  himself;  1.  e. 
*204 

where  *the  creditor  was  the  object  of  the 
fraud.  In  that  cas(>.  perhaps,  as  well  as  in 
the  familiar  case  where  the  debtor  colludes 
with  a  third  person  to  defraiwl  his  creditor, 
tlie  creditor  has  a  right  to  claim  redress. 
I'.ut  with  regard  to  frauds  intended  to  light 
on  the  debtor  alone,  and  when  his  creditors 
were  not  within  the  contemplation  of  the  au- 
thor of  the  wrong,  and  are  only  affected  con- 
stHiuentially  by  it,  society  could  not  move  on 
upon  any  princijile  that  would  allow  them  to 
interfere,  forensicaily,  in  such  cases.  I  ruled 
this  doctrine  in  a  case  at  Sumter,  some  years, 
ago,  (perhaps  1840.)  between  the  Bank  of 
Camden  and  Stuckey,  and  have  seen  no  rea- 
son since  to  change  my  opinion. 

I  am,  then,  no  more  at  liberty.  In  this 
Court,  where  Pettus  comes  to  enforce  his 
judgment,  to  look  behind  it  into  the  validity 
of  the  contract  on  which  it  was  founded,  than 
was  the  Law  Court,  in  this  State,  when  he 
sued  before  them  upon  his  Florida  judgment. 

Then,  to  take  up  the  purchase  set  u|i  by 
Charles  Smith.  Itegarding  this  transaction 
in  the  abstract  light  of  a  mere  purchase',  an<l 
not,  for  the  present,  as  a  means  afforded  to 
clear  out  the  prop«'rty  from  Florida,  and  be- 
yond the  scope  of  I'ettus's  ap|u-oa<hing  ju«lg- 
ment,  I  can  have  no  hesitation,  under  the  evi- 
dence, to  iironounce  it  colorable.  Indeiiend- 
ently  of  the  statute  of  tJeorgia,  where  the 
transaction  took  place,  [See  2  Kelly  H.  1,] 
the  circumstances  stated  by  the  witnesses, 
and  winch  I  need  not  recai>itulate,  impress 


that  character  upon  it.  The  witnesses  are 
not  impeached,  and  I  have  no  otlicial  right 
to  disregard  their  testimony;  and.  if  that 
testimony  he  true,  there  can  be  but  one  oiiin- 
ion,  it  appears  to  me,  upon  the  subject. 

Hut,  if  this  were  doubted,  and  even  if  It 
appeared  that  a  real  chnng*'  of  property  was 
intendi'tl.  still  it  is  very  plain,  that  the  pur- 
cha.se  was  matle  to  enable  Thomas  Sndth  to 
remove  his  property  out  of  the  way  of  the 
coming  judgment.  In  such  cases,  it  matters 
not  whether  a  consitleration,  and  even  a  full 
consideration,  (Ix)wry  v.  Pinson,  2  Hailey 
Rep.  ;51'.S  [23  Am.  Dec.  140].)  was  paid  for  the 
Iiroperty  or  not.     Where  mere  is  prima  facie 

•205 

evidence  of  bona  fides,  though  ♦a  full  consid- 
eration be  not  paid,  that  circumstance  is  im- 
material, and  cannot  shake  the  contract,  un- 
less the  consi<leration  is  so  insnthcient  as  to 
refute  the  prima  facie  evidence  of  fairness. 
(Kyan  v.  Pull.  .Jannson  v.  Keitt.  .'!  Strob.  Va\. 
'.>.■>. I  And  so,  on  tlie  other  hand,  when'  there 
is  evidence  of  intentional  fraud,  a  party  can- 
not rescue  the  transaction  from  its  true  char- 
acter or  its  consecpieiices,  by  paying  ji  full 
price,  though  a  full  price,  by  it.self,  be  good 
evidence  of  fairness. 

I  held  in  Picliett  v.  Pickett,  (2  Hill  Ki]. 
471,)  that  the  assisting  a  debtt>r  to  re- 
move his  property,  so  as  to  obtain  an  advan- 
tage out  of  that  property,  was  a  fraud,  re- 
lievable  in  this  Court;  and  I  held  that  tlie 
party  should  be  deprived  of  the  advantage 
he  had  obtained.  Tlie  advantage  acquired  in 
that  case  was  a  preferable  lien;  just  as  iu 
this  case.  And,  if  it  be  a  fraud  to  remove 
property  out  of  South  Caroliiiji.  and  subject 
it  to  a  lien  created  to  take  priority  of  liens 
existing  here,  is  it  less  a  fraud  to  bring  proji- 
erty  from  another  State  into  this,  with  a 
similar  purjiose? 

If  the  only  wrong  con.sisted  in  the  color- 
able purchase,  a  recent  decision  of  the  Court 
of  Errors,  (.Tohiiston  v.  Pank.  ;!  Strob.  Kq. 
:WO.i  says  that  the  only  conse<|uence  of  set- 
ting the  purchase  aside  is.  that  the  wrong- 
doer shall  still  be  allowed  to  come  in.  with 
other  creditors,  with  whatever  demands  he 
may  have,  ((»f  course  according  to  priority  of 
lien.)  to  be  paid  out  of  the  property  consider- 
ed as  the  property  of  the  original  owner. 
I  shoulil  be  bound  to  apply  the  doctrine  of 
that  case  to  a  similar  case;  and  this  would 
be  a  similar  ca.se.  so  far  as  Charles  Smith  is 
concerned,  if  his  whole  offence  consisted  in 
taking  a  colorable  conveyance. 

Put.  in  my  view,  that  was  not  the  limit 
of  his  offence.  It  consisted  in  depriving  Pet- 
tus of  his  lien  in  Florida,  and  bringing  the 
property  <landestinely  within  the  scope  of  an- 
other and  preferable  lieu  of  his  own. 

Just  as  in  Pickett  v.  Pickett,  this  new  Hen 
did  not  exist  at  the  time  the  property  was 
translated.  Put  the  history  of  the  events 
satisfies  me  that  it  was  iu  contemplation.    If 

83 


*2J5 


4  RICHARDSON'S  EQUITY  RERORTS 


the  colorable  bill  of  sale  would  not  suffice — if 

*206 
that  was  endangered — if  the  property  ^should 
be    challenged    as    really   Thomas    Smith's — 
then,  at  the  worst,  it  was  to  be  made  liable 
to  Charles. 

Now,  to  such  a  case  as  that,  I  imagine  the 
doctrine  of  the  case  to  which  I  have  referred, 
was  never  supposed  by  any  person  to  be  ap- 
plicable. There  is  no  way  of  undoing  the 
fraud  in  such  a  case  but  by  a  decree  that  tne 
lien,  within  the  scope  of  which  the  property 
was  improperly  brought,  shall  be  postponed. 
The  very  essence  of  the  fraud  is  in  the  at- 
tempt to  subject  the  property  to  that  lien ; 
and  if,  while  you  censure  the  fraud,  your 
decree  gives  efficacy  to  the  lien,  it  confirms 
and  effectuates  the  wrong. 

I  suppose,  then,  that  the  judgment  con- 
fessed to  Charles  Smith  should  be  postponed, 
until  Pettus  obtains  satisfaction  of  his  debt. 
And  this  opinion  would  not  be  altered  by  the 
admission  made  at  the  hearing,  that  that  con- 
fession was  taken  for  a  debt  really  due  to 
him. 

My  decree  would  be  different  with  respect 
to  the  judgment  confessed  to  Lucy  Smith. 
It  is  not  only  admitted  that  this  confession 
was  taken  for  a  debt  really  due,  but  there  is 
not  a  shadow  of  proof  calculated  to  excite 
even  a  suspicion  that  either  she  or  her  agent 
— now  her  executor — had  any  connexion  with 
the  transfer  of  the  proi)erty  of  Thomas  from 
Florida  to  South  Carolina.  Aitkeu  ads.  Bird, 
(.Rice  Eq.  73.) 

I  have  thus  indicated  what  would  be  my 
decree  if  the  bill  of  Fettus  were  the  only  one 
before  me. 

But,  when  I  turn  to  the  cross  bill,  I  find  a 
case  which,  in  my  judgment,  totally  super- 
sedes such  a  decree. 

The  case  which  it  presents  is  shortly  this: 
Thomas  Smith  purchased  from  I'ettus,  at  the 
price  of  .$10,500,  a  body  of  land,  supposed  to 
lie  within  the  county  of  Jefferson,  in  Florida, 
to  oidy  a  portion  of  which  Fettus  had  an  ex- 
isting title.  The  purchaser  paid  two  thou- 
sand dollars  of  the  price  in  cash,  and  gave 
his  three  notes  for  the  residue,  Avhich  was 
$8,500,  due  in  one,  two  and  three  years,  and 
was  let  into  the  possession.  By  the  contract, 
titles  wei'e  not  made,  but  I'ettus  was  to  per- 
fect his  title  and  make  a  conveyance. 
*207 

*The  valuable  land,  which  was  the  object  of 
the  purchase,  lay  towards  the  Georgia  line. 
It  turned  out  that  it  lay  within  the  limits 
of  Georgia,  and  she  ran  her  State  line  so  as 
to  include  it.  Smith  was  evicted  and  lost  the 
land;  leaving  in  his  hands  a  poor  and  com- 
paratively worthless  portion,  lying  in  Flori- 
da. Pettus  sued  him  on  the  notes  as  they 
became  due.  He  set  up,  by  way  of  discount, 
the  land  which  had  been  lost,  and  thus  de- 
feated the  two  first  notes.  The  last  note  was 
in  suit,  when  Thomas  Smith  removed  his 
negroes,  (as  has  been  stated,)  tendered  back 

84 


the  possession,  and  abandoned  the  land.  On 
that  note  Pettus  recovered  his  Florida  judg- 
ment. Under  it,  he  sold  the  land  abandoned 
by  Smith,  purchased  it  himself,  and  is  now 
in  possession.  It  is  with  that  judgment  he 
has  followed  Smith,  and  obtained  his  judg- 
ment in  Abbeville. 

The  cross  bill  is  filed  for  a  rescission  of  the 
contract.  It  is  filed  by  the  widow  and  ad- 
ministratrix of  Thomas  Smith.  His  other 
distributees  are  not  parties. 

I  have  hesitated,  not  whether  the  contract 
should  be  rescinded,  but  whether  the  proper 
parties  for  a  rescision  were  before  the 
Court.  But  my  impression  is,  that  as  the 
title  was  never  in  Thomas  Smith,  and  never 
descended  to  his  distributees;  and  as  the 
title  for  so  much  as  Pettus  ever  owned,  or 
could  have  conveyed,  is  still  in  him;  there 
is  no  need  for  a  re-conveyance  on  the  part 
of  the  vendee  or  his  heirs ;  a  rescision  may 
be  decreed  at  the  Instance  of  the  personal 
representative,  who  is  competent  to  reclaim 
so  much  money  as  has  been  paid  on  the  con- 
tract of  purchase. 

On  the  merits  of  the  application,  I  do  not 
hesitate.  Nothing  adverse  to  the  right  of  re- 
scision is  concluded  by  the  judgments.  The 
judgment  here  only  affirms  that  the  judg- 
ment in  Florida  is  a  good  legal  judgment; 
not  liable  to  any  defence  at  law.  It  cannot 
be  opened  or  re-examined  upon  any  point  of 
law ;  nor  can  any  matter,  which  could  have 
been' urged  in  a  Court  of  Law,  or  noticed  by 
a  court  of  law,  to  prevent  its  being  obtained, 
be  now  urged  against  it. 

It  may  be  affirmed,  in  short,  that  no  mat- 

*208 

ter  or  question,  of  *which  Courts  of  Law 
have  jurisdiction,  can  be  now  set  up  either 
against  the  Florida  judgment,  or  that  Ity 
which  it  was  renewed  in  this  State.  All 
such  matters  and  questions  ai'e  covered  and 
concluded  by  those  judgments  as  res  judi- 
cata. 

But  no  matter  can  be  res  judicata,  or  con- 
cluded as  such,  of  which  the  Court  from 
which  the  record  comes  has  not  jurisdiction 
or  cognizance.  Where  there  is  no  jurisdic- 
tion there  can  be  no  adjudication,  express  or 
implied. 

And  this  may  be  unhesitatingly  affirmed  of 
Courts  of  Law  in  relation  to  this  question  of 
rescision.  The  Courts  cannot  have  decided 
that  the  circumstances  did  not  authorize  a 
i-escision.  or  that  the  vendee  had  no  right  to 
oup.  because  the  question  could  not  be  made 
before  them. 

So  far  from  the  judgments  of  the  Courts  of 
Law  in  Florida  having  prejudiced  this  right, 
the  right  arises  in  conseiiuence  of  their  de- 
cisions, and  is  confirmed  by  them. 

It  is  by  the  solemn  judgments  of  those 
Courts  that  we  learn  that  the  purchaser  has 
lost,  and  been  evicted  from  the  real  objects 
of  his  purchase.    That  is  decided,  and  decid- 


TETTUS  V.  SMITH 


■211 


<?d  between  those  parties,  and  it  is  f(inclnsive 
of  tlie  fact,  as  let  ween  tlieni. 

Tills  i)urciias»M'  is  not  iMnnul  to  altide  by 
the  remnant  of  his  pnrcliase. 

It  is  decreed  that  tlie  eontract  of  imrcliase 
of  the  said  land,  referred  to  in  the  plead- 
ings, be  set  aside  and  rescinded  ;  tliat  John 
(i.  Tettiis,  the  vend(»r,  do  account  for  such 
sums  of  money  as  lie  ina.v  have  received  up- 
on said  purchase,  (with  interest  according:  to 
the  hiws  (if  Florida  :i  and  that  the  adminis- 
tratrix of  Tliomas  Smitli  do  account  for  the 
rents  of  said  land  wliile  in  his  occu|iation: 
and  tiiat  these  two  be  set  off.  one  aiL'ainst 
tlie  other,  and  the  balance  stnnk  and  report- 
ed l)y  the  commissioner. 

It  is  (u-dered  tliat  tlie  said  John  G.  Pettus 
be  restrained  fiom  enforcing  his  .iudgments, 
mentioned  in  the  pleadings,  until  the  furtlier 
order  of  the  Court,  upon  the  coming  in  of 
the  report,  when  a  final  decree  may  be  pro- 
po.sed.  The  question  of  costs  reserved  until 
tliat  deeree  is  made. 

*209 

*J.  ii.  Tettus,  complainant  in  the  first  and 
defendant  in  the  sec«md  of  tlie  above  cases, 
appealed  from  the  decree  of  tlie  riiancellor 
in  said  cases,  and  moved  this  Court  for  the 
reversal  of  the  same  and  for  a  deci-ee  in  his 
favor,   upon   the   following  grounds,   to  wit: 

1.  Because  the  Florida  .iudgment  was  con- 
clusive as  to  all  matters  embraced  in  com- 
plainant, Kliza  Smith's  bill  for  relief. 

L*.  Hecau.se  the  agreement  or  contract  be- 
tween the  parties  has  been  executed,  or  so 
far  executed  and  adjusted  between  them, 
that  this  Court  cannot  now  consider  and  re- 
view the  same  for  the  purpose  of  rescision. 
as  the  parties  cannot  now  be  placed  in  statu 
quo. 

3,  Because  the  agreement  or  contract  has 
been  affirmed  by  the  complainant,  Kliza 
Smith's  intestate,  and  no  longer  is  open  and 
subject  to  litigation  in  this  Cimrt. 

4,  Because  Thomas  Smith,  complainant's 
intestate,  by  electing  his  remedy  and  his  fo- 
rum, and  by  other  circumstances,  has  waived 
and  lost  his  riglit  to  a  rescision  of  the  con- 
tract, or  to  any  other  relief  to  bt'  had  in  this 
Court. 

r.,  B(>cause  by  laches  and  iiie(|uitable  con- 
duct, Thomas  Smith,  the  intestate,  deju-ived 
himself  of  the  interposition  and  aid  of  this 
Court. 

<!.  Because  complainant's  intestate.  Thom- 
as Smith,  has  been  guilty  of  such  fraudulent 
acts  in  conjunction  with  Charles  Smith,  as 
precludes  liis  administratrix,  the  complain- 
ant, from  obtaining  relief  in  this  Court  by 
rescision  or  otherwise. 

7.  liecause  Cliarles  Smith,  substantially 
and  in  fact,  being  the  party  asking  for  the 
rescision  pra.ved,  and  who  alone  will  be  bene- 
fitted by  it.  and  who  is  a  fraudulent  purchas- 
er, colluding  with  the  .said  Thomas  in  the 
fraud,  this  Court  will  uot  exert  its  ordinarv 


or  extraordinary   powers   in  his  liehalf  and 
for  his  Ix'ueflt. 

S.  Because  there  is  no  e<piity  in  comiilain- 
ant  Eliza  Smitli's  bill,  and  the  dwree  is  gen- 
erally against  the  principles  of  law  and  equi- 
ty, as  well  as  the  testimony  of  the  case. 

P.  Becau.se  the  Cliaiicellor,  in  his  decree, 
210 
directs  J.  G.  Pettus  *to  account  for  the  casli 
payment  he  received  from  Thomas  Smith 
on  the  contract,  with  interest,  while  the  ail- 
ministratrix  of  Thomas  Smith  is  only  riNiuir- 
ed  to  account  for  the  rents  of  the  land  while 
in  his.  Thomas  Smith's,  occuiiatioii.  Where- 
as, the  decree  should  have  directed,  in  the 
event  of  rescision,  not  only  that  Pettus 
should  account  for  the  judgments  he  recov- 
ered against  Thomas  Smith,  and  tlu'  ca.sh  he 
received  in  payment  on  the  contract,  but 
that  Eliza  Smith,  administratrix  ,  should 
account  for  the  j»idgm«'iit  her  intt^sfate  recov- 
ered from  Pettu.s  in  the  suit  on  the  bond  for 
titles,  and  al.so  for  the  full  value  estimated 
at  the  time  of  purchase  of  the  tract  of  pine 
land,  containing  L'SO  acres,  to  which  Pettus 
made  Smitli  good  titles,  and  which  was  sold 
by  the  sheriff  of  JefTer.son  county,  Florida, 
in  1846,  to  pay  outstanding  and  older  judg- 
ments than  Pettus'  again.st  the  said  Thomas 
Smith. 

Noble,  Thomson,  for  appellant. 
Perrin,   McGowen,   contra. 

The  opinion  of  the  Court  was  delivered  by 

JOIINSTOX.  Ch.  It  appears  that  I  over- 
looked a  fact  in  my  circuit  decree,  upon 
which  the  whole  case  must  turn. 

1  suppo.sed  that  T.  Smith  had  defended 
himself  against  the  actions  brou'iht  by  Pet- 
tus upon  his  two  first  notes,  by  setting  up  the 
value  of  the  land  which  he  lost,  by  way  of 
fliscount.  A  fuller  examination  of  the  evi- 
dence shows  that  this  was  a  mistake.  When 
sued  on  the  notes,  he  sued  Pettus  on  the  bond 
for  titles:  and  obtained  judgment  for  the 
value  of  the  land  taken  off.  This  judgment 
exceeded  the  amovuit  of  the  notes  sued. on: 
and  after  .setting  it  off  against  the  recovery 
of  the  notes,  be  comiuMled  Pettus  to  pay  the 
excess,  amounting  to  about  $L'.r)<M>. 

It  appears  to  the  Court  this  was  an  affirm- 
ance of  his  contract,  and  he  was  not  at  liber- 
ty afterwards  to  rescind   it. 

It  is  not  nec(\ssary  to  multiply  authori- 
ties on  this  point.  The  doctrine  is  well  ex- 
pressed in  Brown  v.  ^^■itteI•.  (10  Ohio  i{.  142): 
"A    purchaser,    from    a    vendor,    who    cannot 

*211 
make  a  title,  has  his  choice  of  *remedies. 
He  may  sue  at  law  to  recover  damages  for 
the  nonperformance  of  the  contract;  or,  he 
may  seek,  in  Chancery,  a  specific  perform- 
ance, as  near  as  the  vendor  is  capable  of 
performing;  or  he  may  rescind,  by  an  ac- 
tion at  law  for  the  purchase  money ;   or  in  a 

85 


*211 


4  RICHARDSON'S  EQUITY  RErORTS 


bill  in  equity.  He  cannot  do  lioth.  He  must 
select  one  of  the  alternatives,  either  to  en- 
force or  rescind." 

It  appears  to  the  Court  that  when  the  ven- 
dee in  this  case  discovered  the  defect  in  his 
vendor's  title,  and  his  inability  to  make  a 
good  conveyance  of  that  portion  of  the  land 
which  constituted  the  great  object  of  his  pur- 
chase, he  was  then  in  a  condition  which  en- 
abled him  to  elect,  and  bound  him  to  elect, 
either  to  enforce  his  contract  or  rescind  it. 
He  enforced  it  by  claiming  and  collecting  by 
process  of  law,  damages  in  place  of  the  land 
taken  off;  and  retaining  his  conveyance  of 
that  which  had  been  conveyed  to  him.  By 
this  means  he  obliged  himself  to  take  the 
vendor's  conveyance  for  such  portion  of  the 
land  not  taken  off  as  remained  to  be  con- 
veyed. 

Besides,  if  he  were  not  absolutely  conclud- 
ed by  this  election,  the  delay  in  demanding 
a  rescision  even  after  he  was  sued  in  this 
State,  would  go  very  far  to  impair  liis  right 
to  such  a  decree. 

We  are  all  of  opinion  that  the  decree  made 
for  a  rescision  in  this  case  should  be  set 
aside ;    and  it  is  so  ordered  and  decreed. 

We  are  satisfied  that  the  decree  which  the 
Chancellor  indicated,  as  the  one  he  would 
have  made  ui)on  the  bill  of  Pettus,  if  no 
cross-bill  had   been  filed,  is  the  proper  one. 

It  is  said,  however,  that  in  setting  aside 
Cliarles  Smith's  purchase  of  the  negroes,  he 
should  be  allowed  a  lien  for  the  amount  paid 
on  Bellamy's  mortgage.  We  are  of  opinion 
that  though  the  purchase  is  good,  as  between 
Charles  and  Thomas  Smith,  and  that  there- 
Tore  Charles  will  be  entitled  to  claim  that 
amount,  and  indeed  the  whole  balance  which 
may  arise  from  the  negroes,  after  payment 
of  other  debts ;  yet  as  between  himself  and 
the  creditors  suing  him,  he  is  not  entitled  to 
any  reimbursement  of  the  amovint  thus  ex- 
pended. This  is  not  a  constructive  or  implied 
fraud ;   but  actual  dolus  malus.    The  sum  was 

86 


*212 

expended  as  a  *means  of  getting  the  pioperty 
out  of  Florida,  for  the  purpose  of  evading 
Pettus'  claim  and  obtaining  a  preferable  lien  ; 
and  certainly  an  expenditure  for  the  purpose 
of  forwarding  a  fraud,  is  not  a  suitalile  lien 
on  the  fund  or  property  abstracted  from  the 
creditors  defrauded. 

It  is  ordered  that  the  cross-bill  be  dismis- 
sed. 

That  the  purchase  by  Charles  Smith  of  the 
negroes  mentioned  in  the  pleadings  in  the 
other  case,  be  set  aside,  as  against  the  credi- 
tors of  Thomas  Smith. 

That  Charles  Smith  deliver  up  such  of 
said  negroes,  with  their  increase,  as  he  has 
not  alienated,  to  be  sold  by  the  commissioner ; 
and  that  he  account  for  their  reastinable 
hire  since  his  said  purchase.  That  he  also 
aceoinit  for  the  value  of  such  of  the  said 
negroes  as  he  has  alienated,  with  hire  up  to 
the  time  of  alienation,  and  interest  after- 
wards. 

That  out  of  said  sales,  hire  and  interest, 
the  several  judgments  subsisting  against 
Thomas  Smith,  be  paid  according  to  their  le- 
gal priority,  excepting  that  of  Charles  Smith, 
which  must  be  postponed  until  the  rest  are 
satisfied. 

That  said  Charles  Smith  do  pay  the  costs 
of  the  parties  to  the  suit  instituted  l)y  Pettus. 

And  that,  if  there  remain  any  of  the  pro- 
ceeds of  said  slaves,  hire  and  interest,  the 
same  be  paid  to  said  Charles  Smith. 

Oi'dered  that  the  matters  of  account  be  re- 
ferred to  the  commissioner,  with  leave  to  i"e- 
port  any  special  matter. 

Also,  ordered  that  the  parties  have  leave 
to  apply,  at  the  foot  of  this  decree,  for  any 
further  orders  that  are  or  may  become  nec- 
essary in  tlie  case. 

DUNKIN,  DARGAN  and  WARDLAW,  CC, 
concurred. 
Decree  reversed. 


CASES   IN   EQUITY 


AROUEn    AND    DETERMINKI)    IN'    THE 


COURT  OF  APPEALS 


AT  CHARLESTON,  S.  CAROLINA— TAXUARY  TERM,   1852. 


Chancellors  Present. 

Hon.   job   JOHNSTON, 
B.  F.  DUNKIN, 
"       G.  W.  DARGAX, 
"       F.  H.  WARD  LAW. 


4  Rich.  Eq.  *2I3 

*R.    G.   NORTON,    Ordinary,    v.    LEGATEES 

xVND  CREDITORS  OF   S.   R.  GILLI- 

SON,  Deceased,  ct  aL 

(Charleston.     Jan.  Term,  1852.) 

[Executors  and  Adiiiiuistratois  €=54r).'>.] 

L'nder  the  7th  section  of  the  ordinary's  Act 
of  1839,  the  ordinary  is  entitled  "to  five  per 
cent,  of  the  value  of  tlie  estate,"  talven  charge 
of  by  him  as  derelict,  only  when  ho  has  per- 
formed the  duties  prescribed  in  tliat  section. 
Where,  instead  of  selling  the  wliole  estate,  pay- 
ing the  creditors,  and  depositing;  the  net  bal- 
ance in  bank,  he  applied  to  the  Court  for  in- 
structions, and.  by  orde;*  of  the  Court,  sold  so 
much  of  the  estate  only  as  was  necessjiry  to 
pay  the  debts; — held,  that  he  was  entitled  to  five 
per  cent,  of  so  much  of  the  estate  as  he  had 
sold  and  no  more. 

I  Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  Di?.  S§  208!)-'_*lO(;, 
•J108:    Dec.   Dig.  <S=54!)o.] 

[blxecutnrH   and   Adwinixiratnr.'i  <S=>40().1 

Where  the  ordinary  takes  charge  of.  and 
administers  the  estate  of  a  testator,  under  the 
Act  of  ]S4ti,  he  is  not  entitled  "to  five  per  cent, 
of  the  value  of  the  estate;"  he  can  claim  only 
the  commissions  of  an  executor  under  the  Act 
of  1789. 

fEd.  Note. — For  other  cases,  see  Executors 
and  Administrators.  Cent.  Dig.  §  2111;  Dec. 
Dig.   e=»496.] 

*214 

♦Before  Diinkin,  Ch.,  at  Beaufort,  Febru- 
ary, 1851. 

Dunkin.  Ch.  Samuel  R.  Gillison  left  a 
will  devising  and  betiueathing  his  estate  to 


his  widow  and  children,  in  the  projiortions 
and  with  the  limitations  therein  specified. 
Ills  son,  Thomas  S.  Gillison,  and  the  Hon. 
W.  F.  Colcock,  were  appointed  executors,  the 
former  of  whom  qualified  and  the  latter  re- 
nounced. 

Thomas  S.  Gillison  has  since  died  intes- 
tate. The  ordinary  has  taken  charge  of  both 
e.states  as  derelict. 

The  personalty  of  Saml.  R.  Gillison  was 
api>raised  at  one  hundred  and  eight  thousand 
three  hundred  and  ten  dollars  sixty-six  cents. 
The  real  estate  consisted  of  several  planta- 
tions, the  value  of  which  does  not  appear. 
.Vniong  other  provisions  of  the  will  was  the 
following,  viz:  "To  my  son  Thomas,  I  give, 
devise  and  bequeath  an  equal  share  of  my 
negroes,  &c. ;  also,  the  sum  of  five  thousand 
dollars,  if  so  much  be  necessary,  to  be 
raised  (if  no  cash  is  on  hand  at  my  death) 
by  keeping  all  my  estate  together,  except 
what  is  given  to  my  wife,  until  that  sum 
can  be  realised  from  the  planting  income. 
To  have  and  to  hold  the  said  negroes,  other 
personal  property  and  money,  on  the  follow- 
ing tru.sts,  that  is  to  say: — In  trust  to  invest 
the  said  money,  if  so  much  be  neces.sary,  in 
the  purchase  of  a  plantation,  to  be  held  and 
luaiuiged  by  him,  &c.,  in  trust  for  the  sole 
and  separate  use  of  my  daughter,  Adela, 
(.Mrs.  Lartigue,)  and  the  issue  of  hor  present 
or  anj-  future  marriage." 

The   testator   died    in    1847.      At   the    last 


C=>for  other  caues  see  name  topic  and  KEYNU.MBEH  in  all  Key-Numbered  Digests  and  Indexes 


87 


*214 


4  RICHARDSON'S  EQUITY  REPORTS 


sittings  of  this  Court,  it  seems  that  an  order 
was  made,  that  the  ordinary  should  sell  so 
much  of  the  testator's  estate  as  would  pay 
his  debts  and  raise  the  sum  of  five  thousand 
dollars  bequeathed,  in  trust,  for  Mrs.  Larti- 
gue.  The  ordinary  has  reported  a  sale  of 
personalty  amounting  to  .^I'T.OOS,  and  of  real- 
ty to  the  amount  of  .$7.s5,  altogether  $27,793. 
From  this  sum  he  has  deducted  auctioneer's 
commissions,  amounting  to  .$694.83,  and  he 
claims  to  deduct  a  further  connnission  of  five 
per  cent  on  the  whole  value  of  the  testator's 
personal   estate,   .$]0.s,310.(j(),  and   also   on   so 

*215 
much  of  *the  real  estate  as  he  had  sold, 
this  five  per  cent,  amounting,  liy  his  state- 
ment, to  the  sum  of  .$5,447.78.  It  will  thus 
be  perceived,  tliat  from  the  sales  made  under 
the  order  of  this  Court,  amounting  to  $27,- 
793,  a  deduction  for  commissions  is  claimed 
of  $0,144.61,  nearly  one-fourth  of  the  sales, 
and  the  counsel  for  the  ordinary,  in  his  ar- 
gument, insisted  that  the  claims  for  commis- 
sions liad  been  considerably  understated : 
and  if  the  argument  is  sound,  the  Court  is  of 
opinion  that  the  deduction  is  legitimate. 

It  is  said,  that  the  Act  of  IKV.),  allows  the 
ordinary,  as  a  compensation,  five  per  cent, 
of  the  value  of  the  estate;  that  the  Act 
of  1846  is   only   amendatory   of   the  Act   of 

(a)  In  the  case  Ex  parte  Norton,  the  circuit 
decree  is  as  follows: 

DUNKIN,  Ch.  The  petition  states  that  Mary 
A.  Roberts  died  intestate,  ou  the  ei'j,lith  <lay  nf 
October,  1850:  that  the  intestate  owned  eonsid- 
erable  personal  estate,  and,  aiiKiny;  the  rest, 
eighteen  slaves,  appraised  at  five  thousand  six 
hundred  dollars,  besides  perishable  jiroiiertv.  ap- 
praised at  ten  hundred  and  tifty-five  dollars; 
that  on  the  eleventh  day  of  ()ctol)er.  the  peti- 
tioner took  possession  of  the  estate  as  derelict, 
under  the  provisions  of  the  Act  of  18.'>y ;  that 
he  has  sold  the  perishable  property  for  eleven 
hundred  and  forty  dollars — he  believes  this  sum 
will  be  more  than  sutiieient  to  pay  all  the  debts 
of  the  intestate.  The  petitioner  further  states, 
that  the  six  months  during  which  he  is  required 
by  the  Act  to  keep  the  estate  together,  will  not 
expire  until  three  days  after  the  sale  day  in 
April.  The  prayer  of  the  petition  is,  that  per- 
mission may  be  granted  to  sell  the  estate  on  the 
sale  day  in  April,  and  that  the  petitioner  may 
be  permitted,  after  due  notice,  to  make  dis- 
tribution of  the  proceeds  of  the  sale  amongst 
the  parties  entitled  thereto. 

The  Act  of  1839  provides  that  where  any  es- 
tate shall  be  left  derehct.  the  ordinary  shall 
collect  and  take  charge  of  the  same  for  the 
period  of  six  months,  after  which  time,  if  ad- 
ministration shall  not  be  sooner  applied  for,  he 
shall  sell  the  same,  after  due  public  notice,  ei- 
ther for  cash,  or  upon  a  credit  of  six  months, 
and  after  payment  of  the  debts  of  the  deceased, 
shall  deposit  in  the  Bank  of  the  State  of  South 
Carolina,  or  in  some  one  of  the  branches,  the 
net  proceeds,  to  the  account  of  the  estate  to 
which  it  belongs,  and  shall  file  in  the  office  of 
the  Clerk  of  the  Common  Pleas  of  his  district. 
a  certificate  of  such  deposit ;  and  to  the  end 
that  he  may  so  collect  such  estate  and  effects, 
be  shall  have  power  to  institute  and  maintain 
all  necessary  legal  proceedings;  and,  for  the 
services  aforesaid,  he  shall  be  entitled  to  five 
per  cent,  of  the  value  of  the  estate. 

It  is  quite  manifest  that  the  Legislature  con- 
templated that  but  few  estates,  and  those  of  iu- 

88 


1839.  and  that  the  same  commission  should 
be  allowed.  In  the  case  of  Ex  parte  K.  (i. 
Norton,  ordinary,  in  the  matter  of  Mary  A. 

*216 

Roberts's  estate. («)  *to  which  I  refer  for  my 
views  of  tliese  Acts,  I  have  said  that  the 
legislature  never  contemplated  that  such 
estates  as  this  would  be  derelict.  If  Samuel 
R.  ( unison  had  died  intestate,  the  ordinary, 
by  the  Act  of  1839,  would  take  charge  of  his 
estate,  sell  the  whole  of  it  in  six  months, 
deposit  the  proceeds,  probably,  amounting  to 
one  hundred  and  forty  thousand  dollars,  in 
bank,  and  for  this  service  claim  a  connnis- 
sion of  seven  thousand  dollars,  (not  to  men- 
tion the  three  thousand  five  hundred  dollars 
which  he  now  insi.sts  to  deduct  for  auction- 
eer's connnissions).  lie  has  no  judgment  to 
exercise,  no  responsibility  to  assume.  He 
has  not  even  the  trouble  to  look  out  for  a 
purchaser.  He  receives  seven  thousand  dol- 
lars   for    doing    what    the    best    brolcer    iu 

considerable  amount  would  fall  under  the  charge 
of  the  ordinary  as  derelict :  it  is  manifest, 
among  otiier  things,  from  the  small  amount  of 
the  ordinary's  bond,  and  the  liberal  amount 
of  eouunissions  allowed.  The  exjierience  of  a 
very  few  years,  however,  has  exhiltited  an  en- 
tirely different  result  from  that  wldch  was 
anticipated.  The  ordinary  of  Heanfort  district 
gives  bond  in  ten  thousand  dollars,  according 
to  the  first  section  of  the  Act  of  l.s:!".t.  A  single 
estate  of  which  he  has  charge  as  ilereliet.  was 
sold  for  upwards  of  one  hundred  and  twenty 
thousand  dollars,  on  which  he  is  supposed  to  be 

*216 
entitled  to  a  t-onunission  of  *five  per  cent.  In 
several  of  the  districts,  a  large  jxirtion  of  the  es- 
tates ar(>  becoming  derelict.  ^Irs.  Roberts  died 
intestate  on  the  8tli  October.  Three  days  af ft  r- 
wards.  her  estate  was  iu  the  hands  of  the  t)roi- 
uary  as  derelict. 

But  the  Legislature  have  vested  no  authority 
in  the  ordinary  to  make  distribution  of  an  intes- 
tates  estate.  They  have  i)rescribed  certain  du- 
ties which  he  is  to  perform,  and  his  functions 
then  cease.  The  Act  directs  that,  after  the  sale 
of  the  estate,  he  shall  deposit  the  proceeds  in 
bank,  and  file  a  certificate  of  deposit  with  the 
Clerk  of  the  Common   Pleas. 

What  authority  has  the  Court  of  E(iuity  to 
declare  that  the  Ordinary  shall  disregard  these 
plain  provisions  of  the  Act'/  Even  where  a 
will  was  left,  directing  the  testator's  estate  to 
be  divided  among  his  widow  and  children,  and 
the  estate  was  in  charge  of  the  ordinary  as 
derelict,  he  was  obligeil,  under  the  Act  of  18;59, 
to  sell  the  whole  estate  and  deposit  the  proceeds 
in  bank.  To  provide  tor  this  evil,  the  Act  of 
184()  was  passed.  The  Court  had  no  power  to 
interfere.  But  the  Act  of  1846  is  restricted  to 
the  particular  case  and  it  is  well  known,  in  the 
history  of  the  legislation  on  this  subject,  that 
an  amendment  to  extend  the  provisbjn  to  cases 
of  intestacy  was  voted  down  almost  unanimously. 

It  is  very  apparent  that  the  legislation,  ou 
the  subject  of  derelict  estates,  requires  material 
revision,  but  any  irregular  interference  on  the 
part  of  the  Court  will  only  tend  to  aggravate 
the  evil. 

In  the  petition  before  the  Court,  the  ordinary 
requires  no  direction.  The  provisions  of  the  Act 
are  plain  and  simple,  and  he  has  only  to  pursue 
them.  I  think  the  petition  must  be  dismissed  ; 
but  I  reconuneud  that  an  appeal  be  taken,  in  or- 
der that  the  construction  of  the  Act  of  18.'J9 
may  be  authoritatively  settled. 


NORTON   V.  CREDITORS  OF  GILLISON 


•211 


^'harloston    woiiUl,    iintbalily.    sladly    do    for 
ono-sevt'iitli  tlu»  amount. 

But  I  think  the  Act  of  l.S4(>  was  only  in- 
tondt'd  to  apply  where  the  provisions  of  the 
will  were  simple.  In  order  to  administer  the 
^.state  accordin.i;  to  tlie  provisions  of  the  will, 
the  ordinary  is,  by  that  Act,  veste<l  with  all 
the  powers,  and  subject  to  the  same  liabil- 
ities as  an  executor. 

No  provision  is  made  for  commissions  where 
'"217 
the  bulk  of  the  *estate,  as  in  this  case,  con- 
sists of  lands  and  negroes  disposed  of  by  the 
will — no  executor  was  ever  suppo.sed  entitled 
to  commissions  on  assentinj;  to  the  legacies, 
or  on  deliveriuf;  over  the  nejiroes.  &c.  Yet 
the  ordinary  claims  live  per  cent,  on  the  ap- 
prai.sed  value  of  the  entire  per.sonal  estate. 
When  the  provisions  of  the  will  are  complex, 
and  the  ordinary  tiuds  it  necessary  to  apply 
to  the  Court  of  Lkiuity,  I  think,  as  in  the 
ease  of  an  administrator  tiskinir  aid  in  the 
administration  of  assets,  the  Court  having 
all  the  parties  before  it,  should  take  charj^e 
and  adnnnister  the  funds,  or  cause  distribu- 
tion to  be  made  according  to  its  decree. 

But  the  Act  of  1>>.j9.  in  allowing  live  per 
cent,  on  the  value  of  the  estate,  contemplates 
that  the  whole  estate  will  be  sold  ity  the  or- 
dinary, and  after  payment  of  debts,  the  prt>- 
ceeds  be  deitosited  in  bank.  It  is  a  commis- 
sion on  the  sale  and  payment  of  the  fund.  I 
have  not  before  me  the  amount  of  the  dis- 
bursements in  debts,  &c.,  to  be  made  by  the 
ordinary.  But  I  think  the  tive  per  cent, 
must  be  allowed  only  on  the  moneys  actually 
received  and  disbursed  by  him,  and  that  this 
must  cover  all  charges  for  auctioneer's  com- 
missions, &c. 

The  next  question  relates  to  the  provision 
for  Mrs.  I.artigue.  It  is  not  a  betpiest  of 
five  thou.sand  dollai-s,  but  a  direction  that  tlie 
trustee  should  receive  so  nuich  of  that  sum 
as  should  be  necessary  for  the  purchase  of  a 
plantation,  to  be  held  "for  her  use.''  or  that 
entire  sum,  "if  so  much  be  necessary,"'  and, 
if  no  cash  is  on  hand,  the  testator  directs 
"his  estate  to  be  kept  together  until  that  sum 
can  be  realised  from  the  planting  income." 
If  the  directions  of  the  testator  had  been 
pursued,  and  at  the  expiration  ot  two  or 
three  years  five  thousand  dollars  had  been 
realised  from  the  planting  income,  and  in- 
vested by  the  trustees  in  a  plantation  of  that 
value,  it  \v(mld  seem  that  the  ol>.je<t  was  ac- 
complished and  the  provision  satisfied.  If 
the  testator  luul  directed  that  two  hundred 
dollars,  if  so  nmch  be  necessary,  iie  invested 
in  the  purchase  of  a  gold  watch  and  trinkets 
for  hi.s  daughter,  this  is  eipiivalent  to  a  bt^ 
quest  of  a  gold  warch.  &c..  of  aiiont  th-il 
value.  The  testator  seems  him.self  to  have 
contemplated   that  there   n)ight   be   delay   in 

*218 
♦raising  the  neces.sary  amount,      lie  diiccts 
his  "estate  to  be  kept  together  until  that  sum 


can  be  realised  from  tho  jdanling  income." 
I  adopt  the  conclusion  fbut  not  without  hes- 
itation) that  the  exception  nnist  be  overruled. 

It  is  ordered  and  decnHMl.  that  the  debts 
<)f  the  testator,  as  reported,  be  paid,  and 
that  the  ac-connt  be  aflirmed  or  reformed,  ac- 
cording to  the  iirinciples  herein  stated. 

The  comiilainant  appealed,  on  the  ground: 

Because  he  says  that  he  is  entitled  to  five 
per  cent,  commissions  upon  the  whole  person- 
alty of  the  estates,  and  to  five  per  cent,  up- 
on so  much  of  the  real  estate  of  Thomas  S. 
(xillison,  as  he  sold  under  the  order  of  the 
Court. 

And  the  <lefendant.s,  Isadore  I.artigue  and 
wife,  also  appealed: 

Becau.se.  they  say,  they  are  entitled  to  in- 
terest on  the  legacy  of  .$5.0(M)  beiiuoathed  to 
Mr.s.  Lartigue  by  the  will  of  Sanuiel  R.  (iilli- 
.son.  and  his  Honor  erred  in  deciding  other- 
wise. 

Ilutson,  for  complainant. 

Treville,  Fickling,  for  defendants. 

The  opinion  of  the  Court  was  delivered  by 

WARDI.AW,  Ch.  Alter  partial  adminis- 
tration of  the  estate  of  Samuel  R.  (iillison, 
deceased,  under  his  will,  the  executor,  Thom- 
as S.  Gillison.  rlied  intestate:  and  the  jilain- 
titf.  as  ordinary,  took  charge  ot  the  estates  of 
testator  and  executor,  as  derelict.  The  ap- 
peal on  the  part  of  the  plaintiff  involves  the 
extent  of  compensation  to  which  an  ordinary 
is  entitled,  in  charge  of  derelict  estates  of  a 
testator  and  of  an  intestate.  It  is  clear  that 
a  public  officer  can  claim  no  other  comi)ensa- 
tion  for  the  discharge  of  duties  imitosed  up- 
on him  by  the  Legislature,  than  such  as  the 
Legislature  chooses  to  allow.  Adndtting  this 
principle,  the  coun.sel  for  the  plaintilf  insists, 
in  argument,  that  under  our  Acts  of  Assem- 
bly, an  ordinary  in  charge  of  derelict  estates 
is  entitled  to  five  per  cent,  of  the  value  of 
the  whole  estates ;  although,  in  this  particu- 
lar case,  the  ordinary  may  have  waived,  by 
the  pleadings,  his  title  to  five  per  cent,  on 
the  realty  not  sold. 

*219 

*The  Ttli  s(>ction  of  the  ordinary's  Act  of 
IS.-]!)  (11  iStat.  40)  provides,  that.  "In  case 
any  estate  shall  be  left  derelict,  either  from 
partial  administration  by  an  e.xecutor  or  ad- 
ministrator, or  by  reason  of  no  application 
for  letters  of  administration  or  letters  te.sta- 
mentary,  or  otherwise,  the  ordinary  of  the 
district,  who  might  be  entitled  to  grant  such 
letters,  shall  collect  and  take  charge  of  the 
same  for  the  period  of  six  months;  after 
which  time,  if  administration  be  not  sooner 
•applied  for.  he  shall  sell  the  same,  after  due 
public  notice,  either  for  cash  or  ui)on  a  cred- 
it of  six  months,  and  after  payment  of  the 
debts  of  said  deceased,  shall  deposit,  in  the 
Bank  of  the  State  of  South  Carolina,  or  in 
some  one  of  its  Branches,  the  net  proceeds, 
to  flic  accmnit  of  the  estate  to  which  it  be- 

80 


*211 


4  RICHARDSON'S  EQUITY  REPORTS 


longs;  and  shall  file,  in  the  office  of  the 
clerk  of  Counnon  Pleas  of  his  district,  a  cer- 
tificate of  such  deposit ;  and  to  the  end  that 
he  may  so  collect  such  estate  and  effects, 
he  iShall  have  power  to  institute  and  niain- 
tain  all  necessary  legal  proceedings ;  and  for 
the  services  aforesaid,  he  shall  be  entitled  to 
five  per  cent,  of  the  value  of  the  estate." 

The  Act  of  1846  (11  Stat.  357)  authorizes 
the  ordinary  to  sell  the  perishable  property 
and  effects  of  derelict  estates,  without  re- 
taining possession  of  such  perishable  proper- 
ty for  six  months  before  sale;  and  further 
provides,  that  if  the  deceased  owner  of  a 
derelict  estate  has  left  a  will  disposing  of 
his  estate,  the  ordinary  in  charge  of  such 
estate  shall  adii'.inister  the  same  according  to 
the  provisions  of  such  will,  and  for  that  pur- 
pose, that  he  "shall  be  invested  with  all  the 
powers  and  authorities  and  be  subject  to  all 
the  liabilities,  which  may  be  necessary  for 
carrying  such  will  into  effect,  in  the  same 
manner  as  if  he  had  been  duly  nominated 
and  appointed  executor  thereof." 

By  the  express  terms  of  the  Act  of  1839, 
which  originally  applied  to  the  derelict  es- 
tates of  testators  as  well  as  of  intestates,  the 
compensation  to  the  ordinary  follows  the  dis- 
charge of  prescribed  functions.  He  is  requir- 
ed to  take  charge  of  a  derelict  estate  for  six 
months ;  then,  to  sell  the  same,  pay  the  debts 
of  the  deceased,  and  deposit  the  balance  of 

*220 

the  proceeds  in  Bank;"  *"andforthe  services 
aforesaid,"  he  becomes  entitled  to  five  per 
cent,  of  the  value  of  the  estate.  The  re- 
ward cannot  be  claimed  where  the  services 
are  not  rendered.  The  compensation  to  the 
ordinary  allowed  by  the  Act,  is  analogous 
to  the  commissions  of  an  executor.  For  re- 
ceiving the  proceeds  of  sale  and  paying  the 
same  over  to  creditors  or  into  the  Bank,  the 
ordinary  is  allowed  to  claim  five  per  cent,  of 
the  estate.  In  the  present  case,  so  far  as  re- 
spects the  estate  of  Thomas  S.  Gillison,  who 
died  intestate,  the  ordinary,  instead  of  sell- 
ing the  whole  estate,  paying  the  creditors, 
and  depositing  the  net  balance  in  Bank,  has 
filed  his  bill  in  this  Court,  for  instructions, 
making  the  distributee  of  the  estate  a  party, 
and  by  the  order  of  the  Court,  he  has  sold 
so  much  of  the  estate  only  as  was  necessary 
to  satisfy  creditors.  He  has  relieved  himself 
from  responsibility,  by  voluntarily  submitting 
the  administration  of  the  estate  to  this  Court. 
Under  such  circumstances,  we  are  of  opinion 
that  he  is  entitled  to  five  per  cent,  of  so  much 
of  the  estate  as  he  has  sold  and  no  more. 

The  claim  of  the  ordinary,  however,  is 
principally  connected  with  the  estate  of  the 
testator,  Samuel  R.  Gillison.  His  compensa- 
tion as  to  this  estate  depends  upon  the  con- 
struction of  the  Act  of  1S4G.  That  Act  is 
substantially  a  repeal  of  the  Act  of  1839,  as 
to  the  services  and  compensation  of  the  or- 
dinary,   where   the    deceased    owner   of   the 

90 


derelict  e.state  has  left  a  will.  Tlie  ordinary^ 
instead  of  pursuing  a  fixed  routine  of  duties 
for  which  a  fixed  compensation  is  given,  is 
directed  to  execute  the  will  of  the  deceased, 
with  all  the  powers  and  liabilities  of  an  ex- 
ecutor named  by  the  testator,  without  any 
express  mention  of  compensation.  His  func- 
tions must  vary  according  to  the  caprice  of 
testators  in  the  dispositions  of  their  estates, 
and  it  appears  reasonable  that  his  reward 
should  vary  according  to  his  services.  He  is 
to  be  regarded  as  a  statutory  executor,  with 
the  responsibilities  and  emoluments  of  an  or- 
dinary executor.  If  the  estate  be  small  and 
the  provisions  of  the  will  be  simple,  his 
trouble  and  his  remuneration  will  be  small ; 
if  the  provisions  of  the  will  be  complicated, 
he  may  apply,  as  any  other  executor,  to  this 
Court  for  instruction  ;  and  if  his  commissions 

*221 
be    *inadequate    compensation    for    extraor- 
dinary  services,  he  may  make  up  an  issue 
in  the  Common  Fleas,  as  other  executors,  for 
extraordinary  compensation. 

AVe  are  of  opinion,  that  by  the  fair  intend- 
ment of  the  Act  of  1846,  the  ordinary,  when 
invested  with  the  powers  and  liabilities  of 
an  executor,  is  entitled  to  claim  the  commis- 
sions of  an  executor  under  the  Act  of  1789; 
but  that  the  pretension  is  groundless  for  a 
compensation  of  five  per  cent,  on  the  value  of 
the  estate,  which  is  not  received  and  disburs- 
ed. It  was  never  supposed  that  an  ordinary 
executor  was  entitled  to  commissions  on  the 
value  of  the  estate,  real  or  personal,  deliver- 
ed to  specific  legatees. 

There  is  no  appeal  from  si»  nuich  of  the 
Chancellor's  decree  as  refuses  to  allow  to  the 
ordinary  the  auctioneer's  commissions  which 
were  claimed ;  but  to  guard  against  miscon- 
ception, it  is  proper  to  mention,  that  the 
services  as  auctioneer  were  rendered  by  the 
plaintiff  himself,  or  by  some  member  of  a 
mercantile  firm  of  which  he  was  a  partner. 
The  remaining  question  in  this  case  is  up- 
on the  appeal  of  the  defendants,  Isadore  Lar- 
tigue  and  wife,  as  to  interest  upon  the  legacy 
of  $.5,000  to  Mrs.  Lartigue. 

It  is  considered  safer  to  reserve  the  deci- 
sion upon  this  point  until  we  have  fuller 
information  upon  the  facts.  Granting  that 
the  bequest  in  trust  for  Mrs.  L.  is  a  general, 
pecuniary  legacy,  and  by  the  general  rule 
entitled  to  interest  from  a  year  after  testa- 
tor's death,  still  it  is  suggested  to  us,  that 
circumstances  controlling  the  general  rule  as 
to  interest,  may  exist  as  to  this  legacy,  at 
least  as  to  a  portion  of  the  arrears.  It  is 
said,  that  the  sum  of  this  legacy  was  some 
time  ago  set  aside  in  the  administration  of 
this  estate,  under  the  direction  of  this  Court; 
and  that  this  sum  has  been  since  unproduc- 
tive. This  may  bear  upon  the  interest  for  a 
time.  It  may  also  be  desirable  to  know  when 
the  devisees  of  testator  entered  upon  the  en- 
joyment of  their  lands.  Inquiry  and  report 
by  the  commissioner  will  bring  out  the  facts. 


THUKNE  V.  FOKDHAM 


224 


necessary  to  the  final  decision  of  the  ques- 
tion. 

It  is  ordered  and  decreed,  that  the  circuit 
♦  222 
decree  lie  afhrmed  as  *to  the  compensation  of 
the    ordinary,    and    that    the    appeal    of    the 
plaintiff  In?  dismissed. 

It  is  further  ordered,  that  the  cause  be 
remanded  t(i  the  circuit  Couit,  so  far  as  the 
<-laim  of  Isadore  Lartigue  and  wife  for  in- 
terest upon  the  lejracy  to  Mrs.  Larti^ue  is 
concerned:  and  that  the  commissioner  of  this 
Court  for  Reaufort  distinct  be  directed  to  in- 
quire and  report  as  to  all  the  facts  connected 
with  said  legacy:  with  leave  to  report  any 
especial  matter. 

TOHXSTON,  DIXKIX  and  DAIK^AX,  CC, 
•concurred. 


4    Rich.  Eq.  222 

REBECCA   THORXE    v.    RICHARD   FORD- 
HAM. 

(Charleston,     Jan.  Term,  1852.) 

[Wills  <©=747.] 

Testator  bequeathed  all  the  rest  of  his  es- 
tate imto  R.  F.  "in  trust  for  .Tohn.  Tlinmas, 
IMiilip.  Rebecca.  Caroline  and  Susan  Tliornc, 
persons  of  color,  and  their  heirs,  fonner."  Tes- 
tator dierl  in  18L'4 ;  and  iu  184.S  this  l)ill  was 
filed  by  Rebecca,  the  black,  mother  of  the  Irjia- 
tees.  .John,  Thomas.  Philip,  Caroline  and  Susan, 
who  wore  the  natural  ihildrcn  of  testator, 
against  R.  F.,  claiming  that  she  was  entitled  to 
the  leaacy  to  the  Rebecca,  named  in  the  will. 
Her  claim  was  resisted  in  behalf  of  Rebecca, 
the  brown,  (dauiihter  of  .Tudy.)  who  was  an  in- 
fant at  the  date  of  the  will,  and  whom  the  testa- 
tor also  claimed  to  be  his  natural  child.  Ipon 
the  evidence  given,  and  principally  upon  her 
own  acts  recognizing  the  title  of  Rebecca,  the 
brown,  and  her  long  acquiescence,  held,  that 
plaintiff  was  not  entitled  to  the  legacy. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  S  1932;    Dec.  Dig.  .®=»747.] 

Before  Dunkin,  Ch.,  at  Charleston,  Julv, 
1850. 

This  case  will  be  sutHciently  understood 
from  the  opinion  delivered  in  the  Coiu-t  of 
Appeals. 

Torre,  for  appellant,  cited  Nourse  v.  Finch, 
1  Ves.  jun.  358  ;  Careless  v.  Careless,  1  Meriv. 
TJ84;  Wigrani,  15;  4  Howard,  5(51;  6  Wheat. 
481 ;  Hovenden  v.  Annesly,  2  Sch.  and  Lef. 
429;  2  Clark  &  Fin.  429;  Pickering  v.  Stam- 
ford, 2  Ves.  jun.  272,  581. 

Northrop,   Petigru,   contra,   cite<l   Fable  v. 
*223 
Brown,  2  Hill,  Ch.  *378;  Lenoir  v.  Sylvester, 
1  Bail.  6.32;  Linam  v.  Johnson,  2  Bail.  135; 
Act  1841,  11  Stat.  154. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW.  Ch.  John  Stocks  Tliorne,  by 
his  last  will  and  testament,  executt-d  August 
11,  1824,  appointed  Richard  Fordham  execu- 
tor of  his  will,  and  after  a  specitic  devise  dis- 


posed of  his  estate  as  follows:  "All  the  rest 
of  all  my  real  and  personal  estate  I  give  un- 
to Richard  Fordham,  to  be  held  in  tru.st  by 
him  for  Jidui,  Thomas,  Philip,  Rebecca,  Caro- 
line and  Susan  Thorne,  persons  of  color,  and 
their  heirs  fcjrever,  to  be  applied  to  the  sole 
use  and  benefit  of  them,  the  said  John, 
Thomas,  Philip,  Rebecca,  Caroline  and  Su- 
san." The  testator  died  the  next  day  after 
the  date  of  his  will. 

The  plaintiff  is  a  black  woman,  the  mother 
of  the  legatees,  John,  Thomas,  Philip,  Caro- 
line and  Susan,  who  were  recognized  by  the 
testator  as  his  natural  children.  She  was 
formerly  the  slave  of  the  testator ;  was  eman- 
cipated by  him  in  1811,  and  was  afterwards 
called  l)y  the  name  of  Rebecca  Thorne. 

Her  title  to  the  legacy  is  resisted  in  behalf 
of  another  Rebecca,  a  brown  woman,  some- 
times called  Rebecca  Thorne  and  sometimes 
Rebecca  Fordham.  Her  mother  was  Judy ; 
and  to  be  her  father  seems  to  have  been 
claimed  by  both  testator  and  executor.  Judy 
and  her  child  Rebecca  were  bought  as  slaves 
by  the  te.xtator,  November  IS,  1817,  for  ,$700 ; 
and  they  were  transferred  by  him,  November 
27,  1817.  to  his  friend  Fordham,  on  a  nonnnal 
consideration.  Rebecca,  the  brown,  was  al- 
ways practically  free;  and  in  1846  she  es- 
tablished her  freedom  against  Fordham  iu 
the  Court  of  Law,  by  process  de  homine 
replegiando.  It  seems  that  she  lived  in  the 
family  of -the  plaintiff  in  early  life  until 
March  8,  1825,  when  she  was  removed  to  the 
house  of  another  woman  of  color.  She  was 
maintained  and  educated  and  otherwise 
treated  as  the  legatee,  without  any  adverse 
claim,  until  about  the  time  of  filing  this  bill, 
which  was  on  April  22,  1848.  although  the 
executor  has  not  paid  over  the  principal  of 
this  share  of  the  estate. 
♦224 

♦The  plaintiff,  Rebecca,  the  black,  relies 
principally  upon  the  facts,  that,  at  the  date  of 
the  will  and  of  the  testator's  death,  which 
may  be  consi<lered  for  this  puri)ose  cotempo- 
raneous,  she  h.ul  acquired  by  reputation  the 
luime  of  Rebecca  Thorne,  by  which  the  leg- 
atee is  descrilMHl  in  the  will;  and  that  she 
was  then  free,  and  capable  of  taking  on  the 
terms  of  limitation  iu  the  will  to  her  and  her 
heirs;  and  she  urges  that  the  other  claimant 
was  not,  at  the  date  of  the  will,  known  as 
Rebecca  Thorne,  and  that  in  fact  she  was  a 
slave,  and  incapable  of  taking  to  herself  and 
her  heirs. 

The  proof  is  clear  of  the  title  of  the  plain- 
tiff to  freedom  and  to  the  name  of  Thorne; 
but  it  is  not  decisive  against  the  e«iual  claim, 
in  these  particulars,  of  Rebecca,  the  brown. 

The  (piestion,  whother  Rebecca,  the  brown, 
was  a  free  person  at  the  death  of  the  testa- 
tor, is  immaterial,  except  as  the  fact  may 
operate  upon  the  meaning  and  apidication  of 
the  terms  of  the  will  describing  the  object 
of  testator's  bounty.     Granting  that  she  was 


^zsFor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


91 


■5(224 


4  RICIIAKD.SONS  EQUITY  KEPORTS 


then  a  slave,  she  might  still  be  the  person 
described  in  the  will  as  legatee,  and  until 
the  Act  of  1841,  might  take  the  legacy,  with 
the  assent  of  the  executor ;  if  not  for  her  own 
use,  for  the  benefit  of  lier  master;  and  the 
limitation  of  the  estate  to  heirs,  wliere  a 
slave  and  free  persons  are  named  together, 
has  no  appreciable  effect  in  ascertaining  the 
meaning  of  the  terms  designating  the  legatee. 
Unfortunately  for  the  plaintiff,  she  is  the 
strongest  witness  for  her  adversary.  Inde- 
pendent of  her  acts  and  declarations,  it 
would  be  difficult,  probably  from  the  youth 
and  obscurity  of  the  party,  to  find  in  the 
proofs,  distinct  evidence  that  Rebecca,  the 
brown,  had  acquired  the  name  of  Thorne  at 
the  death  of  the  testator,  although  she  has 
been  so  designated  for  more  than  twenty 
years.  Immediately  after  the  death  of  tes- 
tator, namely,  August  14,  1824,  plaintiff  gave 
a  receipt  to  Fordham  for  $15  for  the  use  of 
the  children  of  testator,  describing  therein 
Fordham  as  "trustee  for  my  children.  John. 
Thomas,  Philip,  Rebecca,  Caroline  and  Susan 
Tliorne,  as  per  the  will  of  their  father,  John 
S.  Thorne."    At  the  same  time  she  signed  an 

*225 
acknowledgment  of  having  *received  from 
Fordham,  "trustee  for  the  children  of  the 
late  John  S.  Thorne,  for  the  use  of  said 
children,"  various  articles  of  apparel,  a 
watch,  umbrella,  &c.  On  August  24,  1824, 
she  signed  a  receipt  to  Fordham,  "trustee  for 
the  children  of  the  late  John  S.  Thorne,  viz: 
John,  Thomas,  Philip,  Rebecca,  Caroline  and 
Susan,  as  per  the  will  of  their  father,"  for 
$102.50,  "to  purchase  mourning  for  the  fe- 
male children."  On  October  8,  1824,  she 
gave  another  I'eceipt  to  Foi'dham  as  trustee 
for  the  children  of  $50  for  their  support; 
and  from  November,  1824,  to  March,  1825, 
she  gave  monthly  receipts  of  $.30  for  support 
of  the  children.  On  May  10,  1825,  she  enter- 
ed into  an  agreement  with  Fordham  "as  trus- 
tee for  the  children  of  the  late  John  Stocks 
Thorne"  "to  attend  to  the  ease  and  comfort 
of  said  children,  viz:  John,  Thomas,  Philip, 
Rebecca,  Caroline  and  Susan,"  in  considera- 
tion of  $20  to  be  paid  to  her  monthly;  and 
from  April,  1825,  luitil  September,  1844,  in- 
clusive, she  gave  monthly  receii)ts  to  the  de- 
fendant as  trustee  for  Thome's  children,  at 
the  rate  of  $5  for  each  of  tlie  children  wlio 
were  with  her;  and  also  for  tlie  greater  part 
of  the  time  gave  like  receipts  of  $5  a  month 
for  her  wages  in  attending  to  the  children. 
On  October  1,  1844,  she  accepted  a  convey- 
ance for  her  life  of  a  house  and  lot  in  Bound- 
ary street  in  this  city,  from  John,  Philip, 
Rebecca,  tlie  brown,  Susan  and  Caroline, 
(Thomas  being  then  dead.)  in  and  by  which 
conveyance  the  grantors  designate  them- 
selves by  the  name  of  Thome,  and  as  chil- 
dren of  the  testator,  and  devisees  of  said 
house  and  lot  under  his  will,  and  convey  the 
premises  to  their  "mother,  Rebecca  Thorne," 
as  a  residence  for  life. 

92 


Rebecca,  the  black,  is  unlettered ;  and 
the  fact,  that  she  is  mentioned  in  this  det-d 
of  conveyance  and  in  the  earliest  receipt,  as 
mother  of  the  other  Rebecca,  is  urged  as 
proof  of  fraud  on  the  part  of  the  defendant. 
It  is  more  natural,  however,  to  attribute  this 
mistake  to  the  ignorance  of  the  scrivener, 
^'wo  of  the  witnesses,  Whitney  and  Addison, 
seem  to  have  fallen  into  the  same  error. 
An  appellative  of  kindi-ed  is  often  bestowed 
where  there  is  no  consanguinity  under  such 

*226 

circumstances  as  existed  in  *this  case.  These 
acts  of  the  plaintiff  having  almost  the  force 
of  an  estoppel,  with  the  additional  fact  of 
her  ac(iuiescence  for  twenty-foiu-  years,  are 
serious  obstacles  to  her  claim.  If  the  terms 
of  the  will  describing  the  legatee  applied  cer- 
tainly to  her  alone,  we  .should  not  hold  that 
the  technical  trust  between  executor  and 
legatee  was  barred  by  the  .statute  of  limita- 
tions or  by  lapse  of  time,  while  the  executor 
acknowledges  that  the  legacy  is  unsatisfied, 
and  that  he  retains  in  his  hands  assets  of  the 
estate  to  the  amount  of  the  legacy.  But 
nmch  suspicion  is  proi)erly  thrown  on  the 
plaintiff's  case  by  her  great  delay  in  the  as- 
sertion of  her  claim  and  by  her  recognition 
of  another's  title.  As  the  evidence  now 
stands,  the  case  may  be  regarded  as  one  of 
what  Lord  Bacon  calls  "eiiuivocation,"  where 
the  words  describing  the  legatee  apply  equal- 
ly to  two  persons ;  and  in  that  state  of 
things  parol  evidence  is  admissilile  of  the 
declarations  of  the  testator,  at  least  at  the 
time  of  making  his  will,  and  of  extrinsic 
facts  serving  to  point  the  application  of  the 
terms  of  gift.  ((Jord  v.  Needs.  2  Mees.  «& 
W.  140;  Iliscocks  v.  Iliscocks.  5  Mees.  & 
W.  .SO.'i;  Careless  v.  Careless,  1  Mer.  .3S4.) 
But  the  course  of  the  plaintiff,  continued  for 
so  long  a  time,  has  been  calcidated  to  dis- 
arm the  adverse  claimant,  and  obstruct  her 
proofs.  Who  can  tell,  if  this  pretension  of 
the  plaintiff  had  been  set  up  within  reason- 
able time,  while  the  witnesses  who  attested 
tlie  will,  and  others  who  were  intimately  ac- 
quainted with  the  testator's  affairs,  were  in 
life,  that  full  and  explicit  j)roof  of  the  title 
of  Rebecca,  the  brown,  may  not  have  been 
given'/  Claimants  are  not  to  be  encouraged 
to  .speculate  upon  the  obscurity  which  time 
may  produce  in   stale  transactions. 

The  order  in  which  the  name  of  Rebecca 
is  inserted  among  the  legatees  is  a  circum- 
stance not  conclusive,  but  of  some  weight 
against  the  claim  of  the  plaintiff.  It  is  very 
unusual,  in  the  enumeration  of  a  mother  and 
her  children  to  set  down  the  name  of  the 
mother  in  the  midst  of  those  of  her  children. 

So,  too,  the  description  in  the  will,  of  Re- 
becca, and  the  other  legatees,  as  "persons  of 
color,"     is     a     pretty     strong     circum.stance 

*227 
against  *the  plaintiff.     It  is  not  according  to 
the  use  of  language  in  this  region  to  speak 
of  one  altogether  black  as  a  person  of  color. 


YERDIEll  V.  FOSTER 


*229 


The  phrase  is  almost  exclusively  applied  to 
one  of  mixed  blood  and  color. 

Every  one  who  makes  a  claim  in  Court  is 
hound  to  establish  his  title  to  the  satisfac- 
tion of  the  tribunal.  In  this  case  we  are  not 
.satisfied  with  the  showing  of  the  plaintiff. 

These  views  relieve  us  from  the  deter- 
mination of  the  (luestion  as  to  the  effect  of 
the  answer,  setting  forth  certain  declarations 
of  intention  by  the  testator,  before  and  after 
making  the  will. 

It  is  ordered  and  decreed,  that  the  circuit 
decree  be  attirmed,  and  the  appeal  be  dis- 
missed. 

JOHNSTON,  DUNKIN  and  DAR(;AN,  CC, 
concurred. 

Appeal  dismissed. 


4    Rich.  tq.   227 

SIMON  VP]RDIER  v.  WILLI A.M  R.  FOSTER. 

(Charleston.     .Tan.  Term.  18o2.) 

[Creditors'   i^nit  <g=>l(;.  :]\).] 

As  a  debtor,  discliarsofl  under  the  prison 
bound.s  Act.  cannot  be  afterwards  arrestt'd  un- 
der ca.  sa.  for  the  same  debt,  a  bill  in  eciuity 
will,  it  seems,  lie  to  compel  him  to  satisfy  the 
debt  out  of  such  after  aoquirtHl  interests,  (clioses 
In  action,  equities.  &c..)  as  cannot  be  reached 
by  fi.  fa.;  but  a  bill  for  tbat  purpose  must 
state  some  specific  fund,  equity,  or  eliose.  in 
which  the  debtor  has  an  interest:  a  general 
charge  that  he  has  been  in  receipt  of  a  large 
salary,  has  acquired  property  by  marriage,  has 
drawn  a  large  i)rize  in  a  lottery,  and  is  now  in 
the  possession  or  enjoyment  of  the  use  of  prop- 
erty of  considerable  value,  which  cannot  be 
reached  at  law,  is  insufficient. 

[Ed.  Note. — For  other  cases,  see  Creditors' 
Suit,  Cent.  Dig.  §S  7G,  158;  Dec.  Dig.  <S=» 
16,   .".9.1 

Before  Dargan,  Ch.,  at  Charleston,  March, 
1850. 

This  case  was  heard  on  the  bill,  and  a 
demurrer  thereto  filed  by  the  defendant. 

The  bill  is  as  follows:" 

Humbly  complaining,  show  unto  .vour  Hon- 
ors, your  orator,  Simon  Verdier,  that  on  or 
about  the  first  day  of  June,  A.  D.  18.S0.  your 
orator  issued  a  writ  of  sci.  fa.  to  revive  a 
.iudgment  then  of  record  in  the  office  of  the 
clerk     of    the     City     Court     of     Charleston, 

*228 
*again.st  William  B.  Foster,  a  resident  of  the 
city  of  Charleston,  and  subject  to  the  juris- 
diction of  the  City  Court  of  the  said  city 
of  Charleston,  and  thereupon  afterwards,  to 
wit,   on   the  day   of   January,   A.   D. 

1840,  recovered  judgment  against  the  said  W. 
B.  Fo.ster  for  .H;">T.71.  with  interest  on  the 
principal  sum  of  .$4.S0.71,  to  be  calculated 
from  the  5th  of  November,  A.  D.  1810.  which 
will  more  fully  and  at  large  appear,  by  ret- 
erence  to  the  records  of  the  said  judgment  in 
the  office  of  the  clerk  of  the  .said  Court, 
which  is  now  wholly  un.><atisfied.  That  im- 
mediately after  the  recovery  of  the  said  judg- 
ment, your  orator  sued  out  of  the  said  Court 


a  writ  of  fi.  fa.,  directed  to  the  sheriff  of 
said  Court  to  make  the  money  thereon  ac- 
cording to  law,  which  was  shortly  after  re- 
turned l»y  the  said  sheriff,  and  marked  nulla 
bona. 

And  your  orator  further  sheweth.  that  the 
said  William  B.  Foster  has  been  for  many 
years  in  the  receii)t  of  a  large  salary,  and 
has  accpiired  property  b.v  nuirriage,  and  in 
other  ways,  and  especially  a  large  sum  of 
money  from  a  jirize  in  a  lottery,  drawn 
some  time  befoi'e  the  said  proceedings  in  sci. 
fa.  were  instituted.  And  y<nir  orator  has 
been  intVu-nied  that  the  .said  William  is  now 
either  in  the  possession  or  enjoyment  of  the 
u.-^e  of  property  of  considerable  value,  which 
cannot  be  reached  by  any  proce.><s  klu>^^•n  to 
the  law,  but  which  is  justly  liable  for  the 
debts  of  the  said  defendant. 

And  your  orator  further  sheweth.  that  he 
is  un.ible  to  compel  the  said  defendant  to 
assign  his  e(|uitable  interests  in  the  said 
property,  because  many  years  ago  the  said 
defendant  was  arrested  by  virtue  of  a  cei'- 
tain  execution  of  ca.  sa.  to  enforce  his  said 
original  judgment,  and  was  discharged  from 
the  said  arrest  by  virtue  of  certain  proceed- 
ings, instituted  by  .said  defendant,  as  an  a])- 
plieant  for  the  benefit  of  the  Prison  Bounds 
Act.  which  were  had  and  conchuled  before 
the  ac(iuisition  of  the  said  property  and  mon- 
ey, herein  before  mentioned,  whereby  your 
orator  is  incapable  of  again  arresting  the 
person  of  the  said  defendant,  to  conii>el  an 
assignment  "of  his  eciuitable  interests  in  sat- 
isfaction of  his  said  judgment,  and  is  advis- 
ed that  he  is  altogether  remediless  at  law 
in  the  premises. 

*223 

♦And  your  orator  further  sheweth.  that  he 
has  rejteatedly  applied  to  the  said  <h'fendant 
to  pay  to  him  his  said  debt  out  of  his.eipiita- 
ble  assets,  which  .vour  orator  is  unable  to  dis- 
cover, with  which  reasonable  rei|uests  your 
orator  well  hoped  the  said  defendant  would 
have  complied,  as  in  justice  and  eipiity  he 
ought  to  have  done.  But  now  so  it  is,  may  it 
plea.se  your  II(Uiors,  that  the  said  William  B. 
Foster,  C(unbining  and  confederating.  &c., 
&c.,  he  hath  ab.solutely  refused  to  comply 
with  such  requests,  under  various  i)retences; 
all  which  actings  and  d(ungs,  pretences  and 
refusals,  are  contrary  to  equity  and  good 
conscience,  and  tend  to  the  manifest  injury 
and  wrong  of  your  orator  in  the  premises. 
In  consideration  whereof,  and  for  as  nnich  as 
your  orator  can  only  have  adeipnite  relief  in 
the  prennses  in  a  Court  of  Equity,  where 
matters  of  this  nature  are  properly  cogniza- 
ble and  relievable.  To  the  end  therefore  that 
the  .said  William  B.  Foster  and  his  confed- 
erates, when  discttvered,  ma.v  uiion  their  sev- 
eral and  respective  corporal  oaths,  t<»  the  best 
and  utmost  of  their  several  and  respective 
knowledge,  &c.,  full.  &c.,  answer  make  to  all 
and  singular  the  matters  aforesaid,  anil  that 
as  fully  and  particularly  as  if  the  same  were 


®=»For  othar  eass  see  same  topio  and  KEY-NLMBEU  in  all  Koj  -Numbered  Digests  and  lnde.\e:< 


9S 


*229 


4  RICHARDSON'S  EQUITY  REPORTS 


here  repeated,  and  they  aud  every  of  them  , 
disthictly  interrogated  thereto ;  and  more  j 
especially  that  the  said  confederates  may,  | 
in  manner  aforesaid,  answer  and  set  forth, 
whether  the  said  defendant  has  not  the  pos- 
session of,  or  the  enjoyment  of  the  use  of 
any  property,  aud  of  what  property,  and  how 
the  same  is  held,  in  what  manner,  and  to 
what  uses  or  trusts  the  same  may  be  held, 
in  which  he  has  any  equitable  interest ;  and 
more  particularly  that  he  discover  and  set 
forth  all  bonds,  notes,  or  other  choses  in  ac- 
tion, bank  stock,  or  shares  of  bank  stock,  and 
shares  in  the  capital  stock  of  any  and  all  in- 
corporated companies  of  every  kind  and  de- 
scription, and  of  private  or  public  securities 
whatever,  from  which  he  derives  or  can  de- 
rive any  income  or  prohts,  or  in  which  hehas 
any  equitable  interest,  in  whatsoever  condi- 
tion, or  in  whatsoever  names  the  same  may 
be,  and  whether  the  same,  or  the  increase 
arising  therefrom,  has  been  acquired  by  mar- 
riage, or  in  whatsoever  manner;    or  in  case 

*230 
the  *said  defendant  shall  have  given,  or  de- 
livered to  any  person  or  pei>!ons,  any  proper- 
ty of  any  description  whatsoever,  under  any 
conditions,  agreements,  or  reservations  what- 
ever, express  or  implied,  by  which  the  said 
donee  or  bailee  is  to  return  the  same  to  the 
said  defendant,  or  to  hold  or  use  the  same 
in  any  way  for  the  benefit  of  said  defendant, 
whether  said  conditions,  agreements,  or  res- 
ervations, can  or  cannot  be  enforced  at  law 
or  equity,  or  their  observance  depends  on  the 
will  and  pleasure  of  the  said  donee  or  bailee, 
that  in  such  case  the  said  defendant  shall 
discover  and  set  forth  the  same,  with  the 
names  of  the  said  donee  or  bailee,  and  the 
terms  of  the  said  gift  or  bailment ;  and  that 
the  said  use,  income,  profits,  stocks,  shares, 
and  private  and  public  securities,  and  other 
equitable  interests,  may  be  rendered  availa- 
ble for  the  payment  and  satisfaction  of  your 
orator's  just  claiuis,  as  aforesaid.  And  that 
the  said  defendant  may  be  compelled  to  dis- 
cover and  set  forth,  and  assign  all  his  estate 
and  interests,  both  in  law  and  in  equity,  or 
so  much  thereof  as  may  be  sufficient  for  that 
purpose;  and  that  your  orator  may  have  such 
further  or  other  relief  in  the  premises,  as 
the  nature  and  circumstances  of  the  case  may 
require,  and  to  your  Honors  shall  seem  meet. 
May  it  please  your  Honors  to  grant  unto 
your  orator  a  writ  of  subpoena,  &c. 

Dargan,  Ch.  The  discharge  of  an  insolvent 
debtor  under  the  Prison  Bounds  Act,  (Act  of 
1788,)  has  the  effect  of  exempting  such  debtor 
from  being  again  arrested  by  capias  on  the 
same  case,  or  under  the  same  judgment,  ex- 
cept where  the  debtor  has  committed  a  fraud 
in  the  manner  of  obtaining  his  discharge. 
Though  his  body  is  exempted  from  arrest,  his 
subseijuently  acquired  property  is  still  lia- 
ble for  the  delit,  if  the  same  be  not  satisiied 
with  the  effects  assigned.  Visible  or  tangible 
property  thus  acquired  is  liable  to  be  taken 

94 


under  a  fieri  facias  for  the  satisfaction  of  so 
much  of  the  debt  as  still  subsists  ;  but  choses 
in  action  and  equities  cannot  be  reached  by 
this  process ;  and  as  they  cannot  be  reached 
by   a   capias,   on   account   of  the  exemption 

*231 
♦arising  from  the  discharge,  it  follows  that 
they  can  only  be  reached  by  the  interven- 
tion of  this  Court.  Where  there  are  choses 
in  action  or  equities,  a  resort  to  this  jurisdic- 
tion would  not  only  be  proper,  but  would  in 
fact  be  the  only  effectual  means  of  relief. 

But  the  complainant  must  make  out  a 
proper  case  for  the  interference  of  the  Court. 
He  must  make  out  some  specific  equity.  He 
must  charge  that  the  defendant  owns  some 
particular  chose,  or  that  he  has  made  some 
specific  disposition  of  his  assets,  by  way  of 
trust,  for  the  avoidance  of  his  debts ;  or 
that  he  has  some  interest  in  a  specific  fund 
or  estate.  He  will  not  be  permitted  to  spec- 
ulate upon  the  jurisdiction  of  the  Court  on 
a  mere  hypothesis.  All  that  the  complain- 
ant charges  in  this  bill  may  be  true,  and  yet 
he  may  be  entitled  to  no  relief.  He  charges 
that  the  defendant  has  been  in  the  receipt 
of  a  large  salary,  that  he  has  drawn  a  lot- 
tery prize,  and  that  he  has  acquired  prop- 
erty by  his  marriage.  He  does  not  sav  how 
large  the  salary  or  the  prize ;  nor  that  any 
of  the  money,  or  the  investments  thereof, 
now  remain  in  the  hands  of  the  defendant 
or  under  his  control,  nor  how  they  are 
invested.  He  does  not  show  what  property 
the  defendant  has  acquired  by  his  wife,  of 
what  it  consists ;  whether  settled  on  his 
wife,  or  liable  for  the  husband's  debts,  or 
whether  it  is  now  in  his  hands.  In  fine,  tak- 
ing all  that  he  says  to  be  true,  he  does  not 
show  that  there  is  in  existence  any  property 
or  fund  which  the  jurisdiction  of  this  Court 
can  reach  for  the  satisfaction  of  his  debt. 
Until  he  makes  some  such  specific  allega- 
tions, I  do  not  think  that  the  defendant  is 
bound  to  answer. 

It  is  ordered  and  decreed,  that  the  de- 
murrer be  sustained,  and  that  the  bill  be 
dismissed. 

The  complainant  appealed,  on  the  grounds: 

1.  That  it  is  expressly  charged  in  the  bill 
of  complaint  that  the  defendant  was  in  the 
possession  or  enjoyment  of  the  use  of  prop- 
erty of  considerable  value,  which  cannot  be 
reached  by  any  process  known  to  the  law, 
but  which  is  justly  liable  for  the  debts  of 
the  defendant. 

2.  That  the  Chancellor  erred  in  consider- 

*232 
ing  that  the  right  of  *the  complainant  to  a 
discovery  would  be  affected  by  his  charging, 
more  particularly  than  he  has  done,  what 
was  the  amount  of  the  salary,  or  lottery 
prize,  or  the  manner  in  which  the  property 
of  the  defendant,  acquired  by  marriage,  was 
settled;  when  it  is  sufficiently  shown  that 
there  is  property,  of  which  the  defendant 
has  the  use  and  enjoyment,  secured  in  some 
way  unknown  to  the  complainant,  from  his 


LAWTOX  V.  HUNT 


*23-4 


execution,  and  his  interest  in  which  the  de- 
fendant cannot  be  compelled  to  assign  at 
law. 

3.  That  the  discovery  itrayed  for  hy  the 
complainant  is  not  a  f;eneral  discovery  by 
way  of  speculation  u|>oii  the  jurisdiction  of 
the  Court,  but  is  of  such  property  as  the 
defendant  is  char;;od  as  actually  deriving  in- 
come from  :  and  that  when  the  right  of  the 
conijilainant  to  satisfaction  is  sufticiently 
stated,  and  the  inadeiiuacy  of  his  remedy 
at  law  is  shown,  the  fact  that  the  defendant 
has  so  secured  his  property,  that  its  situa- 
tion cannot  be  discovered  b.v  the  complain- 
ant, except  by  the  aid  of  this  Court,  affords 
surticient  ground  for  ef|uitable  relief ;  and 
the  dismissing  of  the  bill  for  such  a  reason 
would  be  an  encouragement  to  the  ingenuity 
of  the  fraudulent. 

4.  If  a  discovery  in  such  cases  be  refused 
by  the  Court,  a  fraiidulent  debtor  who  had 
been  discharged  from  the  liability  to  arrest 
under  a  capias  ad  satisfaciendum  in  any  par- 
ticular .suit,  or  a  female  against  whom  a 
capias  ad  satisfaciendum  cannot  be  issue<l. 
would  be  able  to  enjoy  any  amount  of  imip- 
erty.  the  mode  of  investing  which  could  be 
concealed    from    the    creditor. 

Northrop,  for  appellant. 
Campbell,  contra. 

PER  CURIAM.  This  Court  concurs  In  the 
decree  of  the  Chancellor,  which  is  confirmed 
and  the  appeal  dismissed  ;  and  it  is  so  or- 
dered. 

JOHNSTON.      IHXKIN.      DARGAN     and 
WARDLAW.  CO.,  concurring. 
Appeal  dismissed. 


4  Rich.  Eq.  *233 

*W.  yi.   UAWTON,   Executor,   v.   BENJ.   F. 
HUNT  et  al. 

(Charleston.     Jan.   Term,   1852.) 

[Wills  <@=»572.] 

Devise  of  i)!antation  "and  all  tho  slaves 
usually  used,  attaclnd  and  belonging  to  tiie 
said  i)lantati<in:"  to  tlic  plantation  \v«'re  attach- 
ed and  belonged  a  nuailicr  of  sljivcs  used  in 
ajiricidtural  operations: — livid,  that  the  devise 
(lid  not  embrace  some  carpenters  and  boat- 
hands,  who  had  tlieir  canins,  families  and  patch- 
es on  the  plantation,  but  were  generally  employ- 
ed elsewhere. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  S  1245:    Dec.  Dig.  <S=572.1 

\^yill!<  C=34.">(!.1 

Wiiere  tlie  context  of  tln'  will  nffords  no  con- 
trary indication,  tlie  teims  descriptive  of  tiie 
subject  of  «ift.  must  be  understood  in  their 
strict  and  iirimary  sen.se,  if  a  subject  be  found 
to  whicii  tiie  words  so  interjireted  aiiply;  and 
in  such  a  ciise  tlie  terms  of  gift  caiuiot  be  made 
to  embrace  another  subject  in  a  secondary  or 
deflected  sense. 

llOd.   Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  §  Jt74:    Dec.  Dig.  <©=345ti.] 


[WilU  C=>S.32.] 

Testator  purchased  slaves  from  his  son-in- 
law,  which  were  under  mortsaire  to  secure  a 
debt  of  the  sou-in-law,  for  which  testator  was 
liable  as  his  surety:  Testator  afterwards  be- 
queathed the  slaves  to  his  daughter,  wife  of 
sr>n-in-law.  to  her  sole  and  separate  use,  iVic: — 
llild.  that,  as  between  tlie  daughter  and  other 
legatees  of  testat<ir,  the  debt  for  which  testa- 
tor was  liable  as  surety  of  son-in-law  and  for 
wliich  the  slaves  were  under  mortgage,  was  not 
chargeable  specifically  up<m  the  slaves,  but 
generally  upon  the  whole  estate  of  testator. 

[Ed.  Note.— Cited  in  Latimer  v.  Latimer,  38 
S.  C.  .385,  IG  S.  E.  yi)5. 

For  other  eases,  see  Wills,  Cent.  Dig.  §  2150; 
Dec.  Dig.  «©=9832.] 

[Ell II ill/   <S=;',s3.1 

In  case  of  oisiiute  between  client  and  coun- 
sel as  to  the  amount  of  compensation,  the  Chan- 
cellor is  not  bound,  but  may  order  an  issue 
at  law ;  he  should  not,  however,  leave  to  the 
determination  of  the  law  Court  the  nuestion 
which  party  shall  be  liable  for  fees  that  are  rea- 
sonable. 

[Ed.  Note. — For  other  cases,  see  E(|uity,  Cent. 
Dig.  !}  787;    Dec.  Dig.  <g=>383.J 

liefore  Dunkin,  Ch.,  at  Cliarleston,  June, 
18.50. 

Tile  former  branch  of  this  cause  is  report- 
eO  4   .Strob.   Eq.  1. 

The  cause  came  on  upon  exceptions  to  the 
master's  report,  under  the  intjuiry  that  was 
directed.  So  much  of  the  report  of  June, 
1850,  as  relates  to  the  questions  considered 
in  the  Court  of  Appeals,  is  as  follows: 

'•By  the  appeal  decree  in  this  case,  filed 
1st  February.  1850,  'the  disputed  point  whetii- 
er  the  carpenters,  Ben,  Hector,  Maurice.  I'aul, 
Little  Ben,  and  John,  and  the  sloop  hands 
and  boatmen,  Nat,  Thil,  Jim.  Joe.  Steward, 
and  Jack,  are  part  of  the  negroes  deviseil  to 
Mrs.  Colburn  or  of  the  residuary  estate,  is 
referred  back  to  the  master  to  take  further 
testimony.  As  to  the  extent  and  ipiantity  of 
land  devised  to  Mrs.  Cidburn,  under  tiie  de- 
vise  of   Tibwin,    the    same    is    also    referred 

*234 

back  to  the  master  for  *further  information; 
and  it  is  ordered,  tluit  a  survey  and  plat  of 
all  the  lands  claimed  as  belonging  to  Tibwin, 
be  made  for  the  information  of  the  Court.' 
Under  this  order,  I  have  been  attended  at 
several  references  by  the  solicitors  of  Mrs. 
Hunt  and  family,  and  of  Mrs.  Colburu  and 
child,  but  no  further  testimony  iias  bet'ii 
taken,  except  the  examination  of  Mr.  Mois- 
son,  which  is  herewith  Hied. 

"As  respects  the  first  point  sent  down  to 
me,  whether  the  carjienters,  slcKip  hands  and 
boatmen,  are  part  of  the  devise  to  Mrs.  Col- 
burn, or  are  residue,  I  iiave  already  reported, 
and  a  more  careful  and  minute  examination 
of  the  testimony  has  not  tended  to  change 
my  first  judgment.  To  support  the  position 
that  tiicse  negroes  are  residue,  that  part  of 
the  testimony  is  chiefly  relied  on  which 
proves  that  Mr.  Mathewes  moved  his  force  of 
carpenters    from    place   to    place,    and    from 


^=:9For  other  ca^es  see  same  topic  and  KEY-NL'MBEK  in  all  Key-Numbered  Digests  aud  Indexes 


95 


*234 


4  RICHARDSON'S  EQUITY  REPORTS 


country  to  town,  to  suit  tlie  exigencies  of  his 
different  plantations  and  his  town  property, 
and  that  the  sloop  hands  and  boatmen  were 
also  indifferently  employed  in  the  service  of 
all  the  plantations:  it  is  therefore  contended, 
that  they  can  in  no  wise  be  brought  within 
the  words  of  the  will,  'usually  used,  attach- 
ed and  belonging  to  the  said  house  and  plan- 
tations." I  cannot  see  the  force  of  the  argu- 
ment, and  in  construing  this  clause  of  the 
will,  I  think  the  words  of  qualification  are 
to  be  referred  to  those  uncertain  and  not  well 
defined  niatters  of  plantation  furiuture,  which 
the  testator  speaks  of  as  'every  other  thing.' 
I  do  not  think  that  the  words  of  qualification 
can  be  made  to  go  further.  I  attach  great 
importance  to  the  domiciliary  arrangements 
of  these  negroes, — that  they  had  families  at 
Tibwin — that  their  garden  patches  were 
there — and  in  the  case  of  the  boatmen,  that 
by  reason  of  their  frecjuent  absence,  Mr. 
Mathewes  had  their  patches  cultivated  and 
kept  in  order  for  them.  I  tliink  it  an  impor- 
tant point,  also,  that  they  were  on  the  allow- 
ance list  at  Tibwin,  and  I  find  accordingly, 
that  Ben,  Hector,  Maurice,  Paul.  Little  Pen, 
John,  Nat,  Jim,  Phil,  Joe,  Stewart,  and  Jact, 
are  not  residue,  but  that  they  pass  under  the 
devise  to  Mrs.  Colburn. 
*235 
*"The  appeal  decree  says:  'That  the  plan- 
tation and  negroes  called  Thompson's,  are 
to  be  considered  part  of  iNIrs.  Colburn's  por- 
tion, under  the  will,  and  liable  to  contribution 
for  the  debts  equally  with  the  rest,  and  that 
the  money  owing  for  the  said  property  is 
to  be  considered  the  proper  debt  of  the  tes- 
tator, so  far  as  the  creditors  are  concerned. 
But  it  .is  referred  to  the  master  to  ascertain 
and  report  whether,  as  between  Mrs.  Hunt 
and  Mrs.  Colburn,  said  debt  is  chargeable 
specifically  upon  said  land  and  negroes  or 
upon  testator's  whole  estate.' 

"In  this  matter  I  have  also  had  the  solic- 
itors of  the  parties  before  me  at  several 
references,  and  the  deed  of  August  21,  1847, 
was  submitted.  It  is  insisted,  on  behalf  of 
Mrs.  Hunt  and  children,  that  by  virtue  of 
this  deed,  Mr.  Colburn  received  from  Mr. 
Mathewes  the  proceeds  of  notes  to  the  amount 
of  $7,795  for  the  purpose  of  paying  up  in 
full  the  bonds  known  as  Broughton's,  Huger, 
Pringle  and  Ball's,  but  that  he  failed  so  to 
apply  the  funds;  that  Colburn  being  in  this 
way  indebted  to  Mathewes,  in  the  above 
amount  of  .$7,795,  as  the  deed  recites,  convey- 
ed to  him,  Mathewes,  the  negroes  Joe,  Polly 
Liddy,  Nanny,  Caroline,  Amy,  Die,  Cliaplin, 
Cjesar,  Bella,  Paul,  Fanny,  August,  July, 
Abraham,  Sarah,  Liddy,  Maria,  Thompson, 
Henrietta,  and  Zacharias,  as  his,  B.  P.  Col- 
burn's property,  when,  in  fact,  they  were  not. 
inasmuch  as  Joe,  Polly,  Liddy,  Nanny,  Car- 
oline, Amy,  Die,  and  Chaplin,  were  under 
mortgage  to  E.  C.  Huger,  administratrix  of 
John  H.  Huger, — Cajsar,  Bella,  Paul,  Fanny, 
August,  July,  Abraham,  Sarah,  Liddy,  Maria, 

9G 


Wanetta,  (who,  Mr.  Colburn  admits,  is  the 
same  as  Henrietta,  mentioned  in  the  deed,) 
and  Thompson,  (born  after  the  date  of  the 
mortgage,)  under  mortgage  to  S.  M.  Pringle, 
and  Zacharias,  under  mortgage  to  the  ex- 
ecutor of  Isaac  Ball.  Now,  therefore,  as 
all  the  negroes  conveyed  by  the  deed  of  21st 
August,  1847,  are  yet  unpaid  for,  and  pay- 
ment is  now  sought  from  the  estate  of  Math- 
ewes, the  point  raised  on  behalf  of  Mrs. 
Hunt  and  children  is,  that  the  mortgaged 
property  should  be  first  exhausted  in  relief 
pro  tanto  of  Mathewes.  It  is  true  that  these 
twenty-three    Jiegroes,    (those    mentioned    in 

*236 
the  deed,)  have  never  *been  taken  into  the 
estate — that  the  executor  declined  to  take 
possession  of  them  because  of  the  post-nuptial 
marriage  settlement,  and  that  they  have  been, 
and  still  are,  in  the  possession  of  Colburn 
and  wife.  In  the  deed,  (of  August,  1847,)  it 
is  set  forth  that  INIathewes  is  to  be  the  pur- 
chaser of  the  Thompson  land  and  negroes, 
and  to  hold  them  in  trust,  &c.,  under  the 
trusts  and  provisions  of  the  ante-nuptial 
settlement,  and  it  is  contended  that  the  item 
in  Mathewes's  will  in  the  matter  of  the 
Thompson  lands. and  negroes,  does  not  pur- 
port to  dispose  of  them  as  a  part  of  his  es- 
tate, that  he  had  no  right  to  do  so — the  devise 
is  an  anterior  clause,  and  this  part  of  the 
will  is  only  a  declaration  of  certain  condi- 
tions precedent  in  relation  to  said  devise. 
That  the  answer  of  Colburn  and  wife  denies 
there  being  any  question  of  election — that 
the  decree  of  Chancellor  Dunkin  overrules 
the  answer,  and  in  his  decree  on  circuit, 
deternunes  that  it  is  a  case  of  election,  that 
Colburn  and  wife  have  not  elected.  In  this 
behalf,  I  find  that  both  the  circuit  and  appeal 
decrees  determine  that  Mr.  Mathewes  did 
treat  the  Tiiompson  land  and  negroes  as 
his  property.  The  words  of  Chancellor  Dun- 
kin,  in  speaking  of  this  matter  on  circuit, 
are:  'Clearly,  this  is  the  language  of  a  man 
expressing  his  intention  to  dispose  of  prop- 
erty as  his  own,  because  he  had  purchased 
and  paid  for  it,  although  he  admitted  the 
equitable  interest  to  be  in  others.  It  is  the 
assertion  of  a  proprietor's  will,  and  acqui- 
escence is  secured  by  a  strong  sanction.'  i 
find  further,  that  it  is  manifestly  to  the  in- 
terest of  Mrs.  Colburn  and  her  child,  that 
they  elect  to  take  under  the  will — that  Mrs. 
Colburn  does  so  elect,  and  that  Mr.  J.  S. 
Colburn,  the  trustee  under  the  original  deed 
of  marriage  settlement,  concurs  with  me  in 
the  opinion,  that  it  is  to  the  interest  of  the 
infant  that  she  also  take  under  the  will,  as  to 
the  mortgage  debts  of  the  Thompson  negroes. 
"I  have  but  little  doubt  that  when  Mr. 
Mathewes's  debt  shall  have  been  fully  paid, 
Colburn  will  be  found  a  debtor  to  the  estate ; 
but  I  cannot  see  how  his  individual  debt  can 
be  charged  against  his  wife's  separate  es- 
tate. In  how  far  the  estate  of  Mathewes 
paying  these  debts  will  be  subrogated  to  the 


LAWTOX  V.  HUNT 


r»9 


•237 

rights  under,  and  the  iini*t<>(fi..ii  of  the  moit- 
^aws,  is  a  «ni*'-^ti<>n  wiiidi  ilepeiids  very  iiuicli 
upon  wiietlier  Mr.  .Matliewes  has,  or  lias  not, 
l».v  liis  own  act.  made  tlie  tleht  e.xchisively 
eiiar^'ealile  on  liis  estate,  and  tliat  heing  a 
naked  qnestion  of  hiw,  is  more  pmiuTly  witii 
Uie  t'ourt. 

"It  only  n-mains  now  to  eonsid»«r  the  ob- 
.iection  to  Veadon  &  Mael  eth's  liill  for  profe.s- 
sional  .services,  the  exceptions  put  in  to  Mr. 
Khetfs  accounts,  and  th«'  «iuestion  of  costs. 
The  objections  uryed  a^'ainst  the  bill  of  Yea- 
don  &  Macbeth  are  so  numerous  that  it  will 
I'e  necessary  to  consider  tlnMn  s"riatim.  R«'- 
I'ttre  taking  up  the  accounts  of  Yeadon  &  Mac- 
beth, it  may  be  well,  however,  to  notice, 
that  senerally  in  the  matter  of  the  executor's 
account,  the  devi.see.s.  S.  li.  Hunt  and  chil- 
dren, ob.jected  to  all  items  not  within  four 
years  of  the  testatt)r's  death,  as  beiiiR  In- 
law inadmissilde.  They  object  also  to  ail 
•  harws  not  established  by  law.  and  claim 
that  they  nnist  be  sustained  bt-foiv  a  jury. 
They  object  to  all  fees  for  the  litigation  by 
Mr.  Lawton,  as  beyond  his  competency,  and 
not  designed  for  the  benefit  of  the  estate. 
lUit,  as  the  order  of  the  Chancellor,  made 
this  day.  directs  me  to  file  my  report  by 
^ionday,  in  the  matter  of  the  two  important 
questions  sent  down  to  me  by  the  Appeal 
<'ourt,  I  must  suspend  further  consideration 
of  these  accounts  to  another  repcut." 

Dunkin,  Ch.  At  an  early  period  of  these 
proceedings,  sin  order  had  lieen  made  requir- 
ing the  creditors  of  the  estate  to  establish 
their  demands  l)efore  the  master.  On  31st 
January.  lsr»0.  the  report  of  Mr.  I.aurens  was 
tiled,  setting  forth  a  statement  of  the  debts 
and  legaci«>s  as  e.stablished.  To  this  report 
exceptions  were  filed  on  the  same  dav  by  the 
solicitor  in  behalf  of  Mrs.  Hunt. 

The  decree  of  the  Court  of  .\ppeals.  filed 
1st  February,  1.S50,  adverts  to  this  report  as 
having  been  referred  to  in  arginnent,  but 
which  was  not  produced.  In  the  decretal 
order,  it  is  declared,  "that  the  creditors  who 
have  proved  their  claims  before  Mr.  Laurens, 
and  against  who.se  claims  no  exceittions  are 
filed,  have  a  right  to  immediate  payment 
by  sale,"  &c. 

*238 
♦Further  inquiry  was  directed  as  to  tlie 
carpent«'rs  mid  boat  hands,  and  also  as  to 
the  extent  ot  Tibwiii,  and  whether  the 
Thompson  debt  was.  as  iK'tween  Mrs.  limit 
and  Mrs.  Coinurn.  to  be  charged  specially  on 
those  lands  and  negroes  or  upon  testator's 
whole  estate.  On  nie.se  maft.'rs  the  master 
has  now  submitted  his  report,  to  which  ex- 
ceptions have  been  filed,  and  tlie.se  exceptions 
it  is  itrojutsed  first  to  consi(h>r.  No  part  of 
the  case  has  been  .so  embarrassing  to  me  as 
the  inquiry  whether  the  carpenters  and  sloop 
bands  jia.ss  under  the  dt  vise  of  Tibwin  and 
its  appurtenances.  The  general  .scheme  of 
the  testator  seems  to  have  been,  after  pro- 
4  Rfcii.Eq.— 7 


I  viding  for  the  payment  of  his  debts  and  lega- 
cies, to  disp(».se  of  his  estate  equally  between 
his  two  daughters   and   their    families. 

To  Mrs.  Hunt  he  gave  the  house  in  Wash- 
ington street.  Milton  Ferry  and  tlin>e  iilanta- 
tion.s.  together  with  the  appurtenances  of  tin' 
I  idantations  and  ferry.  To  Mrs.  Colburn  are 
given  the  liou.se  in  Charlotte  street,  with  the 
slaves,  furniture,  &c..  used  in  the  said  house, 
ami  three  plantations,  with  tlie  apimrte- 
nances  thereof:  and  by  the  final  disposing 
clau.se  of  his  will,  he  dinH.*ts  the  rest  and 
residue  of  his  estate  to  be  equally  divided 
between  Mrs.  Hunt  and  Mrs.  Colburn.  sub- 
ject to  the  trusts  and  limitaticais  therein  be- 
fore declared,  of  the  specific  propert.v  de- 
visetl  and  lie(|ueathed  to  them  respectively. 
The  incpiiry  is,  wlu'ther  the  carpenters  aiid 
sloop  hands  itass  under  the  terms  of  the  spe- 
<ific  be<|uesl  to  Mrs.  Colburn.  or  constitute  a 
part  of  the  residue,  and  are  therefore  divis- 
ible between  the  daughters  in  equal  i»ro- 
portions.  The  testator  owned  a  plantatbm 
on  Santee  river,  called  Pleasant  Meadows, 
four  inland  plantations,  not  far  from  the  :V2 
mile  house,  in  St.  James  .Santee.  called  Tib- 
win,  Mildani.  ."^iiringfield  and  Thompsons, 
and  a  farm  five  miles  from  the  ferry,  calleil 
Snee  farm.  The.se.  with  Milton  ferr.v  and  the 
town  houses,  were  the  principal  <>bjects  of 
the  devises.  Tibwin.  as  the  Court  under- 
stands, was  the  original  country  residence 
of  the  testator,  and  so  continue<l  till  his 
death.  To  Mrs.  Colburn  he  devises  and  be- 
queaths the  Charlotte  street  house,  and  his 
plantations.  Mildam  and  Tibwin.  with  a  tract 
of  land  called  Flatlield.  "and  all  the  slaves. 

*239 
cattle.  *hogs.  horses,  mules,  sheep  and  poul- 
try and  the  tools,  utensils,  flats,  boats,  furni- 
ture, carts,  wagons,  and  every  other  thing 
usually  used  attachtnl  and  belonging  to  the 
said  house  and  plantations."  Tlie  devise  to 
Mrs.  Hunt  is  in  the  same  terms.  On  the 
part  of  Mrs.  Colburn,  it  is  insisted  that  the 
cariienters  and  sloop  hands  fall  within  the 
foregoing  description.  There  are  six  car- 
penters, to  wit:  Hector,  Ben,  Paul.  Maurice, 
Little  lien  and  John  :  and  six  sloop  hands, 
to  wit:  Nat.  Cim.  Phil.  Joe,  Stewart  and 
Jack.  Several  witnesses  were  examined, 
and  there  is  no  material  discrepancy  in  their 
testimony.  Tibwin  was  the  original  settle- 
ment, and  the  carpenters  were  originally  of 
the  Tibwiii  gang.  Hut  they  worked  at  their 
trade,  and  they  were  employed  by  the  testa- 
tor wherever  such  work  was  to  he  done.  In 
the  winter  they  were  employed  at  his  several 
plantations  in  rlie  country. 

In  the  spring  they  came  to  Snee  farm  or 
worked  at  Milton  ferry,  and  in  the  summer 
they  were  hired  out  in  town,  or  otherwise 
employed  by  the  testator.  It  is  impossible 
to  say  that  they  were  "slaves  usually  used" 
at  Tibwin.  or  especially  necessary  for  that 
plantation.  As  lo  emiiloyment.  they  were 
attached  to  no  plantation,  but,  as  expressed 

87 


*239 


4  RICHARDSONS  EQUITY  REPORTS 


by  one  of  the  witnesses,  thej-  were  a  gang  of 
mechanics,  detached  from  the  workers  of  tlie 
plantation.  And  so  of  the  sloop  hands.  The 
.sloop  itself  is  admitted  to  have  been  part  of 
the  residue,  and  has  been  so  treated.  The 
sloop  and  the  hands  attached  to  her,  were 
employed  during  the  testator's  life  time  in 
bringing  his  crop  to  market,  and  perhaps 
more  usually  in  bringing  wood  to  town  for 
Milton  ferry.  Although,  then,  neither  the 
carpenters  nor  the  sloop  hands  were  usual- 
ly used  at  Tibwin  plantation,  do  they  '"be- 
long" to  the  Tibwin  gang?  The  master  has 
so  concluded,  and  from  several  considera- 
tions which  are  fully  stated  in  his  report, 
without  being  entirely  satisfied  with  his 
conclusions,  I  am  not  prepared  to  sustain 
the  exception.  An  additional  consideration 
certainly  has  weight  with  me.  These  ne- 
groes constituted  a  very  valuable  portion  of 
the  testator's  estate,  and  could  iscarcely 
have  escaped  his  attention.  If  they  were 
not  considered  by  him  among  the  slaves  be- 

*240 
longing  to  the  *Tibwin  gang,  he  has  made  no 
specific  disposition  of  them.  When  he  was 
so  thoughtful  as  to  provide  for  the  comfort 
of  Capt.  Nat  and  old  Patty  at  Tibwin,  and  of 
old  Anne,  the  poultry  woman  and  nurse,  at 
Snee  farm,  it  is  difficult  to  suppose  that  he 
should  have  forgotten  the  carpenters  or  boat 
hands,  or  having  thought  of  them,  should 
have  left  their  disposition  to  doubtful  inter- 
pretation. It  is  said,  however,  that  to  give 
these  slaves  to  Mrs.  Colburn,  exclusively, 
destroys  the  equality.  The  master  reports 
otherwise.  But  the  intention  to  make  an 
equal  division,  (although  it  has  been  assiimed 
by  the  court  as  likely,)  is  not  deducible  from 
the  instrument  itself.  It  is  scarcely  war- 
rantable to  resort  to  evidence  dehors  the  will, 
for  the  purpose  of  showing  an  intention  to 
create  equality,  and  then,  by  evidence  of  the 
same  character,  to  show  that  the  supposed 
intention  would  be  defeated  by  the  con- 
struction adopted.  This  exception  is  over- 
ruled. 

And  so  in  relation  to  the  extent  of  land 
devised  to  Mrs.  Colburn,  under  the  designa- 
tion of  Tibwin,  and  the  Thompson  debts,  so 
called,  the  exceptions  are  overruled.  The  ex- 
ceptions to  the  master's  report  on  the  ac- 
counts of  the  executor  are  overruled,  except 
in  relation  to  the  matters  now  about  to  be 
considered. 

Among  the  debts  of  the  testator,  which 
the  master,  by  his  report  of  31st  January, 
1850,  recommended  to  be  paid,  was  an 
amount  of  $2,620.87,  due  to  various  legal 
gentlemen  for  professional  services  rendered 
to  the  testator  in  his  life  time.  Of  these, 
one  is  a  debt  to  Messrs.  Yeadon  &  Macbeth, 
amounting  to  $580,  and  another  to  J.  S. 
Rhett,  Esq.,  of  $009.12.  To  this  report,  the 
defendant,  Mrs.  Hunt,  through  her  solicitor, 
excepted  as  to  the  demand  of  Mr.  Rhett,  but 
not  as  to  that  of  Messrs.  Yeadon  &  Macbeth, 

98 


or  those  of  the  other  gentlemen.  It  is  hard- 
ly necessary  to  say  that  the  sultsequent  de- 
cree precludes  all  inquiry  in  relation  to  many 
parts  of  the  report  to  which  no  exceptions 
were  taken.  The  testator  died  in  July,  1848. 
Towards  the  close  of  that  year,  the  bill  of 
the  executor  was  filed,  and  in  May,  1849,  an 
order  was  entered  to  restrain  the  creditors 
from  prosecuting  their  demands  at  law.     A 

*241 
bill  was  filed  during  that  year  by  some  *of 
the  devisees,  against  the  executor.  This  lat- 
ter bill  was  dismissed  on  the  23d  April,  1849. 
On  the  27th  March,  1850,  the  master  paid  to 
Yeadon  &  Macbeth,  for  their  costs,  on  the  bill 
filed  by  the  executor,  the  sum  of  $311.25, 
and  $35  costs  on  what  is  called  the  cross 
bill.  In  auditing  the  executor's  accounts, 
the  master  allows  him  credit  for*  the  sum 
of  $1,330  paid  to  Messrs.  Yeadon  &  Mac- 
beth for  professional  services  and  ad- 
vice given  and  rendered  to  the  execu- 
tor, between  August,  1848,  and  February, 
1850.  To  the  bill  of  costs  of  Messrs.  Yeadon 
&  Macbeth,  $346.25;  to  the  credit,  $1,330, 
thus  given  to  the  executor ;  and  to  the  ac- 
count of  Mr.  Rhett,  the  solicitor  of  Mrs. 
Hunt  objected,  as  is  set  forth  in  the  latter 
part  of  the  master's  report  of  the  28th  June, 
1850.  On  the  subject  of  the  bill  of  costs,  in 
the  circuit  decree  of  April,  1849,  no  order 
was  niade  in  relation  to  the  payment  of  costs. 
No  sub.sequent  order  was  brought  to  the  no- 
tice of  the  Court.  Certainly,  the  master  had 
no  authority  to  apply  any  part  of  the  funds 
in  bis  hands  to  that  effect,  without  a  special 
order.  It  is  suggested  in  one  of  the  excep- 
tions, that  part  of  the  charge  allowed  was 
for  maintaining  the  interests  of  the  executor 
against  those  of  the  devisees.  The  master 
has  not  reported  on  the  objection  as  to  costs, 
and  it  must  be  referred  back  to  him  to  re- 
port on  that  subject. 

In  reference  to  the  credit  of  $1.3.30,  the 
defendants,  Mrs.  Hunt  and  family,  object, 
and  insist  on  their  right  to  an  investigation 
of  the  claim  before  a  jury.  And  they  in- 
sist on  the  same  course  in  relation  to  the 
claim  of  INIr.  Rhett.  In  reference  to  the 
claim  of  Mr.  Rhett,  my  opinion  has  always 
been,  (and  I  have  acted  upon  that  opinion,) 
that,  whenever  a  controversy  arises  between 
a  solicitor  of  the  Court  and  a  suitor,  in  ref- 
erence to  the  value  of  his  services,  beyond 
the  amount  prescribed  in  the  fee  bill,  the 
matter  should  be  referred  to  a  jury.  The 
inexpediency  of  any  other  course  seems  to 
me  too  obvious  to  requii'e  comment.  Al- 
though that  is  not  precisely  the  inquiry,  in 
reference  to  the  credit  allowed  to  the  execu- 
tor, the  same  principle  is,  to  a  great  extent, 
involved. 

It  is  ordered,  that  an  issue  be  made  up  In 

*242 
the   nature   of  an   *action   of  assumpsit,   in 
wliich  J.   S.  Rhett,  Esq.,  shall  be  the  plain- 
tiff,   and    executor    of    Wm.    Mathewes,    de- 


LAWTON  V.  HINT 


1A4 


ceased.  (Icffinlaiit.  (till'  (Icfeiite  to  be  coiuhu-t- 
ed  by  Mrs.  Hunt  and  family.)  in  wiiich  tbe 
imiuiry  shall  lie,  as  to  tbe  amount  due  to  the 
said  J.  S.  Kht'tt.  Ivstj.,  on  the  account  tiled 
with  the  master.  And  that  an  issue  be  al.so 
made  uj).  in  which  the  executor  of  Wni.  Mat- 
liewes.  deceased,  shall  1 »'  i>laintift',  and  Mrs. 
Hunt  and  family  defendants,  the  objects  of 
w  bich  issue  shall  be,  to  ascertain  the  amount 
which  was  due  on  acco\nit  «>f  the  estate  of 
the  testator  to  Messrs.  Veadon  &  Macbeth, 
on  their  demand  of  thirteen  hundred  and 
Ibirty  dollars,  which  is  alloweil  as  a  credit 
l)y  the  master  in  passini:  tlu>  executor's  ac- 
count, the  nature  of  the  issue  beinj;  as  for 
money  laid  out,  expended  and  paid  for  the 
use  of  the  estate,  that  the  .said  issues  lie 
tried  in  the  Court  of  ("lunnion  Pleas  for 
Charleston  district,  and  that  the  presidiuf^ 
.ludire  be  respectfully  re<|uested  to  certify 
the  verdiit  to  this  Court. 

On  all  other  points  not  specially  n-served. 
the  rejiort  of  the  nmster  is  contirmed  and 
made  the  judjiment  of  the  Court ;  and  he 
bavins  reported  that  it  is  for  the  advantage 
nf  the  infant,  Mary  Anna  Mathewes  Colburn, 
to  take  the  provisions  made  bj'  the  will  in 
her  behalf,  it  is  ordered  that  the  said  n.a.s- 
ter  make  the  election  accordimrly. 

Mrs.  Hunt  and  the  executor  appealed. 

B.  F.  Hunt,  for  Mrs.  Hunt. 
Teadon,  Khett,  Ciintra. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW.  Ch.  One  of  the  iiuestions 
presented  by  this  appeal  is.  whether  the  car- 
penters and  boat  hands  of  the  testator  pass 
under  the  following;  devise:  "I  f^ive  to  my 
daughter,  Ann  Ashby  Colburn.  for  and  dur- 
ing the  term  of  her  natural  life,  without 
impeachment  of  waste,  and  without  being 
subject  or  liable  in  any  manner  whatsoever, 
either  as  to  the  body  or  income  of  said 
estate,  to  the  debts,  contracts,  liabilities, 
control  or  interference  of  her  present  or  any 
future   husband,   my  bouse  ;ind   lot   in   Cliar- 

*243 
lotte  *street,  where  I  now  reside,  and  my 
house  servants  and  furniture  used  in  said 
bouse:  also  my  plantations,  Mildam  and 
'I'ibwin.  and  a  tract  of  land  called  Flat- 
lield,  and  all  the  slaves,  cattle,  hogs,  horses, 
nniles,  sheep  and  poultry,  and  the  tools, 
iitensils  flats,  boats,  furniture,  carts,  wag- 
ons, and  every  other  thing  usually  used,  at- 
tadied  and  belonging  to  the  said  hovise  and 
jilantations ;  and,  after  her  death,  then  to 
her  daughter,  Mary  Anna  Mathewes  Col- 
I  urn,  her  heirs,  executors,  administrators 
;itid  assigns  forever;  but  should  the  said 
.Mary  Anna  Mathewes  Colburn  die  bef(U-e 
.she  attains  the  age  of  twenty-one  or  day  of 
marriage,  then  I  give  the  said  property,  so 
given  to  her,  to  the  children  of  my  daughter 
Susan,  to  be  equally  divi<led  amongst  them." 

This  clause  immediately  succe«'ds  another, 
by  which  the  testator  gives  to  his  daughter, 


Susan  R.  Hunt,  for  life,  in  the  same  terms 
as  to  impeachment  for  waste  and  control  of 
iuiy  husl  ;ind.  his  lot  of  land,  with  the  imild- 
ings  tlH-reon,  in  Washington-street.  Mazyck- 
borough  :  bis  wharf  "lot  in  Ma/.yckborough  ; 
his  jilantation  calb'd  Pleasant  Meadow,  in- 
cluiling  the  high  and  pine  land;  his  planta- 
tion. Springfield  ;  his  plantation  called  Snee 
Farm;  his  Ferry  place  an<l  Ferry;  also  bis 
tract  of  land  on  Wambau  creek,  "und  all  the 
slaves,  cattle,  hogs,  horses,  nniies,  sht'cp  and 
poultry,  and  the  tools,  iMciisils,  flats,  boats, 
carts,  wagons,  furniture,  and  every  other 
thing  usually  used  and  attached  to  and  be- 
longing to  the  saitl  plantations  and  ferry  ;  and 
after  her  death  then  to  her  ihildren  living 
at  her  death,  tlie  i.ssue  of  a  decea.sed  child 
or  children  to  reiire.sent  and  take  his,  her  or 
their  parent's  share:  an«l  should  any  of  her 
children  die  without  issue  living  at  his  or 
her  death,  then  to  the  survivor  or  survivors 
of  them,  share  and  share  alike."  Tbe  will 
also    contains    a    pe*  uniary    legacy    of    .Sl'_*.- 

000  to  the  children  of  Mary  P>o.vd,  a  deceas- 
ed daughter  of  te.«<tator:  a  directi(Ui  that 
his  estate  be  kept  togetlu'r  until,  from  the 
crops  and  other  income,  the  pecuidary  b'ga- 
cy  above  mentioned,  and  the  debts  of  tes- 
tator should  be  fully  paid  and  satisfied; 
and  a  devi.se  of  the  rest  and  residue  of  his 
estate,  in  eiiual  shares  to  his  daughters, 
Mrs.  Hunt  and  Mrs.  Colburn,  "subject,  bow- 

*244 
ever,  to  the  *trusts  and  limitations  herein 
declared  of  the  property  herein  Revised  and 
bequeathed  to  them.''  Ani>ther  clause  of  the 
will  has  some  bearing  as  to  the  question 
concerning  the  carpenters  and  boat  hands, 
certainly  so  far  as  Nat,  one  of  the  boat 
hands,  is  involved:  "It  is  my  wi'l  that  my 
slave,  old  Nat,  (commordy  called  Capt.  Nat.) 
and  old  Patty,  the  dairy  woman,  at  Tibwin 
plantation,  and  old  Anne,  the  poultry  wo- 
man and  nur.se  at  Snee  Farm,  be  allowed  to 
reniain  and  reside  on  the  plantations  where 
they  now   respectively  are  and   reside:    and 

1  request  my  daughters,  in  consideration  of 
the  faithful  services  of  the  said  slaves  to 
me,  that  they  will  treat  them  with  all  the 
kindness  t-onsistent  with  their  .state  and  con- 
dition, and  pay  to  each  of  them  the  .sum  of 
ten  dollars  annually  during  their  .several 
lives."  Of  the  .'i70  slaves  owned  by  the  tes- 
tator at  the  time  of  his  death,  none  is  named 
in  the  will  except  the  three  mentioned  in 
the  last  clause,  who  are  severally  denonn- 
nated  old,  and  reconnnended  to  the  special 
kindness  of  the  two  iirincipal  legativs.  Of 
the  whole  number  of  slaves,  according  to  the 
circuit  dei-ree.  Mrs.  (^olburn  would  take 
'J04  and  Mrs.  Hunt  10(1  It  is  likely  that 
the  real  estate  devised  to  Mrs.  Hunt  is  of 
greater  value  than  that  devi.sed  to  Mrs.  Col- 
burn. There  is,  however,  no  distinct  ex- 
pression in  the  will  of  the  purpo.se  of  the 
testator  to  make  eijual  donations  to  these 
two  legatees  for  life,  except  as  to  the  residu- 

9U 


*244 


4  RICHARDSON'S  EQUITY  REPORTS 


ary  estate.     Tlie  remainders  after  their  life 
estates  severally  are  quite  different. 

It  is  manifest  from  the  testimony,  that  the 
six  carpenters  were  not  usually,  or  for  the 
greater  portion  of  their  time,  employed  or 
'used'  upon  any  of  the  plautations  devised 
to  Mrs.  Colburn,  nor  'attached'  nor  'belong- 
ing' to  any  of  these  plantations,  except  that 
some  of  them  had  their  cabins  and  patches 
at  Tibwin,  and  some  at  Mildam.  They  were 
as  a  corps  separated  from  the  laborers  of 
the  plantation  and  never  engaged  in  agri- 
cultural operations,  except  for  a  short  time 
upon  some  sudden  emergency.  In  the  win- 
ter, they  worked  at  their  trade  at  the  vari- 
ous places  of  the  testator,  as  the  exigencies 
of  these  places  required  their  peculiar  serv- 
ice ;    and  in  the  summer,  they  were  usually 

*245 
let  to  hire  in  the  *city  of  Charleston.  The 
testator  mostly  resided  at  Tibwin  in  the 
winter,  and  at  Charleston  in  the  summer. 
Tibwin  was  the  original  hive  from  which 
the  other  plantations  were  chiefly  settled. 
An  'allowance'  list,  and  a  'working'  list, 
were  kept  by  the  overseer  at  Tibwin ;  and 
the  carpenters  were  on  the  former  list,  but 
not  on  the  latter ;  which,  however,  also 
omitted  the  names  of  such  of  the  negroes 
as,  from  being  superannuated  or  immature, 
were  unfit  for  labor.  But  it  appears  that 
the  carpenters  drew  their  rations  indiffer- 
ently from  the  plantations  of  the  testcxtor, 
wherever  they  happened  to  be  employed. 

The  facts  concerning  the  boat  hands  are 
of  the  same  general  character.  They,  too, 
were  detached  from  the  operations  of  Tibwin. 
Their  ordinary  employment  was  on  board  the 
sloop  of  the  testator,  in  carrying  to  market 
the  crops  from  his  several  plantations,  of 
which  Pleasant  Meadow,  devised  to  Mrs. 
Hunt,  was  most  productive;  and  in  carrying 
wood  to  the  Ferry,  devised  to  Mrs.  Hunt, 
which  was  navigated  by  steam. 

It  is  manifest,  that  the  words  "usually 
used,  attached  and  belonging  to  the  said  plan- 
tations," or  some  of  them,  must  limit  and 
qualify  the  bequest  of  slaves  to  Mrs.  Colburn, 
as  otherwise  the  description  of  the  subject, 
"all  the  slaves,"  evidently  referring  to  some- 
thing to  be  added,  would  either  carry  all  the 
slaves  of  the  testator  to  this  legatee,  which  is 
inconsistent  with  the  whole  scheme  of  the 
will,  or  would  be  defective  and  unmeaning. 
Whether  the  words  "usually  used"'  form  part 
of  the  description  of  the  slaves  bequeathed,  or 
are  to  be  confined  to  the  tools  and  other  in- 
animate things  bequeathed,  is  too  doubtful 
for  the  matter  to  have  nnich  effect  either  way 
in  the  present  discussion;  and  it  is  too  un- 
important to  be  closely  considered.  The  re- 
maining words,  "attached  and  belonging  to 
the  plantations,"  are  properly  conceded  to  be 
descriptive  of  the  slaves  bequeathed.  In  a 
strict  sense,  slaves  'attached'  to  a  plantation 
are  like  some  of  the  ancient  villeins  of  Eng- 
land and  some  of  the  modern  serfs  of  Russia, 

too 


adscripti  glebjie,  inseparably  connected  with 
the  soil:  and  bj'  the  most  liberal  construction 
that  can  be  tolerated,  slaves  'attached  to  a 

*246 
plantation'  *must  be  connected  with  the  agri- 
cultural operations  of  the  place,  either  as 
actual  laborers,  or  as  those  who  have  been 
laborers,  or  are  expected  to  be  laborers.  The 
superannuated  and  the  immature,  closely  con- 
nected with  the  actual  opei'atives,  are  in  the 
same  predicament  as  laborers.  There  is 
scarcely  a  perceptible  shade  of  difference  in 
meaning  between  slaves  attached  to  a  planta- 
tion, and  slaves  belonging  to  a  plantation. 

It  is  obvious  from  the  whole  tenor  of  this 
will,  that  the  testator  usetl  the  term  planta- 
tion in  a  sense  somewhat  strict,  as  a  place 
where  agricultural  operations  are  conducted. 
In  the  devise  to  Mrs.  Hunt,  he  speaks  of 
Pleasant  Meadow,  Springfield,  and  Snee 
Farm,  each  as  a  plantation,  and  contra-dis- 
tinguishes  them  from  his  Ferry  place  and  his 
tract  of  land  on  Wambau  creek:  and  in  the 
devise  to  Mrs.  Colburn,  he  speaks  of  Mildam 
and  Tibwin  as  plantations,  and  of  Flatfield 
as  a  tract  of  land.  To  the  latter,  he  alsa  de- 
vises a  house  and  lot  in  Charlotte-street  and 
'the  house  servants  and  furniture  used  in 
said  house.'  To  Mrs.  Hunt  he  gives  the  slaves 
appurtenant  'to  the  said  plantations  and 
ferry,'  and  to  Mrs.  Colburn,  he  gives  the  slav- 
es appurtenant  'to  the  said  house  and  planta- 
tions.' Under  this  bequest  to  the  latter,  16.5 
slaves,  answering  all  the  terms  or  description, 
pass  without  dispute,  and  it  is  claimed  that 
there  pass  12  more,  the  carpenters  and  boat 
hands,  who  belong  to  the  plantations  in  some 
loose  and  indeterminate  sense  only. 

Where  the  terms  of  a  gift,  describing  the 
subject,  refer  to  extrinsic  facts,  we  necessa- 
rily resort  to  parol  evidence  to  ascertain  what 
is  comprehended  within  the  terms  of  descrip- 
tion. In  the  present  case,  we  must  learn 
from  the  mouth  of  witnesses  what  slaves  are 
attached  and  belong  to  the  plantations.  But 
where  the  context  of  the  instrument  of  gift 
affords  no  contrary  indication,  we  must  al- 
ways understand  the  words  of  the  donor,  de- 
scriptive of  the  subject  of  gift,  in  their  .strict 
and  primary  sense,  if  a  subject  be  found  to 
which  the  words  so  interpreted  apply;  and 
evidence  of  extrinsic  facts,  such  as  the  inten- 
tion of  the  donor  as  an  independent  fact,  is 
inadmissible  to  apply  the  words  to  any  other 

*247 
sub*ject.  If  the  terms  of  description,  strictly 
interpreted,  apply  to  one  subject,  they  cannot 
be  made  to  apply  to  another  subject  in  a  sec- 
ondary or  deflected  import.  Wigram  on 
Wills,  17.  Thus  in  Oxenden  v.  Chichester,  3 
Taunt.  147,  4  Dow,  65,  under  a  devise  of  tes- 
tator's 'estate  of  A.shton,'  where  an  estate  sit- 
uated at  Ashton  was  found  by  the  evidence, 
other  lands  of  testator  not  situated  at  Ashton 
were  not  allowed  to  pass,  although  testator 
called  the  whole  by  the  name  of  his  'Ashton 


LAWTOX  V    HINT 


*24n 


estatp,'  and  his  stoward  kopt  the  accounts 
rchiting  to  the  same  uihUt  that  name,  and 
conclusive  evi(hMice  was  tendered  of  tlie  inten- 
tion of  testator  to  d«'vise  the  whcde  estate. 
Tlie  present  will  affords  an  illustration.  It 
has  lieen  already  decided  in  this  case,  that, 
under  the  heipiest  of  'flats  and  hoats,'  tiie 
sloop  of  testator  is  not  t,'ivi>n  to  Mrs.  Colhurn. 
It  may  i)e  remarked,  that  the  consistency  of 
the  construction  of  this  will  could  he  hardly 
vindicated,  by  which  the  sloop  did  not  pass, 
and  the  hands,  the  instruments  of  navi;ratinf^ 
it,  did  pass:  hoth,  if  one,  lieint;  api)urtenant 
to  the  plantation  of  Tihwin. 

Against  the  conclusion  to  which  this  rea- 
soning' tends,  the  master  relies  ui)on  the 
fact,  that  the  carpenters  and  boatmen  had 
their  patches  and  cal)ins  at  Tibwiii.  l'>ut 
this  fact  has  little  wei.trht,  when  we  remember 
that  Tibwin  was  thi'  original  place  of  testa- 
tor, and  when  we  consider  the  intermixture 
of  the  families  of  slaves  of  neijihborinj;  plan- 
tations. If  a  negro  who  has  a  wife,  and  a 
cabin,  and  a  patch  on  a  [dantation,  is  to  be 
regarded  as  belonging  to  it,  many  slaves 
would  be  within  the  description  who  are  own- 
ed by  others  than  the  proprietor  of  the  plan- 
tation. 

The  Chancellor,  who  adopted,  with  much 
hesitation,  the  conclusion  of  the  master,  was 
impressed  by  the  consideration  that  the  tes- 
tator thoughtfully  provided  for  the  comfort 
of  three  old  negroes,  and  yet  left  the  disposi- 
tion of  his  valuable  tradesmen  to  doubtful 
interi)retation  of  his  Avill.  The  absence  of 
specific  disposition  concerning  these  particu- 
lar negroes  has  little  influence,  for  it  is  the 
scheme  of  the  will  to  dispose  of  testator's 
slaves  by  general  terms  of  description,  witli- 
out  iMuimeration  ;  and  theiv  is  no  ground  for 
preference   of   the  special    bequests   to   Mrs. 

*248 

Hunt  and  Mrs.  Colburn,  *over  the  residuary 
clause,  in  which  the  testator,  by  careful  pro- 
vision as  to  tru.sts  and  limitations,  manifests 
his  purpose  of  leaving  a  valuable  residue. 

It  is  argued  that  the  declaration  in  the 
will,  that  old  Nat  and  old  Patty  'are  and  re- 
side' at  Til)win  plantation,  is  as  true  of  all 
the  other  slaves  in  controversy  as  of  Nat,  and 
demonstrates  that  they  are  'attached  and  be- 
longing" to  that  plantation.  If  this  declara- 
tion be  made  conceriung  >.'at,  which  is  ambig- 
uous, .still  mere  residence  at  a  plantation  does 
!iot  make  a  slave  appurtenant  to  it.  Hesides, 
the  express  disposition  of  Nat  by  this  clause 
of  the  will,  leads  to  the  conclusion,  that  the 
testator  had  not  intended  to  describe  him  by 
the  general  words  of  the  previous  becpiest  to 
Mrs.  Colburn:  and  the  .same  application  of 
the  general  words  unist  be  made  to  all  who 
are  in  the  same  catt'gory.  It  seemed  to  be 
conceded  at  the  bar  that  Nat  was  bequeathed 
to  Mrs.  Colburn  by  tlu'  latter  clause;  and  we 
are  content  to  allow  this  construction. 

The  evidence  that  the  slaves  in  question 


were  included  in  the  inventory  of  projierty  at 
Tibwin — a  subse<iuent  arrangement  for  con- 
venience— if  admissible,  has  no  influence  on 
the  con.struction  of  the  will:  and.  I  think,  was 
inadmissible. 

In  our  ojiinion,  the  carpenters  and  i>oat 
hands  are  bequeathed  by  the  n-siduary  clause 
of  the  will. 

The  next  matter  of  apjieal  relates  to  what 
are  called  the  Thonq)son  iu'gnH>s;  and  involv- 
es the  question  wliether  the  debt  for  which 
the  estate  is  liable  on  account  of  the.se  ne- 
I  groes,  as  between  the  two  principal  legatees, 
constitutes  a  charge  upon  the  estate  general- 
ly, or  a  specific  llt-n  upon  the  negroes  them- 
selves. 

The  slaves  denominated  the  Thomp.><on  ne- 
groes were,  at  the  time  when  they  were  re- 
spectively purchased,  1!»  in  numlter,  namely, 
Zachariiis,  Ca-sar,  Hella,  I'aul,  I'anny,  Aug- 
ust, .Inly  Abraham.  Sarah,  Liddy,  Wanetta 
or  Henrietta,  Joe,  Tolly,  Liddy,  Nanny,  Caro- 
line, Amy,  Die  and  (.'baidin. 

Of  these  slaves,  li.  1'.  Colburn.  husband  <jf 
Ann  Ashby  Colburn,  purcha.sed  Zacharias 
from  I'oyas,  executor  of  Hall,  on  .lanuary  10, 
1845,  for  $010,  and  paying  a  portion  of  the 

*249 

purchase  *money  in  cash,  for  the  balance 
gave  the  bond  of  hiuL-^elf  and  testator  of 
same  date  for  .$406.  with  interest  from  date, 
payable  in  three  e<iual  annual  instalments, 
the  last  being  on  January  10,  l.s4.S:  and  on 
same  day  gave  a  mortgage  of  the  slave  to 
secure  the  bond.  The  interest  on  this  debt 
was  paid  by  Colburn  to  June  10.  ls4s. 

On  February  i;j.  l,s-l;j.  B.  P.  Colburn  pur- 
chased from  S.  M.  I'ringle,  for  .5r>.:!N0,  Ca'sar, 
and  the  nine  following  in  the  order  of  names 
al)Ove,  and  paying  a  part  of  the  purdiase 
money  in  ca.sh ;  for  the  balance  gave  the 
bond  of  himself  and  tesrattu-  for  .'<."..'.t00.  with 
interest  from  date,  payable  in  three  etiual 
annual  instalments,  the  la.st  being  due  on 
Feiirnary  l.'l,  1.S4S ;  and  on  .same  day  gave  a 
mortgage  of  these  slaves,  (and  of  another 
named  P'rank.)  to  secure  the  lutnd.  Interest 
has  been  paid  to  June  8,  1S4S. 

On  February  10,  1840,  the  testator  i»ur- 
chased  from  E.  (J.  Huger,  for  .i;i.',."»00,  Joe 
and  the  seven  following  in  the  order  of 
names  above,  and  on  same  day  gave  the  bond 
of  himsi'lf  and  B.  P.  Colburn  for  .$1,000.07, 
with  intere.st  from  date,  payable  in  two  in- 
stalments on  February  10,  1847,  and  Febru- 
ary 10,  1848;  and  on  the  same  day  gave  a 
mortgage  of  the  slaves  to  secure  the  bond. 
Interest  has  been  paid  to  February  10,  1S4S. 

These  three  mortgages  were  duly  recorded. 

An  indenture  was  executed  by  tiie  testa- 
tor and  H.  P.  Colburn.  August  lil,  1S47,  by 
which  Colburn  in  consideration  of  his  indebt- 
edness to  testator  in  the  sum  of  $7. 7!).")  on 
jiromissory  notes  drawn  by  Colburn  and  in- 
dorsed by  rest;it(tr,  conveyed  to  testator  the 
Thompson  land,   (which,  it  seems,   by  state- 

101 


*249 


4  RICHARDSON'S  EQUITY  REPORTS 


ments  at  the  bar,  Colburn  had  purchased  for  i 
$600  in  cash,)  and  the  nineteen  negroes  above  | 
named,  with  four  others.  Maria  and  Thom- 
son, children  of  Liddy  (Pringle,)  and  a  child 
of  Amy  and  a  child  of  Nanny,  to  testator, 
in  trust,  for  tlie  separate  use  of  Ann  Colburn 
for  life,  not  liable  to  the  debts  of  her  existing 
husband ;  and  if  she  should  survive,  without 
issue  of  the  marriage,  to  her  in  fee ;  and 
upon  her  death,  leaving  her  husltand,  B.  P. 
Colburn,  and  issue  of  their  bodies,   for  the 

*250 
joint  *and  equal  use  of  such  husband  and 
issue,  without  liability  for  husband's  debts, 
for  the  life  of  B.  P.  Colburn,  and  on  his 
death  to  the  issue;  and  if  B.  P.  Colburn 
should  survive  his  wife,  without  issue  of  the 
marriage,  then  the  whole  to  him  for  life, 
with  power  of  appointment  by  will  as  to  one- 
half,  the  other  half  descending  to  the  next  of 
kin  of  his  wife.  The  notes  referred  to  in 
the  consideration  of  said  deed  were  drawn 
and  indorsed  from  October  3  to  December  IS, 
1846,  and  were  payable  from  January  2  to 
March  IS,  1S47. 

The  will  of  the  testator  bearing  date  Jan- 
uary 21,  1848,  contains  the  following  clause: 
'•And  whereas,  in  and  by  a  deed  bearing  date 
the  twenty-first  day  of  August,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and 
fortj^-seven,  made  by  and  between  myself 
and  B.  P.  Colburn,  the  said  B.  P.  Colburn,  in 
consideration  of  the  debt  stated  in  said  deed, 
and  my  i-elease  of  the  same,  conveyed  to  me 
a  plantation  and  twenty-three  slaves,  therein 
described,  for  the  trusts  and  purposes  set 
forth  in  said  deed ;  and  whereas  the  said 
plantation  and  negroes  were  purchased  and 
paid  for  by  me,  now  I  do  direct,  as  a  condition 
precedent  to  the  beyuests  and  devises,  by 
me  herein  made  to  my  daughtei",  Ann  A. 
Colburn,  and  my  grand-daughter,  ilary  A.  M. 
Colburn,  that  the  said  plantation  and  ne- 
groes mentioned  in  said  deed,  so  far  as  shall 
lie  in  the  power  of  the  parties  interested 
therein,  shall  be  held,  not  to  the  uses,  trusts, 
and  limitations  declared  in  the  said  deed, 
but  to  the  trusts  and  purposes  declared  in 
this  my  will  of  and  concerning  the  property 
devised  and  bequeathed  to  my  said  daughter, 
Ann,  and  her  child ;  and  on  failure  of  the 
parties  interested  complying  with  my  will  iu 
this  particular,  I  revoke  and  annul  all  of  the 
devises  and  bequests  herein  made  to  them ; 
and  I  devise  and  bequeath  the  property 
above  devised  and  bequeathed  to  them,  to  my 
daughter,  Susan  B.  Hunt,  and  her  children, 
subject  to  the  same  trusts,  and  for  the  same 
estates,  as  the  property  herein  devised  and 
bequeathed  to  them  is  subject  to." 

It  has  been  already  decided  by  the  Court 
of  Appeals,  that,  in  this  clause,  the  testator 

*251 
did  undertake  to  devise  the  Thompson  *land 
and  negroes,  so  as  to  subject  the  parties  in- 
terested therein  to  an  election  to  take  under 
the  will  or  the  deed,  and  so  as  to  subject 
102 


this  property  to  rateaiile  liability  for  the 
debts  and  pecuniary  legacies  of  the  testator. 
Mr.  and  Mrs.  Colburn  have  elected  to  take 
under  the  will,  and  their  infant  daughter  un- 
der the  direction  of  this  Court  has  made 
the  same  election. 

The  argument  for  the  appellants  proceeds 
on  the  assumptions,  that  the  testator  de- 
clared in  his  will,  which  must  be  assumed  to 
be  true,  that  he  had  purchased  and  paid  for 
the  Thompson  land  and  negroes ;  that  iu  this 
statement  as  to  payment  he  referred  to  his 
indorsement  of  the  notes  of  B.  P.  Colburn, 
which,  as  to  liability  upon  the  maker,  he  had 
released  by  the  deed  of  August  21,  1847 ; 
that  these  notes  were  drawn  and  indorsed  to 
raise  money  for  the  discharge  of  the  bonds 
given  for  the  negroes,  and  that  by  subroga- 
tion of  the  representative  of  the  testator  to 
the  liens  of  the  mortgagees,  or  some  general 
e(iuity,  the  negroes  should  be  subjected  to 
liability  for  the  unpaid  purcha.se  money  con- 
tracted to  be  given  for  them. 

The  foregoing  statement  of  facts  shows 
that  there  is  no  basis  for  this  argument. 
When  the  testator  declared  that  he  had  pur- 
chased and  paid  for  this  proiierty,  he  mani- 
festly meant  that  he  had  been  obliged  to  pay 
•17,795,  the  sum  of  the  notes  indorsed  by  him 
lor  his  son-in-law  ;  not  that  he  had  paid  the 
original  purchase  money  of  the  slaves.  There 
is  no  evidence  whatever  that  these  notes 
were  drawn  and  indorsed  to  raise  money  for 
the  payment  of  the  bonds  given  for  the  orig- 
inal purchase  of  these  negroes,  in  one  of 
which  testator  was  the  principal,  and  in  the 
other  two  surety  ;  and  all  the  probabilities 
of  the  case  are  on  the  other  side.  The  notes 
are  ten  in  number,  for  the  sum  of  $7,795,  all 
payable  in  the  early  part  of  1847 ;  the  bonds 
are  three  in  number,  for  the  aggregate  sum 
of  .$5,912.67,  the  last  instalments  of  which 
were  payable  in  the  early  part  of  1S4S. 
There  is  no  conformity  in  date,  sum  or  ma- 
turity. The  fact  that  the  interest  on  these 
bonds  was  punctually  paid,  is  ti'^ated  as  evi- 
dence of  fraudulent  concealment  from  the 
testator  that  the  bonds  were  outstanding  and 

*252 
un*paid ;  but  we  do  not  perceive  how  com- 
pliance with  legal  obligation  is  evidence  of 
fraud,  nor  how  the  testator  could  have  been 
deceived  into  the  belief  that  his  own  bonds, 
in  one  of  which  he  was  principal  debtor, 
were  paid  before  maturity  by  an  insolvent 
son-in-law.  He  had  constructive  notice  of 
the  existence  of  the  mortgages  from  their  be- 
ing recorded,  iu  all  probability  actual  notice ; 
and  there  is  not  a  tittle  of  evidence  of  any 
misrepresentation  to  him.  Sufficient  reasons, 
which  are  set  forth  in  the  appeal  decree,  ex- 
isted for  his  change  by  will  of  the  trusts  set 
forth  in  the  deed  of  August  21,  1847,  which 
were  doubtless  satisfactory  to  him  at  the 
date  of  the  deed,  as  they  were  in  exact  con- 
formity to  the  marriage  settlement  between 
Colburn  and  his  daughter  in  1834. 


TELFAIR  V.  HOWE 


*254 


It  appPi'^i's  to  us  tlijit  this  liiiiiKli  of  tin: 
f'ase  is  goviMru-d  by  tho  autliority  of  Fniu<is 
V.  Lelirc,  1  I{i<li.  Kq.  L'71.  with  wliicli  \vi'  aiv 
satisfied.  Tlu-re  Aim  Lehre  piiroliasiHl  a 
lilaiitation,  and  for  the  iiayiueiit  of  the  pur- 
chase money  pive  lier  iioiul  secured  hy  a 
luortjrajje  on  tiie  phmtalion:  slie  afterwards 
made  a  voluntary  j;ift  of  tite  plantation  In 
trust  for  Mrs.  UaUer,  and  then  died  leaving,' 
the  hond  unpaid.  It  was  lield,  that  her  es- 
tate was  hound  to  i)ay  the  liond  and  relea.se 
the  land  from  the  lien  of  the  mort;,'a;.'e.  The 
Court,  referrinix  to  \'illers  v.  Heaumont,  1 
\  ern.  l(t(t,  scouts  the  proposition  that  one 
may  iiur<hase  property,  then  make  a  gift  of 
it.  and  afterwards  revoke  the  ]i;ift  hy  com- 
pellini:  the  donee  to  jiay  the  donor's  debt. 
Sulistantially  the  testator  was  the  settlor  in 
the  deed  of  Au^'ust.  1N47,  as  he  paid  the  t-on- 
.sideration  and  directed  the  tru.st. 

We  are  of  oiiinioii  that  the  present  appeal 
is  a  naked  attempt  to  make  a  leiracy  to  a 
wife  and  daui-'liter  liaide  for  (he  delit  of  the 
husband  and  father,  who  takes  no  interest 
under  the  will  :  and  we  conclude  that  the 
^'eneral  estate  of  the  testator  must  pay  the 
testator's  debts 

The  ne.xt  subject  of  appeal  is  in  reference 
to  the  e.xecutor's  accounts.  All  the  objections 
to  the  report  of  the  master  in  this  matter 
were  abandoned  at  the  liearinji  here,  e.xcept 
in  relation  to  the  account  of  Messrs.  Yeadon 

*253 
&  ]Macbeth,  the  counsel  of  the  *executor ;  in- 
deed these  matters  were  adjud>;ed  by  the 
former  appeal  decree.  In  relation  to  this  ac- 
count of  the  counsel,  the  t'hancellor  directed 
an  issue  at  law;  and  the  executor  appeals 
from  this  order.  The  counsel  fee  in  this 
case  was  paid  by  the  executor  after  the  date 
at  whi<-h  he  wa.s  directed  by  the  order  of 
this  Court  to  pay  over  the  funds  in  his  hand.s 
to  the  master.  We  are  not  disposed  to  in- 
terfere with  the  order  of  a  Chancellor  in  a 
matter  of  discretion.  To  guard  against  mis- 
apprehension, it  is  proper  to  say  that  we  do 
not  recognize,  as  a  rule  of  lu-ocedure,  that  a 
Chancellor  must  direct  an  i.ssue  at  law  in 
case  of  dispute  between  client  and  counsel  as 
to  the  amount  of  conu)ensation.  The  orgaiu- 
zation  of  this  Court  affords  the  means  of 
trying  and  determining  such  a  cpiestion  sat- 
isfactorily. Much  less  are  we  inclined  to 
aliandon  to  the  other  Court  the  determlna- 
tbtn  of  the  question  a.s  to  what  party  shall 
lie  liable  for  fees  that  are  rea.sonalile.  The 
ade(iuacy  of  the  compensation  is  di.stinct 
from  the  liability  of  the  party  to  pay  for  the 
services.  It  may  Iw  that  large  compensation 
is  due  to  counsel  for  services  to  a  triistee; 
but  that  the  trustee  is  litigating  for  his  own 
lieneht  and  should  himself  sustain  the  ex- 
pense. We  are  content  as  to  the  Chancel- 
lor's order  in  this  particular,  as  a  matter  of 
discretion,  so  far  as  the  quantum  meruit  is 
concerned  ;    but  we   reserve  the  right  of  de- 


ternnninu'  who  shall  pay  the  reasdnable  fee. 

The  appeal  brings  further  into  question  the 
extent  of  land,  i)assing  as  residue,  and  order- 
ed, as  it  is  said,  to  l»e  sold  for  partition, 
inchuling,  it  is  said,  some  land  exclusively 
claimed  by  .Mrs.  Hunt.  No  order  for  sale  of 
such  residue  has  been  produced  to  us,  and 
we  conclude  nothing  as  t«»  tlie  title  of  the 
parties.  If  there  he  an  order  for  sale,  the 
master  should  not  sell  disputed  premises,  but 
he  should  inquire  into  the  facts  and  report 
to  the  Ctairt.     This  matter  is  reservinl. 

It  is  adjudged  ami  de<-lared.  that  thi-  car- 
penters and  boat  hands,  except  Nat,  are  not 
beiiueathed  to  Mrs.  Ccdhurn,  but  pass  under 
the  residuary  clause  of  testator's  will;    and 

♦254 
that  Nat  is  specifically  *bequeathed  to  Mrs. 
Colburn:    and  it  is  ordered  and  decreed  that 
the  account  be  taken  by  tlu*  master  aciord- 
iugly. 

It  is  further  ordered  and  (Unreed.  that  the 
issue  at  law  directed  by  the  Chancellor,  as  to 
the  at'count  of  Yeadon  &  McBeth,  be  confined 
to  the  reasonableness  of  the  conqiensat  ion 
claimed  for  the  .servic»'s  rendered  by  the 
counsel. 

It  is  further  ordered  and  decreed,  that  in 
all  other  respects  the  circuit  decree  be  af- 
tirnu'd  and  the  appeal  be  dismissed. 

JOHNSTON,  DUNKIN  and  1>.\K(;.\N,  CC, 
concurred. 

Decree   modified. 


4    Rich.  Eq.   254 

ISAAC  TKI-FAIU.   Kxnr..   v.   lloWK  ot  al. 

(Charleston.     Jan.  Term,  lS."»i;.) 

[WiJlK  <S=>7:54.] 

Testatrix  by  the  lltii  clause  of  her  will  be- 
queatliod  to  A.  C.  "one  thuusaiul  dollars  to  1)0 
placed  at  inten'st  by  my  executors  for  her 
use.  and  given  to  her  on  her  marriage;  at  her 
death  to  be  given  to  her  niotln  i:"  after  several 
peeiniiar.v  i)eiiuests  she  t-oncluded  tiie  ll'tli  clansc 
of  her  will  as  follows:  "All  tlie  above  lei^aeies 
must  be  paid  out  of  the  interest  oli  my  estate, 
or  bonds,  in  suceessiou  as  herein  stated  above." 
A.  C.  having;  married,  lutd,  that  she  was  entitled 
to  interest  on  lier  legacy  from  one  year  after 
the  death  of  testatrix. 

[Kd.  Note. — For  other  eases,  sec  Wills,  C<'ut. 
Dig.  §   1S.")1;    Dee.  Dig.  <©=j7o4.1 

Before  Caldwell,  Cli..  at  Charleston,  June, 
1S4!>. 

Caldwell,  Ch.  Mrs.  Ann  Timothy  made  her 
will  on  the  .'Id  of  June  lS.'i7,  and  among  other 
things,  biMjueatlu'd  by  the  'Jth  clause  as  fol- 
lows: "I  do  leave  and  bequeath  to  Ann  Tinj- 
othy  Cleland,  daughter  (d"  my  friend  Maria 
S.  Cleland,  one  thou.saiid  dollars,  to  be 
placed  at  interest  by  my  executors  for  her 
use,  and  given  to  her  on  her  nmrriage;  at 
her  death  to  be  given  to  her  mother,  the 
said  Maria  S.  Cleland."  After  beciueathing 
several    other    pecuiuarj'    legacies,    she    cou- 


^=7Kor  other  cases  see  same  topic  and  KEY-NL'MUli'K  ia  all  Key-Numbered  Oigesis  aud  Indexes 


103 


*2o4 


4  RICHARDSON'S  EQUITY  REPORTS 


c-liules  the  12th  clause  of  hei*  will  as  follows: 
"All  the  above  legacies  must  be  paid  out  of 
the  interest  of  my  estate,  or  bonds,  in  succes- 
sion, as  herein  stated  aboA'e."  Ann  Timothj' 
Cleland   has   intermarried   with    Captain   M. 

=1=255 
*S.  Howe,  of  the  United  States  Army,  and 
the  executors  have  paid  off  all  the  legacies 
that  preceded  hers,  and  have  tendered  the 
sum  of  one  thousand  dollars  to  her  and  her 
husband,  «hich  they  refused  to  receive,  un- 
less the  executor  would  pay  them  the  in- 
terest thereon,  from  one  year  after  the  tes- 
tatrix's death ;  and  the  question  is,  are  they 
entitled  to  the  interest? 

Interest  is  allowed  on  ^legacies,  either  from 
the  words  used  in  the  will,  from  the  relation 
of  the  legatee  and  testator,  or  from  the  ne- 
cessity of  the  legatee.  This  case  cannot  come 
within  the  two  last  classes,  and  must  there- 
fore turn  iipou  the  construction  of  the  will. 

When  no  time  is  specified  for  the  payment 
of  the  legacy,  the  general  rule  is  that  it  shall 
bear  interest  after  one  year  from  the  tes- 
tator's death ;  this  probably  arose  from  the 
practice  of  the  Ecclesiastical  Courts  in  Eng- 
land. 

Within  that  time,  it  may  be  presumed  the 
pe-i'sonal  estate  has  been  reduced  into  posses- 
sion by  the  executor.  Our  Act  (1789,  P.  L., 
494)  protects  administrators  and  executors 
from  suit,  for  the  nine  mouths  succeeding 
the  death  of  the  intestate  or  testator,  and 
allows  his  legal  representative  twelve  months 
to  ascertain  the  debts  due  to  and  from  the 
deceased.  The  phraseology  used  in  the  will 
is  peculiar:  '"one  thousand  dollars,  to  be 
placed  at  interest  by  my  executors  for  her 
use,  and  given  to  her  on  her  marriage."  If 
the  testatrix  had  stopped  here,  it  would  not 
admit  of  doubt  that  she  intended  the  legatee 
should  enjoy  the  use  of  the  sum  bequeathed 
to  her,  either  before  or  at  her  marriage.  If 
the  corpus  of  the  legacy  was  Intended  to  be 
given  to  the  legatee  at  her  marriage,  and  no 
interest  to  be  allowed  on  it,  why  should  she 
have  made  it  the  duty  of  her  executor  to 
place  the  one  thousand  dollars  at  interest  for 
her  u.se?  But  it  has  been  argued,  that  the 
concluding  sentence  of  the  12th  clause  of  the 
will  shows  that  interest  was  not  intended  to 
be  given,  and  that  the  legatee  cannot  claim  it 
under  the  general  rule,  as  the  preceding  leg- 
acies were  to  be  paid  in  succession  before  it, 

*256 
and  the  interest  of  the  estate  and  *the  bonds 
were  insufficient  at  that  time  to  permit  the 
means  of  placing  the  one  thousand  dollars  at 
interest. 

The  impracticability  of  paying  the  debts, 
or  of  collecting  the  funds  of  the  estate,  can- 
not change  the  rule.  In  Greening  v.  Barker, 
relied  on  by  Lord  Redesdale,  in  Pearson  v. 
Pearson,  1  Sch.  and  Lef.  12,  the  fund  did 
not  conie  to  be  disposable  for  the  payment  of 
legacies,  till  near  forty  years  after  the  death 

104 


of  the  testator,  and  yet  they  were  h(^ld  to 
bear  Interest  from  the  year  after  h:s  death, 
and  the  Chancellor  says:  "The  Court  there 
was  of  opinion  that  it  was  a  general  set- 
tled and  fixed  rule,  that  pecuniary  legacies 
bear  interest  from  the  expiraticm  of  twelve 
months,  if  there  should  at  any  time  be  a  fund 
for  the  payment  of  them." 

In  Gillon  v.  Turnbull.  1  McC.  Eq.  152,  the 
words  of  the  will  \Nere  as  follows:  "to  be 
paid  out  of  the  income  of  my  estate,  as  soon 
as  convenient,  after  the  expiration  of  one 
year  from  the  time  of  my  decease,"  and  the 
executor  resisted  the  demand  of  interest  on 
the  legacy,  on  the  ground  that  the  income  of 
the  estate  had  not  been  adequate  to  pay  the 
annuities  and  legacies,  and  that  it  would 
have  been  necessary  to  have  sold  a  part  of 
the  principal  of  the  estate  to  raise  the  mon- 
ey, which  was  contrary  to  the  testator's  in- 
tention ;  the  Court,  however,  not  only  recog- 
nized the  will,  but  held,  that  if  the  different 
and  apparently  contradictory  expressit)ns  of 
the  will  left  the  intention  of  the  testator 
doubtful,  the  rule  would  apply. 

The  testatrix  having  separated  a  specific 
sum  from  her  general  estate,  raises  a  pre- 
sumption that  it  was  to  be  an  accumulating 
fund  for  the  use  of  the  legatee,  and  that  in- 
terest should  accrue  before  the  eveiit  upon 
which  it  was  to  be  given  to  her,  and  the 
mere  designation  of  the  sources  from  which 
it  was  to  be  derived,  ought  not  to  abridge 
her  rights  or  change  the  rule. 

I  am  therefore  of  opinion,  that  the  legatee 
and  her  husband  are  entitled  to  interest  ou 
her  legacy  of  one  thousand  dollars,  from 
one  year  after  the  death  of  testatrix. 

The  next  question  is,  as  to  the  bequest  to 
the   American   Bible    Society    of   JSew    York, 

*257 

and  to  the  Missionary  Society  of  New  *York, 
under  the  25th  clause  of  the  will.  The  ex- 
ecutor had  not  found  any  Society  that  an- 
swers the  description  of  the  Missionary  So- 
ciety of  New  York,  and  therefore  submits  the 
que.stion,  whether  the  legacy  be  not  lapsed 
and  the  distributees  of  the  testatrix  entitled 
to  it.  I  think  this  (juestion  at  present  is 
prematurely  presented ;  the  mere  enciuiry  ou 
the  part  of  the  executor,  however  diligent, 
is  not  of  itself  sufficient  to  deprive  a  legatee 
of  the  legacy — it  may  be  a  good  ground  on 
his  not  being  able  to  find  him  to  stop  the 
interest,  but  before  the  legacy  is  declared 
lapsed,  or  it  is  deemed  there  is  no  such  lega- 
tee, the  facts  must  be  judicially  ascertained; 
this  can  only  be  done  by  evidence,  after  the 
motion   required  by   law. 

It  is  therefore  ordered  and  decreed,  that 
Capt.  M.  S.  Howe  and  Ann  T.,  his  wife,  are 
entitled  to  the  interest  on  the  legacy  of  one 
thousand  dollars,  bequeathed  to  her  by  the 
testatrix,  from  one  year  after  lier  death ;  and 
that  it  be  referred  to  the  master  to  ascertain 
and  report,  after  publication  of  notice  there- 


TELFAIR  V.  HOWE 


'•zm 


of,  In  some  of  tlu>  New  York  imiiors,  whether 
there  be  any  Society  aiisweriiij;  the  deserip- 
tioii  of  "The  Missionary  Society  of  New 
York  ;"  and  that  lie  iiave  h-ave  to  report  any 
special  matter. 

From  so  nuu  h  of  ('haiuellnr  ('jildweHs  de- 
cree as  allowed  inteicst  on  .Mrs.  lldwe's  leg- 
acy, the  executor  ajipeaU'd. 

Memndnger.  for  Mi.  and  .Mrs.  Howe. 
I'orter,  contra. 

At  June  Term.  ls.">o,  the  master  having  re- 
ported that  there  was  no  sue  h  Society  in  ex- 
istence as  the  .Missionary  Society  of  New 
York,  his  Honor  ("hanceilor  Dunkin  tiecreed 
that  the  American  Bible  Society  of  New  York 
Nvas  entitled  to  only  one-half  of  the  becpiest 
iimh'r  the  iMtli  clause  of  .Mis.  Timothy's  will. 
From  this  decree  an  appeal  was  also  taken. 

At  January  Term,  ISol.  the  cause  was 
heard  on  both  app-.'als.  The  appeal  from 
Chancellor  Dunkin's  decree  was  dismissed, 
(see  ."!   Ivich.   Im].   L'.'Jil.)   and   tl'.c   appeal   from 

*258 
Chancellor  Caldwell's  *(lecree  was  suspende<l, 
as  apiiears  by  the  following  opinion  deliver- 
ed by 

DAR(;AN,  Ch.  The  first  appeal  that  will 
lie  considered,  is  that  taken  from  the  decree 
of  Chancellor  Caldwell.  June  Term,  1.S40. 
The  question  made  arises  under  the  follow- 
ing circum.stances:  .\nn  Timothy,  by  her  will, 
dated  June  .!,  1S.'!7,  in  the  ilth  clause,  be- 
queaths as  follows:  "I  do  leave  and  beiiueath 
to  ,\nn  Timothy  Cleland,  daughter  of  my 
friend,  Maria  S.  Clel;ind,  one  thousand  dol- 
lars, to  be  placed  at  interest  by  my  exe<-utors 
for  her  use,  and  given  to  her  on  her  mar- 
riage; at  her  death  to  be  given  to  her  moth- 
er, the  said  Maria  S.  Cleland."  .\fter  giving 
eight  pecuniary  legacies,  amounting  in  the 
aggregate  to  .'FD.OOO,  she  concludes  the  12th 
clause  as  follows:  "All  the  above  legacies 
mu.st  be  paid  out  of  the  inter«>st  of  my  estate, 
or  bonds,  in  succession,  as  lier«Mn  stated 
above." 

The  condition  on  which  .Vnn  Timothy  Cle- 
land was  to  receive  her  legacy  has  happened. 
She  has  intermarried  witli  Caitt.  M.  S.  IIi»we, 
who  is  one  of  the  defendants.  The  executors 
have  tendered  to  Cai>t.  and  Mrs.  Howe  the 
legacy  of  one  thousand  dollars,  but  without 
interest ;  and  the  (piestion  of  interest  is  the 
matter  in  controversy  between  these  parties. 

It  is  contended,  on  the  part  of  the  execu- 
tors, that  by  a  proper  con.struction  of  Ann 
Timothy's  will,  the  eight  lirst  pecuniary  leg- 
acies were  intended  to  be  paid  only  "out  o! 
the  interest  of  the  estate  or  bonds"  of  the 
testatrix;  that  they  were  to  be  paid  in  the 
order  of  succ(>ssion  in  which  they  were  given 
in  the  diflerent  clauses  of  the  will  ;  and  that 
therefore  each  of  said  legacies  was  only  due 
and  payable,  after  the  expiration  of  sm-h 
time,  as  the  interest  realized  would  entitle 
it  to  be  paid  in  the  order  of  succession  pre- 


scribed in  the  will.    Their  argument,  in  oth- 
er words,  is,  that  this  is  not  an  interest  bear- 
ing demand  until  it  was  due,  and  that  it  was 
not  due,  or  demandable,  until  the  executors 
h.ul  come  into  the  po.ssession  of  assets,  aris- 
,  ing   fnun    interest,   to   Jtay    both    this    legacy 
■and    tho.se    given    in    the   preceding    clauses; 
I  which   last,  actordiiig  to  the  construction  of 
•259 
the   appellants,    are   enti'led    *to   piiority   of 
payment.     They   further  assert,  as  a   matter 
of   fact,  that   the   funds  which,  according  to 
their  construction   of  the  will,  the  testatrix 
has  provided  for  the  payment  of  this  legacy, 
I  have  only  be<'n  realized  at  a  particular  time; 
from  which  time  tluy  are  willing  to  account 
I  for  interest.     To  support  the  const  ru<-tion  con- 
j  tended   for  by   the  api»ellants,   it   would  also 
I  be  necessary  for  them  to  show  that  the  fatts 
1  on  which  it  rests  did  actually  exist.     Hut  on 
I  looking  into  the  brief,  for  the  purpo.se  of  ad- 
I  judging  the  (juestion  thus  made,  we  tind  there 
are  no  data  as  to  the  facts,  by  which  a  judg- 
ment could   possibly  be  formed.      It    was  a.s- 
sumetl  at  the  bar,  that  interest  enough  to  pay 
this  legacy  could  not  po.ssibly  have  been  made 
until   a   given   period,  and   certain   unolHcial 
statements  as  to  the  assets  and  interest  bear- 
ing demands  of  the  estate  and  of  its  debts, 
were  alluded  to,  and  portions  of  them  were* 
read. 

liut  these  were  admitted  to  be  mere  i»ri- 
vate  statements,  not  judicially  before  the 
Court.  ^Vhat  was  the  amount  and  value  of 
the  whole  e.state,  and  the  amount  of  the  re- 
siduary estate,  of  whal  it  tonsist.'d.  how 
much  the  executors  realized  annually  in  the 
way  of  interest  or  otherwise,  and  what 
amount  of  debts  and  liabilities  exi.-ted,  has 
not  been  lirought  to  the  view  of  the  Court. 
I'nder  these  cin-um.stances.  the  Court  is  not 
disposed,  at  the  present  time,  to  itroceed  to  a 
tinal  judgment.  Cpon  all  the  mattv'is  above 
nameil  information  isdesireil.  The  judgment 
of  this  Court  on  this  ai»peal  will  be  su>pend- 
etl  for  the  present.  .\nd  it  is  ordered,  that 
it  be  referred  to  the  master  to  emiuire  and 
report  as  to  all  the  facts  above  mentioned,  as 
matters  on  which  this  Court  desires  informa- 
tion ;  each  party  to  have  the  right  of  tiling 
exceiitions  to  the  master's  report,  and  bring- 
ing the  same  to  a  hearing  before  the  Circuit 
Court. 


.lollXSToX.    DLMvIN    and    WAUDl.AW, 
CC,  concurred. 


In  oliedieiire  to  the  direi'tions  ct>ntained  in 
the  aliove  opinion,  the  master  made  his  re- 
liort,  in  which  he  stated  that  .Mrs.  .Vim  Tim- 
othy   died    about    M;ii(  li    1,    1S41  ;     ttial     her 

-260 
whole  estate  con*sisled  of  bonds,  amoiriling 
in  tlu'  aggregate,  at  the  time  of  her  death,  to 
.1::.MI.<;:j;i.S."),   besides   interest   then    due  to   the 
amount  $l,S0l'.;)U;    that  her  debts  amounted 


Wo 


*260 


4  RICHARDSON'S  EQUITY  RErORTS 


to  $829.04;  that  five  pec-uiiiary  legacies, 
amounting  to  $7,000,  were  given  by  the  will 
before  the  legacy  of  $1,000  to  Miss  Cleland 
(Mrs.  Howe ;)  and  that  if  the  legacies  were 
payable  in  their  order  out  of  interest  realized 
by  the  executors,  Miss  Cleland's  legacy  was 
not  payable  until  March  1,  1847. 

At  this  Term,  (January  Term,  1852,)  the 
Court  of  Appeals  announced  its  final  judg- 
ment as  follows: 

PER  CURIAM.  The  Court  has  considered 
the  appeal  taken  from  the  decree  of  Chancel- 
lor Caldwell  in  this  case,  and  concurs  in  the 
said  decree ;  and  it  is  ordered  that  the  same 
be  aflSrmed,  and  the  appeal  dismissed. 

JOHNSTON,     DUNKIN,      DARGAN     and 
WARDLAW,  CC,  concurring. 
Appeal  dismissed. 


4   Rich.  Eq.  260 

JAMES   ROSE   and   H.  A.   DeSAUSSURE, 

Ex'ors.  of  Philip  Tidyman,  v.  ALFRED  R. 

DRAYTON  and  SUSAN  TIDYMAN. 

(Charleston.     Jan.  Term,  1852.) 

[Wills  <®=3l99.] 

A  codicil  annexed  to  a  will  is  a  republication 
thereof :— lands  purchased  after  the  date  of  the 
will  and  prior  to  the  execution  of  the  codicil, 
held  to  pass  under  the  residuary  clause  of  the 
will. 

[Ed.  Note. — Cited  in  Diayton  v.  Rose,  7  Rich. 
Eq.  333,  114  Am.  Dec.  731. 

i'or  other  cases,  see  Wills,  Cent.  Dig.  §  498; 
Dec.  Dig.  <©=>199.] 

[This  case  is  also  cited  in  Drayton  v.  Rose,  7 
Rich.  Eq.  332,  64  Am.  Dec.  731,  as  to  facts.] 

Before  Dunkin,  Ch.,  at  Charleston,  June, 
1851. 

Doctor  Philip  Tidyman,  of  Charleston,  died 
June  11,  1850,  leaving  of  force  his  last  will 
and  testament,  bearing  date  March  20,  1843. 
He  left  as  his  heir  at  law  his  daughter, 
Susan  Tidyman.  His  will  contained  sundry 
devises  and  bequests  and  the  following  resid- 
uary clause: 

"Item.  I  give  and  devise  all  the  rest  and 
residue  of  my  estate,  of  every  kind  and  na- 
ture whatsoever,  unto  my  nephew,  Alfred 
Drayton." 

*261 

*About  September  6,  1848.  Dr.  Tidyman 
purchased  a  farm  in  Greenville,  containing 
sixty-eight  acres;  and  about  March  7,  1850, 
entered  into  a  written  contract  to  sell  to  the 
Greenville  and  Columbia  Rail  Road  Company 
about  three  acres,  part  of  said  farm:  but, 
at  the  time  of  his  deatli,  the  purchase  money 
had  not  been  paid,  nor  had  title  been  ex- 
ecuted. 

On  March  12,  1850,  the  testator  made  and 
executed  a  codicil,  which  lie  annexed  to  his 
will,  in  the  following  words: 

"I  declare  the  following  to  be  a  codicil  to 
my  will: 


"AVliereas,  in  my  foregoing  will,  T  gave 
and  bequeathed  to  my  cousin,  James  Rose 
and  his  wife,  Mrs.  Julia  Rose,  or  the  sur- 
vivor of  them,  certain  house  servants  after 
the  death  of  my  daughter,  and  among  them, 
one  named  Judy ;  since  the  date  of  my  will 
the  said  Judy  has  had  a  child.  I  now,  there- 
fore, give  and  bequeath  the  present  and 
future  issue  and  increase  of  my  said  servant 
Judy  to  the  said  James  Rose  and  his  wife, 
Mrs.  Julia  Rose,  or  the  survivor  of  them, 
in  tlie  same  manner  as  I  have  heretofore 
given  .Judy  to  them." 

One  object  of  the  bill  was  to  ascertain 
whether  the  farm  in  Greenville  descended, 
as  intestate  property,  to  the  testator's  daugh- 
ter, or  whether  it  passed  under  the  residuary 
clause  of  the  will ;  and  for  instructions  as 
to  who  should  make  titles  to  the  Rail  Road 
Company  for  the  part  of  the  farm  agreed  to 
be  sold  them,  &c. 

Dunkin,  Ch.  The  pleadings  present  the 
facts  of  the  case  and  the  points  submitted  for 
the  adjudication  of  the  Court.  Whereupon 
it  is  declared  that  the  testator's  will  was 
re-published  by  the  codicil  annexed,  and  ex- 
ecuted on  the  twelfth  da.v  of  March,  one 
thousand  eight  hundred  and  fifty, ((M  and  that 
the  legal  estate  in  the  premises  contracted  to 
be  sold  to  the  Rail  Road  Company,  vested  In 
the  defendant,  Alfred  R.  Drayton,  and  that  he 
is  a  trustee,  as  to  the  premises  so  contracted 
to  be  sold,  for  the  purchaser,  and  bound  to 
execute  a  conveyance  when  required  by  the 

*262 
*purchaser.  And  that  the  executors  are  en- 
titled to  receive  the  purchase  monej',  and 
are  bound  to  account  for  the  same  to  the 
said  Alfred  R.  Drayton  as  part  of  the  rest 
and  residue  of  the  testator's  personal  estate 
bequeatned  to  him. 

The  complainants  appealed  on  the  ground: 
— that  the  testator's  will  was  not  re-published 
by  the  codicil  annexed  to  it;  that  the  legal 
estate  in  the  premises  contracted  to  be  sold 
to  the  Rail  Road  Company,  did  not  vest  in  the 
defendant,  Alfred  R.  Drayton ;  that  the  tes- 
tator died  intestate  as  to  the  farm  in  Green- 
ville, and  that  the  same  vested  in  his  daugh- 
ter and  heir  at  law,  Susan  Tidyman. 

DeSanssure,  for  appellants. 
Petigru,  T.  Y.  Simons,  jun.,  for  Alfred  R. 
Drayton. 

Memminger,  for  Susan  Tidyman. 

PER  CURIAM.  We  concur  in  the  decree 
of  the  Chancellor:  and  it  is  ordered,  that  it 
be  affirmed,  and  the  appeal  dismissed. 

JOHNSTON,     DUNKIN,     DARGAN      and 
WAliDL.xW,  CC,  concurring. 
Appeal  dismissed. 


(a)  1  Rolle  Abr.  p.  (517.  Z.  No.  8:    Richardson 
V.  Richardson,  Dud.  Eq.  184. 


106 


<g;:=>For  other  cases  see  same  topic  and  KKV-NUMBEii.  iu  all  Key-Numbered  Digests  and  Indexes 


LOWRY  V    0I5KYAX 


«2G4 


4    Rich.  Eq.  262 

MAKY  A.  1{.  LOWKY.  Adiiix.  of  Win.  Brown, 

Deceased,  v.  LEWIS  criillYAN  et  al. 

(Cbarleston.     Jan.  Term.  18."»2.) 

I  iri7/.y   C=r.4S.] 

]'fi|insr  to  te.stator's  four  sons  "to  tliem 
iiiid  tlitir  licirs  forever;  if  eitlier  of  my  sons 
.should  di<'  uitliout  issur.  his  part  sliall  he  equal- 
ly divided  hetwern  tiic  survivnrs:"  (I.  was  tiie 
last  surviviiij;  sou  and  lie  dii-d  without  issue— 
W..  another  son.  luivin;;  died  hefore  him.  leavinji 
issue:  //«•/(/.  tliat  G.'s  estate  was  a  vrstfd  ft'<', 
defeasihle  in  tlie  event  that  he  died  without  is- 
sue, leaving;  one  or  more  of  his  iirothers  sur- 
viving; him,  and.  therefore,  in  tlu'  evt-nts  wlui-ii 
liad  happeiied.  W.  had  no  intrnst.  under  tlie 
will,  in  (J.'s  share,  which  his  achninistratrix 
eould  claim. 

|Kd.  Note.— Cited  in  M.-ndinhail  v.  Mower, 
16   S.   C.   314:     MetJee  v.    Hall.   liC    S.   <'.    IS."!, 

I  S.  E.  711:    Gordon  v.  (iordon,  '.VJ.  S.  V.  "jNU, 

II  S.  E.  .•'.;54. 

For  other  cases,  see  Wills.  Cent.  I  >i;r.  §  1183; 
Dec.  Dijr.  <£=3548.] 

ITliis  case  is  also  cited  in  CJ(udon  v.  Gordon. 
3li  S.  C.  581,  11  S.  E.  .■W4,  without  specific 
application.] 

Before  Dunkiu,  Cli..  ut  Ccdlctoii,  February. 
1851. 

Duiikiii,  Ch.  Robert  lirown.  the  father 
t)f  cuiuplainiint's  intestate,  died  in  1805.  His 
will    has    the    followiii.::    residuary    clause, 

*263 
♦viz;  "Item — I  jiive  and  bcHiueath  unto  luy 
loving  sons,  William  Brown.  Georj^e  Brown. 
Robert  Brown,  and  Charles  Brown,  all  the 
remainder  part  of  my  estate,  to  be  equally 
divided  between  them,  share  and  share  alike, 
to  them  and  their  heirs  forever ;  and  I 
also  will  and  desire  that,  if  either  of  my 
sons  should  die  without  issue,  his  part  shall 
be  equally  divided  between  tiie  survivors." 
The  estate  was  ecinally  divided  between  the 
four  sons.  In  1811.  (ieorjie  died  without 
issue,  and  his  share  was  e(|ually  divided  be- 
tween the  survivinj;  brothers.  So  in  18i;^. 
Robert  died  without  issue,  and  his  share  was 
equally  divided  between  the  survivinj,'  broth- 
ers, William  and  Charles.  In  1815,  William, 
the  former  husband  of  the  complainant,  died, 
leaving  two  cliildren.  who  also  died  in  in- 
fancy. Charles  Brown,  the  fourth  son  of 
the  testator,  survived  until  1848,  and  then 
died  without  issue,  having  betiueathed  his 
estate  to  the  children  of  the  <lefendant.  Lewis 
D'Bryan,  jun.,  whom  he  appointed  executor 
of  his  will.  As  the  adudnistratrix  of  Wm. 
Brown,  deceased,  the  conqdainant  can  have 
no  right  which  did  not  belong  to  her  intes- 
tate. His  interest  in  the  share  allotted  to 
his  brother  Charles,  depeiuled  on  two  contin- 
gencies, to  wit:  That  lie  should  die  without 
issue,  and  that  he,  William,  should  survive 
liim.  But  William  was  in  his  grave  more 
than  thirty  years  before  the  death  of  Charli's, 
and  conse(iueiitly  could  take  nothing  in  the 
character  of  survivor.  This  is  an  end  of 
conq)lainant's  claim.  But  as  the  testator, 
Robert    F.rown.   manifestly   intended   to   part 


with  his  wlude  estate;  and  as  Charles  was 
the  last  survivor,  so  that  uo  i»ne  could  vako 
on  the  happening  of  the  contingency,  the 
Court  is  of  opinion  that  his  inten'st.  under  his 
father's  will,  became  abstdute.  and  ndght  well 
pass  under  the  betpiest  to  the  defendants. 
It  is  ordered  ami  decreed  that  the  bill  be 
dismissed. 

The  conqdainant  ajipealed.  on  the  grounds: 

L    Because  she  subndts.  that  on  the  death 

of  William  I'.rown  leaving  issue,  his  interest 

in  the  share  of  Charles  Bmwn  became  trans- 

ndssible   to   his   representatives. 

:.'.   Because,  though  she  might  not  be  able  to 

♦264 

r<ustain  her  bill  in  *tbe  character  of  adminis- 
tratrix solely,  yet.  as  she  alleges  herself  in 
her  bill  to  lie  the  s<d"  surviving  distributee  of 
William  Brown,  and  she  is  adnntted  to  be 
so,  her  bill  for  the  cause  first  stated  in  the 
decree  ought  not  to  be  dismissed. 

.3.  Because  the  decree  is  otlierwise  con- 
trary t<i  law  and  eMjuity. 

Itbett.  Tracy,  for  appellant. 
Henderson,  ((intra. 

The  opinion  of  the  Court  was  delivered  by 

DCNKIX.  Cli.  By  the  will  of  Robert 
Brown,  it  is  (juite  clear  that  each  of  his  four 
sons  took,  not  merely  a  life  interest,  but  an 
ab.solute  estate  in  the  personalty  be(iueathed 
to  them.  It  is  to  be  etpially  divided  between 
them,  "share  and  share  alike,  to  them  and 
their  heirs  forever."'  But  this  absolute  estate 
was  defeasible  on  a  contingency,  "if  either  of 
my  sons  should  die  without  issue,  his  part 
shall  be  equally  divided  between  the  surviv- 
ors." Charles  Brown,  defemlant's  testator, 
was  the  last  surviving  child  of  his  father. 
Ridiert  Brown.  The  conqdainants  intestate 
had  been  dead  thirty  years  before  his  broth- 
er Charles  died.  Conqilainanfs  intestate 
left  issue,  ami  his  absolute  interest  in  the 
share  be(iueathed  to  him  was.  therefore,  inde- 
feasible. But  it  is  insisted,  on  the  part  of  the 
appellant,  that  her  intestate  had  an  intere.st 
in  Charles's  share,  which  was  transmissible 
to  his  representatives,  and  that,  on  the  death 
of  Charles  without  issue,  she,  as  administra- 
trix of  Wm.  Brown,  deceased,  became  entitled 
to  the  estate,  although  her  intestate  died  be- 
fore his  brother. 

If  the  jxtsition  assumed  by  the  complainant 
be  correct,  it  is  obviously  fatal  to  her  claim. 
The  gift  to  the  first  taker  is  in  tlu>  most 
anqile  terms,  "to  him  and  his  heirs  forever, 
but  if  he  should  die  without  issue,  his  part 
shall  be  e(iually  divided  between  the  surviv- 
ors." The  oidy  ground  tq>on  which  this  limi- 
tation over  can  be  sustained,  as  demonstrated 
in  Mas.sey  v.  Hudson,  2  Mer.  13(1.  and  I'ostell 
V.  I'ostell.  1  Bail.  E(i.  3!X),  is  that  "it  was 
inteiuled  that  the  survivor  was  meant  in- 
dividually and  personally  to  enjoy  the  legacy. 


®=3li"or  other  cases  see  same  topic  and  KE  VO.UMUER  In  all  Uey-Numbered  Digests  and  ludexcd 


107 


*264 


4  RICHARDSON'S  EQUITY  REPORTS 


and    uot    merely   to    take   a    vested    interest. 

*265 
which  might,  *or  might  not,  be  acconipanied 
by  actual  possession'" — otherwise,  although 
there  should  be  no  such  failure  of  issue  as 
would  enable  him  personally  to  take,  yet  his 
representatives  would  be  entitled  to  claim  in 
his  right  whenever  the  failure  of  issue  should 
happen,  which  might  be  fifty  years  after  the 
death  of  the  first  taker.  "Unless  the  term 
survivor  has  the  efi'ect  of  limiting  the  general- 
ity of  the  expression,  dying  without  issue ;" 
in  other  words,  if  it  is  not  a  personal,  but  a 
transmissible,  interest  wliich  is  intended, 
there  is  no  ground  to  support  the  limitation 
over,  and  the  interest  of  the  legatee  would 
be  absolute  and  indefeasible.  It  may  be  fur- 
ther remarked,  that,  if  the  limitation  over 
were  not  too  remote,  but  might  take  effect  on 
the  failure  of  issue  at  any  time,  there  would 
be  more  legitimate  ground  for  argument  that 
the  defendant,  representing  the  last  surviving 
Itrother,  was  entitled  to  the  share  of  William 
Brown,  the  complainant's  intestate,  than  that 
the  complainant  would  take  Charles's  share. 
For  although  w  illiam  died  leaving  issue,  yet 
the  issue  became  extinct  in  the  life  time  of 
Charles,  who  was  then  the  last  survivor. 
But  upon  the  principle  and  the  autliorities 
before  stated,  William  having  left  issue  at  the 
time  of  his  death,  his  estate  was  indefeasible, 
although  the  issue  might  afterwards  fail.  It 
is  an  entire  misapprehension  to  suppose  that 
the  vesting  of  the  estate  depended  upon  the 
legatee  having  or  leaving  issue.  It  vested 
immediately  on  the  death  of  Robert  Brown, 
the  original  testator,  and  was  defeasible  only 
upon  the  happening  of  a  t-ontingency.  If 
that  event  occurred,  it  was  limited  over  to 
certain  persons.  None  are  entitled  but  those 
who  can  bring  themselves  within  the  descrip- 
tion at  the  happening  of  the  contingency. 
Neither  the  complainant,  nor  any  one  else,  an- 
swered the  description  at  the  death  of  Charles 
Brown,  who  was  the  last  surviving  brother. 
Under  these  circumstances,  it  was  held  by  the 
Chancellor,  that,  as  it  was  the  manifest  in- 
tention of  the  testator  to  part  with  his  whole 
estate,  and  as  at  the  death  of  Charles  Brown 
there  was  no  one  capable  of  taking  under  the 
description  of  survivor,  his  estate  was  ab- 
solute, and  such  conclusion  has  the  sanction 
of  Powell  V.  Brown,  1  Bail.  100,  and  the  au- 
*266 

*thorities  there  cited.  But  this  is  an  luiim- 
portant  inquiry.  If  the  result  were  otherwise, 
and  it  became  a  case  of  intestacy,  none  could 
claim  but  the  legal  rei>resentative  of  the  orig- 
inal testator,  and  that  character  is  not  sus- 
tained by  the  complainant. 
The  appeal  is  dismissed. 

JOHNfeTON,   DARGAN   and   WARDLAW, 
CC,  concurred. 
Appeal  dismissed. 


4    Rich.  Eq.   266 

A.    R.    and    SARAH    CHISOLM   v.    .TAXE    M. 

CHISOLM   and   Otheis. 

(Charleston.     Jan.  Term,  1S.j2.) 

[Infants    (©=:3o'!.] 

Iiifiint  having;  an  absolute  estate  of  about 
.^^16,000.  and  also  an  estate  of  al)out  twiee  that 
amount  contingent  upon  his  attaining  the  aue 
of  twenty-one,  or  marryiut;:  ordered  that  main- 
tenance be  allowed  him  out  of  Ins  absolute  es- 
tate. 

[Ed.  Note. — For  other  cases,  see  Infants,  Cent. 
Dig.  §§   04-66;    Dec.  Dig.  (©=»:33.] 

[Infants  (S=^3.3.] 

Allowance  made  for  maintenance  is  subject 
to  the  futnie  control  of  the  Court,  and  may  be 
altered  with  the  varying  circumstances  of  the 
estate. 

I  Ed.  Note. — For  other  cases,  see  Infants, 
Cent.  Dig.  §  65;    Dec.  Dig.  <©=:>33.] 

Before  Wardlaw,  Ch.,  at  Charleston,  Feb- 
ruary, 1S51. 

Wardlaw,  Ch.  Alexander  Robert  Chisolm, 
by  his  will,  dated  May  29,  1827,  devised  a 
plantation  and  negroes  to  his  son,  Alexander 
R.  Chisolm,  for  life,  and,  upon  his  death, 
should  he  die  leaving  is.sue  at  the  time  of  his 
death,  to  such  issue  as  should  attain  the  age 
of  twenty-one  years,  or  at  the  day  of  mar- 
riage, e(iually  and  absolutely,  with  survivor- 
ship among  them ;  and  should  his  son  die 
leaving  issue,  as  aforesaid,  and  also  a  widow, 
then  that  the  widow,  during  widowhood, 
should  receive  a  reasonable  support  out  of 
said  estate,  and  he  appointed  his  executors 
trustees  for  the  children  and  widow  of  his 
said  son,  for  the  purpose  of  carrying  this  and 
other  provisions  of  his  will  in  the  nature 
of  trusts  into  full  and  entire  effect ;  but  should 
his  said  son  die  leaving  no  issue  at  the 
time  of  his  death,  or  leaving  issue,  they 
should  become  extinct  before  attaining  the 
age  of  twenty-one  years,  or  before  marriage, 
and  also  leaving  a  widow,  then  that  the  prop- 
erty   given    to    his    said,    son    should    revert 

*267 
back,  and  become  the  property  of  *his  other 
sons,  who  should  l)e  living  at  the  death  of  his 
said  son,  subject  to  the  same  conditions  and 
restrictions  imposed  on  the  said  property  in 
the  devise  and  betiuest  of  the  same  to  his 
said  son,  the  said  surviving  sons  paying  to 
tlie  widow  of  their  deceased  brother  !f.j,000 
in  full  discharge  of  her  claims  upon  the  es- 
tate. The  said  testator,  by  his  said  will,  gave 
certain  lands  and  negroes  to  each  of  his 
other  three  sons,  John  M.,  Edward  N.  and 
Robert,  lor  life,  subject  to  all  the  provisions 
and  conditions  imposed  on  the  property  given 
to  their  brother,  Alexander  R.,  and  also  gave 
to  each  of  his  four  sons  one-fourth  of  the 
residue  of  his  estate  in  fee.  Of  the  said  will, 
George  Chisolm,  Thomas  Smith,  Alexander 
R.  Chisolm,  and  John  M.  Chisolm,  were  ap- 
pointed executors.  The  testator  died  June, 
1827,  leaving  hia  said  four  sons  surviving 
him.  Of  the  executors.  Thomas  Smith  died, 
without  having  ever  qualified:    George  Chis- 


108 


©=»For  other  cases  see  same  topic  and  KEY-M  UMBER  in  all  Key-NumDered  Digests  aud  Inde.ves 


CHISOI.M  V.  CIIISOLM 


*2C9 


olm  qualified,  and  sodii  afterwards  dit-d ; 
the  otlier  two  qiialiticil  niid  administrn'd  the 
estate  l»y  jiayini;  tlie  d»'l>ts  and  deliv«M-liin  the 
legacies.  Soon  afterwards  tlie  son,  Alex- 
ander I{..  died  without  havin;;  Iteen  married, 
whereli.v  his  interests  devolved  upon  his  siir- 
vivin;;  hrotliers. 

Kdward  N.  Chisolin  an.l  Mar.v  E.  Hazard 
oontra<te<l  marriage  in  is:;i,  an<l  In  contem- 
plation thereof  eonv»>yed  nine  negroes  to 
Thomas  K.  Screven,  in  trust,  for  the  use  of 
both  durintr  their  joint  lives,  then  f<u"  the 
use  of  the  survivor  for  lif<'.  and  upon  the 
death  of  the  survivor  for  tin*  issue  «)f  the 
umrria;.'e  in  fee.  IMward  N.  Chisolm  died 
September  1.  1S.'',J!.  leaviii},'  the  said  Mary 
K.,  his  widow,  and  the  plaintitTs.  .\.  K.  and 
Sarah,  his  children,  and  leaviu'^  of  foi*ce 
his  will,  dated  Aniiust  19.  is.''.(i,  when'by  he 
di'vised  his  wlude  estate,  real  and  personal, 
t(»  his  widow,  and  whereof  the  said  Thomas 
K.    Screven   was  the  actinj;  »>xeiutor. 

John  M.  Chisolm,  surviving  executor  of 
Alexander  Robert  Chisolm's  will  and  trus- 
tee of  the  estates  devised,  applied  by  peti- 
tion to  this  Tourt  for  instruction  as  to  the 
extent  of  the  provision  which  should  be  made 
for  the  reasonable  supiiort  of  the  said  Mary 
E.  out  of  the  estate  j:iven  in  trust;  and  at 
April  sittin;rs,  IS'JS,  for  lieaufort  district, 
it  was  ordered  that  the  said  John  M.  Chis- 

♦268 
olm,  *executor,  pay  to  the  said  Mary  E. 
Chisolm,  out  of  the  trust  jiroperty  of  her 
deceased  husband,  Edward  N.  Chisolm, 
the  annual  sum  of  two  thousand  dollars  dur- 
ing her  widowhood,  for  her  personal  use.  and 
five  hundred  dollars  annually  for  the  mainte- 
nance of  her  two  children,  until  the  further 
order  of  the  Court. 

Mary  K.  Chisolm  died  in  .November,  l.S.*{.S, 
intestate,  leaving  the  plaintitTs  the  distribu- 
tees of  her  e;  tate.  the  administration  of 
which  was  conuuitted  to  tlu'  said  Thomas 
10.   Screven. 

The  separate  estates  of  Edward  X.  Chis- 
olm and  Mary  10.  Chisolm  and  the  estate 
endiraced  in  their  marriage  scttU'ment,  have 
all  been  sold  by  the  orders  of  the  Court,  and 
they  are  now  in  the  hands  t»f  the  said  Thom- 
as E.  Screven,  in  the  form  of  bonds  bearing 
interest,  to  the  aggregate  value,  as  stated  in 
ids  answer,  of  .^.'vJ.Wl.liU,  to  which  the  plain- 
tiffs are  absolutely  entitli-d.  Tlu'  estate  to 
which  the  plaintitTs  will  be  entitled,  under 
the  will  of  their  grand-father,  Alexander 
Robert  Chisolm,  upon  their  marriage  or  at- 
tainment of  full  age,  is  estimated  to  be  worth 
about  twice  as  nuich  more.  So  that  the  es- 
tate of  each  plaintitT,  vested  and  cttnting»>nt, 
is  worth  abcuit  .$r)().0(>(>. 

John  M.  Chisolm  was  apiinjuied  guardian 
of  the  i)ersons  of  the  plaintilTs.  at  January 
sittings,  isa!>,  of  this  Ccairt,  for  l?eaufort 
district;  he  was  also  provisionally  appoint- 
ed guardian  of  their  estates,  l>ut  did  not  com- 
ply  with   the  condition   of   the   order  in   this 


respect.  The  plaintiffs,  after  the  death  of 
their  motlier,  went  to  reside  in  the  faunly 
of  their  maternal  aunt,  the  wife  of  Horace 
Wablo.  their  next  friend  in  this  s-iit.  in  the 
city  of  New  York  ;  and  they  ct>ntin\ie  to  re- 
side there.  The  sum  allowed,  or  assumed  to 
be  allowed,  by  the  order  t>f  April.  1S"5S,  for 
the  maintenance  of  the  plaintiffs,  has  been 
found  inadequate,  and  the  said  Horace  Wal- 
do is  in  advance  for  their  support.  The 
plaintiff,  A.  R.,  is  now  in  ids  seventeenth 
year  of  age,  and  the  idaintiff,  Sarah,  in  her 
fift«'enth   year. 

John  M.  Chisolm  dle<l  intestate,  July  .">. 
1S4!».  leaving  a  widow,  Jane  M.,  who  has 
adndnistered   upon  his  estate,  and  five  chil- 

•269 
dreii,  *who  are  infants,  namely.  John  M.,  Al- 
fred. Jane,  Susan  and   Laurens. 

The  trust  estate  of  Edward  X.  Chisolm. 
while  under  the  management  of  the  said 
John  M.  Chisolm,  yielded  little  income,  in- 
.somuch  that  he  was  in  advance  to  the  saiil 
trust  estate  at  the  time  of  his  death. 

Robert  Chi.solm,  onl.v  surviving  son  of 
Alexander  Robert  Chisolm,  was  aitpointed 
by  this  Court,  sitting  in  Charleston,  l-Vbru- 
ary.  1850,  manager  of  the  trust  estate  of 
ICdward  N.  Chisolm,  and  in  June,  1S,~)0, 
trustee  of  said  estate. 

This  bill  is  tiled  Ity  the  two  infant  chil- 
dren of  Edward  X.  Chisolm  against  Thom- 
as E.  Screven.  Robert  Chisolm,  Jane  M. 
Chisolm,  and  the  children  of  John  M.  Chis- 
olm ;  it  prays  that  the  advances  made  by 
John  M.  Chisolm  and  Horace  Wablo  may  be 
reimbursed,  and  that  additional  sums  may 
be  allowed  to  tlie  plaintitTs  for  their  mainte- 
nance, past  and  future.  The  master  reports 
that  tne  debt  of  the  trust  estate  of  lOdwart' 
X.  Chisolm  to  the  estate  of  John  M.  Chis 
olm  amounts  to  $2,007.00.  That  there  ar/ 
to  the  credit  of  the  trust  estate,  in  the  hau<  s 
of  James  H.  Eadson  cV  Co.,  factors.  ••<:'.,  101'.;  8, 
and  in  the  hands  of  Robert  Chisolm.  as 
manager  ami  trustee.  .1!1.02ti.."i7 ;  and  .be 
master  recommends  the  increase  of  maiJte- 
nance  to  the  plaintiffs  ln'reinafter  ord«  red. 
All  the  parties  seem  agreed  that  the  aaiu 
imrposes  of  the  bill  .shoubl  be  effected;  and 
the  only  question  seriously  litigate'/,  is, 
whether  the  allowance  for  the  maiiiti  nance 
of  the  plaintitTs  should  be  defrayed  JUt  of 
the  estate  to  which  they  are  absohite'y  enti- 
tled, or  out  of  the  trust  estate,  whi.-h  will 
belong  to  them  if  they  marry  or  reach  ma- 
turity. If  the  latter  were  the  oily  fund 
from  which  the  maintenance  could  be  pro- 
vided, the  decision  might  be  endii.rra.ssing, 
but  in  the  actual  state  of  the  facts  he  course 
of  judgment   is  plain. 

A  legacy,  payable  at  a  futuri'  d;»..'.  does  not 
bear  interest  before  default  in  tie  payment, 
lude.ss  the  intention  of  the  tt'sti.tor  to  give 
interest,  as  an  incident  to  the  legacy  can  be 
inferred  from  the  whole  will,  or  uidess  it  be 
a   legacy  from  a   father  to  an   ajfant   child, 

101) 


*a89 


4  RICIIARD>>()NS  EQUITY  RErORTS 


who  has  no  other  provision,  and  to  whom  the  | 
*270  I 

father    *has   given   nothing   in    the   will    for 
maintenance.      In   such   case    of   father    and 
child,  interest  from  the  death  of  the  testator 
is  given  for  the  maintenance  of  the  cliild.  in 
the  absence  of  express  direction  on  the  sub- 
ject,  or   even   against   direction   for   the   ac- 
cumulation  of   interest  until   the   day   when 
the  legacy  is  payable,  and  whether  the  leg- 
acy be  vested  or  contingent.     Allen  v.  Cros- 
land,  2  Rich.  Eq.  68.    This  doctrine  is  found- 
ed on  the  principle,  that  as  the  father  is  un- 
der   a    legal    obligation    to    provide    for    the 
maintenance  of   his   infant  child,   the   Court 
will  not  presume  him  to  be  inotticious   and 
unnatural,   but  will  infer  that  by   such  leg- 
acy  he   intends,    in   fulfillment   of  his  duty, 
to  afford  to  his  child  the  means  of  support. 
Heath  v.  Perry,  3  Atk.,  101.     The  same  rule 
of  construction  might  be  applied  to  the  case 
of  a  grandfather's  legacy,  if  by  the  death  of 
the  father  and  the  destitution  of  the  grand- 
children, he  should  be  bound  to  provide  for 
their  maintenance,  or  to  the  case  of  any  tes- 
tator,  who,   by   the   terms   of  his  will,   puts 
himself  in  loco  parentis  towards  the  objects 
of  his  bounty.     But,  in  the  absence  of  such 
circumstance,   the   rule    does   not   extend    to 
adult    children.      Lowndes    v.    Lowndes,    15 
Yes.    301;     Raven   v.    Waite,    1    Swan.    553; 
nor  to  a  natural  child,  lb.;    nor  to  a  wife; 
Stent  V.  Robinson,  12  Yes.  461 ;    nor  to  neph- 
ews;    Crickett  v.  Dolby,  3  Yes.   10;    nor  to 
grand-children;   Houghton  v.  Harrison,  2  Atk. 
329;    Butler  v.  Freeman,  3  Atk.  58;    Palmer 
V.  Mason,  1  Atk.  505;    Descrambes  v.  Tom- 
kins,  1  Cox,  2.33;    Ellis  v.  Ellis,  1   Sch.  and 
Let  5;    Lupton  v.  Lupton,  2  John.  Ch.  628; 
nor  even  to  infant  children,  if  the  father  has 
provided  in  his  will  any  other  maintenance, 
however   small,   and   however  large   nuiy   be 
the  ultimate  legacy.     Ellis  v.  Ellis.     Mainte- 
nance out  of  the  interest  of  a  legacy,  pay- 
able at  a  future  day,   by  a  testator,  not  in 
loco  parentis,  to  a  class  of  children  not  oth- 
erwise provided  for,  if  there  was  equality  in 
the    portion    of   the    children,    and    in    their 
chance  of  taking  by  survivorship  the  whole, 
has  been  sometimes  ordered  by  a  Court  of 
Equity,  where  the  Court  could  have  before 
it   all  the   persons   entitled  to   the   fund,   so 
as  to  make  to  each  a  compensation  in  imme- 

*271 
diate  maintenance  for  *the  diminution  of  the 
fund  to  which  he  may  be  ultimately  enti- 
tled; but  this  relief  cannot  be  afforded  if 
there  be  a  gift  over,  or  any  other  interest, 
that  upon  any  other  contingency  would  take 
effect,  at  least,  without  the  consent  of  the 
remainder-men. 

This  would  be  in  effect  giving  the  prop- 
erty of  one  person  for  the  maintenance  of 
another.  In  ex  parte  Kebble,  11  Yes.  604, 
Lord  Eldon  refused  maintenance,  where  the 
estate  was  beciueathed  to  infants,  with  sur- 
vivorship among  them  in  case  of  the  death 

110 


of  any  of  them  under  twenty-one ;    but  there 
was  a  limitation  over  to  others  in  case  of  the 
death   of  all   the   infants   under   twenty-one. 
In  Marshall  v.  Holloway,  2  Swan.  436.  the 
same  eminent  Judge,  discussing  this  doctrine 
of  maintenance  on  the  principle  of  compensa- 
tion,  says:    "if  the  will  contains  successive 
limitations  under  which  persons  not  in  being 
may  become  entitled,  it  is  not  sufficient  that 
all  the  parties  then  living  presumittively  en- 
titled are  before  the  Court,  for  none  of  the 
living  may  be  the  parties  eventually  entitled 
to  the  enjoyments  of  the  property."     Again,  in 
Errat  v.  Barlow,  14  Yes.  202,  where  the  prop- 
erty  was    given    to   children   at    twenty-one, 
and  limited  to  others  if  the  children  should 
die  under  twenty-one,  Lord  Eldun  ><ays:    "the 
result  is  that  if  the  chance  of  surviving  is 
equal  among  all,  and  no  other  interest,  that 
upon  any  contingency  would  take  effect,  will 
be   defeated,   maintenance    shall    be   allowed 
out  of  the  interest;    but  it  is  impossible  to 
give  it  where  in  any  event  under  the  opera- 
tion and  construction  of  the  will  that  inter- 
est may  possibly  belong  to  others."     In  Lo- 
max  V.  Lomax,  11  Yes.  48,  maintenance  out 
of  the  interest  of  a  legacy  to  the  children  of 
tejstator's    living   daughter    was    refused   be- 
cause an  unborn  child  might  eventually  take 
the    whole.      In    Errington    v.   Chapman,    12 
Yes.   20,   legacies  were  given  to  two  grand- 
children  at   twenty-one,   with   interest   from 
the  end  of  a  year  after  testator's  death,  and 
with  survivorship  amongst  them,  but  because 
there  was  a  gift  over,  in  case  both  died  under 
twenty-one  without  issue.  Sir  Wm.  (Jrant  re- 
fused maintenance,  although  the  father  was 
not  of  ability  to  maintain  the  infants.     Y.  C. 
Shadwell.  in  Turner  v.  Turner,  4  Sim.  430,  6 

*272 
E.  C.  C.  R.  108,  *pui->>ued  the  same  course, 
because  the  children  of  such  of  the  grand- 
children as  might  die  under  twenty-one  had  a 
contingent  interest.  The  decisions  are  not 
altogether  uniform  as  to  the  necessity  of 
calling  before  the  Court  all  the  persons  who 
may  be  beneticially  interested  in  such  lega- 
cies, but  the  great  weight  of  authority  is 
against  the  allowance  of  maintenance,  where 
this  cannot  be  done. 

In  the  case  before  us,  we  cannot  regard 
the  testator,  Alexander  Robert  Chisolm,  as 
putting  himself  in  loco  parentis  towards 
grand-children  who  might  never  come  into 
existence,  especially  when  he  made  ample 
provision,  by  absolute  bequests,  for  their  liv- 
ing father.  The  only  direction  of  the  will 
from  which  the  parental  anxiety  of  the  tes- 
tator towards  grand-children  is  inferred, 
is  the  appointment  of  trustees  for  them;  but 
that  arrangement  was  adopted  only  to  pre- 
serve the  contingent  remainders,  in  case  the 
father  died  during  the  infancy  of  their  chil- 
dren. One  cannot  be  under  parental  obli- 
gation to  posterity  which  is  possible  only, 
and  not  actual. 

Jt    seems    equally    impracticable    here    to 


CITTSOI.M  V.  CIILSOLM 


frive  mnlntpnanre  to  the  plaintiffs  out  of  the 
trust  estate,  on  the  principle  of  compensa- 
tion. The  plaintiffs  have  other  estates  from 
•which  they  may  he  maintained.  The  chil- 
dren of  John  M.  Chisolm  are  Infants,  and 
ii'.capalile  of  l.arterinfi  away  their  contingent 
interest  in  the  fund.  I'nborn  children  of 
Rol>ert  Chisolm.  who  caimot  be  called  Ix'fore 
the  Court,  may  be  eventually  entitled  to  the 
whole  estate;  and  the  Court  cannot  give 
away  their  jiroperty  to  othi-rs. 

In  opposition  to  this  conclusion,  it  is  urged 
tliat  the  point  was  adjudged  ity  tlie  order 
of  April.  18.'{S.  But  that  order  provided  only 
for  the  reasonaide  support  of  the  mother  of 
tlie  plaintiffs  during  her  widowhood,  in  con- 
formity to  the  will;  and  the  fact  that  she 
had  two  children  was  properly  taken  into 
consideration  in  fixing  the  amount  of  lier  al- 
lowance. I  am  not  disposed  to  scan  curious- 
ly the  provisions  of  that  order,  .s.o  far  as  it 
may  have  been  acted  upon  by  the  parties: 
but  it  would  be  dithcult  to  maintain  that  it 
had  any  legal  operation  after  the  death  of 
Mary  E.  Chisolm.     At  all  events,  when  that 

♦273 
order  was  made,  the  plaintiffs  were  not  ♦en- 
titled to  the  enjoyment  of  any  estate  what- 
soever; and  it  is  pushing  the  argument  ad 
vericundiani  extremely,  to  urge  me  to  en- 
large and  apply  an  order  of  my  predecessors 
under  a  very  different  state  of  facts. 

It  is  ordered  and  decreed,  that  the  report 
of  Master  Gray  lie  confirmed,  and  that  the 
di>fendant,  Jane  M.  Chisolm.  administra- 
trix of  John  M.  Chisolm.  be  paid  the  sum  of 
.yj.OOT.til),  with  interest  from  June  1!).  1S4.S. 
fur  the  advances  of  her  intestate  to  tlie  trust 
estate  of  E.  N.  Chisolm.  out  of  the  balance 
in  the  hands  of  the  factors.  James  II.  Lad- 
son  &  Co. 

It  is  further  ordered  and  decreed,  that  the 
advances  of  Horace  Waldo  t(»  the  plaintiffs 
lie  rejiaid  to  him.  so  far  as  they  may  be  cov- 
ered by  an  additional  allowance  of  $r)00  a 
year  hereby  made  for  the  maintenance  of 
plaintiffs,  from  the  death  of  John  M.  Chisolm 
to  the  lirst  of  January  last,  out  of  the  i-state 
of  the  plaintiff's  in  the  hands  of  tlu-  defend- 
ant, Thomas  E.  Screven. 

It  is  further  ordered  and  decree<l.  that  for 
this  year  commencing  tirst  of  January  last, 
and  hereafter,  so  long  as  the  plaintiffs  n-side 
witli  II.  Wahlo.  their  next  friend,  and  until 
otherwi.se  ordered,  the  said  II.  Wahlo  do  re- 
«-eive  for  tlie  maintenance  of  plaintiffs,  at 
the  rate  of  one  tliousand  dollars  a  year  for 
each  of  them,  payable  semi-ainnially  in  ad- 
vance, the  allowante  for  the  lirst  half  of  this 
year  immediately  after  this  di'cree,  and  sub- 
sequent allowances  in  July  and  January, 
out  of  till'  estate  of  plaintiffs  in  the  hands  of 
Thomas  E.  Screven,  defi-ndant.  who  is  here- 
by (U-dered  to  pay  the  same. 

It  is  further  ordered  and  decreed,  that  the 
defeudant,  Uobert  (  hisolm.  proceed  to  invest, 
icouformably    to    the    standing    order   of   the 


Court  of  Appeals,  any  balances  In  his  hands, 
or  in  the  bands  of  James  IL  Ladson  &  Co..  bi^ 
longing  to  the  trust  estate  of  E.  N.  Chisolm, 
or  which  may  hereafter  accrue,  to  await  the 
further  order  of  this  Court. 

As  there  is  no  proof  in  the  cause  that 
guardians  have  been  appointed  for  the  per- 
sons or  estates  of  the  plaintiffs  since  the 
death  of  John  M.  Chisolm,  the  cause  is  re- 

•274 
taiiKMl  with  leave  to  any  of  the  *parties, 
upon  proper  notice  to  the  s(dicitors  of  the 
otlier  parties,  to  move  for  a  reference  on  that 
suliject.  or  to  take  such  other  proceedings  in 
the  matter  as  they  may  advise. 

The  costs  and  expensi's  of  the  plaintiffs,  as 
1  between  solicitor  and  client,  and  the  costs  of 
all  tile  defendants,  except  Thomas  E.  Screv- 
en, to  be  paid  out  of  any  funds  in  tlie  hands 
of  Robert  Chisolm.  as  manager  or  trustee. 
The  costs  of  the  defendant,  Thomas  E.  Screv- 
en, to  lie  paid  out  of  the  estates  of  the  plain- 
tiffs in  his  hands. 

The    defendant,    Thomas    E.    Screven,    ap- 
pealed, on  the  grounds: 

1.  Because  his  Honor  decreed,  tliat  an  al- 
lowance of  "one  thou.sand  dollars  for  each, 
payable  semi-annually,  in  advance,  for  the 
maintenance  in  future  of  the  plaintiffs,  A. 
K.  and  Sarah  Chisolm.  during  their  minority, 
should  be  paid  out  of  the  estate  in  his  hands." 
Whereas,  it  is  respectfully  submitted,  tliat 
the  estate  in  his  hands  is  the  estate  of  their 
deceased,  mother,  Mary  E.  Chisolm,  safely 
and  securely  invested  in  bonds,  bearing  inter- 
est, payable  annually,  not  semi-annually:  and 
it  is  impracticable  and  ineiiuitable  to  colM't 
and  re-invest  the  corpus  of  said  estate  to 
provide  for  the  exigency  of  the  decree  in  this 
respect,  and  to  require  the  payment  of  in- 
terest, semi-annually,  contrary  to  the  usage 
of  the  country,  which  would  occasion  fre- 
quent and  serious  losses  to  the  said  estate, 
by  detention  of  its  funds  from  time  to  time, 
to  secure  suitable  investments,  and  the  punc- 
tual payment  of  the  allowance  ordered. 

li.  Because  the  last  will  and  testament  of 
the  grandfather  of  the  said  plaintiffs,  Alex- 
ander R.  Chisolm.  deceased,  charges  the  es- 
tate, consisting  of  lands  on  Coosaw  Island  : 
and  the  negro  slaves,  after  the  decease  of  the 
life-tenant,  his  son,  Edward  Neufville  Chis- 
olm. deceased,  with  the  maintenance  and  i>du- 
cation  of  the  said  plaintitTs.  the  remainder- 
men, during  their  minority,  which  provision 
of  the  said  testator,  this  honorable  Court  has 
hitherto  adoi»ted  as  its  guide,  and  this  de- 
fendant resjiectfully  submits  that  no  sulH- 
cient  cause  is  assigned  why  the  said  entailed 
estate  should  not  continue  the  sum  decreed 
for  the  maintenance  annually  of  the  said 
plaintitTs.  as  heretofore  diarged. 
♦275 
♦:;.  l?ecause  the  defendant,  Thomas  E. 
Screven,  has  no  funds  in  his  hands  to  pay 
the  balances  decreed  to  be  due  and  owing  to 
the  said  Horace  Waldo,  unless  he  is  permit- 
Ill 


*275 


4  RICHARDSON'S  EQUITY  REPORTS 


ted  to  encroach  upon  the  corpus  of  the  estate, 
already  invested;  whereas  it  is  submitted, 
that  such  encroachment  is  contrary  to  the 
practice  and  policy  of  the  Court. 

4.  Because  the  smaller  estate  in  the  hands 
of  defendant  is  charged  with  the  payment  of 
a  sum  annually,  which,  under  the  most  fa- 
vorable circumstances,  it  could  not  fully  pay; 
whereas  the  larger  and  more  profitable  es- 
tate is  not  charged  at  all,  and  its  proceeds 
suffered  to  accunmlate  in  the  hands  of  Rob- 
ert Chisolm,  without  giving  security  for  said 
estate  or  its  proceeds. 

5.  Because  this  defendant  received  no  no- 
tice of  any  reference  before  the  master  in 
Charleston,  at  which  he  would  have  been  rep- 
resented; therefore  the  decree  of  his  Honor 
occasions  surprise  and  injustice  to  this  de- 
fendant. 

Screven,  Martin,  for  appellant. 
Memminger,  Petigru,  contra. 

PER  CURIAM.  We  concur  in  the  decree. 
It  is  a  mistake  to  suppose  that  the  allowance 
made  for  maintenance  is  permanent  or  unal- 
terable. Upon  a  proper  showing,  in  a  proper 
proceeding,  it  may  be  altered  with  the  vary- 
ing circumstances  of  the  estate.  It  is  sub- 
ject therefore  to  the  future  control  of  the 
Court.  It  is  ordered  that  the  decree  be  af- 
firmed, and  the  appeal  dismissed. 

JOHNSTON,     DUNKIN,     DARGAN     and 
VVARDLAW,   CC,  concurring. 
Appeal  dismissed. 


4  Rich.  Eq.  *276 

*W.    II.    RIVERS,    Admr.    W.    M.    Ediiigs,    v. 
JOHN  A.  FRIPP  et  al. 

(Charleston.     Jan.  Term,  1852.) 

[Wills   (©=:5634.] 

Devise  of  property,  real  and  personal,  to 
testator's  wife,  for  life,  and  after  her  death  to 
his  son,  for  life ;  "and  from  and  immediately 
after  the  death  of  my  wife  and  son.  unto  the 
issue  of  my  said  son  living  at  the  time  of  hi-; 
death,  who  shall  live  to  attain  the  full  age  of 
twenty-one  years,  or  who,  dying  before  that 
time,  shall  leave  issue  to  live  until  the  time  at 
which  the  parent  or  parents,  if  alive,  would  have 
reached  the  full  age  of  twenty-one  years ;"  and, 
in  default  of  such  issue,  then,  over, — held,  to 
give  a  vested,  but  defeasible,  interest,  with  im- 
mediate right  to  the  rents  and  profits,  to  a  child 
of  the  son  who  survived  l)oth  the  wife  and  son, 
although  such  child  died  under  twenty-one 
years  of  age,  leaving  no  issue  which  lived  until 
"the  time  at  which  the  parent,  if  alive,  would 
have  been  twenty-one  years  of  age. 

[Ed.  Note.— Cited  in  Seabrook  v.  Gregg,  2  S. 
C  77 ;  Leroy  v.  Citv  Council  of  Charleston, 
20  S.  C.  75,  77;  Boykin  v.  Boykin,  21  S.  C. 
530;  Charleston  &  W.  C.  Ry.  Co.  v.  Reynolds, 
09  S.  C.  503,  48  S.  E.  476;  Walker  v.  Alver- 
son,  87  S.  C.  61,  62,  68  S.  E.  966,  30  L.  R.  A. 
(N.  S.)  115. 

For  other  cases,  see  Wills,  Cent.  Dig.  §  1503  ; 
Dec.  Dig.  <®=:=634.] 


Before  Dunkin,  Ch.,  at  Charleston.  June, 
18.51. 

Dunkin.  Ch.  The  questions  presented  by 
the  pleadings  arise  on  the  will  of  William 
Edings,  deceased,  and  the  codicil  thereto. 
The  former  bears  date  23d  May,  1834,  and 
the  latter  on  the  27th  March,  1836,  and  both 
were  admitted  to  probate  on  the  11th  April 
following.  An  extract  of  so  much  as  is  nec- 
essary is  annexed  to  this  decree. 

It  appears  that,  at  the  time  of  the  execu- 
tion of  these  instruments,  and  at  the  decease 
of  the  testator,  he  had  one  son,  John  Evans 
Edings,  who  was  himself  married  and  had 
two  sons,  to  wit:  William  M.  Edings  and 
John  Evans  Edings.  jr.,  one  of  the  defend- 
ants. The  testator  left  also,  besides  his  wid- 
ow, Sarah  P^dings,  two  daughters,  Sarah 
Cliis<dm  and  Mary  Fripp,  and  the  children  of 
a  deceased  daughter  Eliza  Whaley. 

By  the  ])rincipal  clause  of  the  will,  which 
it  is  important  to  consider,  the  plantation  on 
Edisto  Island  therein  described,  and  the 
slaves  attached  thereto,  are  devised  and  be- 
queathed to  his  wife  during  her  natural  life, 
and.  subject  to  her  life  estate,  the  same  prop- 
erty is  devised  and  bequeathed  to  his  son, 
John  Evans  Edings,  during  his  natural  life ; 
but  it  is  specially  provided  that,  in  the  event 
of  the  bankruptcy  of  his  son.  or  of  any  act 
on  his  part   that  would  deprive  him  of  the 

*277 
use,  annual  profits  or  income  *arising  from 
said  property,  then,  and  in  any  such  case, 
the  devise  and  bequest  to  his  son  are  abso- 
lutely revoked  and  annulled,  and  the  testa- 
tor devises  and  beiiueaths  the  said  property, 
suliject  to  his  wife's  life  estate,  t&c,  "unto 
the  wife  and  children  of  his  said  Sf)n,  or  the 
survivor  or  survivors  of  them,  for  and  during 
the  remainder  of  the  life  of  his  said  son,  to 
and  for  their,  and  each  of  their  sole  and  sep- 
arate use,  benefit,  and  behoof,  and  without 
being  in  any  manner  subject  to  the  debts, 
contracts  or  control  of  his  said  son."  "From 
and  immediately  after  the  death  of  his  wife 
and  sou,"  his  mansion  house,  &c.,  and  the 
three  tracts  of  land,  his  dwelling  house  on 
Eding's  Bay,  &c.,  and  all  the  slaves,  &c.,  on 
his  three  tracts  of  mnd  on  Edisto  Island,  the 
testator  gives,  devises,  and  bequeaths  "unto 
the  lawfully  begotten  issue  of  his  said  son 
living  at  the  time  of  his  death,  who  shall  live 
to  attain  the  full  age  of  twenty-one  years,  or 
who  dying  before  that  time,  shall  leave  law- 
fully begotten  issue  to  live  until  the  time  at 
which  the  parent  or  parents,  if  alive,  would 
have  reached  the  full  age  of  twenty-one 
years:  if  more  than  one,  then  to  them,  their 
heirs  and  assigns,  absolutely  and  forever: 
and  if  only  one  of  them,  then  to  that  one,  his 
or  her  heirs  and  assigns  absolutely  and  for- 
ever, the  issue  of  any  deceased  issue  of  my 
said  son,  and  whether  the  said  issue  died  be- 
fore or  after  my  said  son,  taking  and  receiv-, 
ing  the   same  share   and   proporl^ion   as  the 


112 


©=»For  other  cases  see  same  topic  and  KEY-NUMBER  la  all  Key-Numbered  Digests  and  ludexea 


RIVERS  V.  FRIPP 


»280 


parent  or  parents,  If  nllve.  would  have  taken 
and  received.  And  sli(»uld  my  said  son  die 
witliout  leaviuK  liiwliilly  licyoftcn  issue  liv- 
ing at  tile  time  of  his  d.-atii.  who  shall  live  to 
attain  the  full  a;:e  of  twenty-one  years,  or 
who,  dyinj;  before  that  time,  sliall  leave  law- 
fully begotten  issue  to  live  until  the  time  at 
which  the  parent  or  iia rents,  if  alive,  would 
have  attained  twenty-one  years  of  a«e.  then 
I  Kive.  devise  and  heiiueath  all  the  said  real 
and  i»er.sonal  property  mentioned  and  «<m- 
tained  in  this  clause  of  my  will,  unto  the 
ri«ht  heirs  then  liviuf;  of  me.  the  said  Wil- 
liam Kdiiif^s.  to  he  equally  divided  tmumn 
them,  share  and  share  alike,  accordinj;  to  the 
laws  of  this  State  for  the  distril)ution  of  in- 
testates' estates." 

John    Evans   E<lini,'s  died    two   years   after 
♦278 
the  death  of  the  tes*tator.   ids  father,   leav- 
ing surviving  him  his  two  sons.  William  M. 
Edings  and  John  Evans  i:din,:r.s.     His  moth- 
er. Sarah  Edin,i,'s,  died  in  l,S44.     William  M. 
Edings    lived    until    liOth     Seiitemher.    IsrM, 
wh(>n    he   departed    this    life   at    the    aye    of 
twenty  years.     lie  left  survivini:  him  a  .son, 
who  died  three  months  after  his  father,  and 
before   his   father   would    have    attained   tlie 
full   aye  of  twenty-one  years.     John    Evans 
Edings,    the    defendant,    was    ei^'hteen   years 
and  six  months  old  in  May,  1S51.     The  bill 
is    filed    by    the    personal    representative    of 
Wm.     M.     Edinj;s.     prayinj,'.     amoiif;     other 
things,  an   aciount  of  the   rents  and  profits 
of  the  estate  above  devised  and  beipieatiied. 
from  the  death  of  the  Ufe  tenant  in  1M4  un- 
til  the   close  of  the  year   IMuO,   and   that   a 
moiety    thereof  may   be  paid    to    him.      The 
success  of  the  compl.-iiiuuit  depends  ujion  the 
inquiry    whether   William   M.    l-klinys   had   a 
vested  or  continent  interest  under  the  will 
of  his  grand-father. 

The  authorities  concur  that  this  inquiry 
must  be  determined  by  the  sense  in  which 
the  testator  intended  the  devi.sees  interest 
in  the  property  to  dei)end  upon  his  attaiidng 
the  specified  age.  Thus  a  devi.se. to  a  per- 
son, if  he  .shall  live  to  attain  a  particular 
age,  standing  alone,  would  be  contingent: 
yet  if  it  be  followed  by  a  lindtation  over  in 
case  he  die  under  such  age,  the  devise  over 
Is  considered  as  explanatory  of  the  sense  in 
which  the  terra  is  used,  to  wit:  that,  at  that 
age.  the  estate  should  become  absolute  and 
Indefeasible:  the  interest  in  question,  there- 
fore, is  construed  to  vest  instanter.  1  Jar- 
man  on  Wills,  738.  The  principle  is  sus- 
tained by  many  cases,  and  among  others  by 
Doe  v.  Nowell.  which  was  first  deternnned 
In  the  King's  Bench,  1  M.  &  Selw.  32G,  and 
the  judgment  afterwards  allirmed  by  the 
House  of  Lords.  5  Dow  P.  C.  202.  The  de- 
vise was  to  the  testator's  nephew  for  life, 
and,  on  liis  dtnease.  to  and  among  his  chil- 
dren lawfully  begotten  e<iually,  at  the  age 
of  twenty-one.  and  their  heirs  as  tenants 
In  common.  But.  if  only  one  child  should 
4Ricn.EQ.— 8 


live  to  attain  such  age,  to  him  or  her  and 
his  or  her  heirs,  at  Ids  or  lier  age  of 
twenty-one:  and  in  ca.se  the  ne|diew  should 
die  without  lawful  issue,  or  su<b  lawful 
issue     sliould     die    before    twenty-one.     then 

*279 
to    and     'among-st    the    testators     nephews 
and    ideces   there   named,    t)r   such    of    them 
as    .should    l)e    then    living,    and    their    heirs 
and    a.ssigns    forever.      The    father,    during 
tile    infancy    of    two    of    the    children,    and 
before  the  birth  of  otiiers.  levied  a   fine  and 
afterwards    suffered    a    recovery,    and    ron- 
veyed    tiie   estate   to   a   imrchaser.    and    died 
leaving  his  children  undj'r  age.     It  was  lield 
that  the  children,  at  their  birth,  took  vested 
remainders,   and   they   recovereil   against   the 
purchaser.      The    case    was    decided    on    the 
authority  of   Bromfield   v.    Crowder.    1    New 
li<'p.    (H.   and    P.)   :mx     Testator   devised    a 
life  estate  to  his  widow,  and.  on  lier  death, 
to  Joshua   Rose  for  life,  and   at  the  decease 
of    the    longest    liver    of    them,    he    devised 
all    his    real    estate    to   the    plaintiff,    if    he 
should    live    to    attain    twenty-one    years    of 
age:    but   in   ca.se  he   die   before   he   attains 
that    age,   and    his   brotlier    Charles    survive 
him.    "in    that    case    I    give    my    real    estate 
to  Charles,   if  he  lives  to  attain  the  age  of 
twenty-one  years,  but  not  otlierwise;    l)ut  in 
case    both    the    above    mentioned    hoys    die 
before  either  of  tliem  attain  tiie  age  of  twen- 
ty-one   years,    then    1    give    my    real    estate 
to  John  Tale,  my  god-son.  and  his  lu-irs  for 
ever."     After  the  decea.se  of  the  widow  and 
Joshua,  and  before  the  plaintiff  attained  tlie 
age   of  twenty-one  y«>ars,   he   filed   a    bill   to 
liave  his  riglits  declared.     On  the  part  of  the 
heir  at  law,  it  was  insisted,  that  the  remain- 
der was  contingent,  and  tlie  tenant  for  life 
having    died    before    the    plaintiff    attained 
twenty-one    years    of    age.    .such    remainder 
consfMiuently  could  not   take  effect,   and   tlie 
estate  descended  to  tlie  heir  at  law.     On  a 
case  made  for  the  opinion  of  the  Judges,  it 
was  certified  "that  the  plaintiff  took  a  vest- 
ed estate  in  fee  simple  in  the  freehold  and 
copyhold    estates   of   the   testator,    determin- 
able uiioii  the  contingency  of  his  dying  un- 
der   the    age    of    twenty-one    years."      The 
Chief  Justice   sa.vs:    "This   is   an   immediate 
devise  to  the  plaintiff,  to  take  place  on  the 
death  of  the  two  preceding  devisees.     If  so, 
we  must  either  break  in  upon  the  terms  of 
the  will  or  give  them  effe<t.     In  the  latter 
case,  there  is  an  end  of  all  argument  about 
the  word  if."     "There  Is  nothing  in  the  will 
to  prove  that  the  testator  meant  the  plain- 
tiff  not   to   take   a    vested   estate    unless   he 

*280 
sun-ived  twenty-one.  Indeed.  *the  true  .sense 
of  the  thing  is,  that  the  testator  meant  him 
to  take  it  as  an  immediate  devise  in  himself, 
but  that  it  was  to  go  over  in  tlie  event  of 
his  dying  under  twent.v-one."  "Words  niu.st 
be  construed  according  to  the  intention  of 
the  parties."     "The   apparent   iuteutiou,   as 

113 


*280 


4  RICHARDSON'S  EQUITY  REPORTS 


collected  from  the  whole  will,  must  always 
control  particular  expressions."  "The  fairest 
construction  is,  that  the  plaintifE  took  an 
immediate  vested  estate  on  the  death  of  the 
preceding  devisees,  with  a  condition  subse- 
quent." Doe  V.  Moore,  14  East,  601,  was  a 
direct  devise  to  A.  when  he  attains  the  age 
of  twenty-one  years:  but  in  case  he  should 
die  before  he  attains  the  age  of  twenty-one 
years,  then  over.  It  was  held  by  Lord 
Ellenborough,  on  the  authority  of  the  pre- 
ceding cases,  as  well  as  Edwards  v.  Ham- 
mond, 3  Lev.  132,  that  this  did  not  make 
the  devisee's  attaining  twenty-one  a  condi- 
tion precedent  to  the  vesting  of  the  interest 
in  him:  but  that  the  dying  under  twenty- 
one  is  a  condition  subsequent,  on  which  the 
estate  is  to  be  divested.  The  rule,  and  the 
reason  of  it,  are  very  clearly  stated  by  Sir 
E.  Sugden,  in  the  argument  of  Phipps  v. 
Williams,  5  Sim.  44.  "Whether  the  estate 
be  in  possession  or  remainder,  If  it  be  de- 
vised to  a  man  on  the  happening  of  an 
event,  as,  for  instance,  his  attaining  twenty- 
one  years,  and  if  there  be  a  devise  over  in 
case  the  party  does  not  arrive  at  that  age, 
the  devisee  will  take  a  vested  estate  before 
he  attains  the  specified  age,  and  the  estate 
will  go  over  if  he  does  not  attain  that  age : 
because  it  is  considered  that  the  words  are 
introduced  for  the  sole  purpose  of  limiting 
the  period  when  he  is  to  take  an  indefeasi- 
ble estate,  and  not  for  the  pui-pose  of  show- 
ing an  intention  of  keeping  him  out  of  the 
enjoyment  of  the  property  till  that  particu- 
lar event  happens." 

This  class  of  cases  was  at  one  time  the 
subject  of  much  observation,  and  particular- 
ly tlie  case  of  Doe  v.  Moore  was  supposed 
to  carry  the  doctrine  too  far.  But  the  whole 
subject  was  recently  considered,  and  the  de- 
cisions reviewed  in  Phipps  v.  Ackers,  9 
Clarke  and  Fin.  583.  The  cause  was  twice 
argued  in  the  House  of  Lords,  and  once  in 
the  presence  of  the  twelve  Judges.  The 
question  submitted  to  the  Judges  was,  "What 

*281 
estate  George  HoPland  Ackers  took  in  the 
Wheelock  estate?  Testator  gave  these  es- 
tates to  G.  H.  A.  when  and  so  soon  as  he 
should  attain  the  age  of  twenty-one  years: 
but  in  case  he  should  die  under  the  age  of 
twenty-one  years  without  leaving  issue,  in 
that  case  the  estates  should  form  part  of 
the  residuary  estate  of  the  testator,  which 
he  gave  over  to  another  person."  Chief 
Justice  Tindal  delivered  the  unanimous 
opinion  of  the  Judges,  that  G.  H.  A.,  on 
the  decease  of  the  testator,  took  an  estate 
in  fee  simple  in  the  lands  and  heredita- 
ments of  W.,  subject  to  be  divested  in  the 
event  of  his  dying  under  twenty-one  and 
without  issue.  He  says  that,  "Whatever 
may  be  the  true  meaning  of  a  devise  to  A. 
and  his  heirs,  when  or  if  he  shall  attain 
twenty-one,  without  any  concomitant  provi- 
sions, yet  there  is  ample  authority  for  say- 

114 


ing  that  such  words  may,  from  the  context, 
be  taken  not  to  indicate  the  time  when  the 
estate  is  to  vest,  but  to  point  out  an  event, 
on  the  happening  of  which,  an  estate  al- 
ready vested  is  to  be  divested,  in  favor  of 
some  other  person."  He  instances  two  class- 
es of  cases.  The  second  class  of  cases,  con- 
tinues he,  "goe§  on  the  principle  that  the 
subsequent  gift  over  in  the  event  of  the  dev- 
isee dying  under  twenty-one,  sufficiently 
shews  the  meaning  of  the  testator  to  have 
been  that,  the  first  devisee  should  take 
whatever  interest  the  party  claiming  under 
the  devise  over  is  not  entitled  to,  which, 
of  course,  gives  him  the  immediate  interest, 
subject  only  to  the  chance  of  its  being  di- 
vested on  a  future  contingency.  Whether 
the  doctrine  on  which  this  second  class  of 
cases  has  rested  was  originjilly  altogether 
satisfactory,  is  a  point  which  we  need  not 
discuss.  It  is  sufficient  to  say,  that  it  clear- 
ly has  been  established  and  recognized  as 
a  settled  rule  of  construction,  not  only  in 
the  Courts  below,  but  also  in  the  House  of 
Lords."  In  Phipps  v.  Ackers,  the  devise 
was  to  trustees,  in  trust  to  convey  to  G.  H. 
A.,  when  and  so  soon  as  he  should  attain 
twenty-one  years,  &c.,  Lord  Lyndhurst  said, 
that  this  made  no  diffei-ence  in  the  disposi- 
tion of  the  property.  Referring  to  the 
course  which  the  case  had  taken,  he  says, 
"the  object  which  the  House  of  Lords  had 
in  view  was,  that  the  learned  Judges  should 
review  the  cases  of  Doe  v.  Moore  and  Brom- 

*282 
field  *v.  Crowder,  and  other  cases  of  that 
class.  The  Judges,  after  consideration,  unan- 
imously pronounced  the  opinion,  that  G.  H. 
A.  took  a  vested  estate  in  fee,  liable  to  be 
divested  in  the  event  of  his  dying  under 
twenty-one,  without  leaving  lawful  issue.  I 
am  perfectly  satisfied  with  that  decision  of 
the  Judges."  Lord  Campbell  said,  he 
thought  "it  could  not  admit  of  any  reason- 
able doubt  that,  if  it  had  been  a  legal  limi- 
tation, it  would  have  vested  in  George  Hol- 
land Ackers  immediately  upon  the  death  of 
the  testator,  liable  to  be  divested  on  his 
dying  before  twenty-one  without  issue." 
Lord  Brougham  thought  that  "Doe  v.  Moore 
was  an  extreme  application  of  the  doctrine, 
but  that  the  principle  sanctioned  by  the 
cases  bad  been  for  so  many  years  adopted 
by  acquiescence,  that  no  course  ought  to  be 
taken  which  could  break  in  upon  it."  "It 
is,"  says  he,  "of  the  most  essential  conse- 
quence that  the  doctrines  which  have  been 
long  received  for  law,  and  acted  upon  by 
the  Courts  in  their  decisions,  and  by  parties 
and  their  professional  advisers  in  the  dis- 
position of  property,  should  not  be  shaken." 
The  bill  had  been  filed  by  the  heiress  at  law 
for  an  account  of  the  rents  and  profits. 
George  Holland  Ackers  was  only  twelve 
years  of  age  at  the  testator's  •  death.  His 
demurrer  was  sustained  by  the  Vice  (Chan- 
cellor, (Phipps  v.  Williams,  5  Sim.  44,)  and, 


RIVERS  V.  FRIPP 


*285 


on  appeal,  the  judgment  of  the  Vice  Chan- 
cellor was  atlirnied  by  the  Iloiise  of  Lords. 

Rej:ardiii«  the  doctrine  then  as  well  es- 
tahlished,  it  may  be  proper,  l)efore  consider- 
ing,' the  application  of  it  to  this  will,  to  ad- 
vert to  Ihe  distinction  between  a  devise  an«l 
a  be(iuest  of  personalty.  It  is  true  the  rules 
in  relation  to  tlie  latter  are  chieHy  derived 
from  the  civil  law.  Rut,  in  botli,  the  ascer- 
tained intention  of  the  testator  will  control 
the  construction.  In  this  will,  the  real  and 
l)ersonal  estate  are  included  in  the  same 
clause,  and  made  subject  to  the  sam*'  provi- 
sions. On  reference  to  the  authorities,  it 
will  be  perceived,  that  the  princii)Ie  stated 
applies  as  well  to  i)ersonal  as  to  real  estate. 
Thus.  Mr.  Jarman  (vol.  1,  p.  771)  says,  when 
a  bequest  is  to  the  children,  who  shall  at- 
tain, or  to  such  children  as  shall  attain  the 
age  of  twenty-one  years,  there  beiny  in  such 

*283 
case  *no  gift,  except  to  tlie  persons  who  an- 
swer the  qualification  which  the  testator 
has  annexed  to  the  enjoyment  of  his  bounty, 
the  vesting  of  the  legacy  is  postponed.  Rut 
even  these  exjiressions  may  be  explained 
and  neutralized  by  the  context,  "as  if  the 
testator,  after  giving  to  the  children  who 
attiiin  a  certain  age,  goes  on  to  dispose  of 
the  property  in  ca.se  there  is  no  child  who 
does  attain  the  prescribed  age,  he  affords  a 
plausil)le  ground  for  the  argument  on  which 
Edwards  v.  Hammond,  and  that  class  of  cas- 
es, is  founded,  to  wit:  that  the  subsecjueut 
words  explain  the  .sense  in  which  he  intend- 
ed the  prior  words  to  be  understO(Hl.  namely, 
that  the  interest  of  the  legatees  was  merely 
liable  to  be  divested  on  the  event  described; 
in  other  words,  was  to  Ijecome  ab.solute  at 
(not  to  be  postponed  until)  the  prescribed 
age." 

William  Edings.  the  testator,  had  but  one 
son.  To  that  .son  he  devises  and  bequeaths 
(subject  to  a  life  interest  in  his  widow)  the 
homestead,  and  the  valuable  property,  real 
and  personal,  attached  thereto,  during  his 
life,  subject  to  certain  restrictions.  "From 
and  immediately  after  the  death  of  his  wife 
and  son,"  he  devises  and  be(iueaths  the  same 
property  (describing  it)  unto  the  lawfully 
begotten  issue  of  his  said  son,  living  at  the 
time  of  his  death,  who  should  live  to  attain 
twenty-one  years  of  age,  or  who.  dying  be- 
fore that  time,  should  leave  issue  to  live 
until  the  parent  would  have  attained  twen- 
ty-one years  of  age.  Rut  should  his  son  die 
without  leaving  issue  living  at  the  time  of 
iiis  death,  wlio  .shall  live  to  attain  twenty- 
one  years  of  age.  &c.,  then  the  testator  de- 
vises and  l)e(|ueaths  "the  said  real  and  per- 
sonal property  nuwitioned  and  contained  in 
rbat  clause  of  Ills  will."  unt(»  tiie  right  heirs 
of  him  (I  lie  testator)  then  living,  to  be  equal- 
ly divi<led.  &c.  The  context  explains  the 
meaning  of  the  testator.  The  gift  is  to  the 
issue  of  his  son,  to  whom  he  had  previously 
given   a   life  estate.     The   usufruct  and  en- 


joyment of  the  estate  was  to  continue  in 
them  as  it  had  been  in  their  father,  but  the 
e.state  was  not  to  become  absolute  and  in- 
def«>asible  until  attaining  the  full  age  of 
twenty-one  years.  The  langiuige  of  the  an- 
notator  on  Mr.  Fearne,  .seems  very  appli- 
cable.     Commenting    on    Edwards    v.    Ihim- 

*284 
mond,  he  says:  ♦"The  event  in  that  ca.se, 
namely,  the  attainment  of  twenty-one.  is 
one  which  is  often  considered  as  a  ipmsi 
certain  event,  so  that  it  is  not  required 
that  the  vesting  of  an  estate  should  be  sus- 
pended till  tlie  happening  of  such  an  event: 
it  is  suHicient  if  the  e.state  be  divested  in 
ca.se  it  should  not  happen,  especially  as  that 
event  is  not  of  such  a  character  as  to  con- 
•stitute  the  indi.spensai)le  pre-re<iuisite  to 
the  attaching  of  any  sort  of  interest  in  the 
party.  On  the  contrary,  it  is  ratlier  to  be 
supposed  that  the  testator,  considering  it 
most  probal)le  that  the  party  would  attain 
twenty-one,  should  lie  maintained  in  a  suit- 
able manner  out  of  the  rents  and  profits, 
as  he  would  be  if  he  should  take  a  vested 
interest,  instead  of  allowing  those  rents  and 
profits  to  go  to  his  heir  at  law,  whom  he  has 
shown  no  intention  to  benefit."  2  Fearne, 
sec.  351,  a.  And  so  Mr.  Jarman  on  this 
point  says  that,  although  it  would  not  per- 
haps be  warrantable  to  lay  down  any  gen- 
eral position  to  that  effect,  yet  several  of 
the  cases  point  to  the  conclusion  that,  in 
bequests  of  this  character,  the  construction 
should  be,  that  "the  absolute  ownershii*  only 
is  suspended  until  the  prescrilied  age:  and 
that,  in  the  meantime,  the  legatees  should 
take  vested  interests,  with  a  lial>ility  to  be 
divested  on  the  happening  of  the  presc-ribed 
event." 

These  remarks  derive  force  fron?  the  con- 
sideration, that  the  testator  seems  to  have 
placed  himself  in  the  relation  of  a  parent 
to  his  son's  offspring,  or,  at  least,  to  have 
intended  so  to  provide  for  them.  lie  con- 
templated his  son's  improvidence,  or.  per- 
haps, his  insolvency.  In  that  event,  the 
life  estate  given  to  him  is  revoked,  ami.  for 
the  remainder  of  his  life,  the  estate  is  given 
"to  the  wife  and  children  of  his  said  son, 
or  the  survivor  of  them,  without  being  la 
any  manner  subject  to  the  debts,  contracts 
or  control  of  his  said  son."  From  and  im- 
mediately after  the  termination  of  the  life 
interest,  the  estate  is  devi.sed  to  the  issue, 
as  before  recited.  It  is  true  that  the  codicil 
of  1S.'1G  gives  to  his  two  grand-sons  tiie  crop 
of  the  preceding  year,  liut  payment  is  ex- 
pressly postponed  until  twenty-one  years  of 
age,  with  directions  to  invest  for  their  use. 

♦285 
Assuming  that  their  father  might  live  ♦in- 
solvent, the  testator  had  carefully  and  lib- 
erally provided  for  his  grand-children  dur- 
ing their  father's  life  time:  can  it  be  pre- 
sumed that  he  intended  this  enjoyment  to  be 
interrupted   and  suspended  from  the  death   of 

115 


=2S.3 


4  RICHARDSON'S  EQUITY  REPORTS 


the  father  until  his  issue  had  attained  the 
prescribed  age? 

It  has  been  often  said  that  where  the  will 
is  capalde  of  that  construction,  an  interest 
shall,  if  possible,  be  considered  as  vested 
rather  than  contingent:  and  for  obvious 
reasons.  It  is  not  less  true,  that  the  lean- 
ing of  the  Courts  is  to  sustain  the  will  of  a 
testator,  rather  than  to  give  such  construc- 
tion as  would  defeat  it.  It  is  not  too  much 
to  assume  that  the  testator,  in  this  case, 
intended  to  make  a  full  and  final  disposition 
of  his  whole  estate.  He  not  only  executed 
a  will  which  was  to  be  the  law  of  his  prop- 
erty, but  he  established  a  tribunal  for  de- 
claring this  law.  The  instrument  was  made 
upon  advisement,  with  manifest  reference 
to  the  rules  of  law,  and  an  intention  to  ad- 
here to  them.  The  most  prominent  object  in 
his  will  was  the  disposition  of  the  Edisto 
Island  estate,  on  which  he  lilmself  resided. 
After  securing  this  to  his  widow  for  life, 
his  manifest  purpose  was  to  secure  it  to  his 
only  son  and  his  immediate  family,  so  long 
as  he  was  permitted  to  secure  it  by  the  rules 
of  law.  Construing  the  devise  as  a  vested 
interest,  subject  to  be  defeated  on  the  hap- 
pening of  the  prescribed  event,  the  object  of 
the  testator  is  completely  attained.  But  if 
it  be  regarded  as  a  contingent  remainder,  not 
to  take  effect  until  the  issue  attained  the 
prescribed  age,  not  only  is  his  intention  de- 
feated, but  the  testator  contemplated  the 
state  of  things,  and  so  framed  his  will  that 
his  purpose  would  be  certainly  and  obvious- 
ly frustrated.  "Every  remainder  must  vest, 
either  during  the  particular  estate,  or  else 
at  the  very  instant  of  its  determination." 
From  this  rule  it  follows  that  where  the 
event,  "on  which  a  contingent  remainder  is 
limited  to  take  effect,  does  not  happen  by  the 
time  at  which  the  preceding  estate  deter- 
mined, it  never  can  arise  or  take  effect  at 
all."  Fearne,  308.  The  testator  here  par- 
ticularly contemplates  the  probable  deter- 
mination of  the  particular  estate,  and,  ac- 
cording   to    the    hypothesis,    postpones    the 

*286 

vesting  *(it  may  be)  for  twenty  years  there- 
after. The  devise  over  to  the  testator's  right 
heirs,  is  only  on  the  happening  of  the  con- 
tingency. The  result  would  be,  thdt  the  fee 
descended  to  his  heirs  at  law  as  in  case  of 
intestacy,  or  that  it  passed  under  the  resid- 
uary clause  of  his  will;  in  which  latter  case 
the  offspring  of  his  son,  although  they  might 
afterwards  attain  the  age  of  twenty-one 
years,  would  find  themselves  effectually  ex- 
cluded from  any  participation  in  the  estate, 
in  consequence  of  the  very  measures  adopt- 
ed to  secure  their  absolute  right  in  it. 

The  subsequent  clauses  of  the  will,  and 
particularly  the  devise  to  the  children  of 
his  deceased  daughter,  Eliza  Whaley,  con- 
firm the  conviction  that  the  intention  of  the 
testator  was  that  the  issue  should  take  a 
vested,  though  defeasible  interest.  The 
116 


Court  is  of  opinion  that  William  M.  Edings 
took  a  vested  interest  under  the  will  of  his 
grand-father,  which  was  not  divested  or  de- 
feated until  the  death  of  his  child,  \niov  to 
the  period  at  which  his  father  would  have 
attained  the  age  of  twenty-one  years,  and 
that  his  pei'sonal  representative  is  entitled 
to  an  account  of  a  moiety  of  the  interim 
rents  and  profits,  from  the  decease  of  Sarah 
Edings,  the  life  tenant. 

As  to  the  proceeds  of  tho  crop  of  1835, 
the  language  of  the  codicil  seems  sufficiently 
explicit.  The  gift  is  direct  to  the  two  grand- 
sons, to  be  equally  divided  between  them, 
each  receiving  his  respective  share  as  he 
comes  to  the  lawful  age  of  twenty-one  yeai's, 
and  his  executors  are  authorized  to  convert 
the  same  into  any  valuable  property  for 
their  use.  This  vests  an  immediate  interest 
in  each  of  the  legatees,  transmissible  to  his 
personal  representative.  The  event  never 
having  occurred  on  which  the  right  of  sur- 
vivorship would  attach,  the  complainant  is 
entitled  to  an  account  and  payment  of  the 
intestate's  interest  in  this  fund. 

The  complainant  is  also  entitled  to  an  in- 
quiry and  account  as  to  the  estate  of  Mrs. 
Sarah  Edings,  deceased,  the  grand-mother 
of  the  intestate,  William  M.  Edings,  de- 
ceased. 

It  is  ordered  and  decreed,  that  it  be  re- 
ferred to  one  of  the  masters  to  state  an  ac- 
count between  the  parties  upon  the  princi- 

*287 
*ples  herein  declared,  and  that  he  have 
leave  to  report  any  special  matter,  parties 
being  at  liberty  to  apply  for  such  further 
orders,  at  tlie  foot  of  this  decree,  as  may  be 
necessary  to  carry  the  same  into  effect. 

Extract  from  Will. 

"Item.  I  give  and  be(iueatli  unto  my  be- 
loved wife,  Sarah  Edings,  for  and  during  her 
natural  life,  the  use  and  occupation  of  my 
principal  mansion-house,  yard  and  garden, 
on  Edisto  Island,  of  my  dwelling-house  on 
Eding"s  Bay,  and  of  all  my  three  tracts  of 
land  on  Edisto  Island,  containing  in  the 
whole  about  twelve  hundred  acres.  And  I 
further  give  and  bequeath  unto  my  said  wife, 
also  for  and  during  her  natural  life,  the  use, 
occupation,  interest  and  income  of  all  the 
slaves,  and  of  the  stock  and  plantation  im- 
plements and  utensils  on  my  said  three 
tracts  of  land  on  Edisto  Island,  to  be  deliv- 
ered to  her  from  the  time  of  my  death.  And 
I  give  and  bequeath  absolutely  to  my  said 
wife,  my  wench  Sylvia,  and  carriage  and 
horses,  my  boats,  and  household  furniture. 
And  I  will,  order  and  direct  that  the  provi- 
sion hereby  made  by  me  for  my  dear  wife 
shall  be  in  lieu  and  bar  of  dower  or  thirds, 
and  of  all  other  claims  which  she  may  or  can 
in  any  manner  have  against  my  estate,  real 
or  personal. 

"Item.  I  give,  devise  and  bequeath  unto 
my  dear  son,  John  Evans  Edings,  for  and 


RIVERS  V.  FRTPP 


*290 


durinjr  his  natural  life,  and  sultjeft  to  thp 
conditions,  limitations  and  i)rovisions  herein- 
after expressed  and  declared,  all  my  said 
three  tracts  of  land  on  Edlsto  Island,  con- 
taining in  the  whole,  as  aforesaid,  twelve 
hundred  acres,  tojjether  with  luy  Sea  liays 
on  the  said  Island,  sultject  to  the  life  estate 
of  my  dear  wife  in  my  principal  mansion- 
house,  yard  and  garden,  in  my  dwelling- 
house  on  Edinf^'s  Bay,  and  in  my  said  three 
tracts  of  land,  and  reserving  to  my  sister, 
Mary  Chisolm,  and  to  each  of  my  daughters, 
the  right  of  having  each  a  lot  of  land  for  a 
residence  on  any  of  my  Sea  Bays,  at  their 
election,  for  and  during  their  respective  nat- 
ural lives,  and  no  longer;  and  which  said 
right  I  do  hereby  give  and  bequeath  to  them 
respectively.  And  also  I  further  give  and 
bequeath  to  my  said  son,  for  and  during  h\:i 

*288 
na*tural  life,  and  subject  to  the  said  con- 
ditions, limitations  and  provisoes  herein-aft- 
er expressed  and  declared,  the  use,  occupa- 
tion, interest  and  income  of  all  the  slaves, 
and  of  the  stock,  plantation  implements  and 
utensils  on  my  said  three  tracts  of  land,  sub- 
ject to  the  life  estate  therein  of  his  mother, 
nij'  dear  wife  as  aforesaid.  And  I  do 
hereby  will,  order  and  direct,  that  if  at  any 
time  or  times  hereafter,  during  the  life  of  my 
said  son,  the  operation  of  any  bankrupt  or 
insolvent  law,  or  any  act,  matter  or  thing 
in  law  or  in  equity,  without  or  with  the  will 
or  consent  of  my  said  son,  would  deprive  him 
of  the  use.  annual  rents,  issues,  services, 
profits  and  income  arising  from  the  devise 
and  bequest  herein  and  hereby  made  to  him, 
as  the  same  shall  annually  and  from  time  to 
time  accrue  after  the  death  of  his  said  moth- 
er; or  if  he.  my  said  son.  shall  sign  or  exe- 
cute any  instrument,  or  enter  into  any  con- 
tract or  agreement,  by  which  he  shall  con- 
tract or  agree  to  sell,  assign  or  otherwise 
part  with  the  said  use,  annual  rents,  issues, 
services,  profits  and  income,  or  any  part 
thereof,  as  a  .security  for  any  sum  or  sums  of 
money  due  and  owing  by  him.  or  to  be  lent 
and  advanced  by  him,  to  any  per.son  or  per- 
sons whomsoever,  or  in  any  manner  charge 
or  disi)o.se  of  the  said  use,  annual  rents,  is- 
sues, services,  profits  and  income,  or  any 
part  thereof,  by  way  of  anticipation,  or 
wliereby  or  in  which  he  should  authorize  and 
enqwwer,  or  intend  to  authorize  and  em- 
power, ajiy  person  or  persons  whomsoever  to 
rei-eive  the  same,  or  any  part  thereof,  other- 
wise than  for  his,  my  .said  son's,  own  and  di- 
rect and  inunediate  use,  then,  and  in  any 
or  either  of  these  cases,  I  from  thenceforth 
revoke  and  annul  the  said  devise  of  my  said 
three  tracts  of  land  and  my  Sea  Rays  on 
Edisto  Island,  to  my  said  son  for  life,  sub- 
ject to  the  life  estate  of  my  dear  wife  there- 
in, and  in  my  principal  niansion-hou.se,  yard, 
garden,  and  in  my  dwelling-house  on  Kdisto 
Bay.  and  the  reservations  to  my  sister  and 
daughters  respectively,  as  aforesaid;  and  1 


thenceforth  also  revoke  and  annul  the  said 
bequest  to  my  .said  son  for  his  life  of  tlie 
said  slaves.  st<»ck  and  plantation  implements 
and  utensils,  on  my  said  three  tracts  of  land 
on    Kdisto  Island,  subject  to  the  life  estate 

♦289 
therein  of  his  *mother,  as  aforesaid;  and  I 
thenceforth  give,  devi.se  and  lHH|ueath  the 
said  three  tracts  of  land,  and  my  principal 
mansion-house,  yard,  garden  and  dwelling- 
house  on  Eding's  Bay,  and  my  Sea  Bays  on 
Kdisto  Island,  as  aforesaid,  and  the  said 
slaves,  stock  and  plantation  implements  and 
utensil.s.  on  my  .said  three  tracts  of  land  on 
Kdisto  Island,  as  aforesaid,  subject  to  the 
life  estate  therein  of  my  wife,  and  to  the  re- 
strictions as  aforesaid  unto  the  wife  and 
children  of  my  said  son,  or  the  survivor  or 
survivors  of  them,  for  and  during  the  re- 
mainder of  the  life  of  my  .said  son.  to  and 
for  their  and  each  of  their  sole  and  separate 
use,  benefit  and  Ix'hoof,  and  without  being  in 
any  manner  subject  to  the  debts,  contracts 
or  control  of  my  .said  son.  And  from  and 
immediately  after  the  death  of  my  said  wife 
and  son,  I  give,  devise  and  bequeath  all  my 
said  three  tracts  of  land,  my  said  mansion- 
house,  yard  and  garden,  my  dwelling  house 
on  Eding's  Bay,  and  my  Sea  Bays  on  Kdisto 
Island,  as  aforesaid,  subject  to  the  reserva- 
tions in  favor  of  my  sister  and  my  two 
daughters,  as  aforesaid;  and  all  my  slaves, 
stock,  and  plantation  implements  and  uten- 
sils, on  my  said  three  tracts  of  land  on  Edis- 
to Island,  as  aforesaid,  unto  the  lawfullj' 
begotton  issue  of  my  said  son,  living  at  the 
time  of  his  death,  who.  to  wit,  the  said  is- 
sue, shall  live  to  attain  the  full  age  of  twen- 
ty-one years,  or  who.  dying  before  that  time, 
shall  leave  lawfully  begotten  issue  to  live 
luitil  the  time  at  which  the  parent  or  parents, 
if  alive,  would  have  reached  the  full  age  of 
twenty-one  years;  if  more  than  one,  then  to 
them,  their  heirs  and  assigns,  absolutely  and 
forever;  and  if  one.  then  to  that  one.  his  or 
her  heirs  and  assigns,  absolutely  and  forever, 
the  issue  of  any  deceased  issue  of  my  said 
son,  and  whetlier  the  said  issue  died  before 
or  after  my  said  son,  taking  and  receiving 
the  .sanie  share  and  proportion  as  the  jiarent 
or  parents,  if  alive,  would  have  taken  and 
received.  And  should  my  said  son  die  with- 
out leaving  lawfully  begotten  issue,  living  at 
the  time  of  his  death,  who,  to  wit,  the  said 
issue,  shall  live  to  attain  the  full  age  of 
twenty-one  years,  or  who.  dying  before  that 
time,  shall  leave  lawfully  begotten  issue  to 
liv(»  until   the  time  at   whidi   the  parent  or 

♦290 
parents,  if  alive,  woidd  ♦have  attained  twen- 
ty-one years  of  age,  then  I  give,  devise  and 
bequeath  all  the  said  real  and  personal  prop- 
erty mentioned  and  contained  in  this  clause 
of  my  will,  unto  the  right  heirs  then  living 
of  me.  the  said  Wm.  Edings,  to  Ix;  equally 
divided  among  them,  share  and  share  alike, 

117 


*290 


4  RICHARDSON'S  EQUITY  REPORTS 


according  to  the  laws  of  this  State  for  the 
distribution  of  intestate's  estates. 

"Item.  I  give,  devise,  and  bequeatli  unto 
my  two  grand-sons,  William  James  Whaley 
and  Benjamin  Seabrook  AVhaley,  the  children 
of  my  dear  deceased  daughter,  Eliza  Whaley, 
for  and  during  their  respective  natural  lives, 
all  my  plantation  or  tract  of  land  on  Slann's 
Island,  coumionly  called  Glover's  tract,  and 
also  that  plantation  or  tract  of  land  on  Che- 
haw,  together  with  all  the  slaves,  stock,  plan- 
tation implements  and  utensils  on  the  said 
two  plantations,  belonging  to  me  at  the  time 
of  my  death,  and  the  sum  of  twenty  thou- 
sand dollars.  And  upon  the  death  of  my 
said  grand-sons  respectively,  then  I  give,  de- 
vise, and  bequeath  their  respective  shares  in 
the  said  lauds  and  negroes,  stock,  plantation 
implements  and  utensils,  and  twenty  thou- 
sand dollars,  unto  their  respective  lawfully 
begotten  issue  living  at  the  time  of  the  re- 
spective deaths  of  my  said  grand-sons,  who, 
to  wit,  the  said  issue,  who  shall  attain  the 
full  age  of  twenty-one  years,  or  who,  dying 
before  that  time,  or  before  the  death  of  my 
grand-son  or  grand-.sons,  as  aforesaid,  leave 
lawfully  begotten  issue  to  live  until  the  time 
at  which  the  parent  or  parents,  if  alive, 
would  have  attained  the  full  age  of  twenty- 
one  years,  to  be  equally  divided  among  them; 
if  more  than  one,  then  to  them,  their  heirs 
and  assigns,  absolutely  and  forever,  the  is- 
sue of  any  deceased  issue  then  only  taking 
and  receiving  the  share  or  proportion  to 
which  the  parent  or  parents,  if  alive,  would 
have  been  entitled.  And  should  either  of  mj' 
said  grand-sons  die  without  leaving  lawfully 
begotten  issue  living  at  his,  my  said  grand- 
son's death,  who,  to  wit,  the  said  issue,  who 
shall  live  to  attain  the  full  age  of  twenty- 
one  years,  or  dying  before  that  age,  leave 
lawfully  begotten  issue  living  at  the  time  at 
which  the  parent  or  parents,  if  alive,  would 
have  reached  the  full  age  of  twenty-one  years, 
then  the  part  of  the  one  so  dying  shall  go 

*291 
*to  the  survivor  of  my  said  grand-sons,  or  to 
the  issue  of  him  of  my  said  grand-sons,  who 
may  have  previously  died,  leaving  issue  liv- 
ing at  the  time  of  his  death,  who,  to  wit,  the 
said  issue,  who  shall  live  to  attain  the  full 
age  of  twenty-one  years,  or  dying  before  that 
time,  leave  lawfully  begotten  issue  living  at 
the  time  at  which  the  parent  or  parents,  if 
alive,  would  have  reached  the  full  age  of 
twenty-one  years ;  if  one,  then  to  that  one, 
his  or  her  heirs  and  assigns,  absolutely  and 
forever:  and  if  more  than  one,  then  to  them, 
their  heirs  and  assigns,  absolutely  and  for- 
ever, the  issue  of  any  deceased  issue  only 
taking  and  receiving  the  share  or  proportion 
which  the  parent  or  parents,  if  alive,  would 
have  taken  and  received.  And  should  both 
of  my  said  grand-sons  die  without  leaving 
lawfully  begotten  issue  living,  at  the  death 
of  the  survivor  of  them,  my  said  grand-sons, 
who,  to  wit,  the  said  issue,  who  shall  live  to 
118 


attain  the  full  age  of  twenty-one  years,  or 
who,  dying  before  that  age,  leave  lawfully 
begotten  issue  living  at  the  time  at  which 
the  parent  or  parents,  if  alive,  would  have 
reached  the  full  age  of  twenty-one  years, 
then,  and  in  either  of  those  cases,  I  give,  de- 
vise, and  bequeath  the  said  two  plantations 
and  negro  slaves,  with  the  stock,  plantation 
implements  and  utensils,  and  the  said  sum 
of  twenty  thousand  dollars,  unto  the  right 
heirs  then  living  of  me,  the  said  William 
Ediugs,  to  be  equally  divided  among  them, 
according  to  the  law  of  this  State  for  the 
di-stribution  of  intestate's  estate. 

"Item.  I  give,  devise,  and  bequeath  all  my 
plantation  called  Indian  Field,  purchased  of 
the  executors  of  Henry  Calder,  together 
with  all  the  slaves,  stock,  plantation  imple- 
ments and  utensils,  and  personal  property, 
belonging  to  me  thereon,  at  the  time  of  my 
death,  and  also  my  wench  named  Katy,  with 
her  issue  and  increase,  unto  my  dear  daugh- 
ter, Sarah  Chisolm,  the  wife  of  George  Chis- 
olm,  junior,  for  and  during  her  natural  life, 
to  and  for  her  sole  and  separate  use,  and 
without  being  in  any  manner  subject  to  the 
debts,  contracts,  or  control  of  any  husband 
whom  she  may  have?  and  from  and  immedi- 
ately after  the  death  of  my  said  daughter, 
Sarah  Chisolm,  then  I  give,  devise,  and  be- 

*292 
queath  *the  said  plantation  called  Indian 
Field,  and  the  slaves,  stock,  plantation  uten- 
sils and  personal  property  thereon  belonging 
to  me,  unto  the  lawfully  begotten  issue  of 
my  said  daughter,  Sarah,  living  at  the  time 
of  her  death,  who,  to  wit,  the  said  issue, 
who  shall  live  to  attain  the  full  age  of  twen- 
ty-one years,  or  who,  dying  before  that  time,, 
shall  leave  lawfully  begotten  issue  to  live 
until  the  time  at  which  the  parent  or  par- 
ents, if  alive,  would  have  attained  the  full  age 
of  twenty-one  years ;  if  more  than  one,  then 
to  them,  their  heirs,  and  assigns,  absolutely 
and  forever ;  and  if  one,  then  to  that  one,  his 
or  her  heirs  and  assigns,  absolutely  and  for- 
ever, the  issue  of  any  deceased  issue  of  my 
said  daughter,  and  whether  the  said  issue 
died  before  or  after  my  said  daughter,  tak- 
ing and  receiving  the  same  share  and  propor- 
tion as  the  parent  or  parents,  if  alive,  would 
have  taken  and  received ;  and  should  my 
said  daughter,  Sarah,  die  without  leaving 
lawfully  begotten  issue  living  at  the  time  of 
her  death,  who,  to  wit,  the  said  issue,  who 
shall  live  to  attain  the  full  age  of  twenty- 
one  years,  or  who,  dying  before  that  age, 
leave  lawfully  begotten  issue  to  live  until 
the  time  at  which  the  parent  or  parents,  if 
alive,  would  have  attained  the  full  age  of 
twenty-one  years,  but  leaving  her  husband 
surviving  her,  then,  and  in  that  case,  I 
thenceforth  give,  devise,  and  bequeath  the' 
use,  occupation,  and  enjoyment  of  the  said 
real  and  personal  estate,  mentioned  and  con- 
tained in  this  clause  of  my  will,  unto  her 
said   husband,   for   and   during   his   natural 


RIVERS  V.  FRIPP 


»295 


life,  and  then  from  and  after  the  death  of 
her  said  liusband,  I  give,  dcvi.se,  and  be- 
queath all  the  said  real  and  personal  projier- 
ty  mentioned  and  contained  in  this  clause  of 
my  will,  unto  the  right  heirs  then  living  of 
me,  the  said  William  Ediugs,  to  be  etjually 
divl(U>d  among  them,  according  to  (he  laws 
of  this  State  for  the  distribution  of  inti's- 
late's  estates.  And  should  my  .said  daugh- 
ter, Sarah,  die  without  leaving  lawfully  be- 
gotten issue  living  at  the  time  of  her  death, 
who,  to  wit,  the  said  issue,  who  shall  attain 
the  full  age  of  twenty-one  years,  or  who,  dy- 
ing before  that  age,  leave  lawfully  begotten 
i.ssue  to  live  until  the  time  at  which  the 
pan-nt  or  parents,  if  alive,  would  have  readi- 

*293 
ed  the  full  age  of  twenty-*one  years,  and 
without  leaving  her,  my  said  daughter's  hus- 
band, surviving  her,  then  from  and  inunedi- 
ately  after  the  death  of  my  said  daughter,  I 
give,  devise,  and  be(|ueatli  all  the  said  real 
and  personal  property  mentioned  and  con- 
tained in  this  clause  of  my  will,  unto  the 
right  heirs  then  living  of  me,  the  said  Wil- 
liam Edings,  to  be  equally  divided  among 
them,  according  to  the  laws  of  this  State  for 
the  distribution  of  intestate's  estates. 

"Item.  In  like  maimer,  1  give,  devise,  and 
beiiueath  all  my  plantation  on  John's  Island, 
purchased  of  Commodore  Campbell,  together 
with  all  the  slaves,  stock,  plantation  utensils, 
and  personal  property  belonging  to  me  there- 
on, at  the  time  of  my  death,  and  also  all 
my  plantation  called  Archtield.  situate  in 
Saint  Paul's  Parish,  and  purchased  by  me  of 
-Mrs.  Harriet  Crafts,  with  all  the  slaves, 
Mtock,  plantation  utensils,  and  personal  prop- 
erty thereon  belonging  to  me  at  the  time  of 
my  death,  and  also  my  wench  Ilagar,  with 
lier  issue  and  increase,  unto  my  dear  daugh- 
ter, Mary  I'ripp,  the  wife  of  .Tohn  A.  Fripp, 
for  and  during  her  natural  life,  to  and  for 
lier  own  sole  and  separate  use,  and  without 
being  iu  any  manner  sul)ject  to  the  debts, 
contracts,  or  control  of  any  husband  whom 
she  may  have;  and  from  and  immediately 
after  the  death  of  my  .said  daugliter,  Mary 
Fripi».  then  I  give,  devise,  and  l»e<iueath  the 
s;ii(l  iilantation  on  John's  Island,  and  the 
said  plantation  called  Archfield.  and  the 
slaves,  stock,  plantation  utensils,  and  per- 
sonal property  belonging  to  me  on  the  said 
two  plantations  at  the  time  of  my  death,  un- 
to the  lawfully  begotten  issue  of  my  said 
daughter,  Mary,  living  at  tlie  time  of  her 
<leath,  who,  to  wit,  the  said  issue,  who  shall 
live  to  attain  the  full  age  of  twenty-one 
.vears,  or  who.  dying  liefore  that  time,  shall 
leave  lawfully  begotten  issue  to  live  until 
the  time  at  whi<h  the  parent  or  parents,  if 
iilive,  would  have  attained  the  full  age  of 
twenty-one  years ;  if  more  than  one.  then  to 
them,  their  heirs  and  assigns,  absolutely  and 
forever :  and  if  one,  then  to  that  one.  his  or 
her  heirs  and  assigns,  absolutely  and  forever, 
the  issue  of  any  deceased  issue  of  my  said 


daughter,  and  whether  the  said  issue  die  be- 
fore, or  after  her,  my  said  daughter,  taking 
and  receiving  the  same  share  and  proportion 

*294 
as  the  parent  ♦or  parents,  if  alive,  would 
have  taken  and  received.  And  should  my 
said  daughter,  Mary,  die  without  leaving  law- 
fully begotten  issue  living  at  the  time  of  her 
death,  who,  to  wit,  the  said  issue,  shall  live 
to  attain  the  full  age  of  twenty-one  years, 
or  who,  dying  before  that  age,  leave  law- 
fully begotten  issue  to  live  until  the  time  at 
which  the  parent  or  parents,  if  alive,  would 
have  attained  the  full  age  of  twenty-one 
years,  but  leaving  her  husband  surviving  her, 
then,  and  in  that  ca.se,  I  thenceforth  give, 
devise,  and  bequeath,  the  use,  occupation, 
and  enjoyment  of  the  said  real  and  personal 
property,  mentioned  and  containe<l  in  this 
clause  of  my  will,  unto  her  .said  liusband.  for 
and  during  bis  natural  life;  and  then  from 
and  immedi.'itely  after  the  death  of  her  said 
husband,  I  give,  devi.se  and  bequeath  all  the 
said  real  and  personal  property,  mentioned 
and  contained  in  this  clause  of  my  will,  unto 
the  right  heirs  then  living  of  me,  the  said 
William  Edings,  to  be  equally  divided  among 
them,  according  to  the  laws  of  this  State  for 
the  distribution  of  intestate's  estates;  and 
should  my  said  daughter,  Mary,  die  without 
leaving  lawfully  begotten  issue  living  at  the 
time  of  her  death,  who,  to  wit,  the  said  is- 
sue, wiio  shall  attain  the  full  age  of  twenty- 
one  years,  or  who,  dying  before  that  age, 
leave  lawfully  begotten  issue  to  live  until  the 
time  at  which  the  parent  or  parents,  if  alive, 
would  have  reached  the  full  age  of  twenty- 
one  years,  and  without  leaving  her.  my  said 
daughter's  husband,  surviving  her,  then  from 
and  immediately  after  the  death  of  my  said 
daughter,  I  give,  devise,  and  bequeath  all  the 
said  real  and  personal  property,  mentioned 
and  contained  in  this  clause  of  my  will,  unto 
the  right  heirs  then  living  of  me,  the  said 
William  Edings,  to  be  equally  divided  among 
them,  according  to  the  laws  of  this  State  for 
the  distribution  of  intestate's  estates. 

"Item.  I  give  and  bequeath  my  slave 
Daphne,  with  all  lier  issue  and  increase,  un- 
to my  grand-son,  William  Mings,  his  execu- 
tors, admini.strators,  and  assigns  forever. 

"Item.  I  give,  devise,  and  beiiueath  all  the 
rest,  residue,  and  remainder  of  my  estate, 
real  and  per.sonal,  whatsoever  and  whereso- 
ever, unto  my  dear  wife,  the  issue  of  my  de- 

*295 
ceased  daughter,  ♦Eliza  Whaley,  and  my  two 
daughters,  Sarah  Chisolm  and  Mary  Fripp, 
to  be  equally  divided  among  them,  share  and 
share  alike,  the  issue  of  my  daughter,  Eliza 
Whaley,  receiving  only  one  share;  and  I 
will  order  and  direct  that  the  issue  of  any  of 
my  said  residuary  devisees  and  legatees  who 
may  die  before  me,  shall  take  and  receive 
the  same  share  and  projiortion  in  my  said  re- 
siduary estate,  real  and  personal,  as  the  par- 

119 


*29J 


4  RICHARDSON'S  EQUITY  REPORTS 


eiit   or   i.areiits,   if  alive,  would  bare  taken 
and  received." 

Codicil. 

"Item.  I  farther  more  give  and  bequeath 
unto  my  grand-sons,  William  Edings  and 
John  Evans  Edings,  the  children  of  John  E. 
Edings.  the  proceeds  of  the  crop  of  cotton 
made  on  my  plantation  on  Edisto  Island,  in 
the  year  eighteen  hundred  and  thirty-iive,  to 
i)e  equally  divided  between  them,  each  receiv- 
ing his  respective  share  as  he  comes  to  the 
lawful  age  of  one  and  twenty  years. 

"My  executors  named  in  my  will  are  au- 
thorized to  convei't  the  same  into  any  valu- 
able property  for  their  use. 

"Item.  It  is  likewise  my  will,  that  should 
either  of  the  above  named  children  die  be- 
fore he  attains  the  age  of  one  and  twenty 
years,  leaving  no  lawful  issue,  then,  in  that 
case,  the  survivor  shall  be  heir  to  the  wliole 
amount." 

The  defendant.  John  Evans  Edings,  appeal- 
ed from  so  much  of  the  foregoing  decree,  as 
declares  that  \Yilliam  M.  Edings  took  a  vest- 
ed estate  in  a  moiety  of  the  Edisto  Island 
property,  on  the  following  grounds: 

1.  Because  the  attainment  of  the  age  of 
twenty-one  years  formed  a  part  of  the  orig- 
inal description  of  the  devisee  and  legatee, 
and  the  interest  was  necessarily  contingent 
on  account  of  the  person  ;  and  that  William 
M.  Edings  not  having  attained  that  age,  nev- 
er answered  the  description  of  the  person 
who  was  to  take. 

2.  Because  the  attainment  of  the  specified 
age  was  a  condition  precedent  to  the  vesting 
of  any  interest  in  William  M.  Edings,  and 
not  a  condition  subsequent,  the  fulfilment  of 
which  would  make  a  defeasable  vested  estate 
indefeasable. 

*296 

*3.  Because  the  interest  of  William  M.  Ed- 
ings in  the  real  estate  was  not  a  remainder, 
but  an  executory  devise ;  and  that  his  inter- 
est in  the  personal  estate  was  an  executory 
interest ;  and  that  the  vesting  of  either  de- 
pended upon  his  attaining  the  age  specified. 

4.  Because  the  intermediate  rents  and  prof- 
its of  the  said  property  accumulated  for  the 
benefit  of  the  person  who  should  become  ul- 
timately entitled  to  the  corpus. 

5.  Because  it  is  apparent  from  the  will  that 
the  testator  intended  the  intermediate  rents 
and  profits  to  accumulate,  and  to  postpone 
the  vesting. 

6.  Because  the  decree  is  contrary  to  law 
and  equity,  and  the  demurrer  of  the  said 
John  Evans  Edings  should  have  been  al- 
lowed. 

B.  J.  Whaley,  for  appellant.  If  the  testa- 
tor stood,  as  to  W.  M.  Edings,  in  loco  par- 
entis, and  this  were  an  application  by  W.  M. 
Edings  to  be  allowed  maintenance  out  of  the 
rents  and  profits,  the  application  could  not 
succeed.  Hanson  v.  Graham,  6  Ves.  238 ; 
120 


Chambers  v.  Goldwyn,  11  Ves.  1;  Mackie  v. 
Alston,  2  Des.  362 ;  Brailsford  v.  Ileyward, 
2  Des.  30;  Allen  v.  Croslaud,  2  Rich.  E(i.  GS; 
Eairman  v.  Green,  10  Ves.  48 ;  Cavendish  v. 
Mercer,  5  Ves.  195;  Kendall  v.  Nash,  5  Ves. 
1"J7  ;  Mitchell  v.  Bower,  3  Ves.  2.82  ;  Long  v. 
Long,  3  Ves.  286,  note ;  Greenwell  v.  Green- 
well,  5  Ves.  19.5.  But  the  exception  to  the 
general  rule  of  law,  (that  a  contingent  lega- 
cy, with  a  limitation  over,  or  a  legacy  pay- 
able at  twenty-one,  does  not  carry  interest.) 
does  not  extend  bejond  tho  'se  of  parent 
and  child,  or  husband  and  ..ile;  and  the 
testator's  will  contains  nothing  which  shows 
that  he  intended  to  place  himself  in  loco 
parentis.  Crickett  v.  Dolby,  3  Ves.  10;  But- 
ler V.  Butler,  3  Atk.  58 ;  Lupton  v.  Lupton, 
2  Johns.  Ch.  G2S ;  ^'an  Bramer  v.  Hoffman, 
2  Johns.  Ch.  200;  Errington  v.  Chapman.  12 
Ve.s.  10;  Rawlins  v.  Goldfrap,  5  Ves.  440; 
Leslie  v.  l^eslie,  Lloyd  and  G.  1 ;  Moggrid-'e 
V.  Thackwell,  1  Ves.  474;  Earle  of  liad 
V.  Shafto,  il  Ves.  457 ;  2  Jarm.  on  Wills. 
Upon  the  fir.st  and  second  grounds  of  ai),  .  . 
Mr.  Whaley  cited  Boraston's  case.  3  Rep.  19 ; 
Edwards  v.  Hammond,  1  B.  and  P.  New  Rep. 

*297 
324,  note;  Fearue,  *241,  et  .seq. ;  Broomfield 
V.  Crowder,  1  B.  and  P.  New  Rep.  313,  Doe 
V.  Moore.  14  East.  601;  Doe  v.  Xowell,  1  M, 
and  S.  327,  S.  C.  5  Dow.  202 ;  Plapps  v.  Wil- 
liams, 5  Sim.  44 ;  2  Ves.  Sen.  121 :  18  Ves. 
368;  3  P.  W.  .300;  Cases  Temp.  Talbot,  22S; 
2  Ves.  Sen.  521 ;  Freem.  243 ;  Cases  Temp. 
Talbot,  245;  Bull  v.  Pritchard,  1  Russ.  213; 
Vawdry  v.  Geddes,  1  R.  and  M.  203;  Leake 
v.  Robinson,  2  Mer.  363 :  Smith  on  Execut. 
Int.  136  et  seq. ;  Durtleld  v.  Dutheld,  1  Dow 
and  C.  268 ;  Barker  v.  Lea,  1  T.  and  R.  413 ; 
Bland  v.  Williams,  1  M.  and  K.  411 :  Judd  v. 
Judd,  3  Sim.  .525;  Hunter  v.  Judd,  4  Sim. 
455 ;  Phipps  v.  Ackers,  9  CI.  and  Fin.  595 ; 
Skey  V.  Barnes,  3  Mer.  334  ;  Smith  on  Execut. 
Int.  184;  1  Jarm.  on  Wills,  738,  et  seq.; 
Brailsford  v.  Heyward,  3  Des.  30 ;  Mackie  v. 
Alston,  3  Des.  362;  Redfern  v.  Middleton, 
Rice,  459;  Fearne,  503;  4  Johns.  Ch.  388; 
7  Wend.  52 ;  Jac.  R.  468 ;  1  Story  Eq.  §  289, 
290. 

Elliott,  Petigru,  contra,  cited  Goodtitle  v. 
Whitby,  1  Burr.  234;  1  Jarm.  on  Wills,  624, 
et  seq. ;  1  Fearne,  241,  347 ;  Sug.  on  Real 
Prop.  286;    Fearne  Posth.  W.  191. 

The  opinion  of  the  Court  w^as  delivered  by 

DUNKIN,  Ch.  The  Court  have  given  to 
this  appeal  all  the  consideration  which  the 
importance  and  difficulty  of  the  questions  in- 
volved, and  the  able  argument  of  the  counsel 
properly  demanded.  Not  only  have  conliict- 
ing  decisions  been  adduced,  but  text  writers 
of  acknowledged  respectability  have  differed 
as  to  the  result  of  those  decisions.  It  is  be- 
lieved, however,  that  not  only  is  the  prepon- 
derance of  authority  in  favor  of  the  decree, 
but  that,  in  adopting  this  construction,  some 


RIVERS  V.  FRIPP 


*300 


gonoral  principles  are  followed  which  this 
Court  luive  uniformly  recognized  in  the  inter- 
pretation of  testamentary  instruments. 

It  is  not  proposed  to  attempt  any  further 
review  of  the  authorities.  Rut  it  has  heen 
familiarly  stated,  and  was  repeated  hy  this 
rourt  in  Sndth  v.  Hilliard,  3  Strol).  Ivi.  211, 
that  whenever  there  is  a  doui)t  whether  the 
estate  be  vested  or  contingent,  "the  rule  is  to 
I)re.sTime  that  the  testator  intended  to  give  a 

♦298 
vested  rather  *than  a  contingent  interest; 
and  even  where  the  words  import  contin- 
gency, but  do  not  create  a  condition  prece- 
dent, they  give  a  vestiHl  interest  to  the  devi- 
see, subject  to  be  divested  if  the  contingency 
should  not  happen."  See  also  Fearne,  241  to 
247,  (10th  Ed.)  Although  the  reasons  of  this 
rule  are  various,  and  more  or  less  obvious, 
and,  as  might  be  supi»osed,  have  been  re* 
ceived  with  more  or  less  favor,  the  rule  it- 
self seems  well  settled.  So  from  Roraston's 
case,  3  Rep.  19,  down  to  the  very  recent  case 
of  Williamson  v.  Rerry,  decided  by  the  Su- 
preme Court  of  the  I'nited  Stales  in  1S,50,  8 
ilow.  40.J  [12  L.  Ed.  1170J,  words  seemingly 
creati\e  of  a  future  interest  have  been  fre- 
quently construed  to  refer  to  the  futurity  of 
the  possession,  and  not  as  designed  to  post- 
pone the  vesting  of  the  estate.  In  Roraston's 
case  there  was  a  term  ol"  eight  years  devised 
to  A.  and  R.,  and,  after  the  said  term,  the 
land  to  remain  to  executors  for  the  perform- 
ance of  his  will  'till  such  time  as  II.  should 
accomplish  his  full  age  of  twenty-one  years; 
and  when  the  said  11.  should  come  to  his  age 
of  21,  tiien  to  him  and  to  his  heirs  forever.' 
It  was  held  by  the  Court  that  the  estate  was 
ve.sted  in  H. ;  that  the  adverbs  of  time,  when, 
&c.,  did  not  make  anything  necessary  to  pre- 
cede the  vesting  of  the  remainder,  but  merely 
expressed  the  time  when  it  should  take  effect 
in  possession.  It  was  said  at  the  bar.  that,  in 
the  devise  to  the  issue  of  John  Evans  Ed- 
ings,  there  was  a  double  contingency.  Thei.s- 
sue  must  be  alive  at  the  death  of  John  Evans 
Edings,  and  must  also  attain  twenty-one 
years  of  age,  and  that,  although  the  issue 
might  have  attained  twenty-one  years  of  age 
and  then  died  before  his  father,  such  issue 
failed  to  answer  the  description  (as  it  was 
said,)  and  the  estate  never  vested.  I  concur 
with  the  counsel  that  the  absence  of  either 
circumstance  is  etpially  available,  and,  if  non- 
age prevented  the  vesting,  so  would  want  of 
surviving  the  parent.  The  efftnt  of  this  lat- 
ter circumstance  seems  to  have  been  fully 
considered  in  Williamson  v.  Rerry.  Testator 
devised  his  estate  to  trustees,  in  trust  to  j»ay 
the  rents.  &c.,  to  Thomas  R.  Clark*',  during 
his  natural  life,  and  from  and  after  the  death 
of   tiie   said    Thomas    R.    Clarke,    in    further 

*299 
trust  to  convey  the  same  *to  the  lawful  is- 
sue of  the  .*:aid  Tlionuis  R.  Clarke  living  at 
his  death,  in  fee ;    and  if  the  said  Tbunias  R. 


Clarke  should  not  leave  any  lawful  is.sue  at 
the  time  of  his  death,  then  in  further  trust 
to  convey  the  prenuses  to  testator's  grand- 
son, Clement  C.  Moore,  and  to  his  heirs.  The 
Judges  of  the  Circuit  Court  of  the  Uidted 
States  for  the  Southern  Di.strict  of  New  York 
<-oncurred  in  the  opinion,  that,  on  this  devise, 
the  lirst  born  child  of  Thomas  R.  Clarke,  at 
its  birth,  took  a  vested  estate  in  remainder, 
which  opened  to  let  in  his  other  children  to 
the  like  estate,  as  they  were  successively 
born.  Upon  other  points  of  the  case  the 
Judges  were  divided  in  opinion ;  and  upon 
that  divi.sion  the  cause  was  certified  to  the 
Sui)reme  Court  of  the  United  States.  It  was 
not  perhaps  necessary  for  the  Supreme  Court 
to  pronounce  on  a  question  upon  which  the 
circuit  Judges  were  agree<l.  Rut  they  com- 
mence by  declaring  as  follows:  "It  is  right, 
however,  to  say  that  we  concur  with  the 
learned  Judges  of  the  Circuit  Court,  that,  un- 
der the  will  of  Mary  Clarke,  the  tirst  bora 
child  of  Thomas  R.  Clarke,  on  its  birth,  took 
a  vested  estate  in  remainder,  which  opened 
to  let  in  his  other  children  to  a  like  estate, 
as  they  were  successively  born ;  and  that 
their  vested  remainder  became  a  fee  simple 
ai)S()lute,  in  the  children  living,  on  the  death 
of  their  father."  It  might  here  have  been 
urged,  that  the  trustees  were  to  convey  only 
to  the  lawful  issue  of  Thomas  R.  Clarke  liv- 
ing at  his  death,  and  that  until  his  death, 
it  was  uncertain  who  would  answer  that  de- 
.scription ;  "but  the  Court  held,  that  the  es- 
tate vested  immediately  on  the  l>irth,  subject 
oidy  to  be  divested,  or  defeated,  if  the  i.s.sue 
should  not  be  alive  at  the  death  of  the  par- 
ent. It  will  be  remarked,  that  in  Williamson 
V.  Rerry,  as  in  the  case  under  review,  there 
was  a  limitation  over  in  default  of  issue  at 
the  time  specified.  "This  class  of  cases," 
says  Sir  Edward  Sugden,  "goes  on  this  priu- 
ci[ile,  that  the  gift  over,  in  the  event  of  the 
devisee  dying  under  twenty-one,  sulKciently 
showed  the  meaning  of  the  testator  to  have 
bcv-^n,  that  the  first  devisee  should  take  what- 
ever the  i)arty  claiming  under  the  devise  over 
was  not  entitled  to,  which  of  course  gave  him 
the  immediate  interest,   sultject  only   to  the 

*300 

♦chance  of  its  being  divested  on  a  future  con- 
tingency." Sug.  Eaw  of  I'rop.  2!K).  If.  then, 
there  is  a  previous  gift,  as  in  Horaston's  case, 
and  also  in  this,  the  tirst  interest  is  regarded 
!!s  an  exception  out  of  the  gift  to  the  infant, 
which  takes  etlect  on  the  determination  of 
the  prectMling  interest;  or,  if  there  is  a  gift 
over,  the  lirst  devisee  takes  all  to  which  the 
devisee  over  is  not  entitled.  In  both  cases 
the  Court  struggle,  and.  as  the  writer  states, 
have  hitherto  "struggled  t'tfectually  to  carry 
into  effect  the  testator's  Intention."  The  de- 
vise in  this  will  is  substantially  to  the  testa- 
tor's son  for  life,  "and  from  and  immediately 
after"  the  death  of  his  son,  to  the  lawfully 
begotten  issue  of  his  son  living  at  the  lime  o.' 

121 


*300 


4  RICHARDSON'S  EQUITY  REl'ORTS 


hi.s  death,  who  shall  live  to  attain  twenty- 
one  years  of  age,  &c.,  and  if  the  son  should 
die  without  leaving  issue  at  the  time  of  his 
death,  who  should  attain  twenty-one  years  of 
age,  then  to  the  right  heirs  of  tlie  testator 
then  living,  &e.  The  manifest  ohject  of  the 
testator  was  to  vest  the  fee  in  the  issue  of 
his  son.  The  preceding  interest,  as  in  Boras- 
ton's  case,  was  merely  an  exception  out  of 
the  gift  to  them.  On  the  determination  of 
that  preceding  interest,  or,  in  the  stronger 
and  more  emphatic  language  of  the  will, 
"from  immediately  after"  the  death  of  his  son, 
the  devise  to  the  issue  took  effect.  But  if  the 
issue  should  not  be  alive  at  the  death  of  the 
son,  or,  being  alive,  should  not  attain  twenty- 
one  years  of  age,  "the  said  real  and  personal 
property  described  in  that  clause  of  his  will," 
is  devised  and  bequeathed  to  his  right  heirs 
then  living.  WJiat  could  the  right  heirs  of 
the  testator  then  living  claim?  Certainly  no 
more  than  the  real  and  personal  property 
described  in  that  clause  of  the  will.  All  not 
given  over  to  them  is  taken,  according  to  the 
authorities,  by  the  first  devisees  in  fee.  The 
will  of  the  testator  is  then  complete.  The 
son  enjoys  his  life  estate.  His  issue  contin- 
ue in  the  enjoyment  of  it  until,  on  arriving 
at  twenty-one  years  of  age,  in  the  language 
of  Williamson  v.  Berry,  "their  vested  remain- 
der became  a  fee  simple  absolute."  But  luitil 
that  time  their  vested  estate  was  subject  to 
defeasance  by  their  death  under  twenty-one 
years  of  age.  Upon  the  happening  of  that 
contingency,  the  estate,  real  and  personal — 

■=301 
*the  plantation  and  slaves — passed  to  the 
right  heirs  of  the  testator  then  alive.  It  is 
this  plan  or  purpose,  so  natural  in  irself, 
and,  it  may  be  added,  so  apparent  in  the  in- 
strument, which  the  Courts  have  endeavored 
to  carry  into  effect,  and  which  is  declared  by 
the  circuit  decree.  On  the  other  hand,  it 
remains  only  to  say  that,  if  the  estate  was 
not  vested,  it  is  not  only  uncertain  as  to 
what  should  become  of  the  interim  profits  be- 
tween the  death  of  John  Evans  Edings,  and 
the  arrival  of  his  sons  to  twenty-one  years  of 
age,  but  it  would  become  a  grave  question 
whether  the  whole  purpose  of  the  testator  in 
the  provision  for  his  son's  issue  would  not 
be  effectually  frustrated. 
The  appeal  is  dismissed. 

WARDLAW     and     DARGAN,     CC,     con- 
curred. 
Appeal  dismissed. 


4   Rich.  tq.  301 

Ex  parte  CAROLINE  UEDDES,  Executrix  of 

G.   C.   Geddes  et  al. 

(Charleston.      Jan.    Term,    1852.) 

[Partition   <®=:>10.3.] 

On   a   sale  of  land,   for  partition,  in  which 
the  wife  has  a  share,  the  husband  may  become 


the  purchaser,  and  thereby  become  invested,  in 
his  own  right,  witii  the  title  of  all  the  co-ten- 
ants, including  his  wife. 

[Ed.  Note. — For  other  cases,  see  Partition, 
Cent.  Dig.  §  339;    Dec.  Dig.  <©=»103.] 

[Husband  and  Wife  <S=>9.] 

At  a  sale  of  land,  by  the  master,  for  parti- 
tion, of  which  wife  owned  one  moiety,  husband 
became  purchaser;  he  paid  the  share  of  the 
proceeds  of  the  co-tenant  in  money,  and  gave 
the  master  the  joint  receipt  of  himself  and  wife 
for  her  share  of  the  proceeds: — Held,  that  hus- 
band was  thus  invested,  iu  his  own  right,  with 
the  title,  and  that  upon  his  death  wife  was  not 
entitled  to  the  moiety  which  had  been  hers. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  §  34;    Dec.  Dig.  (©=9.] 

[Husband  and  Wife  <®=5lO.] 

A  wife  by  joining  her  husband  in  a  receipt 
for  money,  the  proceeds  of  the  sale  of  her  in- 
heritance, waives  her  equity  in  such  proceeds ; 
and  upon  the  money  received  by  the  husband, 
his  marital  rights  attach. 

I  Ed.  Note.— Cited  in  Clark  v.  Smith,  13  S. 
C.  59(5. 

For  other  cases,  see  Husband  and  Wife,  Cent. 
Dig.  §  43;    Dec.  Dig.  <©==>10.1 

[Partition   <S=>109.1 

[Cited  iu  Scaife  v.  Thomson,  15  S.  C.  356, 
to  the  point  that  on  a  inu'chase  of  land  by  a 
tenant  in  common  at  partition  sale  title  to  his 
original   share  is  not  derived    from   tlie   sale.] 

[Ed.  Note. — For  other  cases,  see  l*artition. 
Cent.  Dig.  S§  375-397 ;    Dec.  Dig.  <®=>109.] 

[This  case  is  also  cited  in  Barnes  v.  Cunning- 
ham, 9  Rich.  Eq.  47S,  as  to  waiver  of  dow- 
er rights.] 

Before  Dargau,  Ch.,  at  Charleston,  March, 
1850. 

A  petition  was  filed  by  Mrs.  Geddes  and  a 
creditor  of  the  late  Mr.  Geddes,  setting  forth 
an  account  of  his  debts  and  assets,  and  pray- 
ing a  sale  and  distribution  of  the  estate  un- 
der the  direction  of  the  Court.     On  this  pe- 

*302 
tition,  an  order  was  granted  for  a  sale,  *and 
Mr.  Gray,  one  of  the  masters,  was  directed 
to  take  an  account,  and  give  notice  to  credi- 
tors. A  sale  was  made,  and  the  account  tak- 
en, and  by  his  report,  dated  4th  March,  1850, 
Mr.  Gray  found  the  amount  of  the  debts  and 
assets.  A  lot  in  Rutledge-street  gives  rise  to 
this  discussion  as  to  which  he  found,  as  fol- 
lows: 

"There  is  also  a  vacant  lot  of  laud  belong- 
ing to  the  estate  in  Montague-street,  which 
remains  unsold,  and  which  is  supposed  to  be 
worth  about  eight  hundred  dollars,  which  I 
submit  ought  to  be  sold  for  payment  of  the 
debts. 

"Besides  these,  there  is  a  lot  of  land,  No. 
16  Rutledge-street,  which  was  sold  under  a 
decree  of  this  Court,  for  partition  between 
Mrs.  Geddes  and  Mrs.  Milne,  in  February, 
1840;  Gilbert  C.  Geddes  was  set  down  as 
the  purchaser,  but  he  paid  only  Mrs.  Milne's 
share,  or  half  of  the  nett  sales,  to  wit:  Three 
thousand  nine  hundred  and  fifteen  dollars, 
37-100,  and  gave  master  Laurens,  his,  and 
Mrs.  Geddes  joint  receipt  for  the  other  half, 
taking  his  title  for  the  property ;  but  as  the 


11^2 


(gs^For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


EX  PARTE  GEDDES 


»305 


lot  roniaiiis  unflisposed  of  by  Mr.  GtMldes,  I 
sulmiit  that  liis  undivided  half  <»r  inten'st  in 
it  (luiiht  to  be  sold  for  the  benefit  of  the 
i-reditnrs. 

■"Tlie  scliodiile  annexed,  marked  A.  will 
show  the  partitulars  of  the  sal<  '"  tin-  plan- 
tation and  nej^roes  included  in  i.ie  inortpi^e 
held  by  the  Hank  of  the  State,  which  were 
sold  by  uie  under  the  decree." 

To   this    report    Mr.    Meninun;;er   excepted 
that  the  whole  of  the  Kntledfre-.street  lot  was 
assets  to  pay  the  debts  of  testator,  instead  of 
one  half,  and  that  the  master  sluuild  have  I 
so  reported. 

The  cause  came  before  Chancellor  Dargan, 
who  made  the  following  decree: 

Dargan,  Ch.  This  ca.se  comes  up  on  the 
master's  report  and  exceptions.  The  part 
of  the  reitort  which  is  the  suliject  of  contro- 
ver.sy,  relates  to  the  lot  of  land  No.  1«5  Hut- 
ledge-street.  The  Commis.sioner  reports  that 
this  lot  was  "sold  under  a  decree  of  this 
Court  for  partition  between  Mrs.  (Jeddes  and 

*303 
Mrs.  Milue  in  *February,  1S40.  Gilbert  C. 
Geddes  was  set  down  as  the  purchaser,  but 
he  paid  only  Mrs.  Milne's  share,  or  half  of 
the  nett  sales,  to  wit.  three  thousand  nine 
hundred  and  llfteen  dollars,  .'JT-KIO.  and  gave 
master  Laurens  his  and  Mrs.  (Jeddes.  joint 
receipt  for  the  other  half,  taking  his  title  for 
the  property.  But  as  the  lot  remains  undis- 
posed of  by  Mr.  Geddes,  I  submit  that  his 
undivided  half  or  interest  in  it  ought  to  be 
sold  for  the  benefit  of  cretlitors." 

When  the  wife's  land  is  sold  for  the  pur- 
po.se  of  partition  under  a  decree  of  the  Court, 
she  l>ecomes  thereby  divested  of  her  title  and 
inheritance  in  the  land,  and  she  bec()nies  the 
enuitable  owner  of  the  money  or  fund  arising 
from  the  sale,  or  of  her  just  proiiortion  of  it. 
Her  title  or  interest  ceases  in  the  laud,  and 
attaches  upon  the  money.  I  perceive  no  rea- 
son why  the  husband  should  not  become  the 
purchaser  at  such  a  sale  as  well  as  a  stran- 
ger. And  when  he  obtains  the  master's  title, 
the  land  is  his  property,  clear  of  any  title 
or  claim  on  the  part  of  the  wife.  Over  the 
l)urchase  money,  however,  he  has  no  control 
farther  than  is  permitted  by  the  wife,  or 
authorized  by  an  order  of  the  Court. 

The  e»|nities  of  the  wife  in  the  purchase 
money  arising  from  the  sale  of  her  inheritance 
under  circumstances  like  these,  has  been 
A'ery  clearly  defined  by  a  series  of  diK-isions 
of  our  own  Courts.  The  master  has  no  right 
to  pay  it  to  the  husband  on  his  own  receipt, 
i'xcept  under  an  order  of  the  Court.  If  he 
does,  the  payment  is  no  discharge  to  him  as 
against  the  claim  of  the  wife;  or  she  may 
■elect  to  set  up  her  claim  by  bill  against  the 
husband  himself,  as  having  illegally  i)ossess- 
ed  himself  of  her  funds.  lint  she  may 
waive  her  equity  by  joining  with  her  hus- 
band in  a  receipt,  or  doing  some  eiiually  sig- 
nificant and  unefpiivocal  act.  If  she  does 
this,  the  marital  rights  attach,  as  upon  per- 


sonalty, and  she  cannot  afterwards  recall  her 
eMuital)le  claim.  The  rationale  of  these  prin- 
ciples is  this:  The  land  was  her  inheritance. 
The  sale  does  not  in  this  Court,  ipso  facto, 
convert  it  into  personalty,  but  it  retains  in 
e<piity  Its  character  of  real  estate.  She  has 
a  right  to  a  .settlement.  As  before  the  sale 
under  the  decree,  the  husband  could  not  sell 

*304 
her  inheritance  without  her  ♦concurrence  and 
formal  reiuuiciation  as  prescribed  by  law; 
so  after  the  sale,  no  act  of  the  husband, 
alone,  can  deprive  her  of  this  right,  of  which 
she  cannot  be  tlivested  excei)t  by  a  decree  of 
the  Court,  or  some  formal  reiuuiciation  of 
her  equity  in  the  fund.  If  the  husband  were 
permitted  to  give  r(>ceipts  for  the  wife's 
funds  arising  from  the  sale  of  her  land,  it  is 
obvious  she  might  be  deprived  of  her  equita- 
ble rights  without  notice  of  the  proceeding, 
or  opportuiuty  of  asserting  them.  Wardlaw 
v.  (Jray,  12  Hill,  Eq.  044;  Yeldell  v.  Quarles, 
Dud.  E<i.  ~>~};  IGeiger  v.  Geiger)  Cheves  Eq. 
1G12;  Ex  parte  Mobley,  2  Rich.  Eq.  56;  Daniel. 
V.  Daniel.  U  Rich.  Eq.  11")  [44  Am.  Doc.  244]. 
To  which  may  be  added  the  unrei>orted  cases 
of  (iardner  v.  Ilorton.  Columbia,  May  Term. 
lS4!t;  Daveni>ort  v.  Davenport,  Columbia.  De- 
cemiier  Term,  1.S41). 

If  Mrs.  (Jeddes  had  been  a  femme  sole  at 
the  sale  of  her  inheritance  for  partition,  and 
had  herself  become  the  purchaser  at  the  mas- 
ter's sale,  -slie  would  have  bought  her  own 
share,  and  the  moiety  of  her  co-tenant  in 
common.  The  case  reduced  to  its  essence 
then,  would  be.  that  she  was  the  purcha.ser 
from  herself  and  her  sister.  Hut  a  person 
cannot  i)urchase  from  him.self.  The  result 
of  the  proceeding  would  have  l>«vn  simjily 
to  blend  the  title  of  her  co-tenant  with  her 
own.  And  I  incline  to  the  opinion,  that  In 
any  question  which  might  have  arisen  in  the 
ca.se  supposed,  in  which  the  distinction  would 
have  been  important,  the  title  of  Mrs.  Geddes 
to  her  own  moiety  would  be  referred  to  its 
original  source,  and  would  not  have  been 
considered  to  be  derived  from  the  proceed- 
ings in  partition.  This  rule  would  ai»ply, 
because  in  such  a  case,  as  to  her  moiety,  she 
was  seized  of  the  fee  before  the  sale,  and 
the  sale  could  give  her  no  more.  There 
woidd  be  no  change  of  title  whatever;  the 
result  would  be  the  sanie.  as  if  her  co-tenant, 
without  any  sale  for  partition  under  decree, 
had  conveyed  her  share  to  Mrs.  Geddes. 

Hut  the  case  is  entirely  different  when  the 
husband  is  the  purchaser.  He  purchases  in 
another  right  than  that  of  his  wife.  He  pur- 
chases in  his  own  right.  The  title  is  chang- 
ed. Hefore  the  sale  he  held  as  husband:  aft- 
erwanls    as    a     purch:iser    from     the    wife. 

♦305 
♦Surely  the  Court  of  Equity,  in  proceedings 
for  partition,  can.  when  the  proper  forms  are 
observed,  convey  the  wife's  lands  to  the  hus- 
band for  a  con.sideration.  That  con.sidera- 
tiou   is   the   purchase   money   to  which    the 

123 


*305 


4  RICHARDSON'S  EQUITY  REPORTS 


wife's  equity  attaches.  It  is  for  herself  to 
determine  whether  she  will  waive  it.  It  is 
a  matter  for  her  own  private  discretion  with 
which,  if  she  be  of  age,  the  Court  will  not 
interfere.  It  would  only  be  disposing  of  her 
equity  in  the  purchase  money,  as  she  might 
have  disposed  of  her  legal  estate  in  the  lands, 
by  joining  with  her  husband  in  a  conveyance 
under  the  proper  legal  forms. 

The  conclusion  and  judgment  of  the  Court 
is,  that  the  lot  in  Rutledge-street  is  the  prop- 
erty of  the  estate  of  Gilbert  C.  Geddes,  and 
that  Caroline  Geddes  has  no  interest  therein 
except  her  dower. 

From  this  decree,  Mrs.  Geddes  appealed, 
on  the  grounds: 

1.  That  she  was  seized  of  an  undivided 
moiety  of  the  Rutledge-street  lot,  and  her 
title  has  never  been  divested. 

2.  That  the  sale  for  partition  is  only  a 
conversion  as  far  as  is  necessary  for  the  pur- 
pose of  partition;  and  the  conveyance  of  the 
other  moiety  to  Mr.  Geddes  was  all  that  the 
partition  was  designed  to  effect. 

3.  That  in  the  bill  for  partition,  she  and 
her  husband  were  joint  complainants,  and 
the  decree  treats  their  interests  as  joint;  and- 

124 


nothing  in  a  bill  so  framed  could  be  done  to 
give  her  husband  an  interest  against  her 
rights. 

Lesesne,  Petigru,  for  apjbellants,  cited  Mes- 
servey  v.  Barelli,  2  Hill,  Ch.  567 ;  Lucas  v. 
Jacobs,  1  Beav.  436;  4  Mylne  &  Cr.  389; 
Graydon  v.  Graydon,  McM.  Eq.  63;  lunes  v. 
Jackson,  16  Ves.  367;  6  Dow,  17;  Pow.  on 
Mortg.  756;  Wightman  v.  Vaulk,  Dud.  Eq. 
212;  Ackroyd  v.  Smithson,  1  Bro.  C.  C.  503; 
Tobey  v.  Barber,  5  Johns.  R.  68;  Edgerton 
V.  Muse,  Dud.  Eq.  179. 

McCrady,  contra,  Chev.  Eq.  162;  Young  v. 
Teague,  Bail.  Eq.  13;  McNish  v.  Guerard,  4 
Strob.  Eq.  66. 

*306 

*PER  CURIAM.  This  Court  is  entirely 
satisfied  with  the  decree  of  the  Chancellor, 
which  is  in  conformity  with  the  numerous 
decisions  in  this  Court.  It  is  therefore  or- 
dered that  the  same  be  affirmed,  and  the  ai>- 
peal  dismissed. 

JOHNSTON,     DUNKIN,     DARGAN     and 
WARDLAW,   CC,   concurring. 
Decree  affirmed. 


CASES   IN   EQUITY 

ARGUEn   AND   DKTERMINEI)   IX  THE 

COURT  OF  APPEALS 

AT  COLUMBIA.  SOUTH  CAROLLXA— MAY  TERM,  1852. 


Chaxcicllors  Prkskxt. 

Hon.  job  JOITXSTON, 
"       B.  F.  DT'NKIX. 

G.  W.   DAKfJAX. 
-       F.    H.    WARD  LAW. 


4   Rich.  Eq.  *307 

♦REUBEX  DEXXIS  et  al.  v.  JOIIX  DKXXIS. 

•Tun. 

(Columbia.      May   Term.    1S,"2.) 

[Reformation  of  Instruments  <©=»'5-.] 

Bill  to  reform  a  deed  of  yitt  of  negroes, 
more  tliaii  tliirty  years  old,  to  M.  D.  "her  heirs, 
executors  and  administrators:"  it  was  oontended 
that  the  dou.ir,  who  was  dead,  intended  to  sive 
only  a  life  estate  tu  M.  1).,  with  remainder  to 
her  children:  whereas,  by  the  fraud  or  mistake 
of  the  pensman,  an  ab.solute  estate  was  given  to 
her.     Bill  dismissed. 

[F]d.  Xote. — For  other  cases,  see  Reformation 
of  Instruments,  Cent.  Dijr.  §  120:  Dec.  Dig. 
<g=>.32.1 

Before  Wardlaw,  Ch.,  at  York,  June,  1S51. 

Wardlaw,  Ch.  The  plaintiffs  are  some  of 
the  children  antl  sons-in-law  of  John  Dennis, 
sen.,  and  Mary  his  wife,  and  prosecute 
against  the   defendant,  a   son  and  principal 

*308 
legatee  of  .said  *.7()hn  Dennis,  sen.,  a  claim 
to  reform,  according  to  the  supposed  inten- 
tion of  the  i)arties,  a  deed  from  .Tolin  Chesor 
and  Anna  his  wife,  to  the  said  .Mary  Dennis, 
a  sister  of  the  said  Anna  Chesor. 

The  said  John  Chesor  and  Anna  his  wife, 
by  deed,  dated  March  1,  IMS,  in  considera- 
tion of  love  and  affection  to  Mary  Dennis, 
wife  of  John  Di'inns,  gave  and  granted  all 
their  goods  and  chattels,  consisting  princi|)al- 
ly  of  three  slaves.  Hannah  and  her  two  chil- 
dren, Harry  and  Sarah,  "to  hold  all  the  said 
goods  and  <hattels.  with  the  thre»'  aliove 
named  negroes  to  her,  the  said  Mary  Den- 
nis, and  wife  of  John  Dennis,  as  aforesaid, 
her  heirs,  executors,  or  administrators   from 


henceforth."  Simultaneously  andt  on  the 
same  paper,  John  Dennis  and  .Mary  his  \vife. 
agreed  under  seal,  as  a  condition  of  the 
deed,  that  they  would  "supptirt  and  main- 
tain the  above  named  Anna  Chesor,  with 
her  issue  begotten  by  her  body,  in  meat, 
drink,  and  clothing,  and  treat  her  with  her 
issue  in  a  decent  manner  during  her  natural 
life."  The  deed  and  counter-part  were 
drawn  by  George  Ross,  a  farmer  of  high 
character,  now  deceased :  attested  by  said 
Ceorge  Ross  and  by  Thomas  H.  Smith ; 
proved  by  Smith  before  a  magis«^rate.  May 
9,  1S18;  and  recorded  in  the  othce  of  the 
register  of  mesne  conveyances  of  York  dis- 
trict, (in  which  di-strict  all  the  parties  re- 
sided.) May  9,  1818,  and  in  the  ottice  of  the 
Secretary  of  State,  May  2.  1827. 

Smith,  who  was  examined  on  this  trial, 
testified  that  a  draft  of  another  deed  was 
presented  to  John  Chesor  and  wife  which 
she  refused  to  execute,  because  it  made  John 
Dennis  the  donee,  and  that  two  or  three 
hours  afterwards  George  Ross  drew  the  deed 
whicli  was  executed.  Tiiat  to  the  latter, 
John  DeiMiis  at  first  made  objection,  but 
was  (piieted  by  George  Ross's  telling  him, 
"you  need  not  make  a  fuss,  as  you  are 
Mary's  heir,  and  this  is  as  good  to  you  as 
the  tirst  deed"— that  this  remark  of  Ross 
was  made  while  they  were  standing  near 
the  steps  of  the  door,  within  bearing  of 
John  and  Anmt  Chesor,  who  were  sitting  at 
a  table  in  the  shed  a  few  feet  off.  and  im- 
mediately before  the  deed  was  read  and 
signinl. 


€=3For  other  cases  see  same  topic  and  KEY-NUiliJEK  ia  all  Kuy-Numbered  Digests  and  Indexes 


125 


508 


4  RICHARDSONS  EQUITI   KEl'tJKTfci 


Karen    Smith,    a    daiiLrhter    of    John    and 
*309 
Mary   Dennis,   who  was   *at  first   a   defend- 
ant  in   the  cause,   but  as  to  whom  the  bill 
was   dismissed,    and    who    had    assigned   her 
interest  in  the  subject  of  controversy  to  her 
son,   Elias  Davidson,    not  a   party,   was  ad- 
mitted as  a  witness.     She  testified  that  Anna 
Chesor  would  not  sign  the  first  draft  making 
the  property   over  to   John  Dennis,   because 
she   intended   it    for   INIary   Dennis    and   her 
children — that  George  Ross  drew  and  read  to 
her  the  one   executed,   which   was   to   Mary 
Dennis  and  her  children — that  John  Dennis 
was    dissatisfied   because    the    property    was 
not  given  to  him,  and  George  Ross  told  him 
not  to  mind  it — that  Anna  Chesor  said  John 
Dennis  might  have  the  use  of  the  property 
while  his  wife  lived,  and  at  her  death  to  go 
to     her     children — that     George     Ross     said 
'heirs'    was   the   proper   way   of    putting   it 
down,   as  Mary's  children  were  her  heirs — 
that  John  and  Anna  Chesor  went  from  the 
shed    where   the   deed   was    signed   into    the 
hall  adjoining,  with  an  open  door  between, 
when   Ross   was  talking  to   Dennis.     James 
Curry,    the    widowed    husband    of   a    pre-de- 
ceased   daughter  of  John  and  Mary  Dennis, 
testified    that    John    and    Anna    Chesor    and 
Mary  Dennis  refused  to  sign  the  first  draft, 
because  it  was  given  up  that  the  deed  should 
he  to  Mary  Dennis  and  her  heirs — that  John 
Dennis    was    dissatisfied    with    the    second 
draft,  until  Ross  took  him  aside  and  said  it 
was  immaterial,    as   he  could   have   the  use 
of  the  property  as  long  as  his  wife  lived — 
that  the   parties   wanted  the   deed   made  to 
Mary  Dennis  and  heirs,  and  Ross  told  them 
the  effect  of  this  draught  was  that  the  prop- 
erty would  belong  to  INIary  Dennis  and  the 
heirs  of  her  body  or  children.     These  latter 
two  witnesses  also  testified  to   declarations 
of  John  Dennis  and  of  George  Ross  frequent- 
ly, and  until  a  recent  date  repeated  that  the 
property    would    belong    to    the    children    of 
Mary  Dennis  after  her  death.     It  was  also 
proved    for   the    plaiutifC   that    John    Chesor 
and  Anna  his  wife,  and  Mary  Dennis,  were 
illiterate,   and  that  the  former  two  were  of 
weak  minds. 

John  and  Anna  Chesor  have  been  dead 
many  years.  The  latter,  from  the  time  of 
the  execution  of  said  deed  until  her  death, 
lived  in  the  house  of  John  Dennis,  and 
was  maintained  by  him. 
*310 

*In  1825,  John  Dennis  exchanged  the 
negroes  Hannah  and  George,  the  latter  born 
after  the  execution  of  the  deed,  with  Robert 
Latta,  for  two  other  slaves.  In  the  bills  of 
sale  made  by  Dennis  and  Latta  each  to  the 
other,  their  wives  respectively  joined.  John 
Dennis  treated  the  other  slaves  named  in 
the  deed  as  his  own. 

John  Dennis  died  October  10,  1850,  leav- 
ing of  force  his  will,  without  date,  executed 
October    10,    1845,    whereof    his    wife    Mary 

126 


and  his  son,  the  defendant,  were  appointed 
executors;  and  whereby  he  bequeathed  two 
slaves  and  some  other  property  to  his  wife 
for  life,  and  all  the  rest  of  his  estate,  in- 
cluding by  name  the  negroes  now  in  contro- 
versy, to  the  defendant  and  the  heirs  of  his 
body  living  at  his  death.  Testator  also  di- 
rects that  his  wife  Mary  and  his  son  John, 
the  defendant,  at  his  death  pay  all  his  just 
del  its.     Defendant  has  qualified  as  executor. 

Mary  Dennis  never  qualified  as  executrix, 
and  died  in  the  course  of  the  present  year, 
after  the  first  of  March.  She  was  intestate, 
and  defendant  has  become  administrator  of 
her  goods  and  credits. 

The  bill  alleges  that  it  was  the  intention 
of  the  donors  and  of  Mary  Dennis,  in  the 
execution  of  the  deed,  that  the  property 
should  be  given  to  the  sole  and  separate  use 
of  said  Mary  Dennis  for  life,  and  after  her 
death  to  her  children ;  and  that  the  miscar- 
riage of  this  intention,  conceding  that,  ac- 
cording to  the  terms  actually  emi)loyed  in 
the  instrument,  the  marital  rights  of  John 
Dennis  attached  should  be  corrected  by  the 
Court,  whether  it  arose  from  the  fraud  and 
collusion  of  the  pensman  and  John  Dennis, 
or  from  the  mistake  of  the  pensman  and  the 
parties,  as  to  the  legal  effect  of  the  words 
of  limitation. 

The  Chancellor  was  much  pressed  to  order 
an  issue  at  law  in  the  case,  particularly  on 
the  question  of  fraud.  The  pretence  of  fraud 
in  the  matter  proceeds  only  on  the  conjec- 
ture, that  the  donors  did  not  hear  the  re- 
marks by  which  George  Ross  reconciled 
John  Dennis  to  the  deed.  It  would  be  an 
abuse  of  discretion  to  protract,  upon  such 
slight  ground,  the  decision  of  the  question. 

*311 

*The  plaintiffs  are  mere  volunteers,  who 
seek  to  reform  a  deed  after  the  lapse  of 
thirty  years,  in  the  progress  of  which  the 
donors,  donees  and  scrivener  have  all  died, 
and  they  have  no  claim  to  vex  another  fo- 
rum with  their  vague  imputations  upon  the 
character  of  their  ancestor  and  his  trusted 
friend.  The  suggestion  of  fraud  is  unsus- 
tained  by  proof. 

The  plaintiffs  have  as  little  standing  on 
the  ground  of  mistake.  The  discrepancies  in 
the  statements  of  the  three  witnesses,  who 
testify  as  to  the  declarations  and  conduct  of 
the  parties  preeediug  and  attending  the  ex- 
ecution of  the  deed,  strikingly  illustrate  the 
wisdom  of  the  rule,  that  parol  testimony  is 
inadmissible  to  vary  or  explain  the  terms  of  a 
written  instrument.  It  is  probable  that  all 
concerned  in  the  concoction  and  execution  of 
the  deeu  mistook  the  legal  effect  of  the  words 
of  limitation  employed,  but  it  was  a  mistake 
arising  altogether  from  overweening  conceit 
of  themselves,  or  rash  neglect  in  advising 
with  the  skilful.  Those  who  will  ignorantly 
and  rashly  employ  technical  terms  of  the 
law  must  submit  to  the  consequence  of  hav- 
ing the  terms  technically  construed.     If  re- 


DENNIS  V.  DENNIS 


»3U 


lief  be  afforded  in  tliis  ease,  the  (^mrt  imist 
undertalie  to  correct  all  the  luiscarriajjes  of 
niidacioiis  i^jnorance  in  coiivi'vancin;.'.  We 
iiii^'ht  thus  auiuire  a  with'  tit-Id  of  jurisdic- 
tion and  husiiu'ss.  An  iiiustratinn  niiyht  l)e 
furnisiied  from  the  terms  of  the  devise  in 
Jolni  Keinds's  will  to  tiie  defendant;  but 
I  forbear.  After  uur  own  decisions  in  West- 
brook  V.  llarlieson,  li  McC.  Kq.  Ill',  and  Ilyan 
V.  (jJoodwyn,  Mc.M.  Kci.  4.")1,  it  would  be  ridicu- 
b»us  excess  to  extend  this  reasoninj;.  It  is 
ordered  and  decreed,  that  set  niu<  h  of  the  liill 
as  seeks  to  reform  the  deed  nf  .loiin  and  Anna 
Chesor  be  <lisuiissed. 

From  the  statemiMit  «>f  tlie  bill.  ;ilIliou;.'h 
there  is  no  prayer  to  tliis  i'ITe<t.  I  suppose 
the  plaintilTs  desire  an  account  of  tiie  estate 
of  .\Iary  I  tennis  from  the  defendant  as  ad- 
nunistrator.  The  objection  in  tiie  answer, 
that  this  object  is  iirematurely  .sought,  is 
well  taken:  and  the  suj,'i;estion.  made  also  in 
the  answer,  that  whenever  this  account  lie 
taken,  tlie  legacy  to  Mary  Dennis  must  con- 
tribute   rateably    with    the    lepicy    to    John 

*312 
Deimis  for  the  pay*m*'nt  of  the  debts  of  the 
testator,  .lohn  Kennls,  is  .•«)und  and  proper. 
Nevertlu'le.ss,  tlie  bill  in  this  respect  is  re- 
tained ;  and  at  the  expiration  of  the  year  an 
order  of  reft-rence  may  be  applied  for.  I^et 
the  plaintills  pay  the  costs. 

The  complainants  appealed,  t)u  the  follow- 
ing; ^.'rounds: 

1.  r.ecaiise  it  was  most  clearly  proved  on 
the  hearing  of  this  c-ase,  that  the  real  in- 
tention of  all  the  parties  to  the  deed  or  con- 
tract of  the  1st  of  March,  ISIS.  was  to  .secure 
the  nejiroes  then  conveyed,  to  Mary  Dennis 
and  her  children,  and  to  them  oidy,  and  the 
Chancellor  should  therefore  have  ordered  the 
deed  to  be  so  reformed  as  to  carry  that  In- 
tention into  effect. 

'J.  liecause  there  was  either  a  ndstake  or 
imposition  on  the  part  of  (Jeorj^e  Ross  in 
<lra\vin>;  the  deed  of  1st  March.  IMS,  which 
;:ives  this  Court  power  to  reftirm  the  deed, 
so  as  to  carry  the  real  intention  of  the  par- 
ties to  that  deed  into  effect. 

.'{.  Kecause  John  Dennis,  .sen.,  uniforndy  ad- 
ndtted  that  he  held  these  ne;;roes  as  a  trus- 
tee of  his  wife,  and  his  acts  all  went  to  show- 
that  he  adnntted  that  the  ne;.'roes  would  jro 
to  his  children  after  the  death  of  his  wife; 
which  acts  and  a<lnnssions  for  so  ^reat  a 
len;:th  (»f  time  jiave  character  to  the  use  and 
liossession  which  John  Deiuds,  sen.,  had  of 
the  said  ne^'roes,  and  dejirived  him  of  the 
power  to  disj»ose  of  them  by  will,  nor  <lid  he 
use  them  as  his  own,  as  the  Chancellor  has 
assumed. 

4.  I^«'cause  tlie  deetl  l>y  its  terms,  and  John 
Dennis,  seii'rs.  lon>;  possession  as  trustee  of 
bis  wife,  enured  to  the  benetit  of  his  children, 
and  deprived  him  of  the  power  to  dispo.xt' 
the  negroes  by  will. 

."5.  Kecause  his  Honor  should  have  ordered 
the  issue  prayed  by  the  complainants  as  to 


I  the  iiuesti«in  of  fraud,  imposition,  or  mistake, 
in  the  deed  of  1st  March,  ISlb,  from  John  and 
Anna  Chesor. 

Smitli,  for  the  motion. 
,  contra. 

The  opinion  of  the  Court  was  delivered  by 

•313 

•WAKDI.AW.  Ch.  Where  the  parties  to  an 
ajireemcnt  have  expressed  their  purposes  and 
stipulations  in  writing;,  a  most  .salutary  rule 
of  law  inhibits  the  ailmission  of  parol  tes- 
timony to  vary  or  explain  the  written  iustru- 
i  merit.  As  defensive  iMjuity,  for  «'xample,  in 
resisting  the  specific  execution  of  a  contract. 
Courts  of  Kcjuity  p»'rmit  extrinsic  evidenct; 
of  the  fact,  tliat  the  real  contract  of  the  jiar- 
ties  lias  not  i»een  truly  rethned  to  writing, 
as  of  any  other  fact  that  makes  it  uncon- 
scientious to  enftirce  tlie  contract  in  its 
written  form.  But  it  is  not  clear  that  a 
plaintiff  is  ever  allowed  to  ;;ive  evidence  of 
mistake  in  a  d«»ed  or  other  writing,  for  the 
purpose  of  reforming  the  instrument.  Such 
relief  is  at  least  to  be  extended  with  the  ut- 
most caution.  The  proof  of  The  mistake 
should  be  uni|iU'stionable,  and  the  parties  to 
the  mistjike  should  be  also  parties  to  the 
suit.     Mayo  v.  Feaster,  -J  McC.   lj|.  Hi*. 

In  the  case  before  us,  the  parties  were 
probably  ij,'norant  of  the  effect  of  the  terms 
of  limitation  employed  by  them,  but  there  is 
no  proof  of  mistake.  No  word  was  inserted 
in  the  deed  nor  omitted  from  it,  not  intention- 
ally inserted  or  omitted.  If  we  were  willing 
to  reform  the  deed,  it  would  be  imiKtssible  to 
ascertain  from  the  testimony  the  terms  and 
particulars  in  which  it  should  be  i-eformed. 
We  may  infer  that  there  has  been  miscar- 
riajre  in  an  attempt  to  Ijniit  personalty,  a 
matter  which  fre«iuently  battles  tlie  skill  of 
the  exiXTt.  but  we  ctinnot  learn  from  the 
testimony  what  were  the  precise  intentions 
of  the  parties. 

It  is  fair  to  conclude,  that  whatever  jiiay 
have  been  the  original  intentions  (»f  the  ])ar- 
ties,  they  aajuiesced  in  the  actual  operation 
of  the  deed.  It  was  competent  for  them  to 
cure  error  by  acquiescence.  John  Chesor,  the 
person  who  has  most  muse  to  complain  of 
the  mistlirection  of  his  bounty,  has  made  no 
clamor.  It  would  be  surely  unsafe  to  look 
back  throutrh  thirty  years  for  tli«'  original 
wishes  of  the  parties,  and  force  all  their  sub- 
secpient  acts  into  conformity  to  these  wishes. 

It  may  be  gravely  doubted  whether  a  deed 
could  ever   be  reformed   after  the  death   of 

♦314 
the  grantor.  I  apprehend  that  where  'a  mis- 
take should  be  corrected,  the  Court  would  not 
undertake  to  reform  the  deed  b.v  the  personal 
act  of  a  Chancellor  or  a  master,  but  would, 
by  attachment  or  other  process,  comind  the 
grantor  to  exe<ute  an  amended  <leed.  Hut  we 
have  no  power  over  the  deceased. 

Ciranting,    however,    that    the    heirs    of    a 

127 


*314 


4  RICHARDSON'S  EQUITY  REPORTS 


deceased  grantor  might  be  compelled  to  re- 
form a  deed  as  to  realty,  and  his  personal  rep- 
resentatives be  compelled  to  reform  a  deed 
as  to  personalty,  In  the  present  case,  the 
representatives  of  John  and  Anna  Chesor 
are  no  parties  to  the  suit.  The  defendant 
in  his  answer,  operating  in  this  particular 
as  a  demurrer-,  objects  to  the  lack  of  these 
parties. 

The  statement  in  the  third  ground  of  ap- 
peal, that  John  Dennis  acknowledged  himself 
a  trustee  for  his  children,  is  not  suggested 
in  the  pleadings,  nor  supported  by  proof. 

Other  considerations  might  be  presented, 
but  in  any  view  we  can  take  of  this  case,  we 
think  the  plaintiffs  are  not  entitled  to  relief. 

It  is  ordered  and  decreed  that  the  appeal 
be  dismissed,  and  the  decree  be  affirmed. 

JOHNSTON,  DUNKIN  and  DARGAN,  CC, 
concurred. 

Appeal  dismissed. 


4    Rich.  tq.  314 

E.  J.  HIGGINB'OTTOM  v.  WM.  II.  PEYTON, 

Adm'r.  et  al. 

W.  H.  THOMSON,  Ord'y.,  v.  SAME. 

(Columbia.      May   Term,    1852.) 

[Costs   <S=>T.'>.] 

Wlitne  all  the  complainant's  claims  are  sub- 
stantially sustained,  and  the  defendants  are 
made  liable  in  a  definite  amount,  it  is  not  neces- 
sary to  make  an  order  for  costs,  for  these  fol- 
low the  decree,  and  are  payable  by  the  parties 
who  are  liable  for  the  sum  decreed  to  be  due. 

[Ed.  Note. — Cited  in  Brown  v.  Brown,  6  Rich. 
Eq.  360;  Bratton  v.  jNIassey,  18  S.  C.  5G0; 
Cooke  V.  Poole,  26  S.  C.  326,  2  S.  E.  609. 

For  other  cases,  see  Costs,  Cent.  Dig.  §  305 ; 
Dec.  Dig.  <©=>73.] 

Before  Dargan,  Ch.,  at  Barnwell,  February, 
1852. 

This  w^as  an  appeal  by  the  complainant,  E. 
*315 
J.  Higginbottom,  *froin  an  order  directing 
the  costs  to  be  paid  out  of  funds  of  the  estates 
of  James  Higginbottom  and  Aaron  Gillett, 
respectively. 

J.  T.  Aldrich,  for  appellant. 
Bauskett,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DUNKIN,  Ch.  The  leading  object  of  this 
litigation  was  to  obtain  an  account  of  the 
administration  of  the  defendant,  W.  H.  Pey- 
ton, on  the  estate  of  James  Higginbottom, 
deceased.  A  final  report  was  submitted  by 
the  commissioner  at  February  sittings,  1851. 
In  calculating  interest,  two  modes  were  sub- 
mitted by  the  report,  the  former  of  which 
was  recommended  by  the  commissioner,  but 
the  latter  adopted  by  the  Court. 

All  the  other  exceptions  of  the  adminis- 
trator were  overruled.  By  this  report  a 
large  amount  was  ascertained  to  be  due  by 
the    administrator    for    moneys    received    by 


him  and  not  disbursed.  His  sureties  were 
also  parties  defendants,  and  demurred  to  the 
bill  on  account  of  a  defect  in  the  bond.  Their 
demurrer  was  overruled.  On  a  collateral 
matter  arising  out  of  a  controversy  between 
Lucy  J.  Enicks,  formerly  the  wife  of  George 
W.  Collins,  deceased,  and  one  John  F.  Pey- 
ton, the  administrator  of  Collins,  the  com- 
missioner had  reported  against  Mrs.  Enicks ; 
and,  on  exception  thereto,  the  exception  was 
sustained  and  the  report  ordered  to  be  re- 
formed. The  report  being  reformed,  was 
confirmed  by  the  Chancellor  in  February, 
1852.  At  the  same  time  an  order  was  made 
for  the  distribution  of  the  fund  ascertained 
to  be  due  by  Wm.  H.  Peyton  and  his  sure- 
ties, under  the  report  of  1851,  among  the 
parties  entitled;  and  also  an  order  for  the 
connuissioner  to  pay  Lucy  J.  Enicks  the  sum 
which  had  been  claimed  by  John  F.  Peyton, 
administrator  of  Collins,  deceased.  The 
Chancellor  being  given  to  understand  that  an 
order  was  necessary  as  to  costs,  and  sup- 
posing, as  he  states  to  this  Court,  that  he 
was  oidy  carrying  out  the  previous  decree, 
ordered  the  costs  to  be  paid  out  of  the  es- 
tate of  James  Higginbottom  and  of  Aaron 
Gillett,  respectively.  The  complainant,  E. 
J.  Higginbottom,  appealed  from  this  order. 
*316 

*The  general  rule  is,  that  where  the  de- 
cree is  silent  as  to  costs,  costs  follow  the 
decree.  But,  as  stated  by  the  Court  in  Muse 
V.  Peay,  Dud.  Eq.  236,  and  repeated  in  Chap- 
lin V.  Jenkins,  2  Strob.  Eq.  100,  where  vari- 
ous claims  are  made,  some  of  which  ai'e  al- 
lowed and  some  rejected,  the  rule  is  inap- 
plicable. But  in  this  case  all  the  claims  of 
the  complainant,  who  was  a  daughter  and 
distributee  of  the  intestate,  were  substan- 
tially sustained.  The  administrator  waa 
found  largely  indebted,  and  the  defence  of 
his  sureties,  vigorously  and  ably  pressed, 
was  overruled;  and  they,  as  well  as  their 
principal,  declared  liable  in  a  definite  amount 
by  the  decree  of  1851.  It  was  not  necessary 
to  make  any  order  as  to  costs,  for  these  fol- 
lowed the  decree,  and  were  payable  by  the 
parties  who  were  liable  for  the  sum  decreed 
to  be  due,  to  wit,  by  the  administl-ator,  W. 
H.  Peyton,   and  his   sureties. 

The  litigation  in  relation  to  the  claim  of 
Lucy  J.  Enicks  had  no  connection  with  the 
estate  of  Higginbottom,  and  as  little  with 
that  of  Aaron  Gillett,  deceased.  It  was  a 
controversy  between  her  and  the  administra- 
tor and  creditors  of  her  former  husband, 
Geo.  W.  Collins,  deceased,  as  to  her  interest 
in  the  estate  of  her  father,  Elijah  Gillett,  de- 
ceased. The  claim  of  Mrs.  Enicks  was  whol- 
ly sustained,  and  that  of  the  administrator 
and  creditors  rejected,  and  their  resistance 
overruled.  In  the  absence  of  special  direc- 
tions, the  costs  of  Lucy  J.  Enicks,  as  well 
as  their  own,  should  be  paid  by  the  adminis- 
trator and  creditors  of  Collins. 


128 


<g=»For  other  cases  see  same  toijic  aud  KKY-NUMBEK  iu  all  Key-Numbered  Digests  and  Indexea 


BOULWARE  V.  HARRISON 


*818 


It  may  be  proper  to  remark  that  this  is 
not  what  is  commonly  designated  as  an  ai*- 
pfiil  from  a  dei  ive  for  costs.  Wiien*  a  Chan- 
(fllor  lias  heard  and  eonsidertMl  a  cause, 
tliis  Court  will  entertain  no  appeal  froni  his 
decision  as  to  costs.  Hut  in  this  rase,  the 
ftTect  of  the  decree  heretofore  made  (Febru- 
ary, ISol.)  was  to  carry  the  costs,  and  any 
further  d.ecree  on  that  suli.iect  was  unneces- 
sary, and  any  order  at  \ariance  with  tlie  de- 
cret"  would  lie  the  result  of  inisapprohension. 

It  is  ordered  aiul  decreed,  tliat  tiie  decretal 
order  of  Uth  February,  lS5l',  be  moditied 
as    herein    expressed. 

JOHNSTON,   DARdAN    and    \VAK1»1.A\V. 
CO.,    concurred. 
Decree  moditied. 


4   Rich.  Eq.  *3I7 

•BENJ.   J.   liOll.WAKF   v.   (M'TIIBERT 

HARRISON  and  Otiiors. 

(Cohnnbia.      May   Term,    isrrj.) 

[1.   Pai/mcnt   <£=1.M.| 

riaiutift'  liavinj;  a  money  decree  afiainst  bus- 
i)aud  aud  wife,  to  satisfy  which  tlie  decree  };ave 
him  tlie  ri^dit  to  sell  certain  slaves  settled  to 
the  sole  and  separate  use  of  wife,  tool<  husband's 
sealed  note,  jiayable  at  a  future  day,  tor  the 
amount  of  the  decree,  and  to  secure  the  note 
took  from  husband  a  morti;ai;e  of  the  same 
slaves,  aud  f;ave  husband  antl  wife  a  receipt 
iu  full  for  tile  amount  of  the  decree:  husband 
shortly  afterwards  died  insolvent: — Held,  that 
the  acCOptauce  of  the  not"  and  mortf^aye  was  no 
satisfaction    of    the    decree. 

[Kd.  Note.— Cited  in  Trimmier  v.  Thomson, 
10   S.  C.  100:    Arnold  v.  Bailey,  i;4   S.  C.  496. 

B"'or  other  cases,  see  I'avmeut,  Cent.  Dig.  § 
28;    Dec.  Di;:.  <S=>li4.] 

[2.  .Judiimcut   C==>sr».">. I 

That  the  contract  between  plaintiff  and  hus- 
band was  so  far  to  be  respected,  that  plaintiff 
could  not  enforce  his  aecree  until  the  sealed 
note  fell  due. 

[Ed.  Note. — For  other  cases,  ."^ee  Judgment, 
Cent,  Dig.  §  1571;    Dec.  Dig.  <©=>xi>5.] 

Before   Wardlaw,    Ch.,    at    Fairfield,    July, 

IS.jl. 

Wardlaw,  Ch.  The  general  object  of  this 
bill,  is  for  relief  to  the  plaintitf,  from  the 
elYect  of  a  receipt  given  by  him  t\)r  a  decree 
of  tliLs  Court  iu  his  favor  as  e.\ecutor ; 
when  there  was,  in  fact,  no  iiayment,  and 
his  accejitance  of  another  security  was  un- 
der mistake. 

Thomas  Houlware,  by  his  last  will  and 
testament,  dated  March  2S,  1S,'V,>,  amongst 
other  things,  aitpoiuted  the  iilaintilT  an  ex- 
ecutor thereof,  and  betiuealhed  to  his  daugh- 
ter, Sarah,  then  an  infant  and  unmarried,  up- 
on her  marriage  or  attaining  twenty-one 
years  of  age.  the  following  slaves,  namely: 
rriiice.  his  wife,  Kli/.a  ami  her  children,  Mil- 
ly,  Ailsie,  Bina,  Lewis  and  Julia,  with  their 
future  increase,  for  the  sole  and  separate  use 
of  his  said  daugliter,  not  suii.ject  to  the  debts 
(U-  contracts  of  any  luisband  during  her  nat- 


ural life,  and  at  her  death  to  her  issue  then 
living,  according  to  the  statute  of  distribu- 
tions; with  a  further  contingent  limitation 
to  the  children  of  testator,  if  she  died  with- 
out leaving  issue.  The  testattir  died  in  1X42, 
His  daughter,  Sarah,  intermarried  iu  lS4.j, 
with  H.  II.  I'auiling.  Testator  was  seized 
and  p<issessed  of  a  large  estate  at  the  time 
of  his  death,  but  he  owed  considerable  debts, 
for  which  he  made  no  adequate  provision 
in  his  will.  I'laintilT,  iu  the  execution  of  Ids 
trust  as  executor,  sold  .some  of  the  estate  giv- 
en   specifically    to    le-'atee<.     and     advanced 

•318 

♦large  sums  fnmi  his  own  funds  iu  pay- 
ment of  testator's  deljts.— A  suit  accrued  iu 
this  Court  lietween  the  legatees  and  the  ex- 
ecutor, entitled,  "Thonnis  li.  Ix'wls.  per  pro. 
ami,  v.  Benjaunn  Bonlware.  executor,  ami 
others,"  to  which  I'auiling  and  wife  were 
parties;  and  at  July  sittings,  1S4G,  a  decree 
was  made  that  the  devi.sees  aud  legatees  pay 
to  the  executor  the  .several  sums  ascertained 
to  l)e  due  to  him  by  the  connnlssicuiers  re- 
port. Including  the  sum  of  $1,001.01  from 
I'auiling  and  wife:  "and  unless  paid  by  the 
first  day  of  January  next,  that  the  said 
lieuj.  J.  Boulware  have  leave,  to  raise  the 
same  by  the  sale  of  such  property  of  the  sev- 
eral legatees  and  devisees  as  may  be  re- 
(pilred  to  pay  said  demands,  acctudlng  to  the 
sums  to  be  paid  by  them  respectively,  as 
specified  in  said  report."  After  this  decree 
the  executor  retahieti  possession  of  Mrs. 
I'aulllng's  slaves,  apidying  the  avails  of  their 
labor  towards  the  satisfaction  of  her  debt 
to  him,  but  uot  much  reducing  the  debt,  as 
the  slaves,  from  the  large  uundter  of  children, 
were  worth  little  more  than  a  support.  On 
February  1.  1S40,  H.  H.  Paulliug  gave  to  the 
plaintiff  his  sealed  note  for  $1,540.27,  the  bal- 
ance then  due  by  Mrs.  V.  under  the  decree, 
with  Interest  from  the  date.  i»ayable  on  Jan- 
uary 1,  1854;  and  as  a  security  for  the  same, 
executed  a  mortgage  to  the  plalntitf  of  the 
slaves  betiueathed  to  his  wife,  theu  consisting 
of  Prince,  Eliza,  Biua,  Lewis,  Julia,  Jaue, 
Sarah,  Iteubeu  and  Charles;  aud  plaintiff, 
iu  consideration  thereof,  gave  a  receipt  in 
full  from  raulliug  aud  wife,  for  the  sum  de- 
crecHl  for  him  against  them.  Mr.  McCauts, 
learned  iu  the  law,  and  the  conunlssloner  of 
this  Court,  drew  the  note,  mortgage  and  re- 
ceipt, and  witnessed  their  executlou ;  but  he 
was  not  called  upon  for  any  counsel  as  to  the 
construction  of  the  will,  or  the  suthciency 
of  the  mortgage  as  a  security.  The  arrange- 
ment was  made  at  the  instance  and  for  the 
accounnodation  of  I'auiling.  At  this  time 
I'auiling  was  a  physician  In  good  practice; 
but  he  died  soon  after  iu  April.  1S49.  aud 
his  estate  Is  represented  to  be  Insolvent. 
Cuthbert  Harrison,  as  administrator  of  Paul- 
Hug,  has  had  the  negroes  in  possession  sluce 
Paulllng's  death. 


C=:3For  other  cases  see  same  topic  aad  KEY-NUMBER  in  all  Key-Numbered  Digests  aud  Index«!. 
■i  Ki(  ii.E'i.— 9  ^^ 


*319 


4  RICHARDSON'S  EQUITY  REPORTS 


*319 

*It  is  manifest  tliat  the  plaintiff,  in  the 
change  of  securities  for  liis  debt,  still  intend- 
ed to  preserve  liis  lien  upon  the  negroes  be- 
queathed to  Mrs.  Paulling.  If  he  had  accept- 
ed a  security  of  a  higher  nature  for  his  debt, 
his  debt  would  have  been  extinguished. 
Mills  V.  Starr,  2  Bail.  360:  If  he  had  accept- 
er! in  payment  anything  which  produced  sat- 
isfaction; or  had  accepted  absolutely  in  sat- 
isfaction any  valuable  thing  not  money ;  he 
would  have  been  remediless ;  but  a  receipt 
is  not  a  release ;  it  is  susceptible  of  explana- 
tion, and  does  not  in  law  imply  necessarily  a 
satisfaction  of  the  whole  debt.  Eve  v.  Mose- 
ly,  2  Strob.  20.3;  Skirving  ads.  Sheriff,  2 
Rice's  Dig.  155.  I  am  little  disposed,  in 
most  cases,  to  grant  relief,  on  the  ground 
of  mistake  of  law,  for  I  see  very  dimly  any 
distinction  between  ignorance  and  mistake  of 
law ;  but  the  present  case  seems  to  me  to  be 
stronger  than  the  cases  of  Lowndes  v.  Chis- 
olm,  2  McC.  Eq.  455  [16  Am.  Dec.  667],  and 
Lawrence  v.  Beaubien,  2  Bail.  623  [23  Am. 
Dec.  155],  by  the  authority  of  which  I  am 
bound.  The  plaintiff  here  occupies  the  fa- 
vored character  of  a  trustee.  Without  any 
pretence  of  compromise  or  speculation,  in 
mere  mistake,  and  with  the  professional  as- 
sistance of  an  officer  of  this  Court,  he  has  ac- 
knowledged in  writing  the  satisfaction  of  a 
decree,  contrary  to  the  fact,  and  has  substi- 
tuted a  lien  inferior  in  nature,  and  practical- 
ly worthless.  It  is  easy  to  place  the  parties 
in  statu  quo  before  the  substitution.  Under 
all  the  circumstances,  with  some  hesitation,  I 
have  concluded  to  grant  the  plaintiff  relief. 

It  Is  ordered  and  decreed,  that  the  re- 
ceipt, mortgage  and  note  of  February  1,  1S49, 
described  in  the  pleadings,  be  cancelled,  that 
the  defendant,  Cuthbert  Harrison,  account 
with  the  plaintiff  for  the  hire  of  the  negroes 
of  Mrs.  Paulling,  bound  by  the  decree  of  Lew- 
is V.  Boulware.  and  that  the  plaintiff  be  re- 
mitted to  his  original  rights  under  said  de- 
cree. It  is  further  ordered  that  the  costs  of 
Harrison  be  paid  out  of  the  estate  of  Paul- 
ling, if  sufficient,  otherwise  out  of  the  hire 
in  his  hands ;  and  that  the  other  parties 
pay  their  own  costs. 

The  defendant,  Sarah  Paulling,  appealed, 
on   the  grounds: 

1.  Because  the  receipt  given  by  the  com- 

*320 
plainant  to  H.  H.   *Paulling,  was  an  extin- 
guishment of  the  decree  now  sought  to  be 
enforced. 

2.  Because  the  present  decree  is  contrary 
to  law  and  evidence. 

Boyce,  for  appellant. 
Hammond,   contra. 

The  opinion  of  the  Court  was  delivered  by 

JOHNSTON,  Ch.  We  are  perfectly  satis- 
fied that  the  Chancellor  should  have  granted 
relief  to  the  plaintiff,  under  the  circumstanc- 
es stated  iu  his  decree:  but  we  do  not  eu- 
130 


tirely  concur  in  the  measure  of  relief  de- 
creed by  him. 

It  is  perfectly  manifest,  that  the  decree 
held  by  the  plaintiff  as  executor,  was  not 
satisfied  by  the  security  taken  by  him  from 
Doctor  Paulling. 

If  he  who  holds  a  demand  for  money,  re- 
ceives in  satisfaction  a  horse  or  a  picture, 
or  any  other  specific  chattel,  this  amounts  to 
payment,  and  is  as  effectual  a  satisfaction 
as  if  the  whole  demand  were  paid  in  money. 

And  if  he  accepts  in  payment  another  se- 
curity of  higher  grade,  the  demand  which  he 
holds  is  extinguished  and  satisfied. 

But  it  is  plain  that  satisfaction  in  this 
case  has  accrued  in  neither  of  these  ways. 

The  receipt  for  money  given  by  the  plain- 
tiff, is  not  conclusive  where  it  is  made  to  ap- 
pear that  no  money  was  paid.  The  receipt 
is  nothing  more  than  the  admission  of  the 
party:  and  if  it  had  been  proved  in  this  case 
that  he  had  admitted  he  had  received  the 
amount  of  his  decree  in  money,  he  might 
still  prove,  as  he  has  done  here,  that  the  fact 
was  otherwise:  and  that  he  had  received 
no   money. 

This  demand,  under  the  decree,  can  be  ex- 
tinguished only  by  payment  or  a  release :  or 
by  proof  of  a  contract  equivalent  to  a  re- 
lease. 

When  the  circumstances  of  this  ca.^e  are 
investigated,  it  is  palpable  that  the  plaintiff 
intended  to  give  up  his  decree  upon  receiv- 
ing a  valid  lien  on  the  negroes. 

*321 

*The  lien  wliich  he  did  receive  was  one 
which  Paulling,  the  husband,  was  incapable 
of  creating :  for,  by  the  very  terms  of  the 
will,  the  negroes  were  the  sole  property  of 
Mrs.  Paulling,  and  not  subject  to  the  dis- 
position of  her  husband.  A  plainer  case  of 
mistake  is  seldom  presented. 

But  we  think  the  contract  between  Paul- 
ling and  the  plaintiff  is  so  far  to  be  respected, 
that  the  plaintiff  is  not  entitled  to  collect 
the  money  before  the  expiration  of  the  in- 
dulgence he  stipulated  to  give. 

Neither  is  the  administrator  of  Paulling 
bound  to  account  for  the  hire  of  the  negroes. 
They  constitute  no  part  of  the  estate  of  his 
intestate ;  and  he  is  not  responsible  for  their 
hire;  I  mean  he  is  not  responsible  to  the 
plaintiff,  bvit  to  Mrs.  Paulling,  the  owner 
of  the  property,  if  he  received  the  hire. 

The  contract  between  the  parties  should 
be  enforced,  as  far  as  it  can  be:  and  the 
plaintiff  is  then  entitled  to  fall  back  upon 
his  decree,  at  the  expiration  of  the  credit  he 
has  engaged  to  give,  and  enforce  it ;  so  far 
as  he  may  need  the  benefit  of  it. 

It  is  decreed  that  the  administrator  of 
Doctor  Paulling,  do  come  to  an  account  for 
the  estate  of  his  intestate,  and  pay  to  the 
plaintiff,  on  the  ist  of  January,  1854,  upon 
his  demand,  the  due  proportion  thereof,  to 
which  he  is  entitled,  in  the  due  course  of 
administration;    and  that  after  the  1st  day 


DOUGLASS  V.  BRICE 


*323 


of  January,  1S54,  tbo  plaintiff  be  allowtnl  to 
♦•nforce  his  decree,  referred  to  by  tbf  ("liancel- 
lor,  for  whatever  balance  may  nMiiain  due 
him. 

As  the  Court  has  not  tlie  pleadin^rs  before 
it,  it  will  not  undertake  to  (h»cide  bow  far 
raullini;;'s  administrator  may  be  «'ntitled  to 
.  laini  whatever  amount  Ills  estate  may 
lie  uliliu'ed  to  pay,  against  the  wife,  for  the 
benefit  of  whose  separate  estate  his  contract 
aji-tears  to  have  been  made.  The  Court, 
therefore,  reserves  that  point. 

Let  tlie  case  be  remanded  to  the  Circuit 
Court,  for  furtlier  proceedings  unch^r  the  de- 
cree as  now  modified. 

It  is  also  ordered  that  the  decree  be  modi- 
fied  by   directing  the  costs,   so   far   as  they 
cannot  be  made  out  of  raulling's  estate,  be 
paid  by  the  defendant,  Mrs.  Paulling. 
*322 

♦Ordered  that  the  decree,  in  all  respects 
except  as  above  modified,   be  aliirmed. 

DUNKIN   and   DAUGAX,   CC.    concurred. 

WARDLAW,    Ch.,   absent   at   the   hearing. 
Decree  modified. 


4   Rich.  Eq.  322 
JOHN  DOUGLASS  and    Wife  vt  nl.  v.  ROB- 
ERT BRICE  et  al 
(Coluiubia.      May   Term,    ISlii.) 

[Descent   and    Distrihiition    <g=»117.] 

Negroes  purchased  by  a  son  and  daughter, 
who  resided  with  their  fating-  and  ni:ina;;('(l  his 
plantation  ami  luJiiseiiold  nlTairs  for  hini,  held  to 
1)0  advanceinciits  to  thcin  by  tht'  father,  al- 
though it  did  nut  positively  appear  that  ho  knew 
that  the  bills  of  sale  had  boon  takon  in  their 
nanii's.  and  althdugh,  by  a  will  inolTeotually  at- 
tested, he  had  attempted  to  boquoatli  the  negroes 
t")  thom. 

I  Ed.  Note.— For  other  cases,  see  Descent  and 
Distribution,  Cent.  Dig.  §  4:28;  Doc.  Dig.  <S=> 
3  17.] 

\Tnists  C=>M.l 

Whole  a  parent  permits  a  son  to  i)urchase 
in  his  own  name,  no  trust  results  to  the  parent; 
the  itrosumptiou  is,  that  the  purchase  proceeded 
fiom  natural  affection,  and  was  intended  as  an 
advancement. 

[Ed.  Note.— Eur  other  oases,  see  Trusts,  Cent. 
Dig.  §  118;    Dec,  Dig.  <S=38l.l 
I  Wills  C=>l<»s.l 

[Cited  in  Noble  v.  Burnett.  10  Rich.  517, 
to  the  iMiint  that  a  will  may  be  sufliciont  as 
1i»  devises  of  land  and  insufficient  as  to  be- 
(piosts  of  j)ersonalty.] 

I  Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  SS  J4J»-Jr>8;    Dec.  Dig.  C=»108.] 

Before  Wardlaw,  Ch,,  at  Fairtiold,  .July, 
1S.-51. 

Wardlaw,  Ch.  This  bill  is  for  an  account 
and  settlement  of  the  estate  of  William  Brice, 
senior. 

William  Brice,  sen.,  died  in  May,  1S49, 
li'aving  seven  children:  Jane  Dougla.ss, 
lUizabeth  Stevenson.  James  C.  Brice,  John 
r.iice,  William  liric*',  Robert  Brice  and  .Ten- 


net  Brice.  The  estate,  which  indi.sputably 
belonged  to  him  at  his  death,  consisted  of  a 
plantation,  twelve  slaves,  namely,  Henry, 
Sarah,  Clarissa.  Lige,  Catharine,  Charles, 
big  Sam,  Ben,  Raclnd,  little  Sam,  old  Fanny 
and  Darkey,  stock  of  the  plantation  and 
liousohold  furniture.  On  March  li4.  184.S,  he 
executed  an  instrunu-nt  purporting  to  be  his 
last  will  and  testament,  wherein  he  appoint- 
etl  his  .son,  William,  and  his  neplu'w,  Walter 
Brice,  executors;  devised  his  phintation  to 
his  son  Robert,  and  assumed  to  luNiueath. 
besides  the  slavi's  named  above  and  other 
chattels,  fifteen  other  slaves,  namely,  Ntirman 
and  Winney,  to  his  daughter  Jemu't :  and 
Bob,    Abbey   and   five   cliildreu,    Martin   and 

*323 
Rose  and  their  four  children,  to  his  *son 
Robert.  This  will  was  attested  by  three  wit- 
nesses, «»ne  of  which  was  Walter  Brice,  nam- 
ed therein  as  an  executor.  Walter  Brice  re- 
nounced his  executorship.  William,  jun., 
made  probate  of  the  will  in  conunon  form, 
qualified  as  executor,  and  proc,  .'tied  in  the 
a<bninistratiou  of  the  estate,  until  he  was  ar- 
rested by  a  decree  of  the  ordinary,  that  the 
instrument  was  invalid  as  a  testament,  for 
lack  of  due  attestation.  William  afterwards 
resigned  his  executorshii),  and  Robert  re- 
ceived a  grant  of  the  administration  de  bonis 
non. 

Our  cases  have  settled  that  such  attesta- 
tion of  a  \\nll  as  was  made  of  the  instru- 
ment before  us,  is  sufficient  as  to  devises 
of  laud,  and  insutticient  as  to  be<iuests  of 
personalty,  Taylor  v.  Taylor.  1  Rich.  531 ; 
Henderson  v.  Keuner.  lb.  474 ;  Workman 
v.  Dominick,  3  St  rob.  ~jS[).  Robeit  therefore 
is  entitled  to  the  plantation  by  devise.  The 
personalty  of  which  the  testator  was  pos- 
sessed must  be  distributed  equally  amongst 
his  children,  without  reference  to  advance- 
ments, which  are  not  taken  into  the  account 
where  the  intestacy  is  not  total.  Snelgrove 
V.  Snelgrove,  4  Des.  274 ;  Newman  v.  Wil- 
bourne,  1  Hill  Imp  11. 

The  plaintiffs  claim,  as  subject  to  distri- 
bution amongst  the  children  of  William 
Brice,  not  only  the  estate  which  indisput- 
ably belonged  to  him  at  his  death,  but  lands, 
slaves  and  other  chattels  of  great  value, 
which  the  defendants  hold  under  releases, 
bills  of  sale,  and  by  pos.session. 

When  William  Brice  purchased  the  plan- 
tation in  18124,  upon  which  he  lived  at  the 
time  of  his  death,  this  plantation  and  five 
or  six  slaves  constituted  the  bulk  of  his  es- 
tate. His  daughter  Jane,  and  his  son  James, 
respectively,  married  about  1818,  left  the 
bojuestead  and  were  advanced  by  the  fa- 
ther, as  he  afterwards  declared,  to  the  full 
extent  of  any  share  he  proposed  to  allow 
to  them  in  his  estate.  The  remaining  chil- 
dren wrought  diligently  and  successfully  in 
the  affairs  of  the  faudly — the  sous  in  the 
plantation,  and  the  daughters  in  the  house- 


«£=>l'"or  other  cases  see  saiue  topic  aud  KEY-NUMUEH  iu  all  Key-Numbered  Digests  and  Indexes 


131 


*323 


4  RICHARDSON'S  EQUITY  REPORTS 


hold  duties ;  the  father  himself  being  of  in- 
firm health.  William,  jun.  and  John  had 
the  principal  management  and  direction  of 

*324 
the  plantation,  selling  the  *crops,  and  re- 
ceiving and  investing  the  proceeds,  until 
January,  1835,  when  having  purchased  plan- 
tations and  slaves  for  themselves  with  some 
of  the  proceeds  of  the  crop  of  the  home 
plantation,  they  withdrew  from  the  family, 
and  managed  their  own  acquisitions.  After- 
wards Robert  managed  and  controlled  the 
out-door  concerns  of  the  family,  selling  the 
crops  and  purchasing  property  in  his  own 
name  and  that  of  his  sister  Jennet,  until 
his  father's  death.  In  1842  Robert  pur- 
chased a  plantation  for  himself,  and  work- 
ed thereon,  in  his  exclusive  and  continued 
possession,  most  of  the  slaves  claimed  by 
him,  although  he  still  retained  the  superin- 
tendence of  the  home  place,  working  it  with 
slaves  claimed  by  himself  and  Jennet,  as 
well  as  those  of  his  father.  Elizabeth  in- 
termarried with  Stevenson  about  1837,  re- 
ceived an  advancement  of  four  negroes  and 
some  other  chattels,  and  left  the  home- 
stead ;  and  Jennet  aftei'wards  had  the  ex- 
clusive management  of  the  domestic  affairs 
of  the  household. 

It  is  not  important  to  state  with  fullness 
and  precision  the  particulars  of  real  and 
personal  estate  claimed  by  the  sons,  James, 
William  and  John,  for  it  is  clear  that  their 
title  to  this  estate  is  perfect  under  the  stat- 
ute of  limitations,  by  more  than  fourteen 
years  of  adverse  possession,  before  the  death 
of  their  father,  without  any  claim  whatever 
on  the  part  of  the  father.  The  bill  proceeds 
upon  the  notion,  that  although  the  legal  ti- 
tle to  this  estate  by  conveyances  and  bills 
of  sale  may  be  in  the  sons  respectively,  yet 
as  the  estate  was  acquired  from  the  means 
of  the  father — the  proceeds  of  his  plantation 
— a  trust  in  the  estate  so  acquired,  results 
to  the  father  and  to  his  heirs.  But  the  pre- 
sumption of  a  trust  is  rebutted,  where  in 
such  case  it  is  a  parent,  who  purchases  in 
the  name  of  a  son,  or  which  is  the  same 
thing,  allows  the  son  so  to  purchase ;  and 
the  presumption  is  that  the  purchase  pro- 
ceeds from  the  motive  of  natural' affection 
in  the  parent,  and  is  intended  as  an  advance- 
ment to  the  child.  Story  Eq.  §  1202-3.  In 
this  case  the  advancements  are  not  to  be 
brought  into  hotch-pot,  as  the  father  died 
testate  to  some  extent. 

It  is  equally  clear  that  Robert  Brice  is 
*325 
protected  in  his  title  by  *the  statute  of  limi- 
tations to  so  many  of  the  slaves  as  he  held 
in  adverse  possession,  at  his  separate  plan- 
tation, for  more  than  four  years  before  his 
father's  death.  His  title  to  this  separate 
plantation — the  Rocky  Creek  place — is  near- 
ly as  strong.  It  is  true  that  he  did  not  have 
adverse  possession  of  this  place  for  the  full 
statutory  term  of  ten  years;    but  he  pur- 

132 


chased  and  settled  it  a  year  or  more  before 
the  executicfti  of  his  father's  will,  which 
makes  no  mention  of  it ;  and  we  do  not 
hear  at  any  time  of  any  claim  to  it  on  the 
part  of  the  father.  It  is  plain  tha.t  this  pur- 
chase was  made  with  the  consent  and  ap- 
probation of  the  father,  especially  when  we 
consider  the  whole  course  of  his  advance- 
ments. One  witness  testifies,  that  on  one 
occasion,  several  years  before  his  father's 
death,  he  heard  Robert  Brice  say  that  we, 
(afterwards  naming  his  father,  his  brothers, 
John  and  William,  and  himself.)  shall  make 
100  bags  of  cotton  this  year;  and  it  is  ar- 
gued that  this  is  proof  of  Robert's  admission 
that  they  worked  in  common,  and  that  he 
had  no  separate  estate.  The  remark,  as 
sworn  to,  is  quite  too  equivocal  and  fiimsy 
to  authorize  the  deduction. 

The  main  controversy  in  the  case  is, 
whether  certain  slaves  claimed  by  Robert 
and  Jennet,  severally,  belonged  to  them  or 
to  their  father,  at  the  time  of  his  death. 
Twelve  slaves,  which  have  been  already 
named,  are  all  which  have  been  set  down  in 
the  inventory  as  belonging  to  the  father's 
estate.  Fifteen  others,  also  heretofore  nam- 
ed, are  mentioned  in  ineffectual  bequests  by 
the  father  to  Robert  and  Jennet,  resp'^ctive- 
ly.  Of  these  fifteen,  Winny  had  been  80ld ; 
to  Bob,  Ibby  and  four  of  her  children  'tfar- 
tin.  Rose  and  one  of  her  children,  a  good 
title  had  been  acquired  by  Robert  Brice's 
adverse  separate  possession ;  three  of  Rose's 
children,  Ned,  Jim  and  Ann,  one  of  Il)by's 
children,  Peter  Page  and  Norman,  were  on 
the  testator's  plantation  at  the  time  of  his 
death.  Besides  these  five,  several  others 
not  included  in  the  appraisement,  were  also 
at  the  testator's  plantation,  namely,  George, 
little  Sarah,  Lydia  and  four  children,  Su- 
sannah and  Sam  3d,  Robert  and  Porter.  Rob- 
ert Brice  produces  bills  of  sale  to  himself, 
dated    as    follows:     of    Rose,    February    3, 

*326 
1834;  of  Bob,  *April  4.  1835;  of  Ibby  and 
two  children,  August  13,  1836 ;  of  George, 
November  30,  1846.  Jennet  Brice  produces 
three  bills  of  sale  to  herself — one  of  Winny 
and  Norman,  dated  May  1,  1838 ;  and  an- 
other executed  by  J.  W.  Hudson,  March  22, 
1847,  and  the  third  for  little  Sarah.  These 
bills  of  sale,  if  valid,  convey  all  the  slaves 
in  controversy,  except  Martin,  who  is  held 
by  possession.  No  express  evidence  is  given 
that  William  Brice,  sen.,  had  notice  of  these 
bills  of  sale;  but  I  am  entirely  satisfied 
from  all  the  circumstances  of  the  case  of 
the  truth  of  the  statement  in  the  answer, 
"that  these  bills  of  sale  were  executed  with 
the  full  knowledge  and  approbation  of  the 
father."  This  is  the  natural  presumption 
from  the  existence  of  the  papers  them- 
selves ;  for  fraud  cannot  be  snuffed  at  a  dis- 
tance where  the  breeze  is  not  tainted.  The 
household  of  this  old  man  was  remarkably 
harmonious,  industrious,  frugal  and  thrifty; 


DOUGLASS  V.  BRICE 


*32S 


and  it  H  mniiifcst  that  the  fatluT  and  <liil- 
(licii  prixi'fdcd  mion  tlu'  priiicipli'  of  appor- 
tiuiiiiif;  ac<|iiisili()n.s  accitrdini;  to  the  value 
of  the  services  of  the  nieinhers  of  a  eoiu- 
jimiiity.  Muri-el  v.  Murrel,  2  Strol).  Vxi.  14S 
[1!)  Am.  Dec.  (i(;4|.  One  wltiie.ss  testifies 
that  after  Williaiii  Hrice  liad  nuule  Ins  will, 
lie  .><aid  "those  of  his  ihildreii  who  had  mar- 
ried and  p)ne  olT  had  j^ot  their  full  share 
of  his  property  at  that  time,  and  that  the 
hoys  had  made  this  property  and  had  the 
hest  ri^iit  to  it."  Anotlier  witness  testities, 
that  "William  I'.rice  when  his  will  was  he- 
int;  drawn  up,  and  afterwards,  said  1h>  had 
f^iven  his  otiier  children  what  he  allowed 
for  them,  and  that  tiie  hoys  oujiht  to  have 
the  other  projierty  as  they  had  made  it." 
Again:  the  father,  hy  acts  and  declarations, 
recosrnized  the  tith'  of  some  of  these  slaves 
as  heini;  in  Kohert  and  Jeiniet.  in  conformi- 
ty to  the  hills  of  .sah'.  lie  |»eruiitted  Hol>ert 
to  estahlish  hy  exclusive  iios.scssion  title  to 
Ihhy  and  Rose,  tlu*  motiiers  of  most  of  the 
slaves  now  claimeii  from  Kohert ;  and  that 
some  of  the  young  children  of  these  mothers 
wore  kept  at  tlie  home  plac»',  prohahly  for 
convenience  of  nurture,  is  a  circumstance  of 
little  weight  in  the  contrary  scale.  It  is 
further  proved  that  William  IJrice  said, 
"Jennet  had  a  negro  woman.  Winny  and  two 

♦327 
children,  with  which  she  *hecame  displeas- 
ed, and  directed  Itohert  to  sell  them ;  and 
that  Kohert  did  sell  tluun.  and  purchased 
for  her  a  family  from  Mr.  Hudson,  Julia 
and  her  children."  yorman  is  in  the  same 
hill  of  sale  with  AVinny  to  Jennet.  Against 
the  force  of  these  circumstances  the  fact 
Ijrincipally  argued  is,  that  William  Hrice, 
sen.,  undertook  to  bequeath  as  his  own, 
some  of  thesi'  slaves  to  his  diildren,  Robert 
and  Jennet.  But  it  is  quite  common  for  par- 
ents In  their  wills  to  devise  or  heciueath  in 
terms  to  their  children,  estate  that  had  been 
in  fact  pieviously  given  as  an  advancement. 
Such  dispositions  are  intended  rather  to 
magnify  the  extent  of  the  donor's  hoinity,  or 
to  (piiet  litigation  among  his  legatees,  than 
to  assert  existing  title  in  tlie  subject  in  him- 
self. There  might  be  something  in  the  argu- 
ment, if  the  testator  had  attempted  a  dif- 
ferent disposition  of  any  of  the.se  slaves 
from  that  which  follows  from  the  operation 
of  the  bills  of  sale;  but  such  is  not  the 
fact.  When  we  add  to  this,  that  the  testa- 
tor attempted  to  cut  ofT  by  his  will  each 
of  the  plaintiffs  from  a  share  of  Ids  estate, 
the  inference  of  claim  hy  the  testator  to 
these  slaves  is  destroyed.  Iti  my  judgment 
the  plaintilTs  have  not  established  that  Wil- 
liam Rrice,  .sen.,  at  the  time  of  his  death, 
was  entitled  to  lands  and  chattels,  beyond 
what  is  conceded  by  the  defendants  to  be 
his  estate.  The  crop  of  ls4i>,  as  the  tes- 
tator died  after  the  first  of  March,  nuist  be 
accounted  for,  according  to  the  agreement. 
If  any  existed,  for  the  division  of  the  pro- 


ceeds among  the  testator  and  his  children, 
Robert  and  Jennet;  otherwise,  according  to 
the  amount  of  capital  invested  and  of  the 
labor  employed,  regarding  the  plantation 
and  the  twelve  negroes  ap[»raised  as  belong- 
ing to  testator.  The  testator's  share  to  be 
K|ually  divided  nniong  all  of  his  distiibu- 
lees. 

Williiim  Rrice,  executor,  and  Robert  Brice, 
aihninistrator,  mu.st  acc<aint  for  the  chattels 
of  the  estate,  and  the  funds  by  them  respec- 
tively received.  It  seems  that  John  Brice  re- 
ceived for  a  time  the  avails  of  the  labor  of 
Clari.ssa  and  her  children,  ami  he  must  ac- 
count to  the  representatives,  and  they  to  the 
distriliutees  as  to  thi.s  matter. 

If  an  order  for  the  sale  of  the  chattels 
for  partition  be  neces.sary,  it  may  be  api)lied 
for. 

♦328 

♦It  is  ordered  that  this  opiidon  stand  for 
a  decree ;  that  it  be  referre<l  to  the  com- 
missioner vo  take  the  accounts  uiion  the 
principles  herein  indicated.  Costs  to  be  paid 
from  the  intestate  property  of  Williaim  Brice, 
senior. 

The  complainants  apixmled,  on  the  follow- 
ing grounds: 

1.  That  the  defendants  cannot  boM  any 
property,  real  or  personal.  claime«l  by  them 
under  the  statute  of  limitations,  inasmuch 
as  they  have  not  asked  for  protection  iinder 
the  said  .statute  by  plea,  answer  or  otherwise. 

2.  That  William  Brice,  sen.,  being  the  pro- 
prietor or  sole  owner  of  the  land  and  ne- 
groes, and  other  property  from  which  the 
crops  were  nuide,  was  rlie  sole  owner  of  the 
crops  raised  on  his  plantation,  and  of  their 
proceeds;  and  was  the  sole  owner  of  all 
property  purchased  thereby  ;  unless  the  de- 
fendants had,  in  express  terms,  proved  a 
gift;  or  an  authority  so  to  invest  his  moiues, 
and  take  title  or  bills  of  sale  in  their  own 
right ;    which  tiiey  failed  to  do. 

.'{.  lliat  the  evidence  does  not  show  that 
William  Brice,  sen.,  had  ever  heard  or 
known,  that  any  bill  of  sale  was  held  by  any 
one  of  the  defendants  for  either  of  the  ne- 
groes named  in  his  will,  (of  date  March  24, 
1S4;{,)  and  by  which  he  U'lieved  he  liatl 
lawfully  conveyed  said  negroes,  twenty-six  in 
number,  as  his  own  property.  The  complain- 
ants, therefore,  sulanit  that  the  said  negroes 
and  their  increase  were  rightfully  the  i)roper- 
ty  of  William  Brice,  sen.,  at  his  death. 

4.  That  the  twelve  negroes  in  the  posses- 
sion of  deceased  at  his  d»>ath,  and  not  ap- 
praised as  his  ju-operty,  to  wit:  L.vdia,  Susan- 
nah. Utile  Sam,  Rohert.  I'orter  and  .Norman, 
claimed  by  Jennet  Brice:  and  (Jeorge.  little 
Sarah,  Ned,  Jim,  Ann,  IVter  Page,  claimed 
by  defendant,  Robert  Brice,  of  right  belong 
to  the  estate  of  deceased;  the  first  five  nam- 
ed, and  al.so  George  and  little  Sarah,  having 
been  purchased  sin<t'  the  will  was  dated,  and 
the  remaining   live  negroes  having   been  in- 

133 


*328 


4  RICHARDSON'S  EQUITY  REPORTS 


eluded  in  the  will,  and  all  living  on  tlie  plan- 
tation of  the  deceased  as  his  property. 

5.  That  the  entire  crop  of  1849,  raised  on 

*329 
his  plantation,  be*lonsed  to  the  deceased  and 
his  estate,   and  that  the   defendant,   Robert 
Brice,  as  administrator,  ought  to  be  required 
to  account  for  the  same. 

6.  That  the  defendants  are  bound  to  pay 
the  costs  of  this  suit,  for  the  reason  that  the 
■defendant,  John  Brice,  claimed  and  took  pos- 
session after  the  death  as  his  property,  of 
four  negroes,  now  agreed  by  defendants  in 
their  answer,  as  belonging  to  the  estate  of 
the  deceased,  to  wit:  Clarissa  and  her  chil- 
dren, Lige,  Catharine  and  Charles ;  the  de- 
fendants, William  Brice,  as  executor,  and 
afterwards  Robert  Brice,  as  administrator, 
having  acquiesced  in  the  claim,  or  having 
taken  no  steps  to  right  the  estate ;  and  the 
complainants  having  been  thereby  forced  to 
bring  their  bill. 

Buchanan,  Hammond,  for  appellants. 
Gregg,  McAliley,  contra. 

PER  CURIAM.  This  Court  perceives  no 
error  in  the  decree  appealed  from.  It  is, 
therefore,  ordered  that  the  same  be  affirmed, 
and  the  appeal  dismissed. 

JOHNSTON,     DUNIvlN,     DARGAN     and 
WARDLAW,  CC,  concurring. 
Appeal  dismissed. 


4   Rich.  Eq.  329 
R.  ZIMMERMAN  and  Wife  et  al.  v.  ELIZA- 
BETH WOLFE  et  al. 
(Columbia.      May   Term,    1S52.) 

[Deeds  <S==>120.] 

Negroes  were  conveyed  by  deed  "to  J.  M. 
dining  the  term  of  his  natural  life,  and  at  bis 
death  to  M.  M.,  bis  wife,  and  the  heirs  of  her 
body,  and  in  tbe  event  of  tlie  said  M.  M.  de- 
parting this  life,  witbout  children  living  at  her 
death,  then  tbe  said  negroes  to  go  to  the  said  J. 
M.  during  his  life,  and  at  his  death  to  be  divid- 
ed equally,  one  half  to  tbe  children  of  J.  C.  and 
one  half  to  tbe  children  of  E.  Z:"—Hcld,  that 
tbe  limitation  over  to  the  children  of  J.  C.  and 
E.   Z.   was  valid. 

[Ed.  Note. — For  other  cases,  see  Deeds,  Cent. 
Dig.  i;  380;    Dec.  Dig.  <g=>120.] 

Before  Dargan,  Ch.,  at   Orangeburg,   Feb- 
I'uary,  1852. 

Dargan,  Ch.     Conrad  Holman,  of  St.  Mat- 
thew's Parish,  departed  this  life  on  or  about 

*330 
19th  August,  1816,  leaving  a  personal  *estate, 
consisting  principally  of  negroes.  He  died 
intestate,  and  his  son,  John  C.  Holman,  and 
his  daughter,  Elizabeth,  who  afterwards  in- 
termarried with  Daniel  Zimmerman,  and  his 
daughter,  Mary,  who  afterwards  intermar- 
ried with  John  INIurph,  were  his  distributees. 
On  the  8th  June,  1821,  the  parties,  viz:  the 
son  and  daughters  of  the  intestate,  with  their 


I  husbands,  made  a  partition  of  tbe  negroes 
among  themselves,  by  a  tripartite  indenture, 
duly  executed,  by  the  terms  of  which  in- 
denture they  mutually  agreed  to  receive  their 
respective  shares,  sul).iect  to  certain  contin- 
gent limitations  prescribed  therein.  The  part 
of  said  deed,  which  is  now  the  subject  of 
consideration,  is  to  the  following  effect:  It 
transfers  certain  negroes,  who  are  specially 
named,  and  their  future  increase  to  John 
Murph  and  Mary,  his  wife,  as  their  share, — 
"to  the  said  John  ^furph,  during  the  term  of 
his  natural  life,  and  at  his  death  to  the  said 
Mary  and  the  heirs  of  her  body,  and  in  the 
event  of  the  said  Mary  departing  this  life 
without  children  living  at  her  death,  then 
the  said  negroes  to  go  to  the  said  John 
Murph  during  his  life,  and  at  liis  death  to 
be  divided  equally,  one  half  to  the  children 
of  the  said  John  C.  Holman,  and  one  half 
to  the  children  of  the  said  Elizabeth  Zimmer- 
man ;  and  if  either  the  said  John  C.  or  the 
said  Elizabeth  should  depart  this  life  with- 
out children  living  at  his  or  her  death,  then 
the  said  negroes  to  go  to  the  children  of  the 
other."' 

John  Muiijh  departed  this  life  in  the  year 
1844,  leaving  liis  wife,  the  said  Mary,  sur- 
viving him ;  and  in  the  year  1848,  she  de- 
parted this  life  without  leaving  any  children 
surviving  her  and  being  in  possession  of  the 
negroes  at  the  time  of  her  death. 

John  C.  Holman  died  in  the  year  18.39. 
He  left  children  as  follows:  Elizabeth  Hol- 
man, who  has  intermarried  with  Russel  Zim- 
merman, and  a  son,  John  Holman.  These 
are  the  complainants.  He  also  left  a  daugh- 
ter, Catharine,  who  intermarried  with  one 
Wolfe,  and  has  died  leaving  two  children, 
Elizabeth  and  Catharine  Wolfe,  who  are  de- 
fendants. 

The  complainants  allege  that  Mary  Murph, 
in  her  life  time,   made  a  parol  gift  of  the 

*331 

said  slaves  in  their  behalf,  accompanied  *by 
delivery.  They  contend  that  she  had  a  right 
to  make  such  a  disposition  of  the  negroes, 
as  according  to  their  construction  of  the 
deed,  lier  estate  in  the  said  negroes  was 
absolute  in  the  event  she  survived  her  hus- 
band, which  she  did.  They  further  charge 
that  they  have  heard  that  the  defendants 
dispute  their  title  to  the  negroes  under  said 
parol  gift.  And  they  prefer  their  bill  to 
quiet  their  title  to  the  said  negroes,  as 
against  the  claim  set  up  by  the  defendants; 
and  for  a  partition,  if  it  should  be  decided 
that  the  defendants  are  entitled  to  a  share 
under  the  limitations  of  the  deed. 

Daniel  Zimmerman  and  his  wife,  IiJliza- 
beth,  are  both  dead. — They  left  children, 
who  also  would  be  interested  in  the  issues 
made  in  these  proceedings  ;  but  in  answer  to  a 
(piestion  by  the  Court,  "Why  were  they  not 
made  parties?"  it  was  said  that  Mrs.  Murph 


134 


<^=5For  other  cases  see  same  topic  and  KEY-NU  MltER  iu  all  Key-Numbered  Digests  and  Indexes 


ZIMMERMAN  v    WuLFE 


in  Ikt  lift-  tiint'.  aiul  in  anticipation  of  her 
(Icatli.  (]»'liv»M-c'(l  certain  of  the  ne;:ri>es  to 
the  iliildren  of  Mrs.  Zininierinan,  and  to  the 
snrvivini.'  chililren  of  John  C.  Ilolnian,  (who 
are  the  edniplainants,)  the  neirroes  n)entioii- 
f<l  in  tlie  bill:  and  that  both  the  cnniiMain- 
aiits  and  the  Ilolinans  agrtM-'d  to  reeeiv*'  the 
lu'f^roes  delivered  to  them  in  her  life  time 
as  their  interest  and  share  of  the  ii»';.'roes 
linnted  to  them  by  the  dee<l.  From  this 
statement  it  would  seem  that  the  Zimmer- 
mans  are  satisfied,  and  tlie  II<ihnans,  Inelud- 
Im^'  the  defcMKhints,  are  also  satisfied,  so  far  as 
re;;ards  the  partition  between  the  two  branch- 
es of  tlu'  family.  The  matter  to  he  adjudfied  is 
whether  the  Ilolman  share  of  the  ne;:ro 
property  of  Mrs.  Mnrpli  is  subject  to  fur- 
ther partition,  so  that  one  third  part  there- 
of shall  be  assif:ne«l  to  the  defendants,  who 
are  the  representatives  of  Catharine  Wolfe, 
a  deceased  dau;;hter  of  .lohn  ('.   Holman. 

Whether  the  defendants  are  so  entitled 
will  depend  upon  the  construction  of  the 
deed.  If  the  deed  had  conveyed  the  negroes 
to  John  Murph  during;  his  life,  and  at  his 
death  to  Mary  Murph  and  the  heirs  of  her 
body,  and  in  the  event  of  dyinj;  without 
children  livinj;  at  her  death,  then  over.  I  ap- 
prehend, there  could  not  have  been  a  doubt 
as   to   the   validity   of    the   limitations;     and 

♦332 

these  are  *substantlally  the  provisions  of 
the  deed.  I  have  stated  them  iirecisely  as 
they  are.  with  the  exception  of  the  life  es- 
tate to  John  ^lurph.  interposed  between  the 
estate  of  Mary  Murph  and  the  limitations 
in  favor  of  the  ulterior  remainder-man.  Kut 
the  life  estate  given  to  John  Murph  in  that 
connexion,  is  a  mere  repetition.  The  first 
estate  conveyed  to  him  is  to  him  for  life, 
absolutely  and  independently  of  his  sur- 
vivinj;  or  of  his  not  surviving  his  wife;  and 
the  repetition  of  the  grant  to  him  ft)r  life, 
in  the  subsequent  clause,  gives  him  neither 
more  nor  less  than  he  takes  by  the  first.  He 
was  to  have  a  life  estate  by  the  first  clause, 
whether  he  or  she  were  the  survivor,  and 
whether  she  left  children  or  not.  If  she 
died  before  her  husband,  without  leaving 
children  living  at  her  death,  then  at  the  ex- 
piration of  the  estate  already  given  to  him 
for  life,  the  limitation  over  was  to  take  ef- 
fect. This,  I  think,  is  the  true  reading  of 
the  deed,  so  far  as  relates  to  the  clause  in 
1 1  nest  ion. 

If  Mrs.  Murph  had  left  children  surviving 
her,  whether  they  would  have  been  entitled 
to  take  as  purchasers,  I  am  not  undi-r  the 
necessity  of  deciding.  Such,  however,  I 
think,  would  have  iieen  the  result.  Under 
the  »'.\pr«'ssion,  "the  heirs  of  her  body," 
the  estate  is  given  to  her  issue,  which,  if  the 
description  had  stopiied  there,  would  have 
been  too  indefinite,  and  would  have  failed  for 
remoteness.  But  the  condition  which  fol- 
lows, viz:  that  if  she  dies  without  children 
living   at   her   death,    the  estate   was    to    go 


over  by  way  of  remainder  to  persons  who, 
if  they  took  at  all,  unist  take  within  the 
period  prescribed  against  remoteness,  re- 
stricts the  generality  and  vagueness  of  the 
expression,  "heirs  of  her  body,"  and  makes 
it  mean  those  very  children,  the  failure  of 
whom,  at  her  death,  would  cause  the  estate 
to  go  over.  The  term  'iieirs  of  her  body," 
thus  explained,  means  children  living  at  her 
d«'ath.  wlio  are  in  this  way  sufficiently  de- 
scribed as  a  class,  and  to  whom,  without 
resort  to  Implication,  an  estate  is  directly 
giv»'n  as  purchasers.  According  to  this  con- 
struction. Mrs.  Mnrjih  would  in  no  event 
have  taken  more  than  a  life  estate.  Under 
this   view  of  the  case,  there  was  an  estate 

♦333 

to  John  Murjili  for  life.  remain*der  to  Mary 
Murph  for  life,  remainder  to  her  diihiren 
living  at  her  death  in  fee;  an<l  if  she  should 
die  without  children  living  at  her  death, 
remainder  to  a  class  of  persons,  of  which 
the  defendants  constitute  a  portion.  But  the 
right  of  the  defendants,  as  I  have  already 
intimated,  does  not  deuend  upon  a  construc- 
tion which  would  make  Mrs.  Murph  take  a 
life  estate,  with  remainder  to  her  children 
(if  she  left  any)  in  fee.  The  same  result 
woidd  follow,  if  it  was  intended  that  she 
should  take  a  fee,  provided  she  left  children 
surviving  her;  for  in  that  ca.se  it  would 
have  been  a  fee  defeasilile  upon  the  event 
of  her  dying  without  children  living  at  her 
death.  And  the  condition  has  happened  up- 
on which  the  estate  was  to  pass  away  from 
her.  If  this  construction  should  prevail, 
then  there  was  an  estate  to  John  Murph  for 
life,  x'emainder  to  Mary  Murph  in  fee,  but 
in  the  event  she  should  die  without  children 
living  at  her  death,  remainder  to  the  children 
of  John  C.  Holman  and  of  Mary  Zimmerman. 

In  the  opinion  of  the  Court,  the  defend- 
ants are  entith'd  to  one  tlnrd  part  of  the 
negroes  described  in  the  lull,  and  to  an  ac- 
count of  the  hire  and  profits  of  the  said 
negroes,  from  the  death  of  Mary  Murph. 
And  it  is  so  decreed. 

It  is  further  ordered,  that  the  parties  to 
these  proceedings  have  leave  to  apply  at  the 
foot  of  this  decree,  for  all  orders  neces.sary 
and  proper  to  carry  the  same  into  effect. 

The  complainants  appealed,  on  the  follow- 
ing grounds: 

1.  Because  under  a  proper  construction 
of  the  deed  in  question,  and  on  the  case  as 
made,  the  defendants  are  not  entitled  to  one 
third  part  of  the  negroes  described  in  the 
bill. 

2.  Because  the  decree  is,  in  other  respects, 
erroneous  and  contrary  to  law  and  etpiity. 

3.  Because  there  lieing  no  privity  between 
comi»lainants  and  defendants,  and  the  slaves 
having  bi'cn  given  to  complainants  in  the 
life  time  of  Mrs.  Murph,  and  the  complain- 
ants being  stake  holders,  they  should  not 
be  charged  with  hire  for  them. 

135 


4  RICHARDSON'S  EQUITY  REPORTS 


Keitt,  Whaley,  for  appellants. 

,  contra. 

*334 

*PER  CURIAM.  This  Court  concurs  in 
the  decree  of  tlie  Chancellor ;  and  it  is  or- 
dered that  the  same  be  affirmed,  and  the  ap- 
peal  dismissed. 

JOHNSTON,     DUNKIN,     DARGAN,     and 
WARDLAW,  CO.,  concurring. 
Appeal  dismissed. 


4   Rich.  cq.  334 
CHBSLEY  D.  EVANS  and  Wife  et  al.  v.  WIL- 
LIAM EVANS.    . 
(Columbia.      May   Term,    1852.) 

[Wills  <©=3740.] 

Testator  directed  his  slaves  and  other  prop- 
erty to  be  divided  by  freeholders,  to  be  chosen 
by  his  executors,  into  lots — that  each  one  of  his 
children  should  draw  one  lot  and  hold  the  same 
for  life,  with  remainder  to  his  or  her  issue:  In 
makiug-  the  lots,  tiie  freeholders  inadvertently 
put  a  female  slave  into  one  lot,  and  her  infant 
child  into  another ;  the  legatee  who  drew  the 
mother  agreed,  at  the  time  and  before  the  al- 
lotment and  division  was  complete,  to  take  the 
child  and  give  the  legatee  who  had  drawn  it  his 
note  for  ijilOD — the  amount  at  which  it  had  been 
appraised — which  was  accordingly  done:  Held, 
upon  the  evidence,  that  the  child  passed,  in  the 
division,  to  the  legatee  who  drew  the  mother, 
anil  that  the  •1>100  was  paid  for  ecjuality  of  par- 
tition, and  not  as  purchase  money  for  the  child. 
[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  §  1892 ;    Dec.  Dig.  <^^7-i0.] 

Before  Johnston,  Ch.,  at  Marion,  Febru- 
ary, 1851. 

Johnston,  Ch.  This  suits  relates  to  a  part 
of  the  estate  of  General  Godbold,  late  of 
Marion  district. 

His  will  was  executed  the  17th  day  of 
May,  1825,  and  he  died  in  the  same  year. 
Throwing  out  immaterial  facts,  the  circum- 
stances of  the  case  may  be  briefly  stated  as 
follows: 

He  left  six  children — Hugh,  Charles,  John, 
Elizabeth,  Sarah  and  Mary.  Charles  died 
intestate  and  without  issue,  in  1827,  and  be- 
fore the  division  of  the  estate  hereinafter  to 
l>e  stated.  Sarah  married  the  defendant, 
William  Evans.  Elizabeth  married  first, 
John  Haselden,  and  afterw^ards  David  Mon- 
roe, and  died  in  1844,  leaving  the  plaintifts, 
the  issue  of  her  two  marriages,  surviving 
lier. 

The  testator's  will  directed  his  executor 
*335 
to  keep  his  lands  and  *negroes  together  as 
a  planting  establishment  until  the  1st  Jan- 
uary, 1830;  subject  to  this,  the  following 
provisions  are  found  in  the  will. 

1.  "That  my  lands  be  divided  into  six  equal 
parts,  as  near  as  can  be  done,  by  not  less  than 
three  respectable  freeholders,  chosen  by  my 
executor.  After  being  so  divided,  the  tracts 
or  divisions  to  be  numbered  and  put  into  a 
box  or  hat  and  drawn  out  by  a  child  not  ex- 


ceeding ten  years  old,  beginning  with  the 
number  first  drawn  for  the  oldest  heir,  my 
son,  Hugh  Godbold ;  No.  2,  for  my  son,  Char- 
les F.  Godliold  ;  No.  3,  for  my  son,  John  M. 
Godbold;  No.  4,  for  my  daughter,  Elizabetli 
Godbold;  No.  5,  for  my  daughter,  Sarah 
Ann  Godbold ;  No.  6,  for  my  daughter,  Mary 
Godbold.'' 

2.  "The  negroes,  stock,"  &c.,  to  be  divided, 
as  the  land,  by  numbers. 

3.  "All  the  property  I  have  loaned,"  (there 
are  other  clauses  giving  the  above  property 
in  the  form  of  a  loan  to  his  children,)  "to  my 
sons  and  daughters,  before  mentioned,  afttr 
he,  she  or  they  depart  this  life,  shall  go  to 
the  lawful  issue  of  their  bodies ;  and  if  ei- 
ther of  my  children  shall  depart  this  life 
leaving  no  lawful  issue  of  their  body,  then 
the  wdiole  of  that  part  of  my  estate  allotted 
to  him,  her  or  them,  should  be  equally  divid- 
ed among  my  surviving  heirs." 

When  the  period  of  division  arrived,  there 
were  still  large  debts  of  the  testator  remain- 
ing unsatisfied,  and  the  executor  would  not 
consent  to  the  division  unless  these  were 
provided  for,  and  himself  secured  from  the 
consequences  of  assenting  to  the  legacies. 
An  instrument  wa.s  therefore  drawn  up  and 
subscribed  by  the  parties,  by  which  each  of 
the  legatees  was  to  take  the  property  to  be  as- 
signed to  him,  with  the  burden  of  paying  off 
a  specified  portion  of  the  debts ;  and  it  was 
stipulated  that  the  executor  shwild  have  pow- 
er to  subject  the  share  of  each  legatee,  in 
his,  (the  legatee's)  hands,  for  the  payment 
of  the  demands  against  the  estate,  and  that 
no  legatee  should  be  regarded  as  having  such 
title  to  liis  share  as  would  authorize  him 
to  dispose  of  it  even  towards  paying  tliese  de- 
mands, unless  the  price  was  so  applied,  and 

*336 
the  executor  *was  satisfied  with  the  sum 
raised  by  the  sale.  I'pon  this  agreement  the 
freeholders  were  called  in  by  the  executor, 
appraised  the  property,  and  threw  it  into 
lots.  Cliarles  Godbold,  one  of  the  legatees, 
being  dead,  no  share  was  distinctly  made 
up  for  him ;  but  the  property  was  thrown 
into  five  instead  of  six  lots. 

In  doing  this,  by  some  inadvertence  a  little 
female  negro  child,  by  the  name  of  Sena, 
then  of  such  tender  age  as  to  render  it  im- 
proper to  take  it  from  its  mother,  was  put  in- 
to one  lot  and  its  motlier  in  another.  The 
child  had  been  valued  at  one  lunidred  dol- 
lars. The  lot,  including  the  mother,  was 
drawn  by  Sarah,  (Mrs.  Evans,)  and  that  in- 
cluding the  child  by  Elizabeth,  (Mrs.  Has- 
elden.) Evans  and  Haselden  were  present ; 
and  as  soon  as  Haselden  was  informed  of  the 
fact  that  the  child  had  fallen  to  him,  dis- 
connected from  its  mother,  lie  remonstrated. 
This  seems  to  have  been  before  Sarah's  lot 
was  drawn,  and  while  it  was  uncertain  to 
whom  the  mother  would  fall.  He  said  that  he 
would  not  take  the  child  home ;    that  if  who- 


136 


©:;»For  other  cases  see  same  topic  and  KISY-NUMBER  in  all  Key-Numbered  Digests  and  lnde.xea 


EVANS  V.  EVANS 


*83» 


ever  drew  the  mother  would  take  It  at  the 
apinaiseiiient.  he  miulit.  and  if  he  would  not, 
lie  would  ulve  it  to  hiiu.  There  was  a  general 
«<)iicunt'iice  of  the  appraisers,  the  executor 
and  every  i»erson  present,  that  the  viiild 
and  uintlicr  should  p.  together;  and  Mrs. 
Kvans  havinj,'  drawn  the  mother,  it  was.  at 
the  »<xt'(ut(»rs  su;,';;t'stion.  and  with  the  ap- 
praisers' ai»proval.  (and.  as  one  of  them  tes- 
tifies, liefore  the  process  of  allotment  and 
the  division  was  complete.)  arranged  that 
Evans  should  take  the  child  alonf;  with  its 
mother  at  its  appraisement.  lie  pive  his 
note  to  Ilaselden  for  the  amount.  How  or 
when  he  paid  the  note  does  not  appear;  hut 
lie  this  as  it  may.  the  division  was  completed, 
and  the  parties  received  the  property  ac- 
cordiiifily.  of  which  they  have  retained  the 
pos.scssion. 

The  sliare  assifincd  to  each  of  the  five  cliil- 
drer.  on  this  division  was  of  the  average  value 
of  about  .f;i.4CK).  (subject  t(»  a  proportionate 
share  of  the  estate's  d»'hts  still  due.  which 
was  considerable,  and  to  over  advances  made 
hy  the  executor,  amounting;  to  over  $;i()0.)  one- 
sixth  of  the  property  thus  assi<,'ned.  it  will  be 

*337 


•remembered,  consisted  of  the  share  of  Charles 
Godbold.  whicii  was  thrown  in  with  the 
others. 

I'pon  the  death  of  Eiizalieth.  the  original 
share  given  to  her  under  the  will,  (accord- 
ing to  the  cases  on  Hell's  will.)  was  vested 
in  her  cliildren.  who  survived  her,  and  who 
are  the  plaintiffs  in  this  case,  most  of  whom 
are  minors  now,  and  all  of  them  until  latel.v. 

The  bill  is  to  have  Sena  and  her  children, 
(for  she  is  now  grown  and  has  several  chil- 
dren, mentioned  in  the  pleadings.)  delivered 
to  the  plaintiffs  i)y  defendant.  Evans,  with  an 
account  of  the  profits  since  their  mothers 
death;  and  the  ground  taken  is,  that  upon 
the  drawing  of  the  lot  in  whch  SiMia  was  in- 
<luded,  l)y  their  mother,  she  liecame  vested 
in  their  mother,  subject  to  the  linutations  of 
the  will,  and  that  tlicir  father  was  incomi)e- 
teiit  to  dispose  of  her  to  Evans. 

This  is  the  case  for  decision.  I  do  not 
think  I  have  omitted  any  material  circum- 
stance. If  I  have  inadvertently  done  so 
my  notes  of  evidence  and  the  pleadings  are 
open  for  my  correction. 

I  shall  decide  this  case  upon  a  single 
ground. 

It  is  very  clear  that  if  the  slave  vested  in 
Mrs.  Ilaselden,  it  vested  subject  to  the  debts 
of  the  estate,  which  bore  a  i)roportion  to 
Mrs.  Ilaselden's  whole  lot  greater  than  the 
value  of  this  child  ;  and  it  vested  also  suitject 
to  alienation  for  estate  debts  with  the  concur- 
rence of  the  executor,  whicii  in  this  case  to(»k 
jilace.  The  assent  of  tiio  executor,  whi(  li  was 
necessary  to  tlie  vesting  of  the  legacy,  was 
given  only  on  these  conditions;  and  upon 
these  conditions  the  legacy  was  received. 

It  is  also  clear  that  in  the  lot  of  Mrs.  Ilas- 


elden was  included  her  projiortion  of  the 
share  of  her  deceased  brother,  Charles,  to 
which  share  no  limitations  were  amiexed  by 
the  will  beyond  the  simple  limitation  over  to 
Mrs.  Ilaselden  and  her  brothers  and  sisters. 
Her  proportion  therefore  was  her  absolute 
projierty,  and  subject  to  the  disposal  of  her 
husband.  Wlu»  will  .say,  at  this  di.stance  of 
time,  that  Seini  did  not  reiiresent  the  propor- 
tion   received    of    Charles'    share'/      Hut    the 

*338 
ground   upon  which   I   put  the  *case.  (wliat- 
ever  forms  were  gone  th rough. »  is  that  Sena 
never  was  really  included  in  tlie  share  finally 
allotted  and  assigned  to  Mrs.  Haseloen. 

The  case  is  analogous  to  the  division  of 
Kichard  Thomp.son's  estate,  which  came  up 
before  us  several  years  ago,  from  Si)artan- 
burg. 

The  negro  in  question  was  appraised,  and 
in  the  first  instance  placed  in  lot  No.  4,  but, 
(says  Col.  Ilarllee,  the  executor,  who  was 
examined  as  a  witness.i  the  allotments  were 
modified  by  the  transfer  of  Sena  to  lot  No.  5. 
This  modification  was  made  at  the  instance 
of  all  the  legatees,  particularly  Mrs.  Hasel- 
den,  and  with  the  assent  of  the  conniiissioners 
or  freeholders  who  made  the  division  ;  and 
this  was  done  before  the  division  was  com- 
pleted. Mr.  Hugh  Codbold.  another  witness, 
and  one  of  the  legatees,  concurs  in  tins  statt'- 
ment,  and  says  he  considered  this  transfer, 
both  then  and  now,  as  much  a  part  of  the 
division  as  any  other. 

The  drawing  of  this  lot  prec-eded  the  tran.s- 
fer,  and  it  is  supposed  that  the  proiterty 
vested  eo  instanti  upon  that  drawing.  The 
lot  was  dictated  and  adopted  not  for  the 
purpose  of  vesting  the  property,  but  for  the 
mere  purpose  of  giving  satisfactory  evi.lence 
of  impartiality.  It  was  coiniietent  for  any 
party  to  waive  it  so  far  as  himself  was  con- 
cerned, and  certainly  it  was  competent  for 
all  the  parties  together.  It  was  not  the  al- 
lotment, nor  even  tlie  division  which  vested 
the  legacy.  That  dei>ended  alone  upon  the 
assent  of  the  executor,  and  that  was  given  to 
the  lots  as  modified. 

It  is  objected,  however,  that  upon  this 
view  Evans  owed  .^1(X)  for  e<iuality  of  jmr- 
tition;  that  the  limitations  of  the  will  ap- 
l»lied  to  that  sum  no  less  than  the  .si)ecific 
property;  and  that  Evans  must  make  it 
good  to  Mrs.  Ila.selden's  children.  The  an- 
swer to  thai  is,  that  the  bill  makes  no  such 
claim;  nor  does  it  arise  incidentally  to  the 
claims  made  in  the  bill. 

Anotlu-r  answer  is,  that  there  is  nothing- 
in  the  will  to  forbid  Mrs.  Ilaselden  or  lier 
husband,  (to  whom  the  use  of  the  i>roperty 
was    given,)    from    receiving   and    using   the 

♦339 
money;    that  it  was  com'petent  for  Evans  to 
Itay  it  to  them  ;   and  that  the  time  which  has 
elapsed    raises   the   presumption   that   he  did 
pay  it.     If  they  wasted  it  and  ilefeated  the 

137 


*339 


4  RICHARDvSON'S  EQUITY  REPORTS 


remainder  of  their  cliildren,  the  children  must 
loolv  to  tlieui. 

I  Duist  dismiss  tlie  bill ;  and  it  is  ordered 
that  the  same  be  dismissed. 

The  complainants  appealed,  on  the  follow- 
ing grounds: 

1.  Because  the  answer  of  defendant  drawn 
by  the  executor,  admitted  the  division  of  the 
estate  of  Thomas  Godbold,  as  charged  in  the 
bill  of  complainant,  and  alleges  that  the  ne- 
gro in  question  was  bought  by  the  defend- 
ant from  John  Haselden,  the  father  of  com- 
plaijiants,  to  whom  she  was  allotted  by  the 
commissioners  in  partition,  with  the  assent 
of  the  executor. 

2.  Because  the  return  and  certificate  of  the 
commissionei'S  who  were  selected  to  divide 
the  estate  under  the  directions  of  the  will, 
were  conclusive  as  to  said  partition,  and  his 
Honor  erred  in  admitting  or  allowing  parol 
evidence  to  alter  or  contradict  it. 

3.  Because  there  was  no  evidence  that  the 
negro  Sena  was  allotted  to  any  other  person 
except  to  Mrs.  Haselden,  the  mother  of  com- 
plainants ;  and  it  is  submitted  that  such  al- 
lotment vested  the  property  in  her  for  life, 
and  in  her  childi*en  at  her  death,  and  that  no 
act  of  her  husband,  or  of  her  executor,  aft- 
er such  allotment  had  taken  place,  could 
divest  either  her  or  her  children,  provided 
the  debts  were  paid  as  agreed  upon  with 
the  executor. 

4.  Because  it  was  proved  that  no  part  of 
the  purchase  money  of  Sena  was  applied 
to  the  debts  of  the  estate ;  but,  on  the  oth- 
er hand,  John  Haselden  sold  more  of  the 
property  allotted  to  his  wife  than  would 
extinguish  his  portion  of  the  debtg  of  the 
estate,  and  his  wife's  share  of  the  estate 
of  C.  F.  Godbold,  the  deceased  brother ; 
and  it  is  insisted  that  the  defendant  be- 
ing a  purchaser  with  notice,  is  bound  to 
account  and  specifically  deliver  the  proper- 
ty in  question  in  the  same  manner  that  Has- 
elden would  if  living. 

5.  Because,  according  to  the  proof  the  prop- 
erty of  the  negro  in  question  was  vested  in 
complainants'    mother,    at    the    division    for 

*340 

*life,  and  no  act  of  the  parties  was  estab- 
lished which  could  legally  deprive  complain- 
ants of  their  rights  in  remainder  thereto  of 
a  specific  delivery  and  account  prayed  for  in 
the  bill. 

Harllee,  for  appellants. 
Dudley,  contra, 

PER  CURIAM.  This  Court  concurs  in  the 
circuit  decree;  and  it  is  ordered  that  the 
same  be  affirmed,  and  the  appeal  dismissed. 


JOHNSTON,     DUNKIN,      DARGAN 
WARDLAW,  CC,  concurring. 
Appeal  dismissed. 


and 


4    Rich.  Eq.   340 

GEORGE  CRIM  and  Wife  et  al.  v.  WM. 
KNOTTS  et  al. 

(Columbia.      May   Term,    1852.) 

[Wills  (S=3524.  n.'U.] 

Testator  declared,  "it  is  my  will  and  desire 
that  the  rest  and  remainder  of  my  e.state  be  di- 
vided into  equal  shares  among  my  brother,  Jacob 
i'attersun,  and  Anthony  I'attersou's  lawful 
children,  and  that  my  brothers,  Jacob  and  An- 
thony, have  the  use  of  their  children's  portion, 
or  part,  during  their  natural  lives,  and  at  their 
death  to  their  children  forever."  At  the  death 
of  testator  Jacob  had  eight  children  living,  and 
Anthony  had  three ;  and  Anthony  had  nine 
children  born  afterwards:  Held,  that  Jacob  and 
Anthony  were  each  entitled  to  take  one  moiety 
of  the  estate  for  life ;  and  that  at  Anthony's 
death  all  his  children,  as  well  those  born  after 
the  death  of  testator,  as  those  born  before,  were 
entitled   to   his  moiety   as   remainder-men. 

[Ed.  Note. — Cited  in  Felder  v.  Felder,  5  Rich. 
Eq.  515;  Tindal  v.  Neal,  59  S.  C.  14,  36  S. 
E.  1004. 

For  other  cases,  see  Wills,  Cent.  Dig.  §§ 
1123,  1149;    Dec.  Dig.  (®=>524,  531.] 

Before  Dargan,  Ch.,  at  Orangeburg,  Feb- 
ruary, 1852. 

Dargan,  Ch.  John  Patterson,  of  Edisto 
Island,  died  in  the  month  of  January,  A.  D. 
1818.  He  left,  in  full  force  and  duly  ex- 
ecuted, his  last  will  and  testament,  bearing 
date  the  31st  December,  1817.  William  Sea- 
brook,  William  Edings  and  Ephraim  Mikell, 
were  appointed  by  the  testator  as  the  ex- 
ecutors of  his  will,  and  the  said  will  having 
been  admitted  to  probate,  the  executors  took 
upon  themselves  the  burthen  and  execution 
thereof.  After  bequeathing  several  specific 
legacies,  (not  necessary  to  be  particularly 
alluded  to,)  the  testator  proceeds  to  declare 

*341 
as  foPlows:  "It  is  my  will  and  desire,  that 
the  rest  and  remainder  of  my  estate  be  di- 
vided into  equal  shares  among  my  brother, 
Jacob  Patterson,  and  Anthony  Patterson's 
lawful  children,  and  that  my  brothers,  Jac- 
ob and  Anthony,  have  the  use  of  their  chil- 
dren's portion,  or  part,  during  their  natural 
lives,  and  at  their  death  to  their  children 
forever." 

At  the  time  of  the  testator's  death  (and 
of  the  said  sale.)  Jacob  Patterson  had  eight 
children,  (not  necessary  to  be  described,)  and 
Anthony  Patterson  had  three  children.  The 
children  of  the  said  Anthony  Patterson,  who 
were  living  at  the  death  of  the  testator, 
and  the  representatives  of  those  since  dead, 
are  as  follows:  Margaret,  his  daughter,  who 
has  intermarried  with  George  Crim ;  George 
C.  Patterson,  a  son,  who,  according  to  the 
statement  of  the  bill,  left  the  State  12  or  13 
years  ago,  and  not  having  since  been  heard 
from,  is  supposed  to  be  dead ;  and  Mary,  a 
daughter,  who  intermarried  with  Amos  Har- 
ris, and  who  died  on  the  25th  of  February, 
1844,  leaving  her  husband,  the  said  Amos 
Harris,  and  her  children,  Daniel  Harris,  El- 
len   Harris    and    Jane    Harris   her    heirs    at 


138 


^=5>For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


CRTM  V.  KXOTTS 


•34-1 


law  and  (listri)>utoos.  After  tlio  dcjith  of 
Joliii  rntttTsoii.  (tlu'  testator,)  Anthony  Pat- 
tcrscin  liad  one  otluT  <liild  by  his  first  niar- 
riane.  namely,  Eliza  Wactor,  who  is  now  a 
widow.  After  the  death  of  liis  tirst  wife. 
Antliony  Patterson  formed  a  second  mar- 
riage, iiy  whidi  he  had  ei;;ht  children,  name- 
ly, IJachael  ().,  wife  of  .lames  Wimhish,  (now 
residin^i  in  Virginia,)  IJarhara  S..  wife  of 
John  Lucas,  Leah  E..  wife  of  William  Cleck- 
ley.  Sarah  (\  Patterson.  Jane  Patterson. 
l>onaId  Patterson.  J«'romo  Patterson  and  Su- 
sannah Patterson.  These  children,  with  his 
second  wife,  Elizabeth  Patterson,  all  surviv- 
ed the  said  Anthony  Patterson. 

The  slaves  purchased  by  Anthony  Patter- 
son at  the  sale  of  the  est^ite  of  John  Pat- 
terson, (or  rather  the  survivors  thereof.) 
and  the  natural  increase  of  the  stock  are  at 
the  present  time,  seventeen  in  number,  name- 
ly: Sarah.  Isaac,  John,  Closes,  Mary,  Bet- 
sy. Joe.  Sinda,  Seaiy.  Sampson.  Sylvester. 
Adam.  William,  Georj^e.  Aaron.  David  and 
Kachael.  These  slaves  were  in  the  posses- 
sion  of  Anthony    I'atterson    at    the   time   of 

*342 

his  death,  which  occurred  *on  the  ."'.Ist  May, 
I.S.0O.  Be.sides  these,  he  had  at  the  time  of 
his  death,  two  other  slaves  of  a  different 
stock,  namely:  Eleancu-  and  Stephen,  and 
some  otlier  personal  proi)erty.  Tiie  said  An- 
thony I'atterson  having  died  intestate,  one 
William  Knotts  has  sued  out  letters  of  ad- 
ministration of  the  intestate's  estate,  aiTd 
has  possessed  himself  thereof,  as  well  of  the 
nej^roes  derived  by  his  intestate  from  the 
sale  of  John  Patterson's  estate  as  those  de- 
rived by  him  from  another  source. 

The  complainants  are  Georjie  Crim  and 
Mariraret.  his  wife,  Amos  Harris.  Daniel  P. 
Harris.  Ellen  Harris  and  Jane  Harri.s.  The 
defendants  are  William  Knotts.  the  admin- 
istrator. Eliza  P.  Wactor.  a  dauirhter  of  An- 
thony Patterson  by  his  first  wife.  George  C. 
Patterson,  a  son  by  his  first  wife,  (who  is 
absent  and  supposed  to  be  dead.)  and  all  his 
aforesaid  children  by  his  second  marriage. 

The  complainants  contend  that  they,  with 
(ieorge  C.  Patterson,  are  entitled  to  the 
whole  of  tlie  legacy  given  by  John  Patter- 
son's will  to  Anthony  l»atterson's  children, 
to  the  exclusion  of  the  post  natal,  or  those 
born  after  the  testator,  and  after  his  will 
took  effect. 

The  general  rule  is,  that  a  Ixniuest  to  chil- 
dren as  a  class,  .embrai-es  only  the  children 
who  are  in  existence  at  the  testator's  death. 
If  the  period  of  distribution  be  jiostponed, 
all  who  can  bring  themselves  within  the  de- 
scription of  the  time  ainiointed  for  the  dis- 
tribution, will  be  entitled,  whether  the  time 
be  a  fixed  date  or  contingent  upon  some  fu- 
ture event.  If  the  betpiest  be  indefinite  as  to 
the  time  for  the  partition  and  the  en.joyment 
of  the  legacy,  the  general  rule  will  prevail, 
and  the  children  lu  esse  at  the  death  of  the 


testator,   will   take  to  the  exclusion   of  the- 
post  natal. 

If  an  estate  be  given  to  one  for  life,  and 
after  his  death  to  his  children,  all  the  chil- 
dren will  be  entitled  to  take  the  post  natal 
as  well  as  the  ante  natal.  The  same  result 
would  follow,  if  an  estate  was  givi>n  to  one 
for  life,  with  remainder  to  children  of  an- 
other person.  The  interjiosition  of  the  life 
t'state  has  the  effect  of  postponing  the  parti- 
tion, and  thus  lets  in  all  the  children  e<iual- 
ly.     This.  I  mean  to  say,  would  be  the  con- 

♦343 
stru<tioM,  unless  there  wi-re  ♦other  manife.s- 
tations  of  the  testator's   intention   expressed 
in  the  context,  or  arising  by  imjdication. 

On  behalf  of  the  jiost  natal,  it  is  contend- 
ed, that  Jacob  Patterson  and  Anthony  Pat- 
terson had  a  life  estate  respectively  in  the 
projterty  given  to  them  by  John  Patterson's 
will,  which  postponed  the  period  of  distribu- 
tion to  the  death  of  the  teiumts  for  life, 
and  thus  let  in  all  the  children,  according 
to  the  doctrine  so  well  settled.  The  argu- 
ment is  specious,  but  there  are  circumstances 
which  forbid  such  a  construction. 

I  lay  no  great  .stress  on  the  fact,  that  the 
will  in  form  gives  the  estate  directly  to  the 
children,  and  then  provides  that  the  parents,, 
(the  testator's  brothers.)  should  "have  the 
use  of  their  chil(lren.s'  portions  or  shares,, 
during  their  natural  lives,  and  after  their 
death  to  their  children  forever."  Substan- 
tially, the  "will  may  be  regarded  as  giving 
tt»  Jacob  and  Anthony  Patterson  an  estate 
for  life,  respectively,  in  their  childrens'  por- 
tions, with  remainder  to  their  children. 

"The  rest  and  remainder"  of  the  estate  is 
given  to  the  children  of  Jacob  and  Anthony 
Patterson.  In  what  proportions  do  the  chil- 
dren of  the  two  bn)thers  take'.'  Do  they 
take  per  stirpes  or  per  capita?  In  my  ojtin- 
ion.  the  solution  of  this  cpiestion  will  have 
an  important  bearing  on  the  construction  of 
the  will  as  to  the  issue  now  before  us.  The 
testator  declares  it  to  be  his  will  that  the 
rest  and  remainder  of  his  estate  shall  l»e 
divided  in  equal  shares  among  his  brother 
Jacob  and  Anthony  Patterson's  lawful  chil- 
dren; and  that  his  brothers,  Jacob  and 
Anthony  Patterson,  have  the  use  of  their 
childrens'  porticuis  or  shares  during  their 
natural  lives,  and  at  their  death  to  their  chil- 
dren forever. 

I  take  it  to  be  very  clear,  that  the  chil- 
dren of  Jacob  and  Anthony  Patterson  took 
l»er  capita.  "Where  a  gift  is  to  .several  per- 
sons, whether  it  be  to  the  children  of  A.  and 
B..  or  to  the  children  of  A.  and  the  chil- 
dren of  B..  they  take  per  capita  and  not 
per  stirpes."  2  Jarm.  on  Wills  III.;  Weld 
V.  Bradbury,  2  Vern.  705;  Lady  Lincoln  v. 
Pelham,  10  Ves.  100:  Barnes  v.  Patch,  8 
Ves.  004;  ex  parte  Leith,  1  Hill  E(i.  15^. 
♦344 

♦Jacob  Patterson  had  eight  children,  and 
Anthony    I'attersuu    had    three    children    at 

139 


•344 


4  RICHARDSON'S  EQUITY  REPORTS 


the  death  of  the  testator.     He  gave  to  each 
of  his  brothers  the  use  of  his  cliildrens'  por- 
tion or  share  during  his  life.     He  therefore 
designed   a   partition   per   capita   among  the 
children  of  his  brothers  who  were  living  at 
his  death.     How  otherwise  could  his  broth- 
ers have  the  use  of  their  childrens'  portions 
or  shares  during  their  lives?    An  instant  di- 
vision   was   necessary  to   the    enjoyment    of 
their  life  estate  or  interest ;   for  it  could  not 
be   known    what    their   childrens'    shares    or 
portions  were  without  such  division.     It  is 
obvious  also,  that  if  a  distribution  then  took 
place,   only  the  existing  children  could  par- 
ticipate in  the  division.     The  three  children 
of  Anthony  Patter.son  were  entitled  per  cap- 
ita to  three  shares,   and  the  eight  children 
of  Jacob  Patterson  to  a  corresponding  num- 
ber of  shares.     Upon  this  principle  a  parti- 
tion was  actually  made  of  the  property  em- 
braced  in  the   residuary  clause,    among  the 
children   of   Jacob    and   Anthony    Patterson, 
by  a  decree  of  the  Court  of  Equity  in  the 
year  ISIS;    and  Jacob  and  Anthony  Patter- 
son have,  since  that  time,  had  the  possession 
and  enjoyment  of  their  portions  respectivelj-. 
It  may  be  asked,  why  not  now  let  in  the 
post    natal    iu    a    distribution    of    the    part, 
which,  in  the  partition  already  legally  made, 
has   been   assigned   to   the   children   of   An- 
thony Patterson?     Why  not  do  this,  as  the 
period   of  their  enjoyment,   and    for  a   divi- 
sion   among    themselves,    has    just    arrived? 
Why  not  let  them  in,  as  they  can  now  bring 
themselves    within    the    description    of    chil- 
dren?   I  do  not  think  that  there  is  any  thing 
to  be  inferred  from  the  will,  that  the  testa- 
tor had  in  contemplation  two  periods  of  dis- 
tribution as  affecting  the  rights  of  the  par- 
ties who  were  to  take.     To  let  in  the  after- 
born  children  of  Anthony  Patterson,  in  the 
distribution    of    the    three    shares    (out    of 
eleven,)   which  the  ante  natal  drew  iu   the 
per    capita    division    with    tne    children    of 
Jacob  Patterson,  would  violate  the  manifest 
and  declared  intention  of  the  testator.     He 
said  that  the  property  should  be  equally  di- 
vided   amongst   the    children    of    Jacob    and 
Anthony  Patterson.     How  can  it  be  an  equal 
division,  if  after   eight-elevenths  have  been 

*345 

taken  *off  by  the  children  of  Jacob  Pat- 
terson, the  three-elevenths  assigned  in  the 
division  to  the  children  of  Anthony  Patter- 
son, should  again  be  subdivided  into  twelve 
shares,  corresponding  to  the  number  of  An- 
thony Patterson's  children.  The  shares 
which  his  three  oldest  children  took  in  the 
division,  they  took  as  legatees  under  the 
description  of  children,  and  they  took  in 
their  own  right.  If  there  is  any  thing  cer- 
tain in  the  will,  it  is  that  those  who  were 
to  take  at  all  were  to  take  in  equal  shares. 
It  seems  to  me  but  little  short  of  an  ab- 
surdity to  say  that  when  they,  in  pursuance 
of  the  terms  of  the  will,  and  coming  in  under 
the    description    of    "children,"    took    three 

140 


shares  out  of  eleven,  which  were  then  equal 
shares,  and  all  they  were  entitled  to  receive, 
now  they  should  be  compelled  to  make  par- 
tition with  the  after-l)orn  children  of  An- 
thony Patterson,  who  were  not  then  in  esse, 
and  not  entitled  to  draw  any  shares!  If 
such  a  constructiou  were  to  prevail,  it  is 
clear  that  the  whole  estate  must  be  Itrought 
together,  as  well  that  which  was  assigned 
to  Jacob  Patterson's  children,  as  that  which 
was  assigned  to  Anthony  Patterson's  chil- 
dren, and  a  division  made  e^iually  among  all. 
Jacob  Patterson,  however,  has  long  since 
gone  to  the  West,  and  carried  with  him  his 
children  and  their  property.  It  is  not  known 
to  the  Court  whether  he  is  living  or  dead. 
If  living,  he  has  still  a  life  estate  in  his 
childrens'  portion  of  the  testator's  estate. 
And  were  he  now  within  the  jurisdiction  of 
the  Court,  the  claim  could  now  be  made, 
(that  is,  in  his  life  time,)  for  an  equal  divi- 
sion of  all  the  testator's  residuary  estate 
among  all  his  nephews  and  nieces,  the  post 
natal  as  well  as  the  ante  natal.  The  dif- 
ferent periods  at  which  the  life  estates  of 
Jacob  and  Anthony  Patterson  would  ter- 
minate, is  another  argument  to  show  that 
the  testator  did  not  contemplate  an  equal 
division  among  all  the  children  of  his  two 
brothers,  born  or  to  be  born. 

The  result  of  my  retlections  is,  a  decided 
opinion,  that  only  the  three  children  of  An- 
thony Patterson  living  at  the  death  of  John 
Patterson,  are  entitled  to  the  legacy  be- 
queathed to  the  children  of  Anthony  Patter- 
son by  the  residuary  clause  of  John  Patter- 
son's will ;  and  it  is  so  ordered  and  decreed. 
*346 
*And  it  is  further  ordered  and  decreed, 
that  one  part  thereof  be  assigned  to  Marg- 
aret Crim,  one  third  part  to  the  distributees 
of  Mary  Harris,  and  one  third  part  to 
George  C.  Patterson.  As  to  the  share  of  the 
latter,  if  the  circumstances  warrant  the  le- 
gal presumption  of  his  death,  there  must  be 
an  administration  as  in  any  other  case  of 
death  and  intestacy.  And  the  persons  inter- 
ested as  his  distributees  must  proceed  as 
they  are  advised.  There  is  nothing  in  the 
present  proceedings  that  warrants  any  thing 
more  to  be  done  in  reference  to  his  share, 
than  to  order  it  to  be  set  apart  to  him. 
The  defendants  appealed: 
Because,  under  the  provisions  of  John  Pat- 
terson's will,  the  defendants  were  entitled 
to  share  equally  with  the  complainants  in 
the  residuary  estate. 

Glover,  for  appellants. 
,  contra. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW,  Ch.  In  the  construction  of 
bequests  to  children,  it  is  well  settled,  that 
where  a  bequest  is  immediate  to  children  in 
a  class,  children  in  existence  at  the  death 
of  the  testator,  and  these  exclusively,  are 
entitled  to  take.     But  where  the  division  of 


KEITT  V.  ANDREWS 


*349 


the  fund  aninrif;  the  legatees  is  deferred  un- 
til a  itarticiilar  period,  which  takes  place 
after  the  death  of  the  testator,  children 
horn  aft<'r  the  testator's  death  nia.v  be  en- 
titled under  a  heipiest  to  <hlldren  in  a  class. 
Thus,  where  le;ra<ies  are  ^'iven  to  the  children 
of  A.  when  a  child  or  children  attain  a  par- 
ticular iiiiv.  or  to  he  divided  amongst  them 
at  the  death  of  A;  an.v  child  who  falls  un- 
der the  description  at  the  time  when  the 
fund  is  to  he  divided,  .is  entitled  to  a  share, 
although  not  horn  until  after  testator's 
death,  and  although  born  of  a  subserpient 
marriage.  2  Wnis.  Ex'rs.  707;  (Jilmore  v. 
Severn.  1  lire.  C.  C.  5.S2 ;  Harrington  v. 
Tristram.  6  Ves.  345. 

The  Jiequest  to  be  interpreted  ni  the  pres- 
ent case,  is  in  the  following  words:    "It  is 
m.v   will    and    desire,    that    the    rest    and   re- 
*347 

♦mainder  of  my  estate  be  divided  into  equal 
shares  among  my  brother  Jacob  Patterson 
and  Anthony  Patterson's  lawful  children, 
and  that  my  brothers,  Jacob  and  Anthony, 
liave  the  use  of  their  childrens'  portion,  or 
part,  during  their  natural  lives,  and  at  their 
death  to  their  children.'"  This  clau.se  is 
drawn  uugrannnatically  and  inartiticially, 
but  the  intention  of  the  testator,  which  is 
the  great  guide  of  interpretation,  where  no 
rule  of  law  is  infringed,  seems  pretty  plain. 
The  testator  has  directed,  in  effect,  that  the 
residue  of  his  estate  be  divided  into  two 
equal  sliares;  that  Jacob  Patterson  shall 
have  one  of  these  moieties  for  life,  and  that 
at  his  death  his  children  shall  take  the 
same  among  them  absolutely ;  and  in  like 
manner,  that  Anthony  shall  take  the  other 
moiety  for  life,  and  at  his  death  his  chil- 
dren shall  take  it  among  them  absolutely. 
No  dispute  is  made  as  to  the  accuracy  of 
this  interpretation  in  any  particular,  ex- 
cept as  to  the  original  division  into  two 
equal  parts.  It  is  argued  for  the  plaintiffs, 
that  the  original  division  should  be  into  as 
many  parts  as  tliere  were  children  of  tes- 
tator's brothers  at  his  death ;  and  conse- 
(luently  that  Jacob  for  life,  and  his  chil- 
dren after  him.  should  take  eight  shares, 
and  Anthony  take  for  life  three  shares  only, 
distriliutable  at  his  death  among  his  three 
children  in  being  at  testator's  death,  to  the 
exclusion  of  the  eight  born  subsecpiently. 
The  argument  has  some  support  in  the  let- 
ter of  the  former  portion  of  the  clause,  but 
it  is  opposed  to  the  general  scope  of  the  pro- 
vision, particularly  that  which  postpones 
the  en.ioyment  of  the  fund  by  the  children, 
until  the  deaths  of  their  fathers  respective- 
ly. The  enqiloymeiit  of  the  terms  "chil- 
drens' portion  or  part."  seems  to  contem- 
plate that  a  moiety  for  each  class  of  chil- 
dren was  to  remain  an  unsi>parated  mass  un- 
til the  period  of  cn.joyment  arrived.  The  di- 
rection as  to  division  of  the  residue  into 
equal    parts,    is    satisfied    by    understanding 


it  as  applicable  to  the  brothers  of  the  testa- 
tor who  were  the  immediate  objects  of  his 
bounty;  and  no  reasonable  motive  can  be 
assigned  for  the  suppo.sed  puri)ose  of  the  tes- 
tator, to  exclude  from  the  remainder  any  of 
the  children  of  his  brothers.  In  the  case 
cited     from     \'esey,     Lord     Eldon     remarks: 

*348 
"The  rule  *of  the  Court  has  gone  upon  an 
anxiety  to  provide  for  as  many  children  as 
possible  with  convenience.  Therefore  any 
coming  in  esse,  before  a  determinate  share 
becomes  distributable  to  any  one,  is  in- 
cluded." 

In  oi)position  to  the  construction  indicat- 
ed, it  is  further  urged,  that  the  construc- 
ti<m  given  by  the  plaintiffs  was  adopted  by 
the  decree  of  this  Court  in  1818,  in  a  suit 
between  the  tenants  for  life  and  the  executor. 
But  the  partition  then  decreed  is  not  obliga- 
tory upon  the  children  who  were  no  parties 
to  the  proceedings.  Bool  v.  Mix,  17  Wend. 
110. 

The  fact  that  Jacob  Patterson  received  too 
much  in  the  partition  of  1818.  in  no  wise 
diminishes  the  right  of  the  defendants  to 
equal  distribution  with  the  other  children 
of  Anthony  in  the  partition  received  by  him. 
Any  claim  to  recoup  from  Jacob  or  his  es- 
tate for  the  excess  above  one  half  received 
by  him,  is  common  to  all  the  children  of 
Anthony. 

It  is  declared  and  adjudged,  that  all  the 
children  of  Anthony  Patterson,  living  at  his 
death,  are  entitled  to  distribute  amongst 
them  the  legacy  enjoyed  by  the  said  Anthony 
for  life,  under  the  will  of  John  Patterson: 
and  it  is  ordered  and  decreed,  that  the  ac- 
counts be  taken  accordingly.  Costs  to  be 
paid  out  of  the  estate  of  Anthony  Patterson. 
It  is  further  ordered  and  decreed,  that  the 
circuit  decree  be  modified  according  to  this 
opinion,  and  in  other  respects  be  affirmed. 


JOHNSTON 
curred. 


and     DUNKIN,     CC,     con- 


DARGAN,  Ch.  I  dissent.  I  see  no  rea- 
son whatever  for  changing  or  modifying  the 
construction  of  the  will  given  in  the  circuit 
decree. 

Decree  modified. 


4   Rich.  Eq.  *349 

♦GEOIKJE  D.  KEll^'  and  WitV  v.  JAMES  J. 

A.\ DREWS  and  Wife. 

HENRY  W.   MOORER  and   Wifo  v.  THE 

SAME. 

(Columbia.      May    Term.    IS't'J.) 

[Ej-cciifora  and   Admini.'itrnlors   <g=>r)00.] 

Testator  having  au  only  daughter  and  two 
grand-ciiildren,  issue  of  nis  liauirhtiT.  bequeath- 
ed i»r<)i)erty  to  his  'graud-children  to  be  equally 
divided  between  them:'  after  the  death  of  testa- 
tor three  other  grand-children,  issue  of  his 
daughter,     were    born:      when     the    two    eldest 


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141 


*349 


4  RICHARDSON'S  EQUITY  REPORTS 


grand-children,  who  alono  were  entitled  to  take 
under  the  will,  arrived  at  ase,  the  executor  paid 
each  of  them  one-fifth  if  the  legacy,  and  took 
from  them  written  acquittances  and  discharges: 
this  settlement  was  intended  to  be  in  full.— all 
the  parties,  including  the  ordinary  who  stated 
the  account,  supposing  in  good  faith  that  all 
the  grand-children  were  entitled  to  share  the 
legacy:  near  eight  years  afterwards  the  two 
eldest  grand-children  filed  their  bill  to  have  the 
settlement  opened,  on  the  ground  of  mistake  of 
law: — Bill  dismissed. 

[Ed.    Note.— For    other    cases,    see    Executors 
and   Administrators.    Cent.    Dig.    §§    2199-2219, 
22.33,  2234;    Dec.   Dig.  <g=>509.] 
[Executors  and  Administrdtors  (g=>.509.] 

Where  executor  an<l  legatee  honestly  mis- 
construe the  will,  and  have  a  settlement  in  full, 
based  upon  such  misconstruction,  the  settlement 
will  not  be  opened  merely  because  of  such  mis- 
construction. 

[Ed.  Note.— Cited  in  McDow  v.  Brown,  2  S. 
C.  109;  Ix)st  Bonds  Case,  15  S.  C.  231;  Cun- 
ingham  v.  Cuningham,  20  S.  C.  332;  Kerngood 
V  Davis  21  S.  C.  209;  Norman  v.  Norman, 
20  S.  C.  48,  11  S.  E.  1096;  Munro  v.  Long, 
35  S.  C.  360.  14  S.  E.  S24,  28  Am.  St.  Rep. 
851;  Smith  v.  Winn,  38  S.  C.  192,  17  S.  E. 
717,  751;  Porter  v.  Jefferies.  40  S.  C.  101. 
IS  S.  E.  229;  Brock  v.  O'Dell,  44  S.  C.  36, 
38  39  41,  21  S.  E.  976;  Hutchison  v.  Fuller, 
67  S.  C.  284,  45  S.  E.  164;  Smith  v.  Linder, 
77  S.  C.  542,  58  S.  E.  010. 

For  other  cases,  see  Executors  and  Admin- 
istrators, Cent.  Dig.  §§  2199-2219,  2233,  2234; 
Dec.  Dig.  <@=3509.] 

[Executors   nnd  Administrators   <g=>516.] 

Parties  desirous  of  opening  a  settlement,  on 
the  ground  of  errors  or  mistakes,  must  make 
haste  in  their  application  to  the  Court:  long 
acquiescence  amounts  to  a  presumed  ratification. 

[Ed.  Note.— Cited  in  Brock  v.  O'Dell.  44  S. 
C.  36,  21  S.  E.  976 ;  Ex  parte  Baker,  67  S.  C. 
83,  45  S.  E.  143. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  2224;    Dec.  Dig.  <S=>516.] 

Before  Dargan,  Ch.,  at  Orangeburg,  Feb- 
ruary, 1852. 

Dargan,  Ch.  These  two  cases,  involving 
precisely  the  same  issues  of  law  and  fact, 
were,  by  the  consent  of  the  parties,  tried  to- 
gether. 

Daniel  Ilesse,  at  the  time  of  his  death, 
(1826,)  was  seized  and  possessed  of  a  consider- 
able real  and  personal  estate,  all  of  which 
he  disposed  of  by  his  last  will  and  testament, 
bearing  date  the  7th  February,  1826.  He  had, 
at  the  time  of  his  death,  but  one  child,  Ann 
Catherine  Felder,  then  the  wife  of  Henry 
Felder,  now  the  wife  of  the  defendant,  James 
J.  Andrews.  The  said  testator  had  at  that 
time  no  living  descendant  but  his  daughter, 
the  said  Ann  C.  Felder,  and  her  two  children, 
Olivia,  now  the  wife  of  the  complainant, 
George  D.  Keitt,  and  Sarah  A.,  now  the  wife 
of  the  complainant,  Henry  M.  Moorer.  After 
the  death  of  Imniel  Ilesse,  Ann  Catherine 
Felder   had    another    daughter    by    her    flrst 

*350 
*inarriage,  namely,  Henrietta  Felder,  now  the 
wife  of  Wesley  Keitt. 

Henry  Felder  and  Ann  Catherine,  his  wife, 
were  appointed  the  executor  and  executrix  of 
the  will  of  Daniel  Uesse.     Shortly  after  the 


testator's  death,  Henry  Felder  proved  the 
will,  qualitied  as  executor,  and  took  upon 
himself  the  burthen  and  execution  thereof. 
He  died  shortly  afterwards,  (28th  April, 
1826,)  and  Ann  Catherine  Felder,  by  virtue  of 
her  appointment,  became  the  executrix  of  the 
said  will.  She  qualified  on  the  15th  of  Feb- 
ruary, 1827.  On  the  18th  day  of  May,  she  ob- 
tained letters  of  administration  of  the  estate 
of  her  deceased  husband,  the  said  Henry 
Felder. 

On  the  day  of  April,  1829,  the  said 

Ann  Catherine  Felder  intermarried  with  the 
defendant,  James  J.  Andrews,  by  whom  she 
has  issue  two  sons,  James  Hesse  Andrews 
and  Edward  W.  Andrews.  The  defendant, 
James  J.  Andrews,  by  virtue  of  his  marital 
rights,  became  the  acting  executor  of  the 
estate  of  Daniel  Hesse.  From  the  time  of 
his  marriage  to  the  present  time,  he  has  con- 
tinued to  manage  the  estate,  and  he  made  the 
settleuients  with,  and  took  the  receipts  and 
discharges  from  the  complainants,  that  will 
be  hereafter  noticed  and  considered. 

The  testator,  Daniel  Hesse,  disposed  of  his 
whole  estate  in  favor  of  his  daughter  and  her 
children.  The  present  litigation  grows  out  of 
the  sixth,  eighth  and  ninth  clau.ses  of  the 
will.  The  sixth  clause  is  as  follows:  "The 
remainder  of  my  lands  I  will  and  bequeath  to 
my  grand-children,  to  be  equally  divided 
among  them,  share  and  share  alike."  The 
lands  have  been  sold  since  the  wives  of  the 
cttmplainants  have  come  of  age,  and  all  the 
parties  in  interest  have  joined  in  the  execu- 
tion of  the  conveyances  in  the  proper  legal 
form,  to  assure  the  title  to  the  purchasers. 
And  so  far  as  this  clause  goes,  it  is  the  pro- 
ceeds of  the  sale  of  the  lands  that  constitute 
the  subject  of  controversy. 

The  eighth  clause  reads  thus:  "I  will  and 
bequeath  to  my  grand-children  the  sum  of 
four  thousand  dollars  in  paper  bills  and  notes 
on    interest,    to    be    equally    divided    among 

*351 
them,  share  *and  share  alike.  My  executors 
are  authorized  to  loan  the  money  into  good 
hands,  and  not  without,  and  the  interest  aris- 
ing therefrom  to  go  to  my  grand-children,  to 
be  equally  divided  among  them,  share  and 
share  alike." 

The  ninth  clause  is  in  these  words:  "My 
will  is,  that  all  my  stock,  including  horses, 
cattle  and  hogs,  household  and  kitchen  furni- 
ture, plantation  tools,  and  every  other  arti- 
cle of  property  belonging  to  me.  should  be 
set  up  at  public  sale,  and  knocked  off  to  the 
highest  bidder,  and  the  money  arising  from 
the  sales  to  go  to  my  grand-children,  to  be 
equally  divided  between  them,  siiare  and 
share  alike.  The  sale  money  may  also  be 
loaned,  if  it  can  be  put  into  good  hands,  and 
not  without,  and  the  interest  arising  from  it 
to  go  to  my  grand-children,  to  be  equally  di- 
vided between  them,  share  and  share  alike." 

The  complainants  contend,  that  Mrs.  Keitt 


142 


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KEITT  V.  AXDREW3 


*353 


and  Mrs.  Moorer  being  the  only  grand-chil- 
tlron  of  the  testator  at  the  execution  of  liis 
will,  and  at  his  death,  are  entitled  to  take, 
to  the  exclusion  of  all  the  after  liorn  grand- 
cliilditMi.  all  the  property  bequeathed  in  tiie 
three  clauses  that  have  been  recited.  This 
construction  the  defendants  deny,  and  con- 
tend that  all  the  grand-children  are  equally 
entitled. 

Tlie  case  is  too  plain  for  doubt.  Tlii'  rule 
is  clear,  that  where  there  is  a  bequest  to  chil- 
dren or  grand-children,  as  a  class,  and  in 
general  terms,  only  tho.se  in  existence  at  the 
<leath  of  the  testator  are  entitled.  A  niodirt- 
(ation  of  this  rule  is  where  the  distribution 
is  postponed  to  a  particular  time,  or  is  direct- 
ed to  be  made  on  the  happening  of  a  particu- 
lar event  contingent  as  to  time.  In  such  a 
case,  all  who  can  bring  themselves  within  the 
class,  or  answer  the  description,  at  the  perioil 
Hxed  by  the  testator  for  the  distribution,  are 
entitled  to  participate.  WJiere  there  is  an 
inmiediate  f^ift  to  children,  to  take  effect  in 
possession  at  the  testator's  death,  the  chil- 
dren living  at  that  time  are  alone  entitled.  2 
Jarm.  on  Wills,  74.  See  also  the  elaborately 
considered  case  of  Myers  v.  Myers,  2  McC. 
K.i.  215  [IG  Am.  Dec.  G4S].  where  it  was  held 
that  a  devise  to  grand-children,  without  any 

♦352 

definite  period  fixed  by  the  *will  for  the  divi- 
sion, included  only  such  grand-children  as 
were  living  at  the  death  of  the  testatrix. 

The  intention  of  the  testator,  as  indicated 
in  the  context,  may  control  the  rule.  But 
in  Daniel  Hes.se*s  will,  there  is  no  light  re- 
flected from  the  context  upon  the  construc- 
tion of  these  clauses.  Tliey  nmst  be  con- 
strued according  to  their  own  import,  under 
the  rules  of  law  above  referred  to.  And  my 
conclusion  is.  that  Mrs.  Keitt  and  Mrs.  Moor- 
er,  being  the  only  grandchildren  of  the  tes- 
tator born  and  existent  at  the  time  of  his' 
death,  were  alone  entitled  to  the  legacies  be- 
(|ueiitlied  to  grand-children  in  the  sixth, 
eighth  and  ninth  clauses  of  the  will. 

Hut  the  parties  have  settled  upon  a  differ- 
ent construction  of  the  will.  I'roceeding  up- 
on the  principle  that  the  after  born  grand- 
children of  the  testator  were  entitled  to  share 
equally  with  those  who  were  in  being  at  the 
time  of  his  death,  George  D.  Keitt,  in  behalf 
of  himself  and  his  wife  Olivia,  and  Henry 
M.  Moorer,  in  behalf  of  himself  and  his  wife 
Sarah,  have,  on  a  formal  settlement  with  the 
defendants,  Andrews  and  wife.  riH.'eived  one- 
lifth  part  of  the  property  bequeathed  in  the 
Ibree  clauses  of  the  will  before  cited,  in  full 
of  their  sliares  thereof,  and  have  released, 
acipiitted  and  discharged  the  said  Andrews 
from  any  further  accounting  for  the  same. 
TIk;  relea.se  and  discharge  of  Moorer  is  dated 
the  inih  December.  1S41.  and  is  under  seal; 
and  that  of  Keitt  is  dated  the  21st  day  of 
January,  184.'!,  and  is  not  undi-r  seal.  Ex- 
cept as  to  the  seal,  the  discharges  of  Moorer 


I  and  Keitt  are  substantially  the  same.  The 
settlement  with  each  of  them  was  made  upon 
the  same  rules  of  calculation  and  the  same 
principles  of  construction. 

On  the  ISth  December,  1S51,  George  D. 
Keitt  and  wife  filed  their  bill  against  James 
J.  Andrews  and  wife,  for  the  purpo.se  of  set- 
ting aside  the  release  and  discharge  and 
opening  the  settlement,  praying  that  the  same 
should  be  made  according  to  the  true  con- 
struction of  Daniel  Hesse's  will,  wnich  they 
contenil  excludes  the  after  born  grand-chil- 
dren as  to  all  the  itroperty  devised  and  be- 
queathed  in  the  sixth,  eighth  and  ninth  claus- 

♦353 
es  of  the  will.     And  *on  the  same  ilay,  the 
said  Henry  M.  Moorer  and  wife  filed  their 
bill  against  the  same  defendants  for  the  same 
purposes. 

The  conqilainants  claim  to  be  relieved 
from  the  effect  of  their  settlement  with  the 
defendiints,  and  of  the  receipts  and  discharg- 
es which  they  have  executed  to  them,  on  the 
ground  tiiat  they  were  •'misinformed,  mis- 
taken and  deceived  as  to  the  extent  of  their 
rights  and  interest  under  the  will  of  the  said 
Dauiel  Hesse,"  and  were  "led  to  believe  that 
the  after  born  children  of  the  said  Anu  Cath- 
arine Felder  were  entitled  by  law  to  share 
e(iually  with"  Mrs.  Moorer  and  Mrs.  Keitt, 
•who  were  in  being  at  the  death  of  the  tes- 
tator." They  do  not  charge  that  there  was 
any  fraudulent  nnsrepresentation  or  conceal- 
ment on  the  part  of  the  defendants,  or  that 
they  were  in  any  way  instrumental  in  nds- 
leading  them.  If  such  a  charge  had  been 
made,  it  was  not  supported  by  the  evidence. 
All  the  parties  iu  the  settlement  seemed  to 
have  acted  in  good  faith,  and  honestly  to 
have  fallen  into  a  common  error.  Mr.  Gram- 
bling,  who  was  the  ordinary  of  the  district, 
was  requested  by  Andrews  to  make  out  a 
statement  preparatory  to  a  settlement  be- 
tween himself  and  Moorer.  The  only  instruc- 
tious  given  were  that  the  statement  of  the 
account  should  be  made  out  according  to  the 
terms  of  the  will,  and  the  returns  of  the  ex- 
ecutor. He  did  uot  express  his  views  as  to 
the  construction  of  the  will,  or  on  the  ques- 
tion whether  the  after  born  children  were  en- 
titled to  share  with  those  who  were  in  beiug 
at  the  testator's  death.  The  witness  was 
sinqily  re<iuested  to  make  the  statement  of 
the  account  according  to  the  will  and  the  re- 
turns, with  one  exception,  iu  which  Andrews 
erroneously  supposed  he  was  making  a  gen- 
erous concession.  The  testator  had  on  hand 
at  his  death  five  thousand  dollars  in  si)ecie, 
which  he  disiK)sed  of  in  the  seventh  clause  of 
his  will,  and  which  he  forbid  being  put  out 
at  interest.  Disregarding  the  injnbition.  An- 
drews had  loaned  out  the  specie,  and  had 
made  interest  on  it,  and  was  willing  to  be 
charged  with  interest.  Except  iu  regard  to 
this,  Grambling  was  to  state  the  account  ac- 
cording to  the  will  and  the  returns. 

Grambling  thought  all  the  testator's  grand- 

143 


»354 


4  RICHARDSON'S  EQT'ITY  REPORTS 


*354  1 

children  were  enti*tle(l  to  share  equally,  and 
stated  the  account  upon  this  principle  of  con- 
struction. He  retained  the  same  opinion  as 
to  the  proper  construction  of  the  will  to 
the  time  of  his  giving  evideu-ce  on  the  trial. 
Thus  the  settlement  was  made  bona  fide  by 
the  parties  to  it,  and  by  their  accountant. 
There  was  no  ignorance,  mistake,  misreijre- 
sentation,  or  concealment  of  the  facts  of  the 
case.  The  only  facts  necessary  to  be  known 
were  the  provisions  of  the  will,  and  the  re- 
turns of  the  executor — the  fairness  and  ac- 
curacy of  which  are  not  questioned.  These 
facts  were  in  the  possession  of  the  complain- 
ants, or  were  accessible  to  them.  The  ground 
on  which  complainants  claim  to  be  relieved 
is  sinq)ly  ignorance  of  law;  or,  in  other 
words,  ignorance  of  the  true  legal  construc- 
tion of  the  will.  But  ignorance  of  law  does 
not  entitle  one  to  open  a  settlement  formally 
and  solenmly  made.  And  it  would  be  unsafe 
in  the  extreme  to  allow  a  settlement  to  be 
opened,  and  a  formal  discharge  set  aside,  on 
ac(?ouut  of  an  erroneous  construction  of  the 
will  or  instrument  under  which  it  arises. 
If  thi*5  rule  were  to  prevail,  no  such  settle- 
ment would  be  binding  and  conclusive,  unless 
made  under  a  decree  of  the  Court. 

Is  there  any  authority  which  goes  so  far 
as  to  say  that  a  party  is  entitled  to  relief 
from  a  mistake  of  law,  where  there  is  no 
fraud,  misrepresentation,  management,  or 
undue  intluence,  and  where  the  mistake  was 
simply  his  own  errt)neous  construction  of  a 
will  or  deed?  In  this  case  the  parties  seek- 
ing relief  had  the  will  before  them.  They 
were  familiar  with  its  provisions.  The  de- 
fendants did  not  seek,  in  any  way,  to  im- 
pose their  construction  of  it  upon  the  com- 
plainants. It  does  not  appear  that  they  ex- 
pressed any  opinion  as  to  its  proper  construc- 
tion. If  the  parties  now  complaining,  pos- 
sessed as  they  were  of  all  the  facts  of  the 
case,  and  with  the  will  before  them,  had  ap- 
plied to  the  proper  sources  of  information 
and  had  sought  legal  counsel,  they  would 
have  been  advised  as  to  the  true  construc- 
tion of  the  will ;  and  if  their  legal  adviser 
himself  had  entertained  doubts,  he  would 
have  said  that  it  was  a  proper  case  for  the 
consideration  and  judgment  of  the  Court. 
Their  not  pursuing  this  course  was  laches  ou 
*355 

their  part,  *against  the  consequences  of 
which  the  Court  is  not  bound  to  protect  them. 
Where  one  interested  in  a  will  undertakes 
to  construe  it  for  himself,  and  construes  it 
erroneously,  or  adopts  the  erroneous  con- 
struction of  another,  and  predicates  a  set- 
tlement and  discharge  on  such  construction, 
he  is  not  entitled  to  open  the  settlement  in 
consequence  of  such  errors.  He  must  abide 
the  consequences  of  his  misconstruction ; 
provided,  of  course,  there  be  no  fraud,  man- 
agement, or  undue  intluence  employed  to  in- 
Acigle  him  into  the  settlement.    The  case  is 

144 


not  materially  altered  where  both  parties 
have  fallen  into  the  same  error.  A  miscon- 
struction, like  that  made  out  in  this  case,  is 
rather  an  error  of  the  judgment,  than  a 
mistake  either  of  the  law  or  of  fact. 

The  simple  misconstruction  of  a  will  or 
deed,  where  there  is  no  fraud  or  circum- 
vention, cannot  be  regarded  in  any  point  of 
view  as  coming  within  the  scope  and  author-^ 
ity  of  those  cases  where  mistakes  at  law,  in 
contradistinction  to  ignorance  of  law,  have 
been  considered  as  affording  grounds  for  re- 
lief. It  is  a  cardinal  theory  of  the  law, 
founded  upon  a  necessary  policy,  that  every 
one  is  presumed  to  have  a  knowledge  of  its 
principles.  This  presumption  prevails  as 
well  in  reference  to  civil  rights  as  in  the 
criminal  code.  Without  this  doctrine,  no 
system  of  law  can  practically  fultill  the  ends 
of  its  institution.  If  a  man  learned  in  the 
law  has  before  him  the  will  or  deed  in  which 
he  is  interested,  is  he  not  possesse<l  of  all 
the  information,  both  as  to  the  law  and  the 
facts,  which  will  enable  him  to  arrive  at  a 
just  conclusion?  If  such  a  man  were  to  fall 
into  an  error  of  construction,  could  he  call 
upon  this  Court  to  relieve  liim  from  a  con- 
tract or  a  settlement  based  upon  such  mis- 
construction? The  rule  that  would  apply 
to  the  case  of  such  a  man  would  appiy  to 
one  not  quite  so  eminent  in  legal  attain* 
ments ;  and  in  fact  to  every  other  person 
legally  competent  to  enter  in  such  transac- 
tion. By  what  standard  will  the  Court  un- 
dertake to  measure  the  intellects  of  men,  or 
what  graduated  scale  will  it  apply  to  ascer- 
tain the  extent  of  their  legal  knowledge? 
Upon  what  process  or  principle  could  it  be 
determined   that  one   man  had  enough  legal 

*356 

knowledge,  and  another  *had  not  enough  to 
enable  him  to  give  a  proper  construction  to 
the  will?  In  a  case  lilve  this,  there  is  but  one 
resource.  All  must  lie  in  the  same  Procrus- 
tean bed.  All  must  be  supposed  to  be  alike 
informed.  All  must  bear  the  consequences 
of  their  misconstruction;  though  in  some 
cases  it  would  be  the  error  of  an  enlighten- 
ed, and  in  others  of  an  unenlightened  judg- 
ment. In  the  opinion  of  the  Court  the  com- 
plainants have  failed  to  make  out  a  case 
which  would  entitle  them  to  have  the  releas- 
es set  aside   and  the  settlements   oi>ened. 

There  is  another  view  of  the  case  yet  to 
be  presented.  The  settlement  with  the  com- 
plainant, Moorer,  was  made  the  13th  Decem- 
ber, 1841,  and  that  with  the  complainant, 
Keitt,  the  21st  January,  1843.  Both  the  bills 
were  filed  the  ISth  December,  1851.  The  de- 
fendants have  not  pleaded  the  statute  of  lim- 
itations, nor  insisted  thereon  in  their  an- 
swers. It  is  needless  to  say,  that  the  statute 
would  have  been  applied  if  the  same  had 
been  pleaded.  But  the  defendants  insisted 
that  the  complainants,  if  their  complaint 
had  been  otherwise  well  founded  were  too 
late  in   their   application   to   the   Court   for 


BAIiLARD  V.  ^rcKEXXA 


*358 


relief;  that  their  claim  was  stale,  ami  the 
settlement  had  reuiained  uniiuestioned  for 
too  lonji  a  time  to  be  now  disturbed.  The 
complainants,  Moorer  and  wife,  had  ac-qui- 
esced  for  more  than  ten  years;  and  tlie  eom- 
jilainants,  Keitt  and  wife,  for  nearly  eight 
years  before  they  soutrht  relief  in  this  Court. 
Durins:  the  whoh'  of  this  lon'.i  interval,  they 
have  had  as  ample  means  of  information  as 
to  their  rij^hts  as  they  have  at  the  present 
time.  There  is  no  informatinn  of  wliich  they 
are  now  possessed,  whieh  they  did  not  pos- 
sess or  have  tlie  means  of  possessinjr,  imme- 
diately after,  or  even  l)efore  the  settlement. 
In  my  opinion  thi>y  have  come  too  late,  far- 
ties  desirous  of  openini:  settlements  on  the 
ground  of  errors  and  mistakes,  where  the 
facts  are  all  within  tlu'ir  knowledge,  uuist 
make  haste  in  their  application  to  the  Court 
for  relief.  Their  loiiir  acquiescence  amounts 
to  a  presumed  ratification.  The  views  of  an 
eminent  American  commentator  on  this  sub- 
ject are  so  well  e.\'presse<l,  and  are  so  perti- 
nent to  the  question,  that  it  will  be  suth- 
cient  to  conclude  my  discussion  by  (pioting 
his  language. 

*357 

*"It  is  a  most  material  ground."  he  says,  "in 
all  bills  for  an  account  to  ascertain  whether 
they  are  brought  to  open  and  correct  errors 
in  the  account  recenti  facto:  or  whether  the 
application  is  made  after  a  great  lapse  of 
time.  In  cases  of  this  sort,  where  the  de- 
mand is  strictly  of  a  legal  nature,  or  might  be 
cognizable  at  law.  Courts  of  Erpiity  govern 
themselves  by  the  same  limitations  as  to  en- 
tertaining such  suits,  as  are  prescribed  by  the 
statute  of  limitations  in  regard  to  suits  at 
common  law  in  matters  of  account.  If.  there- 
fore, the  ordinary  limitation  of  such  suits  at 
Jaw  be  six  yea  in.  Courts  of  Ecpiity  will  fol- 
low the  same  period  of  limitations.  In 
doing  so,  they  do  not  act  in  cases  of  this  sort, 
(that  is,  matters  of  concurrent  jurisdiction,) 
so  much  in  analogy  to  the  statute  of  limita- 
tions as  positively  in  obedieni-e  to  the  stat- 
ute. Hut  when  the  demand  is  not  of  a  legal 
nature,  but  is  purely  etiuitable.  or  where  the 
bar  of  the  statute  is  inapplicable.  Courts  of 
Equity  have  another  rule,  founded  some- 
times upon  the  analogies  of  the  law  where 
such  analogies  exist,  and  sometimes  upon  its 
own  inherent  doctrine,  not  to  entertain  stale 
or  antiquated  demands,  and  not  to  enc(mr- 
age  laches  or  negligence.  Hence,  in  matters 
of  account,  although  not  barred  by  the  stat- 
ute of  limitations.  Courts  of  Equity  refuse 
to  interfere  after  a  considerable  lap.se  of 
time,  from  considerations  of  public  policy, 
from  the  didiculty  of  doing  entire  justice, 
and  from  the  consciousness  that  the  repose 
of  titles  and  the  security  of  property  are 
mainly  promoted  by  a  full  enforcement  of  the 
maxim,  vigilantibus.  non  dormientibus.  jura 
subveiiiunt."  1  Story  Eip  §  HJM.  and  the  cas- 
es cited. 


It  is  ordered  and  decreed,  that  the  bill  of 
(Jeorge  D.  Keitr  and  wife  against  James  J. 
Andrews  and  wife,  be  dismissed.  It  is  also 
ordered  and  decreed,  that  the  bill  of  Henry 
.M.  .Moorer  and  wife,  against  the  said  James 
J.  Andrews  and   wife,  be  dismissed. 

The  coujpbiinants  appealed,  on  the  u'ronnd: 
Because  the  said  settlements  and  discharg- 
es were  founded  on  such  mistake  of  law.  as 

♦368 
rendered  them  no  bar  to  the  relief  *[irayed 
for    by    the    complainants,    and    such    relief 
should  have  been  granted. 

Hutson,  for  complainants, 
(i lover,  contra. 

PEH  CURIAM.  This  Court  concurs  in  the 
Chancellor's  decree,  which  is  hereby  attirm- 
ed,  and  the  appeal  dismissed. 

JOHNSTON,     DUNKIN.     DAUCJAN     and 
WAHDLAW.  CC,  concurring. 
Appeal  dismissed. 


4    Rich.  Eq.  358 
THO.MAS   1'.ALL.V1H>  v.   WIEEIAM  .M.  KEX- 

NA  and  Others. 
(Columbia.     M.iy  Term.  In.VJ.i 
[Insane  Persons   <£=>74.] 

H.  of  Lancaster  district,  kiiowin-  that  M. 
of  (ieorgia  wjis  entitled  to  a  distril)iitive  share 
of  the  estate  of  A.,  who  died  intestate  in  Lan- 
caster district,  went  to  (Jeorgia,  and  tiiere  en- 
tered into  a  written  contract  with  .M..  (whose 
Iwnaey.  if  lie  was  a  lunatic,  was  unknown  to 
H.. I  whereby  M.  agreed  to  give  to  H.  one-lialf 
tif  his  share  in  tiie  estate,  upon  B's.  prosecuting 
the  chiim,  at  his  own  expense,  to  a  siiccessfid 
j  termination.  Ji.  returned  to  Lancaster,  and 
tliere  prosecuted  tlie  claim  successfully.  M. 
died.  and.  on  bill  filed,  his  heirs  in»iieaciie<l  the 
contract  between  li.  and  M.  on  the  grounds  (1) 
of  fraud,  (l!)  that  the  consideration  was  exces- 
sive, and  (."!)  of  .M.'s  insanity.  The  Ci.uit  over- 
ruled the  two  first  grounds,  ordered  an  issue 
at  law  upon  the  third,  and  lichl  that,  if  the 
lunacy  should  be  established,  still  H.  would  be 
entitled  to  just  and  reasonable  couiiiensatiou  for 
his  services. 

I  Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  S§  ll.'(>.  lliT:    Dec.  Dig.  <S=374.J 

[Insane  Persons  <©=T4.] 

If  one  enters,  in  good  faith,  into  a  contract 
with  a  lunatic,  without  a  knowledge  of  Ins  lun- 
acy, and.  in  pursuance  of  the  contract,  renders 
him  important  services,  whereby  li(>  is  ;;reatiy 
benefitted,  though  the  contract  be  void,  the  par- 
ty rendering  the  services  is  entitled  to  just  and 
reasonable  comjiensation. 

[I^l.  Note.— Cited  in  Sims  v.  McLure,  8  Rich. 
E(i.  L'SS,  70  Am.  Dec.  llHi. 

For  other  cases,  see  Insane  Persons,  Cent. 
Dig.  §  12U;    Dec.  Dig.  <©=>74.] 

Before  Wardlaw,  Ch.,  at  Lancaster,  June, 

isr.L 

Wardlaw,  Ch.  The  main  controversy  be- 
tween the  parties,  subndtted  to  my  decision, 
is  as  to  the  execution,  specifically,  of  a  con- 
tract between  Wm.  Miller  and  Thomas  Bal- 
lard. l)y  which  the  former  agreed  to  give  the 


©=5For  other  cases  see  same  lopic  aud  KliV-.NLMBEU  in  all  Key-Numbered  Digests  and  Indexes 

4  Rich. Eq.— 10 


145 


^358 


4  RICHARDSON'S  EQUITY  REPORTS 


latter    one-half    of    liis    distributive    portion 
in  the  estate  of  Anna  McKenna,  upon  the  tat- 
ter's  prosecuting,    at    his    own   expense,    the 
claim   to   a   successful   ternunation. 
*359 

*Under  a  marriage  settlement  between  Wil- 
liam McKenna  and  Anna  his  wife,  a  sep- 
arate estate  was  secured  to  Mrs.  McKenna. 
She  died  intestate,  February  26,  1848,  leav- 
ing as  distributees,  under  the  Act  of  1791, 
her  husband,  entitled  to  two-thirds,  and  her 
uncle,  William  Miller,  to  one-third,  of  a  real 
estate,  valued  at  $3,000,  and  of  a  personal 
estate  valued  at  $15,000.  On  April  28,  1S4S, 
the  contract  in  question  was  made  between 
Miller,  an  inhabitant  of  Butts  county,  in  the 
State  of  Georgia,  and  Ballard,  a  citizen  of 
Lancaster,  and  the  son  of  a  pre-deceased  sis- 
ter of  Miller ;  the  contract  being  made  In 
Butts  county,  and  the  intestate  having  re- 
sided and  died  in  Lancaster  district.  In  Au- 
gust, 1848,  Ballard,  administered  upon  the 
estate  of  Anna  McKenna,  and  soon  after- 
wards filed  a  bill  as  administrator  against 
William  ^IcKenna,  for  an  account  of  the 
estate  of  intestate.  At  June  Term,  1849, 
Chancellor  Dunkin  heard  this  cause,  decreed 
an  account,  ordered  that  Miller  should  be 
made  a  party,  and  gave  leave  to  any  party, 
when  Miller  should  be  properly  before  the 
Court,  to  apply  for  an  order  for  partition  of 
the  estate  of  intestate.  In  pursuance  of  this 
decree  the  bill  was  amended  by  naming  Mil- 
ler as  a  defendant,  but  before  any  answer 
from  him,  or  order  pro  confesso  against  him, 
namely,  October  15,  1849,  Miller  was  found 
a  lunatic  by  inquisition  in  Georgia,  and  was 
committed,  as  a  pauper,  to  the  lunatic  asy- 
lum at  Milledgeville,  where  he  died  in  April, 
1850.  The  present  bills  were  filed  Septem- 
ber 9,  1850,  in  one  of  which  plaintiff  seeks  re- 
vivor of  the  former  suit  and  partition  of  the 
personalty  of  intestate,  and  in  the  other  he 
seeks  partition  of  the  real  estate  of  intes- 
tate ;  the  parties  being,  besides  Ballard  and 
William  McKenna,  the  children  and  hus- 
bands of  children  of  William  Miller.  In 
these  bills  for  the  first  time,  the  plaintiff, 
Ballard,  brings  forward  his  contract,  with 
Miller,  and  claims  that  one-half  of  Miller's 
share  shall  be  assigned  to  him  in  the  parti- 
tion of  the  estate  of  intestate.  William  Mc- 
Kenna, in  his  answers,  assents  to  the  parti- 
tion decreed  at  June  session.  1849,  but  pro- 
tests against  the  being  burdened  with  the 
expenses  of  the  controversy  between  the  plain- 

*360 
lift'  and  his  co*defendants.  The  other  de- 
fendants assent  also  to  the  partition  be- 
tween William  McKenna  and  themselves,  but 
they  deny  the  validity  of  the  contract  be- 
tween Miller  and  the  plaintiff",  and  insist 
that,  at  the  date  of  that  contract.  Miller  did 
not  have  mind  enough  to  make  him  compe- 
tent to  contract,  and  that,  under  all  the  cir- 
cumstances, the  contract  is  unconscientious 
and  inequitable. 

The  litigation  in  tlie  original  cause  of  Bal- 

146 


lard  V.  McKenna,  was  not  expensive  nor  pro- 
tracted, as  the  case  was  heard  upon  a  state 
of  facts  admitted,  and  no  appeal  was  prose- 
cuted, although  notice  of  appeal  was  given. 
McKenna,  who  is  represented  to  be  shrewd 
and  pei'tinacious  in  the  maintenance  of  his 
rights,  it  was  supposed  before  suit,  had  se- 
cured in  some  way  his  exclusive  right  to  his 
wife's  estate;  yet  Ballard  was  advised  by 
his  counsel  in  this  State  and  in  Georgia,  be- 
fore he  made  the  contract  with  Miller,  that 
Miller's  right  to  distribution  in  the  estate  of 
Mrs.  McKenna  was  clearly  valid. 

The  evidence  as  to  the  competency  of  Miller 
to  contract  on  April  28,  1848,  when  the  agree- 
ment between  Ballard  and  himself  was  exe- 
cuted, is  very  voluminous,  and  mostly  taken 
by  commissions.  On  the  part  of  the  plaintiff, 
James  II.  Starke,  an  intelligent  and  respect- 
able member  of  the  profession,  now  occupy- 
ing the  post  of  Judge  of  the  Superior  Court 
in  Georgia,  testifies  that  he  drew  the  agree- 
ment in  question,  at  the  instance  of  Miller, 
his  son-in-law  Glass  and  Ballard,  and  advis- 
ed its  execution ;  that  Miller,  separately 
and  intelligently,  explained  the  circumstanc- 
es of  the  matter,  and  took  his  counsel ;  that 
he  had  previously  been  Miller's  counsel,  and 
knew  him  intimately,  and  that  Miller  well 
understood  what  he  was  doing,  and  made  a 
reasonable  contract.  I  know  something  of 
Judge  Starke  by  reputation,  as  he  was 
brought  up  and  acquired  his  profession  in  the 
same  district  with  myself,  and  I  cannot 
doubt  the  sincerity  of  his  statements.  In  ad- 
dition to  his  testimony,  the  plaintiff  furnish- 
es evidence  that  Miller  was  a  poor  old  man, 
having  no  pecuniary  means  to  carry  on  a 
law-suit,  especially  in  a  different  State  from 
that  of  his  residence,  and  living  with  his  sou- 

*361 
in-law,  Glass,  and  that  Ballard  *first  inform- 
ed him  of  his  rights  in  Mrs.  McKenna's  es- 
tate ;  and  that  Glass,  and  his  wife,  son-in- 
law  and  daughter  of  Miller,  in  letters  and 
orally,  have  declared  that  Miller,  at  the 
time,  was  competent  to  contract,  and  that  he 
made  a  fair  contract  with  Ballard.  On  the 
side  of  the  defendants,  seventeen  witnesses, 
including  a  lawyer,  a  physician,  ministers  of 
the  gospel,  farmers,  merchants  and  mechan- 
ics, swear  positively  that  Miller  was  dement- 
ed without  lucid  intervals  for  several  years 
before  the  date  of  the  agreement  with  Bal- 
lard, and  state  sufficient  reasons,  in  the  con- 
versation and  conduct  of  Miller,  for  their 
opinion  of  his  insanity.  Two  of  these  wit- 
nesses, son  and  daughter  of  Glass,  by  a  for- 
mer wife,  not  the  daughter  of  Miller,  make 
by  their  testimony  a  case  of  positive  fraud 
against  Ballard,  stating  that  he  was  premon- 
ished  by  Mrs.  Glass,  of  her  father's  insanity, 
and  that  he  falsely  represented  the  value  of 
Mrs.  McKenna's  estate,  and  that  he  was  an 
equal  heir  with  Miller  therein.  If  I  consider 
the  case  as  depending  entirely  upon  the  tes- 
timony of  these  two  witnesses,  I  might  direct 
an  issue  to  a  jury,  but  such  is  not  my  view. 


BALLARD  v,  McKENXA 


•364 


Rt>fore  indicating  my  opinion,  however,  I  may 
t'lirtlHT  mention  tliat  tlie  iiliysician  wlio  was 
examined  as  a  witness,  ascribes  the  im- 
becility of  Miller's  mind  to  the  physical 
cause,  of  a  softening  of  the  brain;  and  that 
I'.Mllard.  on  Sei)tember  L'l,  1849,  wrote  a  let- 
ter to  Glass,  informing  him  of  the  progress 
of  our  law-suit;  and  desiring  t()  know  how 
uncle  Miller's  mind  is,  and  whether  uncle 
recollects  me  (B.)  being  at  your  ((J's.)  house 
on  the  occasion  of  the  agreement;  yet  this 
letter  was  writti'ii  after  I'.allard  had  been  in- 
formed by  letters  from  (Jlass  and  wife,  that 
some  of  Miller's  children  impeached  the  con- 
tract on  account  of  Miller's  insanity. 

One  wlio  seeks  the  specific  execution  of  a 
contract  is  liound  to  satisfy  tiie  judicial  dis- 
iretion  of  the  Chancellor,  that  the  contract 
is  fair,  just  and  reasonable.  In  the  present 
case,  from  the  testimony,  I  cannot,  in  con- 
science, declare  that  I  am  satisfied  of  Wm. 
Miller's  mental  sutticiency  to  contract  on 
April  JS,  1S4S.  nor  that  liallard  did  not  mis- 
represent himself  as  an  e<iual  distributee 
with  Miller  in  Mrs.  McKeuna's  estate. 

*362 

♦Waiving  these  considerations,  the  contract 
is  infectiil  with  tiie  taint,  so  grievous  at  the 
common  law,  of  champerty  and  maintenance. 
It  secures  to  Ballard  an  innnoderate  compen- 
sation for  liis  services,  and  it  places  his  in- 
dividual interests  in  conflict  witli  Ids  duty 
as  trustee  in  the  administration  of  Mrs. 
McKenna's  estate.  I  cannot  support  the 
plaintiff's  claim  to  a  partition  of  the  spoils, 
although  I  am  not  indisposed  to  allow  liiin 
compensation  beyond  his  commissions,  if  I 
l»elieved  I  iiad  any  discretion  in  the  matter. 

It  is  ordered  and  decreed,  that  the  decree 
of  Chancellor  l>unkin.  for  an  account  of 
the  estate  of  Anna  McKenna.  be  revived: 
and  that  a  writ  of  partiticm.  to  divide  the 
lands  and  chattels  of  Mrs.  McKenna.  in  the 
jiroportion  of  two-thirds  to  her  luisband, 
and  one-third  to  the  distributees  of  William 
.Miller,  dtneased,  be  issued,  to  be  directed  to 
comndssioners,  named  by  tiie  parties,  and  the 
Connni.ssioner  of  this  Court.  It  is  further 
ordered,  tliat  the  costs  of  the  account  and 
liartition  be  paid  out  of  the  estate,  according 
to  the  interests  of  the  parties,  and  that  the 
costs  of  the  controversy  between  the  plaintiff 
and  the  distributees  of  Miller,  be  paid  by  the 
I.Iaintiff. 

The  plaintiff  appealed,  on  the  following 
grounds: 

1.  Becau.se.  under  the  evidence,  it  is  re- 
spectfully subnntted,  his  Honor  slionld  have 
ilecreed  a  specific  iiert'ormance  of  the  agree- 
ment   between    Miller   an<l    the   comidainant. 

2.  I'.ecause  the  evidence  of  Judge  Starke 
clearly  showe<I  that  Miller  was  competent 
to  contract,  and  tlid  knowingly  contract  with 
liallard  to  give  him  one-half  of  the  recovery. 

o.  Because,  even  if  Miller  was  a  lunatic, 
the  contract  was  a  fair,  just  and  reasonable 


contract,    and    one    to    his    interest,    which 
sh(tuld    be  enforced. 

4.  Because  his  Honor,  it  is  respectfully 
submitted,  sliould  have  ordered  an  issue  to 
determine  the  question  at  i.ssue  in  the  cause. 

5.  Becau.se  in  any  point  of  view,  and  if 
even  the  contract  between  complainant  and 
Miller  .should  not  Ik?  specifically  enforced, 
yet  an  issue  should  nave  lx>en  ordered  to  a.s- 

♦363 
certain  what  would  be  'a  fair  and  reasonable 
compensation  to  complainant  for  his  services 
for  Miller. 

G.  Because  the  complainant  should  not  be 
ordered  to  pay  the  costs. 

Hammond.  Dawkins.  Boyce,  for  aiipellant. 
nanna,  Clinton,  contra. 

The  oi)inion  of  the  Court  was  delivered  by 

DAR(;AN.  Ch.  Anna  McKenna.  wife  of  the 
defendant.  Wm.  McKenna,  by  virtue  of  a 
deed  of  marriage  settlement  between  herself 
and  her  husl)and,  before  marriage,  had  a 
.separate  estate  consi.sting,  at  the  time  of  her 
death,  on  the  L'Gth  February,  184s.  of  real 
estate  to  the  amount  of  $;J000,  and  of  person- 
al estate  to  the  value  of  .$ir>.(XXJ.  The  deed 
of  settlement  secureil  to  her  a  general  power 
of  appointment.  lUit  this  she  never  exercis- 
ed, and  died  intestate,  leaving  her  husliand, 
the  said  Wm.  McKenna,  surviving  her.  .She 
left  no  issue,  nor  brothers,  nor  sisters,  nor 
children  of  brothers  or  sisters,  and  her  near- 
est collateral  relation  was  her  uncle,  one  Wm. 
Miller,  of  Butts  County,  in  the  State  of  Geor- 
gia, who.  under  the  law  of  distributions,  was 
entitletl  to  one  third  of  her  estate,  while  her 
said  husband  was  entitled  to  two  thirds 
thereof. 

Miller  received  the  tirst  intimation  of  his 
rights,  in  the  estate  of  Anna  McKenna.  from 
tile  complainant.  Ballard,  who  also  informed 
him,  that  his  rights  would  have  to  be  contest- 
ed in  a  law  suit.  Miller  was,  at  that  time 
infirm  and  advanced  in  life,  penniless,  and 
dependent  for  subsistence  and  shelter  upon 
his  son-in-law.  Pleasant  H.  Gla.ss.  with  wliom 
he  resided.  From  Glass  and  his  wife,  who 
was  Miller's  daughter,  lie  received  that  kind- 
ness and  support  due  from  children  to  par- 
ents under  those  unfortunate  cirumistances. 

The  com])lainant  is  the  son  of  a'l)re-deceas- 
ed  aunt  of  Mrs.  McKenna,  who  was  the  sister 
of  Miller.  Living  in  the  immediate  vicinity 
of  the  intestate,  he  became  aware  of  Miller's 
probable  rights  in  lier  estate.    I  say  his  prob- 

*364 
able  rights;  for  although  it  ♦was  very  clear 
tiiat  Miller  was  a  distributee:  as  a  matter  of 
fact,  it  was  deemed  very  uncertain  whether 
McKenna  would  not  assert  a  claim  to  the 
whole  estate  by  the  deed,  or  will,  of  his  wife, 
executed  under  lier  power  of  appointment. 
It  was  also  supposed  that  lie  might  liave  largo 
claims  against  his  wife's  separate  estate. 

Witli   this  information   as    to   the   circum- 

147 


^364 


4  RICnAKDSONS   Kia'lTY   REPOKTS 


stances  attending  the  claim,  the  coniphiiiunit  i 
made  a  visit  to  Miller,  in  Georgia.  His  ob-  | 
ject  was  to  make  a  contract  with  his  nncle, 
by  which  he  should  be  authorized  to  prose- 
cute his  claim  for  a  distributive  share  of 
Mrs.  McKenna's  estate,  and  to  receive  his 
remuneration  out  of  the  property  to  be  re- 
covered. The  interview  took  place  at  the 
house  of  Glass.  The  complainant  proposed 
to  prosecute  the  law  suit  at  his  own  hazard, 
and  expense,  and  to  have,  as  compensation, 
one  half  of  Miller's  share,  when  it  should  be 
realized.  The  proposal  was  made,  and  the 
negotiation  opened  in  the  presence  of  Glass 
and  his  wife,  (Miller's  daughter).  On  the 
next  day  Ballard,  Miller  and  Glass  repaired 
to  the  county  seat  of  Butts,  for  the  purpose 
of  having  an  interview  and  consultation  with 
Miller's  counsel.  This  gentleman  had,"  for 
many  years  before,  borne  the  relation  of 
legal  advisor  to  Miller,  enjoyed  a  distinguish- 
ed reputation  for  his  probity,  and  forensic 
talents  and  success,  and  has  since  been  pro- 
moted to  the  Bench  of  the  Superior  Court  of 
(4eor,:_'ia.  T'pon  a  full  discussion,  and  consid- 
eration of  all  the  circumstances.  Miller  was 
advised,  by  his  learned  counsel,  to  enter  into 
the  contract  on  tlie  terms  proposed.  This 
was  accordingly  done.  A  contract,  upon  those 
terms,  was  then  prepared  by  the  counsel,  and 
executed  by  Miller  and  the  complainant.  It 
was  dated  the  2Sth  April,  1S4.S. 

The  complainant  then  returned  to  South 
Carolina,  administered  upon  the  estate  of 
Mrs.  McKenna,  hied  a  bill  in  Equity  against 
the  defen;lant,  and  prosecuted  the  same  to  a 
hearing  and  judgment.  The  decree  adjudged 
that  the  marital  rights  of  ^IcKenna  had  not 
attached  upon  Mrs.  McKenna's  separate  es- 
tate, tliat  she  died  intestate  as  to  the  same, 
that  it  was  subject  to  partition  among  her 
heirs  at  law  and  distributees,  that  the  hus- 

*365 
band  was  entitled  to  two  *thirds  thereof,  and 
the  next  of  kin  to  the  remaining  third, 
and  ordered  the  administrator  to  account  to 
the  proper  parties.  About  this  time  Miller 
died.  The  complainant  became  the  adminis- 
trator of  Miller,  hied  his  bill  of  revivor 
against  McKenna,  making  the  distributees, 
of  INIiller,  parties  defendant,  and  added,  by 
way  of  supplement,  a  statement  of  his  claim 
against  tiie  estate  of  Miller  under  the  con- 
tract of  the  28th  April,  1S4S;  praying  that  his 
share,  as  .secured  by  that  agreement,  should 
be  allowed  him  in  tlie  settlement  and  parti- 
tion among  Miller's  distributees. 

Tlie  claim  of  the  complainant,  under  his 
contract,  with  Miller,  of  the  2Sth  April,  1S4S, 
has  met  with  an  opposition  more  or  less  ac- 
tive, from  all  the  distributees  of  Miller,  with 
the  exception  of  Pleasant  II.  Glass  and  liis 
wife. 

The  claim  of  Ballard  is  resisted,  by  the 
defendants,  on  three  grounds ;  1st.  That  the 
contract  was  fraudulently  obtained :  2d. 
That  the  consideration  was  extravagantly 
148 


disproportioned  to  the  services  to  be  render- 
ed, and  is  .so  excessive,  that  tiie  contract,  be- 
ing executory,  should  not  be  enforced  by  this 
Court;  and  3d.  That  the  contract  was  null 
and  void,  in  its  inception,  on  account  of  the 
insanity  of  Miller  at  the  time  of  its  execu- 
tion. 

As  to  the  hrst  ground,  this  Court  perceives 
nothing  in  tlie  evidence  by  which  it  may  be 
supported.  There  was  no  fiduciary  relation 
subsisting  at  that  time  between  the  contract- 
ing parties.  There  was  no  fraudulent  tis- 
representation  or  concealment.  Tliere  was 
no  mis-statement  of  any  kind  as  to  material 
facts.  It  seems  that  he  over-estimated  Mil- 
ler's share.  One  of  the  witnesses  says  that 
he  represented  the  whole  estate  of  ]Mrs.  Mc- 
Kenna at  eight  or  ten  thousand  dollars.  But 
this  is  obviously  a  mistake  of  the  witness. 
And  the  Court  is  disposed  to  believe  the  state- 
ment of  the  other  witness,  who  testified  on 
this  point:  who  .says  that  Ballard,  in  the  pres- 
ence of  Glass,  represented  the  share  of  INIiller 
at  eight  or  ten  thousand  dollars.  I  cannot 
suppose  that  this  over-estimate  of  Miller's 
.share  was  intentional.  This  would  have  a 
tendency  to  operate  against  Ballard  in  ob- 
taining the  contract  on  the  terms  proposed: 
for  in  proportion  as  Miller's  probable  share 

*366 
*was  magnified,  would,  one  half  of  it,  as  re- 
muneration for  the  prosecution  of  the  claim, 
become  excessive,  and  Miller's  mind  become 
indisposed  to  grant  such  conditions.  His  esti- 
mate was  nothing  but  a  conjecture,  innocent 
in  intention ;  for  he  had  no  means  of  know- 
ing the  precise  value  of  the  estate,  and  im- 
material in  its  consequences,  for  it  had  no 
tendency  to  secure  him  an  advantage,  but 
rather  the  reverse. 

One  witness  spoke  of  Ballard  as  having 
represented  himself  to  Miller  as  a  co-heir 
and  distributee.  I  much  doubt  the  accuracy 
of  this  witness.  He  certainly  did  not  so  rep- 
resent himself  in  the  presence  of  Miller's 
counsel  and  his  son-in-law,  when  the  agree- 
ment was  made  and  executed.  I  can  scarcely 
suppose  that  he  held  different  language  on 
this  point  upon  the  two  occasions.  And 
conceding  that  he  did  represent  himself  as 
co-heir  and  distributee,  I  cannot  perceive  that 
it  would  have  any  material  bearing  upon  the 
fairness  of  the  contract.  Like  the  other  alleg- 
ed misrepresentation,  if  it  had  any  material 
effect,  it  would  be  rather  to  thwart  than  to 
aid  him  in  obtaining  a  favorable  contract. 
For  Miller  might  very  well  suppose,  that  if 
Ballard  was  a  co-heir  and  distributee,  he 
would  at  all  events  prosecute  the  claim  on  his 
own  account :  and  might,  under  these  circum- 
stances, afford  to  take  a  lower  remuneration 
for  prosecuting  his  (Miller's)  claim,  which 
depended  upon  the  same  facts,  and  principles 
of  law,  and  which  would,  as  a.  matter  of 
course,  be  embraced,  in  the  same  proceedings. 

This  Court  is  also  of  the  opinion,  that  the 
objection  to  the  contract,  founded  on  the  ex- 


BALLAlll)  V.  M(K1:NNA 


»369 


cess  of  the  coiisiiloration,  is  etiuallv  unsup- 
ported. It  si'fius  U>  the  Court,  that  uiuler  all 
the  cireuiiistaiices  of  the  case;  tiie  unrertaiu- 
ty  tliat  then  existi'd  as  to  tlie  result,  and  the 
hazards  incurred  by  Hallard.  in  tlie  event 
tluit  tlu'  suit  was  unsuccessful,  all  of  which 
were  entirely  assumed  by  him,  tiie  contract 
was  fair,  just  and  reasonable.  It  had  the 
unqualitiiHl  api'robation  of  Miller's  son-in-law 
<<;iass)  and  his  (hui^lifer.  with  whom  he  resid- 
ed and  by  whom  he  was  supported,  upon  a 
full   and    fair   exposition   of  all   the  circuni- 

*367 

stances.  It  was  also  earnestly  ♦reconunended 
by^is  able  and  experienced  coiuisel,  who  act- 
ed on  tne  occasion  as  muih  in  the  chnracter 
of  a  perst)nal  friend  as  a  lepvl  adviser,  and 
who  thought  then,  and  still  thinks,  that  the 
contract  was  just  and  reasonable.  In  fact  it 
is  oidy  the  fortunate  result,  that  gives  it 
any  otlier  aspect,  even  to  those  who  now 
object  to  it,  and  wlio  I  doubt  not  would  liave 
approved,  if  they  had  been  consulted  when  the 
contract  was  made.  Finally,  it  is  such  a 
contract  as  this  Court  would  unhesitatingly 
enforce  by  its  decree,  if  it  was  free  from  the 
difficulty  involved  in  the  tliird  objection 
above  stated,  namely,  the  sanity  of  Miller  at 
the  time  of  the  execution  of  the  contract. 

As  to  the  sanity  of  Miller  at  the  date  of 
the  contract,  the  evidence  is  so  contradictory 
and  difficult  to  be  reconciled,  tlie  Court  has 
been  able  to  arrive  at  uo  conclusion  satis- 
factory to  itself. — When  we  regard  the  evi- 
dence adduced  on  this  point  in  behalf  of  the 
distributees  of  ^Miller,  it  makes  a  very  strong 
case  against  his  sanity.  But,  on  the  other 
hand,  the  evidence  of  Judge  Starke,  who  was 
his  legal  adviser,  and  who  drafted  the  agree- 
ment, and  reconunended  him  to  make  it,  rep- 
resents liim  upon  tliat  occasion,  as  so  calm 
and  collected,  so  fully  jiossessed  of  all  the 
faculties  of  his  understanding,  as  renders 
it  very  difficult  to  believe  that  iie  was.  at 
that  time,  laboring  under  mental  alienation. 
It  was  Miller  who  oiiened  the  discussion  upon 
the  subject,  as  to  which  the  witness  was  to  be 
consulted.  It  was  Miller  who  stated  all  the 
circumstances  of  the  case,  the  relationship 
witii  Mrs.  McKenna,  and  with  Hallard,  and 
his  confhh'uce  in  the  latter  from  his  iK'ing  a 
deceased  sister's  chibl.  He  did  not  occtTl)y 
the  back  ground  on  that  occasion,  as  a  luna- 
tic or  iml)ecile  would  naturally  have  done, 
but  led  the  conversation.  After  making  a 
lucid  .statement  of  the  facts,  exciting  no  tlis- 
trust  as  to  his  sanity,  an<l  his  statement  be- 
ing tontirmed  by  Hallard,  he  asked  the  ad- 
vice of  ins  counsel. — And  on  rec«Mvlng  a 
favorable  opinion,  and  being  recommended 
to  go  into  the  contract  with  Hallard  on  the 
terms  propostxl;  not  content  with  this,  and 
witii  a  shrewdness  and  delicacy  which  a 
lunatic    would     han'ify     have    exbibitiMl.    he 

*368 

sought   a   private   interview    *with   lii.s    legal 


adviser,  where  he  might  liave  a  freer  cou- 
ferenci'.- — It  would  l)e  very  difficult  to  doubt 
the  veracity  or  the  accuracy  of  this  witness, 
who  for  many  years  before  tliis  period  bore 
intimate  professional  relations  with  Miller, 
and  had  the  most  ample  opportunities  of  not- 
ing the  decadence  of  ins  undi'rstanding.  In 
the  view  of  an  intelligent  witness  who  knew 
him  well,  and  who  states  not  oiiinions  merely, 
but  facts.  Miller's  bearing  upon  the  occasion 
of  the  exe<'Ution  of  the  contract,  was  so  rea- 
sonable, so  self-possessetl,  so  nuicli  that  of  a 
sane  man  in  every  respect,  that  the  Court 
experiences  tlie  greatest  degree  of  embar- 
rassment, when  it  looks  at  the  great  mass  of 
evidence  ou  the  other  side,  going  to  sliow 
that  iK'fore  that  time  he  was  an  extravagant 
lunatic. 

ruder  this  state  of  circumstances,  the 
Court  is  disposed  to  seek  aid  and  relief  from 
the  embarrassment  by  a  resort  to  the  usual 
mode,  namely,  an  issue  Ix-fore  a  Jury,  At  the 
.same  time  tiiat  an  issue  is  ordered,  it  will  be 
necessary  to  the  ends  of  justice  between 
these  parties,  that  further  orders  shall  be 
made.  If  the  final  judgment  of  the  Court 
shall  be,  that  Miller  was  a  lunatic  at  the 
date  of  the  agreement,  and  that  the  same  was 
not  executed  during  a  lucid  interval,  it  fol- 
lows, as  a  matter  of  cour.se,  that  the  instru- 
ment as  a  contract  is  a  nullity.  Hut  it  by  no 
means  follows,  that  Hallard  will  not,  in  tliat 
event,  be  entitled  to  compensation  for  his  serv- 
ices, and  his  risks.  If  one  enters  into  a  con- 
tract with  a  lunatic  without  a  knowledge  of 
his  lunacy,  and  the  contract  is  in  other  re- 
spects made  in  good  faith;  and  in  pursuance 
of  the  contract,  renders  him  important  .serv- 
ices, by  which  the  lunatic  receives  great  bene- 
tits,  though  the  contract  be  void,  the  party 
rendering  the  services  is  entitled  to  just  and 
reasonable  compensation.  If  an  overseer, 
for  example,  contracts  with  a  lunatic,  with- 
out knowing  him  to  be  such,  to  superintend 
his  planting  interest,  and  does  in  fact  perform 
the  .services,  can  it  be  doubted  that  he  would 
be  entitled  to  just  compensation?  Or,  if  a 
mechanic,  under  the  like  circumstances,  con- 
tracts to  build  a  house  on  the  lunatic's  land, 
and  to  furnish  the  materials,  ami  he  does  in 
fact  bestow  his  labor  and  capital  in  the  im- 

♦369 
proveinent  of  the  *  lunatic's  estate,  he  is 
entitled  in  equity,  not  to  recover  upon  the  con- 
tract, (which  is  a  nullity,  though  he  was 
ignorant  of  the  lunacy.)  but  to  1h^  reiml)ursed 
to  a  reasonable  extent,  provided  his  labor 
and  capital  has  improved  the  value  of  the 
lunatic's  estate.  Anil  this  upon  the  principle, 
that  a  contract  that  is  void,  .should  be  void 
as  to  both  parties.  And  inasmuch,  as  in  the 
cases  supposed,  the  parties  cannot  be  restored 
to  the  statu  quo;  the  mechainc  <annot  have 
back  his  labor  and  his  capital,  and  the  over- 
seer cannot  have  restored  to  liim  his  .serv- 
ices and  his  time  consumed  in  the  perform- 
ance of  those  services,  and  their  conduct  has 

149 


*369 


4  RICHARDSON'S  EQUITY  REPORTS 


been  bona  fide,  this  Court  will  aid  them  in  [ 
obtaining  a  fair  and  jnst  remuneration,  pro- 
vided their  services  have  been  actually  beneli- 
cial  to  the  lunatic. 

On  the  supiwsition,  that  Miller  shall  be 
found  to  have  been  a  lunatic  at  the  date  of 
the  contract,  this  appears  to  be  the  situation 
of  Ballard.  He  was  ignorant  of  the  lunacy, 
(so  far  as  it  appears,)  the  contract  was  fair- 
ly made,  and  the  compensation  was  reasona- 
ble and  just  as  I  have  before  stated.  His 
services  under  the  contract  were  important 
and  successful.  They  secured  to  Miller  his 
distributive  share  of  Mrs.  McKenna's  estate ; 
which,  but  for  those  services,  in  all  proba- 
bility he  would  never  otherwise  have  ob- 
tained. 

If  Miller  was  not  a  lunatic.  Ballard  is 
entitled  to  have  his  contract  enforced.  And 
if  he  (Miller)  was  a  lunatic  at  the  date  of 
the  contract,  the  complainant  is  entitled  to 
remuneration  out  of  Miller's  estate,  in  his 
hands,  in  proportion  to  the  value  of  the  ser- 
vices rendered,  tlie  degree  of  pecuniary  re- 
sponsibility and  expenditure  incurred,  and 
the  time  and  labor  expended.  And  it  is  so 
ordered  and  decreed.  It  is  further  ordered 
and  decreed,  that  tlie  complainant,  if  tlie 
issue  as  to  the  lunacy  of  Miller  be  determined 
against  him,  shall  have  the  privilege  of  going 
before  the  Commissioner  in  Equity  of  Lan- 
caster, after  due  notice  to  the  opposite  par- 
ty or  their  counsel,  for  the  purpose  of  ascer- 
taining the  amount  of  compensation  to  which 
*370 

he  is  entitled  on  the  principles  of  this  *de- 
cree.  And  the  commissioner  is  hereby  or- 
dered, on  a  proper  application,  to  institute 
such    inquiry. 

It  is  further  ordered  and  decreed,  tlial  an 
issue  at  law  be  made  up  to  be  tried  by  a 
jury,  in  the  Court  of  Common  Pleas  for  Lan- 
caster district,  in  wliich  the  following  ques- 
tions shall  be  submitted:  First,  whether 
William  Miller,  late  of  Butts  county,  in  the 
State  of  (Jeorgia,  was  a  lunatic  on  the  28th 
April,  1848 ;  and  secondly,  if  the  said  Wil- 
liam Miller  was,  at  or  before  that  time,  a 
lunatic,  whether  the  contract  between  the 
said  Wni.  Miller  and  Thomas  Ballard,  dated 
2Sth  April,  1848,  was  executed  by  the  said 
Wm.  Miller  during  a  lucid  interval. 

It  is  further  ordered  and  decreed,  that,  in 
the  said  issue,  the  said  Ballard  shall  tile 
the  declaration,  and  in  other  respects  be  the 
actor  in  the  proceedings. 

It  is  further  ordered  and  decreed,  that  the 
said  Ballard  shall  be  entitled  to  waive  the 
making  up  and  trial  of  the  issue  hereby  or- 
dered, (by  which  waivor  he  shall  be  consid- 
ered as  admitting  the  lunacy,)  and  go  at 
once  before  the  connnissioner,  upon  the  in- 
quiry herein  before  ordered  to  be  made  upon 
the  quantum  meruit. 

The  question  of  costs   is  reserved. 

The  circuit  decree  is  mudilled  in  conform- 


ity with  this  appeal  decree.    And  it  is  so  or- 
dered. 

.TOIINSTON,    DUNKIN   and   WARDLAW^ 

CC,   concurred. 
Decree  modified. 


4   Rich.  Eq.  370 

WM.  CAMPBELL  and  S.  G.  BARKLEY  v.  B. 
F.  BRIGGS  and  A.  W.  YONGUE. 

(Columbia.     May  Term,  1852.) 

[Jiidf/nicnt    <g=;3<i78.] 

Fuur  oblinors  gave  their  joint  and  several 
sinsle  bill,  and  two  of  thorn,  C.  and  B.,  were 
sued,  separately,  at  law,  by  the  obligee,  and  de- 
fended the  actions  on  the  ground  of  fraud  and 
misrepresentation  on  the  part  of  the  obligee,  but 
judgments  were  recovered  against  them:  the 
four  obligors  then  paid  up  the  amount  of  the 
judgments,  and  the  two  who  had  not  been  sued 
at  law,  J.  and  D.,  assigned  their  interest  in  the 
matter  to  C.  and  B. :  C.  and  B.  then  tiled  their 

*371 
*bill  against  the  obligee,  seeliing  relief  on  the 
same  ground  on  which  the  actions  at  law  had 
been  defended,  and.  at  the  trial,  used  .1.  as  a 
witness:  Held,  that  th\v  were  not  entitled  to 
relief,  and  their  bill  was  dismissed. 

I  Ed.  Note. — For  other  cases,  see  Judgment, 
Cent.  Dig.  §  1196  ;    Dec.  Dig.  (S==>l>78.J 

Before  Wardlaw,  J.,  at  Fairfield,  July, 
1851. 

Wardlaw,  Ch.  In  this  bill  the  plahitifts 
seek  relief  from  judgments  at  law  obtained 
against  them  separately,  by  the  defendant, 
Briggs,  upon  a  single  bill,  joint  and  several, 
executed  by  them,  together  with  John  Camp- 
bell and  David  McDowell,  alleging  that,  in 
the  bargain  for  the  land,  which  was  the  con- 
sideration of  the  obligation,  the  obligors 
were  overreached  by  the  false  and  fraudu- 
lent representations  of  Briggs,  by  words  and 
tokens,  that  the  land  contained  a  valuable 
gold  mine. 

The  contract  in  question  was  made  March 
25,  1845,  by  which  Briggs  assigned  to  the 
plaintiffs  and  the  two  other  persons  above 
named,  long  leases  he  held  of  the  "Love 
mine,"  in  York  district,  and  received  their 
obligation  for  the  payment,  on  January  1, 
1847,  of  $1,000,  with  interest  from  June  1, 
1847.  Briggs,  after  the  day  of  payment, 
sued,  separately,  in  the  Court  of  Common 
Pleas  for  Fairfield  two  of  the  obligors,  the 
present  plaintitfs;  the  defendants  at  law  set 
up  his  fraud  in  the  transaction  by  way  of 
defence,  but  he  obtained  judgments  against 
them  at  Fall  Term,  1848.  On  these  trials 
no  attempt  was  made  to  use  the  testimony 
of  John  Campbell  and  William  Campbell, 
who  were  the  principal  agents  in  the  nego- 
tiation with  Briggs.  On  INIarch  31,  1849, 
these  judgments  wei-e  satisfied  by  payments 
to  Yongue,  the  clerk  of  the  Common  Pleas, 
(no  executions  having  been  lodged  with  the 
sheriff.)  by  equal  contributions  from  the  four 
obligors.      On    the    same    day    J.    Canqjbeli 


150 


<S;=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


CAMPBELL  V.  BRKiCS 


*374 


;>iiil  D.  McDowell  assi-iiod  all  their  intorcst 
ill  the  iiijitrer  to  tho  present  plaiiititts,  and 
this  hill  was  fikMl.  No  allej-'ation  is  made  in 
tiu'  i)ill  of  any  surpriso  or  frand  in  the  tri- 
als, nor  of  any  newly  discovered  evidence, 
nor  of  any  special  insnttlcieney  in  the  trii)U- 
nal  which  (h'terniined  the  cases,  nor  of  any 
i'ircunistances  wliatsoever,  producinj:  mani- 
fest injnstice  to  the  defendants  at  hiw;    and 

*372 
the  appeal  to  this  Court  is  rested  ♦altoReth- 
er  on  tlie  f,'round  that  John  and  William 
Camphell  were  incompetent  witnesses  at  hiw. 
Tlie  snl)stantial  aim  of  this  hill  is  for  a 
new  trial  in  this  fornm  of  an  issne  already 
adjudicated  hy  a  Court  of  competent  juris- 
diction. Actual  fraud  as  fully  vitiates  a 
contract  in  the  Court  of  Law  as  in  the  Court 
of  Kipiity;  and  this  Court  follows  the  Court 
of  Law  in  questions  as  to  the  competency 
of  witnesses,  with  some  exceptions,  irrele- 
vant to  the  present  case,  as  to  parties  to  the 
suit.  Ai)art  from  the  answer,  which  increas- 
es hy  its  demands  the  proof  required  from 
the  plaintiffs,  the  plaintiffs  are  in  no  better 
condition  here  as  to  remedy,  and  in  worse 
condition  as  to  evidence,  than  in  the  Court 
of  Law.  In  the  case  at  law  against  Barkley, 
loth  of  the  Campbells,  John  and  William,  if 
coiiqietent  in  either  Court,  mij,'ht  have  been 
used  for  Barkley;  and  in  the  case  at  law 
a;j:ainst  William  Campbell,  John  Camphell, 
relied  upon  in  the  present  case,  was  as  com- 
petent as  here. 

Dropping  the  question  as  to  William  Canip- 
bcll's  comjietency  as  inunaterial,  on  what 
ground  is  it  supposed  that  John  Campbell 
was  not  a  competent  witness  in  the  case  at 
law?  None  is  suggested,  except  that  he  was 
maker  with  the  persons  sued,  of  the  single 
bill  sued  upon;  yet  not  occupying  the  rela- 
tion of  iirincipal  to  them  as  sureties.  He 
was  no  party  to  the  records;  he  was  not 
lialile  t'nr  the  cost  of  the  cases;  his  testimo- 
ii.\  cdiild  not  affect  his  own  liability  upon 
llic  instrument.  Under  these  circumstances, 
he  would  seem  to  be  a  competent  witness, 
even  without  release.  In  Cleveland  v.  Cov- 
ington, :i  Strob.  1S4,  it  was  held,  that  where 
(he  principal  in  a  single  bill  is  liable  for  the 
(osts  of  his  surety,  he  is,  on  that  ground, 
an  inconqietent  witness  for  the  surety,  when 
Mued  by  their  conmion  creditor ;  but  the  de- 
cision is  jiut  upon  his  direct  interest  in  the 
event  of  the  suit,  and  the  old  notion  of  his 
incompetency,  as  a  party  to  the  instrunu'ut, 
is  repu<liated.  See  Knight  v.  I'ackard,  3 
McC.  71;  ilarmim  v.  Arthur,  1  Bail.  S3.  In 
Leech  v.  Kennedy,  3  Strob.  488,  it  was  ex- 
pressly decided  that  one  of  the  makers  of 
a  single  bill,  not  sued,  nor  liable,  as  prin- 
cii>al,  for  costs,   was  competent  to  prove  the 

*373 
signa*ture  of  another  maker  to  the  instru- 
ment ;    and  the  general  doctrine  is  recogniz- 
ed, that  a  surety,  in  a  joint  and  several  note 
or  bond,  as  he  is  not  liable  for  the  costs  of 


his  principal,  is  a  good  witness  for  plaintiff 
or  ilefen<lant,  in  a  separate  suit  against  the 
Iirincipal.  In  all  legal  incidents  that  case 
is  identical  with  the  one  before  us.  Granting 
that  this  diM-trine  may  be  doubtful  where 
there  is  no  release.  tDogan  v.  Ashby,  1  Strob. 
4.3.3,)  rules,  that  where  the  surety  in  a  single 
bill  releases  the  principal  maker  from  all 
liability,  this  will  render  the  principal  a  com- 
petent witness  for  the  surety.  The  assign- 
ment or  release  subsequently  executed,  which 
it  is  sui»i)o.sed  makes  John  Campbell  a  com- 
petent witness  here,  might  have  been  execut- 
ed on  the  trials  at  law.  I  know  of  no  pe- 
culiar facilities  in  this  Court  for  rendering 
witnesses  competent  through  releases  or  as- 
signments. The  rules  of  evidence  are  the 
same  in  both  Courts;  or  rather,  in  this  mat- 
ter, equity  follows  the  law. 

I  may  remark,  without  intending  to  imply 
that  this  w(mld  have  the  «»tTect  of  destroying 
his  competency  as  a  witness,  that  John 
Campbell  should  have  been  made  a  Piirty  to 
this  suit.  The  assignor  of  a  debt,  or  right, 
not  transferable  at  law,  must  be  a  party  to 
any  suit  in  e<iuity  respecting  it  by  the  as- 
signee. Cathcait  v.  Lewis,  1  Ves.  lun.  403; 
Walburn  v.  Ingilby,  1  M.  and  K.  61.  The 
device  of  procuring  an  assignment  from  a 
party  in  interest,  with  the  view  of  dropping 
him  as  a  party  to  the  record,  and  of  us- 
ing him  as  a  witness,  savors  too  strongly 
of  maintenance  to  deserve  encouragement. 
Strob.  Imj.  §  104S;  Hopkins  v.  Hopkins,  MS. 
[4  Strob.  I']q.  207,  .^3  Am.  Dec.  (MJ3]. 

It  is  superfluous  to  argue  that  the  fraud, 
which  is  the  ground  of  this  bill,  if  sustained 
by  proof,  would  have  been  available  as  a  de- 
fence to  the  suits  at  law. 

If  the  defendants  there  considered  their 
evidence  insuflicient  without  the  aid  of  dis- 
covery from  Briggs.  they  ought,  in  the  ex- 
ercise of  proper  diligence  and  attention  to 
their  interests,  to  have  made  a  more  timely 
application  to  this  Court.  If  a  defendant  has 
omitted"  to  file  a  bill  for  discovery  of  facts 
known  to  him  and  material  to  his  defence, 
and    has    suffered   the   case   to    go   to    trial 

*374 
♦without  adequate  proof  of  such  facts,  he 
cannot  afterwards  claim  an  injunction  or  a 
new  trial  from  a  Court  of  I^iuity ;  for  it 
was  his  own  folly  neither  to  have  prepared 
himself  with  such  proof,  nor  to  have  lileil  a 
bill  for  discovery  and  to  have  procured  a 
stay  of  the  trial  until  discovery.  Story  Eq. 
§  805 ;  Winthrop  et  al.  v.  Lane  et  al.  3  Des. 
324. 

In  the  just  and  satisfactory  administration 
of  law,  every  party  should  have  the  opportu- 
nity of  fairly  presenting  his  claim  or  defence 
for  adjudication  Ijefore  a  tribunal  of  com- 
petent authority;  but  when  he  has  once  had 
such  opportunity,  the  jieace  of  society,  the 
claims  of  other  litigants  to  the  attention  of 
the  Courts,  and  other  elements  of  policy, 
require  that  he  should  forbear  from  further 


151 


*374 


4  RICHARDSONS  EQUITY  REPORTS 


clamor.  From  the  inattention  of  parties, 
the  oversights  of  counsel,  the  infirmity  of 
Judges,  and  other  casualties,  exact  justice  is 
rarely  done  in  contested  cases ;  but  general 
justice  to  the  connnunity  demands  that  an 
end  should  be  put  to  litigation.  Courts  of 
Equity  will  not  interfere  after  a  verdict  at 
law,  where  the  case  in  equity  proceeds  upon 
a  defence  equally  available  at  law,  unless 
some  special  ground  of  relief  be  established, 
such  as  fraud  or  surprise,  or  manifest  injus- 
tice in  the  trial  at  law.  vStory's  Eq.  §  894.  '5, 
'6;  Maxwell  v.  Connor,  1  Hill  Eq.  22;  Gist  v. 
Davis,  2  Hill  Eq.  34(3  12!)  Am.  Dec.  89]; 
McDowall  V.  McDowall,  Bail.  E<].  330.  The 
negligence  or  mistakes  of  the  party  or  his 
counsel,  or  even  supposed  error  in  the  Court 
of  Law,  do  not  constitute  such  special  ground 
of  relief  here.  Ware  v.  Horwood,  14  \'es. 
30;  O'Keefe  v.  Rice,  Bail.  E(i.  180;  Max- 
well V.  Connor. 

I  am  of  oiiinion  that  the  plaintiffs  have 
not  made  a  case  entitling  them  to  be  twice 
heard;  and  that,  on  this  ground,  the  liil) 
nmst  be  dismissed. 

Having  attained  this  conclusion,  I  deem  it 
unnecessaiy  to  state  at  length  the  other  facts 
t.nd  pleadings  in  the  cause.  A  single  wit- 
ness, John  Cauqjbell,  testifies  to  a  case  of 
fraud,  on  the  part  of  Briggs,  in  the  bargain 
for  the  land.  The  answer  positively  denies 
the  fraud ;  and  upon  the  general  rule  the 
answer   must    stand   as   proved,    unless   cou- 

*375 
Iradicted  by  two  witnesses,  or  one  *witness 
with  such  circumstances  of  corroboration  as 
have  the  force  of  another  witness.  In  my 
judgment,  the  other  evidence  in  the  case 
rather  impairs  than  corroborates  John  Canqj- 
lieli's  testimony.  The  only  circumstance  of 
corroboration  relied  upon,  is  that  stated  by 
Dr.  John  W.  Canq-bell,  that  from  the  dilajn- 
dation  of  the  mill  and  the  appearances 
about  it,  Briggs  could  hardly  have  collected 
through  the  mill  a  small  bar  of  gold,  which, 
in  the  course  of  the  negotiation,  he  exhibited 
as  recently  obtained  from  the  L<jve  mine. 
This,  at  most,  raises  suspicion  where  the  proof 
should  be  clear.  Briggs  did  not  say  he  ob- 
tained the  bar  by  grinding,  and  possibly  may 
have  obtained  it  by  panning.  J.  Campbell 
is  contradicted,  in  various  particulars,  by 
other  witnesses,  although  he  seemed  to  be 
a  respectable  and  intelligent  per.son.  One 
fact  however,  Is,  of  itself,  conclusive,  where 
the  opposing  testimony  is  so  feeble.  The 
plaintiffs  purchased,  after  a  full  opportunity 
of  examining  the  mine,  and  after  testing  its 
(jualities  to  their  own  satisfaction,  and  with 
much  deliberation.  This  is  partly  admitted 
by  Campbell,  and  is  more  distinctly  proved 
by  Black  and  Whitesides.  Unless  the  evi- 
dence of  deceit  was  much  more  decisive,  it 
nuist  be  held  that  the  plaintiffs  purchased  on 
their  own  judgment. 

It  is  ordered  and  decreed  that  the  bill  be 
dismissed. 
152 


The  complainants  appealed,  on  the  follow- 
ing grounds: 

1.  That  the  trial  at  law  was  no  let  or 
bar  to  the  recovery  and  relief  sought  bj'  the 
complainants  in  a  Court  of  Eijuity. 

2.  That  the  testimony  showed  a  knowl- 
edge, in  defendant  Briggs,  that  the  Love 
mine  was  wm'thless,  and  that  he  falsely  rep- 
resented the  same,  in  divers  ways  to  com- 
plainants, to  be  a  good  and  valuable  mine, 
before  he  sold. 

Buchanan,   for  appellants. 
Thompson,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DT^XKIX.  Ch.  The  argument  of  this  ap- 
peal has  been  placed  mainly  upon  the  ground, 
that  John  Campbell  was  an  inconqietent  wit- 
ness  in   the  trial  at   law,    but   that    he  has 

*376 
become  competent  in  *this  case  in  conse- 
<iuence  of  having  paid  his  proportion  of  the 
judgment  recovered  against  t\w  complain- 
ants, and  of  having  "assigned  his  interest  in 
the  matter"  to  the  conqjlainants.  The  in- 
strument of  assignment  is  not  before  us; 
but  it  is  not  easy  to  perceive  what  right  of 
acti«m  he  could  have  against  the  defendant, 
Briggs.  who  had  never  inq)leaded  him.  This 
Court  deem  it.  however,  unnecessary  to  ex- 
press any  opinion,  as  to  the  conqietency  of 
John  Campbell  in  the  trial  at  law.  If  he 
were  competent,  it  was  the  duty  of  the  com- 
plainants to  have  proposed  him  as  n  witness, 
and  it  nuist  be  presumed  that  his  testimony 
would  have  been  received.  But.  assuming  for 
the  purposes  of  the  argument,  that  as  one  of 
the  principal  obligors  in  a  joint  and  several 
bill,  John  Campbell  was  inconqietent  to  testi- 
fy in  behalf  of  his  co-obligor,  why  might 
not  the  same  process  have  been  resorted  to 
for  restoring  his  competency,  which  has  been 
since  adopted,  or  why  was  he  not  rendered 
conqjetent  by  a  release  from  his  co-obligor? 
It  is  said,  and  truly  said,  he  was  not  bound 
to  release  him.  But,  if  a  witness  is  called 
to  the  stand,  and  successfully  objected  to, 
on  the  ground  of  interest,  which  he  declines 
to  release,  is  it  any  ground  for  a  bill  in 
equity  on  the  part  of  the  unsuccessful  liti- 
gant, in  behalf  of  whom  he  was  called,  that 
he  has  since  paid  the  witness  his  debt,  and 
thus  extinguished  his  interest,  and  desires 
the  benefit  of  another  hearing  with  this 
additional  evidence?  Or,  would  it  make  any 
difference  that  the  witness,  rejected  as  in- 
competent at  the  trial,  had,  after  the  trial, 
voluntarily  released  his  interest,  and  there- 
by rendered  himself  competent  to  testify  on 
another  hearing  of  the  cause?  If  the  prin- 
ciple were  recognized  it  is  easy  to  conceive, 
that  a  party  would  rarely  want  the  advan- 
tage of  a  trial  in  chanceiT,  not  in  conse- 
quence of  newly  discovered,  but  newly  creat- 
ed, testimony. 

Nor  is  this,  perhaps,  the  strength  of  the 


HAY  V.  IIAY 


•379 


olM'i'ctioii  to  the  foinplainants'  proeof^ding:. 
Suitstaiirially  they  seek  to  recover  hack  not 
only  what  Miey  have  themselves  paid,  hut,  as 
assisnees,  wliat  lias  lieen  paid  hy  Jnlm  Cami)- 
lipll  and  the  other  <•<>-( >1  ill ir.>r.  John  Caiiii)- 
Itell   was  not  only  a   in-incipal   in   llic  oldi^'a- 

*377 
tion.  hut  the  chief  *actor  in  tho  transaction. 
He   so    refiarded   himself,   and   either   volun- 
tarily or  involuntarily  paid  his  ]»roportion  of 
the  judjL'ment.   and  then   assigned,   what   he 
rails   his  interest  in  the  matter,   to  the  de- 
fendant.s  in  the  suit,  his  co-obligors,  who  are 
the   complainants   in   this   hill.      Why   miylit 
not    the   defendants    in    the   jtulfiment,    with 
equal     i)ropriety.    after    Judum.Mit     rendered 
and  payment  by  them,  a.ssi;:n  their  interest 
to    a    stranger,    without    consideration,    and 
thus  enable  him  to  maintain  a  hill  to  be  sus- 
tained by  the  evidence  of  his  assignors?     So 
far  iis  the  <(>miilainants  seek  to  recover  the 
sum.s    paid    by    John    Camplxdl    and   D.    :Mc- 
Dowell,   the  principle   is   direetly   analogous. 
The  argument  is,  that  they  had  an  interest 
to  recover  back   the   money   paid   in   conse- 
quence of  an  erroneous  \erdicr.     They   vol-  \ 
untarily    assign    that   interest,    and    thereby  j 
qualify   theuLselves    to    testify    in    behalf   of 
their   assignee,    an.d   the    Court    is    asked   to 
entertain  the  bill,  because,  in  the  .suit  at  law,  | 
being  parties  to  the  record  and  directly  in- 
terested, the   assignors  of  the  coniplainants 
were    incompetent    to    testify.      The    Chief 
Baron  of  the  Exchequei-,  in  the  recent  case 
of  Welch  v.  Faucett,  (25tli  Feb.  1S52.)  adverts 
to  some  of  the  inconveniences  of  the  late  Act 
of  Parliament  authorizing  the  admission  of 
parties    as    witnes.ses,    and    says,    that    "the 
change    will    necessarily    lead    to    increased 
litigation:"     and    that    "cases    will    now    be 
brought  into  Court  which  would  never  have 
been  thought  of,"  and  reconnnends  that  the 
operation  i>f  the  statute  of  frauds  and  per- 
juries should  be  extended.     But  to  sanction 
a  bill  of  this  character,  would  not  only  in- 
crease   and    protract    litigation,    but    would 
stimulate  an  angry  and   unsuccessful  suitor 
at  law,  by  assigning  his  interest,  to  set  on 
foot  a  new  proceeding,  in  which  he  could  tell 
his  own  tale  and  his  adversary  be  indieard. 
It  .seems  enough  that  the  diligent  researches 
of  the  complainat-its'  coun.sel  have  furnished 
no  precedent  for  these  proceedings. 

But.  in  the  trial  at  law,  the  complainants 
resisted  the  recovery,  on  the  ground  of  fraud 
and  misrepresention  on  tin'  part  of  the  de- 
fendant. Briggs.  On  the  evidence  submitted, 
the  jury  riuidered  a  verdict  for  the  plaintilf 

♦378 
in  the  suit.  In  this  Court  the  com*plainants 
luive  had  the  advantage  of  the  defendant's 
answer,  and  al.so  of  the  evidence  of  John 
Campbell,  and,  up<m  the  (lue.stion  of  frautl 
and  misrepri'sentation,  the  ChancelUu-  has 
nrrived  at  the  same  conclusion  with  the  jury. 
1  luler  the.se  circumstances,  it  would  re<piire 


an  extraordinary  ca.se  of  misapprehension 
to  warrant  the  interference  of  this  Court; 
l»ut,  upon  a  review  of  the  evidence,  we  are 
well  .^.atistied  with  the  conclusions  of  the 
Chancellor  and  of  the  jury. 

The  decree  is  alHrmed,  and  the  appeal  di.s- 
nnssed. 

JOirXSTOX,    1».\K(;ax   and    NVAIIDLAW, 
CC.,  concurred. 
Appeal   <lisnnssed. 


4    Rich.  Eq.   378 

ciiabm:.^  c.  hav  v.  frkdekkk  j.  hay, 

Jr..  ct  al. 
(Columbia.     May  Term,  1852.) 
[Wilh  <s=>(]12.1 

T.'stator  (Icvisfd  and  bequeathed  his  estate, 
real  and  p.Tsonal.  "to  his  daughter  S.  B..  and 
the  heirs  of  her  lu.dy.  provided  if  mv  said  daugh- 
ter should  h,i|)i>on  to  die  without  liviiiR  issue  of 
her  body,  then,  and  in  that  case,  all  my  said  es- 
tate, both  personal  and  real,  to  return  to  the 
neare.st  heirs  of  my  body  by  mv  mother's  line- 
age: Jlcid  that,  in  the  personaltv,  S.  B.  took 
an  al)Solute  estate,  and  there  was  no  valid  limj/. 
tation  to  her  issue  as  i)uichasers. 

r^'^^ol^/^^*'*''-""^''**'^  ^"^  Simons  v.  Brvce.  10  S. 
<^.  .^(j6;  Renwick  v.  Smith,  11  S  C  ,3(X>- 
Gadsden  v.  Desportes.  .'59  S.  C.  l.'}2.  144  17 
T^V  -V.  ""^''  P<?i'son  V.  Fort,  G4  S.  C.  508,  42  S 
E.  ;j!)4. 

For  other  cases,  see  Wills,  Cent.  Dij:.  S  1387* 
Dee.  Dig.  (©=3(312.]  -    »         •  . 


I'pon  the  question  ordered  to  be  re-argued, 
(see  :i  Rich.  Ec].  ^84)  to  wit,  whether,  as  to 
the  personal  estate  of  the  testator,  Charles 
J.  Brown,  there  was  a  valid  liniiration  to  the 
issue  of  his  daughter.  Mrs.  Ihiy,  as  purchas- 
ers, this  cause  was  again  heard. 

J.  T.  Aldrich,  for  Harriet  Ford  Hay,  con- 
tended, lirst,  that  thi-  limitation  over,  to  the 
"nearest  heirs  of  my  body  by  my  mother's 
lineage"  was  not  void  for  uncertainty;  that 
it  was  manifest  the  testator  intended  to  lim- 
it the  estate  over  to  his  next  of  kin  in  the 
nniternal  line;  that  the  Court  had  only  to 
substitute  self  for  bodj-,  and  the  sentence 
would  then  read  thus,  to  the  "nearest  heirs 
of  myself  by  my  mother's  lineage:"     and  he 

♦379 
cited,  1  Jarm.  on  Wills,  *442;  Craik  v.  I^imb, 
28  Eng.  Ch.  Rep.  4.S9:  Secondly,  That  the 
words  "die  without  living  issue"  were  e<iuiva- 
lent  to  "die  without  leaving  issue,"  or  "die 
without  surviving  issue;"  and  cited  2  Jarm. 
on  Wills,  ;{2S:  Butler's  Fearne,  470.  .'50.5,  418, 
420,  4:50.  Thirdly,  assuming  that  the  limita- 
tion over  "to  the  nearest  heirs"  dei)ended 
on  a  contingency  which  was  not  too  remote; 
and  a.ssuming  al.so.  that  the  limitation  over 
was  void  for  uncertainty,  still  he  contended 
that  Mrs.  Hay.  the  daughter,  took  only  a 
life  estate  and  that  her  i.ssue  took  as  purchas- 
ers;  and  he  cited  and  commented  on  Forth 
V.  Chapman,  1  P.  Wms.  6(X!:  Fearne.  4,S8; 
Henry   &   Talbird   v.   Archer.    Bail.    lOq.   5.';5  J 


€=>For  other  cases  see  same  topic  and  KEY-NUMHEH  iu  all  Key-Numbered  Digests  and  Indexes 


153 


79 


4  RICHARDSON'S  EQUITY  REPORTS 


Powell  V.  Brown,  1  Bail.  103;  Knight  v.  El- 
lis, 2  Bro.  C.  C.  578 ;  Carr  v.  Porter,  1  McC. 
Ch.  60;  Reed  v.  Snell,  2  Atk.  642;  Fearne, 
487 ;  Lainpley  v.  Blower,  3  Atk.  390 ;  Leni- 
aeks  V.  Glover,  1  Rich.  Eq.  141;  Thebridge 
V.  Kilbiirne,  2  Yes.  283;  ChaiuUess  v.  Price, 
3  Yes.  301 ;  Butterfield  v.  Butterfield,  1  Yes. 
133;  Wilkeison  v.  South,  7  T.  R.  551; 
Guerry  v.  Yernon,  1  N.  &  McC.  71;  Butler's 
Fearne,  471,  et  seq. ;  Shearman  v.  Angel, 
Bail.  Eq.  351;  Brown  v.  Geiger,  4  M'C. 
427;  Fearne,  533;  Dougherty  v.  Dougherty, 
2  Strob.  Eq.  63;  PuUiam  v.  Byrd,  2  Strob. 
Eq.  134;  Lyon  v.  Mitchell,  1  Madd.  475; 
Jackson  v.  Noble,  2  Keen,  590;  Joslin  v. 
Hammond,  3  M.  &  K.  110. 

Bellinger,  contra. 

The  judgment  of  the  C(jurt  was  announced 
by 

DARGAN,  Ch.  Tha  judgment  of  the  Court 
in  this  case  turns  upon  the  construction  of 
Charles  J.  Brown's  will.  The  language  of 
the  betiuest  in  question  is  as  follows :  "I 
give  and  be<iueath  to  my  loving  daughter, 
Susan  Cynthia  Brown,  and  the  heirs  of  her 
body,  all  my  wdrdly  estate,  both  real  and 
personal ;  provided,  if  my  said  daughter, 
Susan  Cynthia  Brown,  should  happen  to  die 
without  living  issue  of  her  body,  then  and 
in  that  case  all  my  said  estate,  both  person- 
al and  real,  to  return  to  the  nearest  heirs  of 
my  body  by  my  mother's  lineage." 

The  Chancellor  who  heard  this  cause  on 
*380 
circuit,  held,  that  as  *to  the  real  estate,  the 
will  created  a  fee  conditional :  and  that  part 
of  the  circuit  decree  has  heretofore  been  af- 
firmed by  this  Court.  He  also  held,  that 
Susan  Cynthia  Brown  took,  under  the  above 
recited  bequest  of  the  will,  an  absoluti 
tate  in  the  personal  property.  A  majt. 
of  the  Court  concurs,  also,  in  this  part  of 
the  circuit  decree,  but  a  majority  does  not 
concur  in  all  the  reasoning  by  which  the 
Chancellor  has  arrived  at  his  conclusion. 
The  Chancellor  says:  "if  the  word  'living' 
were  omitted,  and  the  limitation  over  had 
been  upon  Susan's  dying  without  issue,  it 
admits  of  no  doubt,  that  this  would  not  have 
been  a  limitation  over  to  tttke  effect  definite- 
ly at  Susan's  death,  but  at  any  time  after  her 
deal..,  however  remote ;  that  is,  as  the  cases 
have  ruled,  upon  an  indefinite  failure  of  is- 
sue." This  is  unexceptionable.  Thus  far, 
the  reasoning  Is  satisfactory,  and  the  prin- 
ciple well  illustrated.  But  when  the  Chancel- 
lor proceeds  to  say,  that  the  word  ,  'living' 
prefixed  to  the  word  'issue'  affords  no  quali- 
fication, and  that  the  words  "if  she  should 
happen  to  die  without  living  issue  of  her 
body,"  are  not  restrictive,  and  mean  no  more 
than  if  the  testator  had  said,  "if  she  .should 
happen  to  die  without  issue  of  her  body,"  a 
majority  of  the  Court  dissents.  We  are  of 
the  opinion  that  the  expression,  "if  she 
should  happen  to  die  without  living  issue  of 

154 


her  body,"  then  over,  is  equivalent  to  the 
words,  "if  she  should  die  without  leaving 
issue"  or  "without  issue  living  at  her  death ;" 
l)oth  of  which  forms  of  expression,  when 
there  is  a  gift  to  the  issue  (though  in  gener- 
al words)  in  the  direct  bequest,  with  a  limi- 
tation over,  have  been  held,  in  numerous 
cases,  to  be  restrictive.  As  for  example: 
where  there  is  a  direct  gift  to  the  issue  in 
general  words,  which,  standing  by  them- 
selves, and  unaided  by  the  context,  would 
fail  as  a  limitation  to  the  issue  as  purchas- 
ers, yet  if  it  be  followed  by  an  ulterior  and 
valid  limitation  over  to  take  effect  in  the 
event  of  the  first  taker's  dying  without  leav- 
ing issue,  or  without  issue  living  at  his  death, 
it  is  settled  law,  that  such  explanatory  pro- 
vision.s  of  the  will  ha^'e  the  effect  in  reference 
to  personal  estate  of  restricting  the  primary 
and  technical  sense  of  the  words,  "heirs  of 

*381 
the  body"  or  "issue,"  so  as  to  make  *them 
mean,  not  the  issue  or  heirs  of  the  body  in 
indefinite  succession,  but  a  class  of  persons 
who  shall  be  living  at  the  death  of  the  first 
taker.  By  this  construction  without  violat- 
ing the  rules  of  law  against  perpetuities,  the 
issue  take,  as  purch  sers,  under  the  words  of 
the  direct,  but  otherwise  general  and  indefi- 
nite gift.  I  am  unable  to  distinguish  between 
the  cases  by  which  the  foregoing  rule  has 
been  established  and  that  now  before  the 
Court.  I  think  that  the  expression  "dying 
withimt  living  issue,"  implies  a  dying  with- 
out issue  living  at  the  death  of  the  first  tak- 
er— and  such  is  the  opinion  of  a  majority  of 
this  Court.  So  that  the  failure  of  Susan 
Cynthia  Brown's  issue  to  take  as  purchasers 
will  not  result  from  that  part  of  the  will. 

But  there  is  another  question  arising  up- 
on the  construction  of  Charles  J.  Brown's 
will,  which  divides  and  embarrasses  this 
Court.  The  limitation  over  which  the  testa- 
tor has  attempted  to  create,  is  to  the  nearest 
heirs  of  his  body  of  his  mother's  lineage.  It 
is  imix)ssible  to  designate  the  persons  em- 
braced under  this  description.  It  is  utterly 
unmeaning.  So  far  as  certainty  is  concern- 
ed he  might  as  well  have  given  the  estate 
to  the  most  virtuous  man  in  the  State,  or 
to  some  imaginary  personage.  The  limita- 
tion over  is  void  for  uncertainty.  And  the 
question  which  remains  is,  whether  this  ul- 
terior and  void  limitation  is  sufficient  to  re- 
flect back  such  a  restrictive  meaning  upon 
the  general  woi-ds  of  the  direct  gift  to  the 
issue  as  to  make  them  take  as  purchasers. 
Upon  this  question,  after  two  arguments  at 
the  bar,  and  much  deliberation  and  research, 
the  Court  has  been  unable  to  harmonize  in 
opinion.  And  if  the  adjudication  of  the  case 
depended  upon  a  decision  of  this  question, 
there  could  be  no  disposition  of  it,  by  this 
Court,  on  account  of  differences  of  opinion. 

For  myself,  I  think,  that  the  will  must  be 
read  and  construed  as  if  the  void  limitation 
over  had  not  been  inserted.     I  have  hereto- 


II  A  V    V.  I!.\Y 


*C84 


fore  liptii  (if  the  oitinion,  that  it  must  l)e  a 
valiil  liniitiitiiiii  over,  to  have  tlie  effect  of 
<n:iilif\  iii«  tlie  freiierality  of  the  words  of 
tlic  direct  fiift  ti)  the  issue,  so  as  to  uialie 
tluMH  take  as  purcliasers.  And  I  liave  heard 
iintliiiif;   ill   tlie   recent   discussions    upon    tlie 

♦382 
.sul>*ject,  nor  have  I  heen  aide  to  lind  auy  iu 
the  way  of  authority,  to  shake  uiy  previous 
iipiiiiiiii. 

A  ii'itt  to  A.,  and  if  A.  should  die  without 
issue  living  at  the  time  of  his  tleath,  then 
to  U.  is  un<iuestiiiiialdy  a  good  limitation 
to  B..  if  the  contingency  hai)iH'ns  upon  which 
he  was  to  take.  And  if  it  does  not  liai»pen 
A.  retains  an  alisolute  estate.  In  this  case 
the  issue  of  A.  do  not  take  as  purchasers, 
because  nothing  is  intended  to  be  granted  to 
them  iu  the  words  of  the  direct  gift.  Their 
i'xisteiice  or  non-existence  at  the  death  of  A., 
like  auy  other  contingent  event,  is  simply 
made  the  condition  uiion  which  the  reniain- 
<ler  to  H.  depends. 

A  gift  to  A.  and  to  iiis  issue,  or  the  heirs 
of  his  body,  and  if  he  should  die  without 
leaving  issue  or  heirs  of  his  body,  then  to  B. 
is  a  go<Ml  liuiitation  to  B.  as  in  the  preced- 
ing illustration  ;  and  will  take  effect  if  A. 
should  die  without  leaving  issue,  or  heirs 
of  his  body.  But  iu  this  case,  the  testator 
intends  a  direct  gift,  though  in  general  and 
in  definite  terms,  to  the  is.sue  of  A.,  and  A. 
will  take  only  a  life  estate,  and  his  issue 
"Will  take  in  remainder  as  purchasers.  The 
valid  limitation  over  to  B.  has.  by  a  fair 
con.structiou,  tiie  effect  of  tiualifying  the  gen- 
erality of  the  words  of  the  direct  gift  to  the 
issue  of  A.,  so  as  to  make  them  mean  the 
issue  of  A.  living  at  his  death. 

It  is  equally  clear  that  a  gift  to  A.  and 
the  issue  or  heirs  of  his  body,  without  any 
limitation  over,  or  other  words  indicatiug 
that  the  testator  meant  to  embrace  in  the 
direct  gift  only  the  issue  of  A.,  who  should 
be  living  at  his  death,  confers  upon  A.  an 
absolute  e.state.  Iu  other  terms,  '•issue,''  or 
"heirs  of  the  body,"  unrestricted  and  unex- 
plained, are  words  of  limitation  and  not  of 
purchase.  So  far  there  cannot  possibly  be 
any  difference  of  opinion. 

But  some  of  the  members  of  this  Court  are 
of  the  opinion,  that  in  the  case  of  Charles 
J.  Brown's  will,  the  abortive  attemiit  to  cre- 
ate tiu>  limitation  ovi-r,  has  the  effect  of  cut- 
ting (btwn  the  estat«'  of  Susan  Cynthia  Brown 
to  a  life  estate,  with  remainder  in  fee  to  the 
children.    Other  members  of  the  Court  think 

•383 
that  the  ♦estate  of  Susan  Cynthia  Brown, 
absolute  liy  the  words  of  the  direct  gift,  is 
not  to  l»e  cut  down  to  a  life  estate,  by  a  limi- 
tation over,  which  was  void  by  its  own  in- 
herent defects.  The  last  is  my  own  opinion, 
as  1    have  already  intimated. 

The  whole  argument  on  the  other  side  i»ro- 
teeds  upon  the  unf(»uiided  assumption,  that 
iiu  interest  is  given  to  the  issue  of  the  first 


taken  by  the  terms  of  the  direct  gift.  This 
is  a  great  mistake.  The  i.ssue  are  mention- 
ed in  the  clause  of  the  direct  gift,  but  not 
in  a  manner  to  give  them  an  estate.  The 
whole  estate,  a<'cordiiig  to  the  rules  of  law, 
is  in  the  first  instance  given  as  ab.solutely 
to  Susan  Cynthia  Brown  as  the  forms  of 
language  admit  of.  This  will  not  be  dis- 
liuted. 

Is  this  absolute  gift  to  be  divested  or  cut 
down  by  an  ineffectual  limitation  over? 
The  case  of  Henry  &  Talbird  v.  Archer,  Bail. 
E<1.  ~>'.\~>,  decides,  that  a  good  limitation  over 
may  reflect  a  restrictive  meaning  uikju  the 
geiH'ral  words  of  the  direct  gift,  and  so  qual- 
ify the  word  "issue"  in  the  direct  gift  as  to 
make  it  mean  issue  living  at  the  death  of 
the  first  taker.  But  is  there  any  authority 
for  saying  that  a  bad  limitation  over  will 
have  that  effect?  The  authorities  are  the 
other  way. 

"An  original  vested  gift  shall  not  be  qual- 
itiiMl  by  a  subsetiuent  gift  engrafted  on  it, 
which  the  law  will  not  allow  to  take  effect, 
as  by  a  gift  over  which  is  void,  by  reason  of 
its  being  too  remote."  2  Wins,  on  Ex'ors. 
1087;  Blease  v.  Burgh,  2  Beav.  L'Jl ;  Ring 
V.  Hardwick,  2  Beav.  :i'y2.  "And  the  rule  is 
general,  that  an  absolute  interest  is  not  to 
be  taken  away  by  a  gift  over,  unless  the 
gift  over  may  it.self  take  effe<t."  2  Wms. 
on  Ex'ors.  10S7;  Green  v.  Harvey,  1  Hare, 
42S;  Winckworth  v.  Winckwortli,  2  Beav. 
576;    Eato'n  v.  Barker,  2  Coll.   124. 

In  Jackson  v.  Noble,  2  Keen,  5U0,  the  tes- 
tator gave  real  and  personal  property  to 
his  daughter  A.  and  two  other  perstms,  in 
trust,  to  permit  A.  to  receive  the  rents  and 
profits  for  life  to  her  separate  use,  and  after 
her  decease  in  trust  to  convi'y  the  estate  to 
A's.  heirs,  executors,  &c. ;  but  in  case  A. 
should  marry  and  have  no  children,  then  the 
testator  gave  the  property  to  B. ;    or  in  case 

•384 
•of  his  decease  before  A.,  then  to  B's.  chil- 
dren. The  testator's  daughter  married,  but 
had  no  children ;  and  B.  died  in  her  life 
without  issue.  The  Master  of  the  Uolls  held 
that  the  testator's  daughter.  A.,  took  au  ab- 
solute equitable  estate,  with  an  executory 
gift  over  to  B.  and  his  children ;  and  that 
B.  having  died  without  children  in  the  life 
time  of  A.,  the  alisohite  title  of  the  latter  re- 
mained  undefeated. 

Mr.  Jarman,  (1st  vol.  on  Wills,  78.'J,)  iu 
coninu>nting  on  this  case,  says,  "so  if  the 
executory  devise  were  void  on  account  of  its 
remoteness,  or  for  any  other  cause,  the  prior 
devise  would  be  absolute."  He  proceeds  to 
say.  "On  the  same  principle,  it  would  .seem 
to  follow,  that,  if  personal  estate  were  be- 
queathed in  terms  which,  standing  alone, 
would  confer  the  absolute  interest,  and  there 
followed  a  betiuest  over  iu  a  certain  eveut  to 
a  person  for  life,  the  first  legatee  would, 
(subject  to  such  executory  gift  for  life,)  be 
absolutely   eutitlcd.     It  might  appear  to  be 

155 


<r/4 


4  RICHARD  SON'S  EQUITY  REPORTS 


a  farther  cleduetion  from  this  doctrine,  that 
if  the  second  gift  were  a  contingent  benuest 
of  the  entire  interest  in  the  property,  and 
not  for  life  only  and  such  contingent  and 
substituted  bequest  failed  in  event,  the  prior 
legacy,  in  derogation  of  which  the  same  was 
to  take  effect,  would  remain  absolute." 

Thus  it  appears  to  be  a  doctrine  well-sus- 
tained by  the  authorities,  that  where  the 
words  of  the  direct  gift  would  confer  on  the 
first  taker  an  absolute  estate,  such  absolute 
estate  is  not  to  be  cut  down  or  defeated,  by 
a  subsequent  contingent  limitation  over, 
which  is  ineffectual.  This  was  clearly  Chan- 
cellor Harper's  opinion.  For  in  Henry  & 
Talbird  v.  Archer,  (Bail.  Eq.  550)  he  re- 
marks; "I  believe  it  may  be  safely  said, 
that  there  is  no  adjudged  case,  except  that 
of  Lyon  v.  Mitchell,  of  sucli  limitation  to  is- 
sue, in  which,  the  questions  of  the  first  tak- 
er's being  restricted  to  less  than  an  abso- 
lute estate,  and  the  goodness  of  the  limita- 
tion over,  were  not  regarded  as  identical." 
And  I  may  conclude  these  observations  by 
saying,  that,  in  all  the  discussions  which 
we  have  had,  at  the  bar,  and  in  the  consulta- 
tion room,  no  case  has  been  presented,  where 
the  absolute  estate  given  to  the  first  taker 

*385 
by  the   *words  of  the  direct   gift,  has  been 
cut  down  or  restricted  to  a  life-estate,  by  a 
limitation    over,    which    was    bad    for    any 
cause. 

A  majority  of  the  Court,  though  upon  dif- 
ferent grounds,  concur  in  the  opinion,  that 
the  issue  of  Susan  Cynthia  Brown,  (after- 
wards Susan  Cynthia  Hay,)  do  not  take  as 
purchasers  under  the  bequests  of  Charles  J. 
Brown's  will. 

The  circuit  decree  is  in  that  respect  af- 
firmed, and  the  api^eal  from  that  part  of  the 
circuit  decree  is  dismissed. 

WARDLAW,  Ch.,  concurred. 

JOHNSTON,  Cli.  Upon  the  point  on  which 
the  Court  is  now  to  give  judgment,  I  am 
still  of  the  same  opinion  which  I  expressed 
in  the  decree. 

I  am  not  sufficiently  Satisfied  with  the 
ground  upon  which  my  Brethren  DARGAN 
and  WARDLAW  have  put  the  case,  to  adopt 
their  opinion,  at  present. 

I  do  not  perceive  the  force  of  the  objec- 
tions made  to  the  view  I  expressed  in  the 
decree,  that  the  word  '-living"  does  not  add 
to,  or  vary,  the  meaning  of  the  word  "issue" 
to  which  it  is  prefixed.  It  is  merely  super- 
fluous,— as  are  the  words  following, — "of 
her  body."  Instances  of  such  superfluous 
language  are  very  connuon  in  the  cases,  and 
wherever  they  occur,  do  not  vary  the  deci- 
sion which  would  have  been  made  had  they 
been  wanting. 

If  the  testator  had  made  the  limitation 
over  to  take  effect  if  liis  daughter  Susan 
should  happen  to  "die  without  issue  of  her 

156 


body" — his  meaning  would  certainly  have 
been  without  issue  alive,  or  living.  The  ad- 
dition of  the  words  alive  or  living  would 
have  served  no  purpose  whatever.  They 
would  not  have  served  to  fix  the  time  at 
which  the  limitation  over  is  to  take  effect 
— which  is  the  important,  and,  indeed,  the 
only  point  of  our  inquiry  here. 

It  is  assumed  here,  that  the  word  "living" 
means  living  at  her  death:  but  I  conceive 
it  has  no  such  meaning. 

The  reference,  by  one  of  my  brethren,  to 
the  case  of  Henry  &  Talbird  v.  Archer,  is, 
in  my  conception,  very  unfortunate :  and 
does  not  serve  to  destroy,  but  rather  to  eluci- 

*386 

date  the  principle  upon  *which  the  circuit 
decree,  in  this  case,  is  put.  The  will,  in  that 
case,  is,  that,  if  either  of  the  daughters 
should  die  without  leaving  issue  alive,  then 
over.  It  was  not  the  word  "alive"  (equiva- 
lent to  "living,"  in  the  present  case),  that 
fixed  the  juncture  for  the  limitation  over  to 
take  effect:  nor  did  the  Court  give  it  any 
such  effect.  The  time  was  fixed  solely  by  the 
word  "leaving." 

In  this  case  tliere  is  no  such  word,  nor 
any  other  word  of  the  same  eflicacy. 

There  is  not  a  single  word  of  time  in  the 
sentence  of  Bi'own's  will  under  examination. 
Die  without  issue,  by  well-settled  rules,  means 
an  indefinite  failure  of  issue:  refers  to  no 
time  when,  after  the  death  of  the  party,  he 
shall  be  without  issue — meaning  always 
issue  alive  or  living.  And  unless  there  be 
something  in  the  will  besides,  to  fix  the  time, 
at  the  death  of  the  party,  it  is  too  remote 
and  indefinite. 

But,  as  my  Brethren,  DARGAN  and 
WARDLAW,  come  to  the  same  result  with 
me,  I  concur  with  them  in  affirming  the  de- 
cree, and  dismissing  the  appeal. 

DUNKIN,  Ch.  dissenting.  A  majority  of 
this  Court  are  of  opinion  (and  I  concur  with 
them)  that  the  words  "die  without  living 
issue  of  her  body"  are  eciuivalent  to  "die 
without  leaving  issue  of  her  body  alive  at 
her  decease."  Judicially  read,  it  is  a  be- 
quest to  the  testator's  daughter,  Susan  Cyn- 
thia Brown,  and  the  heirs  of  her  bod.y,  liut 
"if  my  said  daughter  should  happen  to  die 
without  leaving  issue  of  her  body  alive  at 
the  time  of  her  decease,  then  and  in  that 
case"  over.  Certainly,  since  Henry  &  Tal- 
bird V.  Archer,  (Bail.  Eq.  535,)  I  think  it 
has  not  been  questioned  that  the  effect  of 
these  subsequent  words  is  to  restrict  the 
generality  of  the  previous  expression,  and  to 
create  a  life  estate  in  the  first  taker,  and 
enable  the  children  to  take  as  purchasers. 
The  bequest  in  Henry  &  Talbird  v.  Archer, 
was  to  the  testator's  daughter,  "to  her  and 
the  lawful  issue  of  her  body  forever,"  but 
if  any  of  his  daughters  should  dl"  '  ^r^thout 
leaving    lawful    issue    of    their   l^^-T    alive," 


HAY  V.  HAY 


*389 


tlu'ii  their  part  to  lio  (Hiually  divided  among  |  Is  to  return  to  the  nearest  heirs  of  testator's 

th''  surviving  childn'ii.  IkmI.v   by   his   mother's   lineage."      It   is   said 

*3g7  1  that  tliis  contingent  limitation  over  is  void 

•The  daughter  die.l   leaving  children,  and  !  for  uncertainty,  as  the  Court  would  he  unable 

tliev   were  held  entitled  to  take  as  purchas-    <"  «»>'  «»»•  '^■^^^''  tl>^'  nearest   heirs  of  testa- 

.^^.jj^,j.p    tor  s  body   by   his   mothers   lineage;    and  in 
what  remains  to  be  ^•■id  tliat  will  lie  assum- 
ed.     But    what   is   the   conseiiuenee   deduced 
'  from  itV    Does  this  uncertainty  as  to  the  ul- 
tim.'ite  and  contingent  oiijiM/t  of  the  testator's 


ers :  and  upon  the  principle,  that 
there  is  an  exjtress  gift  to  issue  generally, 
;i  limitation  over,  in  the  event  of  the  first 
laker's  dying  without  leaving  issue  living 
at  his  death,  will  conline  the  gift  to  such  is- 
sue as  are  living  at  that  time,  and  entitle 
I  hem  to  take  as  purchasers."  Wh(>re  the  be- 
quest is  to  one  and  his  issue,  or  the  heirs 
of  his  body,  without  more,  the  law  gives  an 
absolute  estate,  not  because  the  testator  in- 
tende<1  to  give  an  absolute  estate,  but  liecause 
Lc  intended  to  give  an  estate  restricted  indef- 
initely in  lineal  s\iccession  whicli  the  law 
does  not  pernut.  lint  if  there  are  superadded 
words  which  manifest  thai  the  testator  did 
not  contemplate  such  iiuletiiiite  lineal  succes- 
sion, the  Court  lays  hold  of  such  words  in 
order  to  give  effect  to  the  intention. — The 
circumstance  of  limiting  the  proi)erty  over, 
on  the  event  of  not  leaving  issue  has  been 
held,  in  a  large  class  of  cases,  sufficient  to 
show  the  testator's  intention  tt>  use  the  word 
issue,  or  heirs  of  thi>  body,  not  as  a  word  of 
limitation,  but  of  purchase.  The  authority  of 
Henry  &  Talbird  v.  Archer  has  been  repeat- 
edly recognized,  and  may  now  well  be  re- 
garded as  a  rule  of  i)roperty.  nor  is  the  obli- 
gation of  that  decision  now  called  in  ques- 
tion. In  the  will  before  us,  the  intention  of 
the  testator  to  restrict  the  meaning  of  the 


bounty,  in  an  event  which  has  never  occur- 
red, create  the  smallest  uncertainty  as  to 
the  obj«»cts  of  his  bounty,  in  the  event  which 
has  occurred'^  I)o«^s  it  create  ai  suspicion  that 
he  contemplated  an  indefinite  lineal  succes- 
sion, and  that  he  did  not  restrict  his  vision 
to  the  period  of  his  daughter's  <leatli,  and  tlie 
state  of  things  then  existing'/  Not  at  all. 
Nothing  is  more  hazardous  than  to  take  up  a 
general  expression  without  reference  to  the 
context,  and  apply  it  indiscriminately.  In 
Henry  &  Talbird  v.  .Vnher.  Chancellor  Har- 
per is  sjieaking  of  the  validity  of  the  gift  over 
in  reference  to  the  previous  gift.  Imt  he  nev- 
er meant  to  say,  that  because  the  contin- 
gent limitation  over  is  void  for  uncertainty 
or  illegality,  the  previous  estate,  well  given, 
is  thereby  defeated.  All  the  authorities 
maintain  a  cimtrary  doctrine.  "A  gift  over," 
says  Ivord  Langdale  in  Blea.se  v.  Burgh.  2 
Beav.  221,  "which  is  too  remote  and  void, 
cannot  defeat  a  vested  interest  previously 
given."  Does  it  make  any  difference  that  the 
gift  over  is.void  for  uncertainty  or  illegality, 
and  not  for  remoteness? — The  rule  is  recog- 


term  issue  to  the  children,  or  other  descend-  |  "ized  and  the  authority  cited  Ity  Mr.  Wil- 
liams in  his  treatise  on  Executors,  p.  lOSO. 
It  is  also  recognized  in  the  case  of  Dougher- 
ty V.  Dougherty,  2  Strob.  K<i.  07.  In  the  case 
before  us  there  is  a  direct  bequest  to  the 
daughter  and  the  heirs  of  her  luMly.  The  in- 
quiry, says  Mr.  Justice  Cheves,  in  Guery  v. 

*389 
•Vernon,  (1  N.  vS:  McC  71.)  is  •whether  tliese 
words,  issue,  heirs  of  the  body.  &c..  express 
an  indefinite  succession  of  persons,  or  wheth- 
er they  point  out  certain  p:irticular  persons 
who  may  exist,  and  must  take  within  a  period 
not  excluded  by  the  rules  of  law'/"  To  deter- 
mine this  inquiry  the  Court  is  permitted  to 
look  to  other  expressions  in  the  context,  and 
if  it  be  thence  ascertained  that  the  terms 
are  used  in  a  restrictive  sense,  then  the  heirs 
of  the  body  are  held  to  take  as  purchasers. 
Such  expressions  as  'dying  without  leavini: 
issue  alive  at  the  death  of  the  first  taker.' 
have  received  judicial  interpretation  as  so 
restricting  the  testator's  meaning.  And  the 
acknowledged  intention  of  the  testator,  thus 
violating  no  rule  of  law,  is  permitted  to  take 
effect,  and  the  gift  to  the  children  is  sustain- 
ed under  the  d»'scription  of  heirs  of  the  body. 
But  the  certainty  or  uncertainty  of  the  ob- 
jects described  in  the  contingent  limitation 
over,  sheds  no  light  upon  the  only  material 
inquiry,  and  affords  no  aid  to  the  Court  in 
solving  it.     If  the   bequest  were   to  A.   and 

157 


ants  of  his  daughter  living  at  her  death,  is 
manifested  by  language  nearly  identical  with 
that  of  Bell's  will.  The  daughter  left  chil- 
dren, who  are  parties  to  these  proceedings, 
and  who,  according  to  Henry  &  Talbird  v. 
Archer,  are  entitled  to  take  as  purcha.sers. 
under  the  will  of  their  grandfather. 

But  it  is  objected  that  the  children  are 
not  entitled,  because,  if  their  mother  had 
happened  to  leave  no  children,  the  terms  of 
the  ulterior  limitation  over  leave  it  uncer- 
tain to  whom,  in  that  event,  the  estate  would 
pass.  In  other  words  the  testator  has  clear- 
ly manifested  the  oiijects  of  his  bounty  if  ] 
his  daughter  left  children  alive,  and  she  has 
left  children,  but  he  has  not  been  so  fortunate 
in  designating  the  oiijects  of  his  bounty  in 
a  contingency  which  has  not  liajipened;  but 
this    Wiint    of  certainty   is   to  defeat   his   de- 

♦388 
•dared  purpose  in  the  event  which  has  hap- 
pened. Let  the  proposition  be  analyzed  with 
reference  to  this  case.  The  gift  is  to  th»'  tes- 
tator's daught«'r  and  the  heirs  of  her  body, 
which,  by  tlie  restrictive  words  subsiMpiently 
used,  would  be  (oiistrued  to  give  a  life  estate 
to  the  motlu'r  with  a  remainder  to  her  issue 
living  at  the  time  of  her  death.  Hut  the 
testator  furtlu-r  provided  that  if  his  daughter 
"should  happen  to  die  without  living  issue 
of  her  body,  then  and  in  that  ca.se  tlie  estate 


*3S9 


4  RICHARDSON'S  EQUITY  REPORTS 


the  issue  of  her  body,  but  if  she  should  die 
without  leaving  issue  of  her  body  alive  at 
lier  death,  then  and  in  that  event  to  the  wis- 
est man  in  England,  or  the  man  in  the  moon, 
or  to  the  testator's  faithful  slave  Adam, 
(void  under  A.  A.  1841.)  are  the  issue  living 
at  tlie  death  to  be  defeated,  because,  if  they 
did  not  exist,  the  contingent  limitation  would 
have  proved  illusory  or  impracticable?  If 
the  bequest  had  been  directly  to  the  daughter 
for  life,  and  afterwards  to  lier  issue  living 
at  the  time  of  her  death,  with  a  contingent 
limitation  in  default  of  such  issue,  would  it 
be  contended  that  children,  living  at  the 
death,  had  any  interest  in  the  inquiry  as  to 
this  contingent  limitation?  But  the  Court  so 
construe  the  bequest  now  under  considera- 
tion ;  and  yet  the  issue  of  the  daughter  liv- 
ing at  her  death  are  held  not  entitled,  be- 
cause it  is  impracticable  for  the  Court  to  de- 
termine who  would  have  taken  if  no  such  is- 
sue had  existed.  I  think  the  rights  of  the  chil- 
dren depend  on  no  such  inquiry,  but  that  they 
are  entitled  to  the  personalty  as  purchasers 
under  their  grandfather's  will. 
Appeal  dismissed. 


4  Rjch.  Eq.  *390 

*DANIEL  FOSTER  ct  al.   v.   D.   KERR  and 
W.   EDRINGTOX. 

(Columbia.     May  Term,  1852.) 

[Hushand  and  Wife  <®=3ll7.] 

15e(!iic.st  of  slaves  to  a  feme  covert  "to  her 
and  tlie  heirs  of  her  body,  aud  to  them  alone," 
does  not  confer  a  separate  estate  on  the  wife,  in 
exclusion  of  the  rights  of  her  husband. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  §  419;    Dec.  Dig.  (©=117.] 

Before  Wardlaw,  Ch.,  at  Fairfield,  July, 
1851. 

I'laintiffs,  children  of  Josiah  Foster  and 
I'inckey,  his  wife,  which  Pinckey  was  the  on- 
ly child  of  Z.  Hall,  filed  this  bill,  April,  1849, 
claiming  certain  slaves  as  enuring  to  them 
under  the  operation  of  tlie  will  of  their  said 
grand-father.  The  will  bore  date  February 
IS,  1826,  and  was  admitted  to  probate,  Febru- 
ary 20,  1830.  Its  fourth  clause  was  as  fol- 
lows: "I  give  unto  my  beloved  daughter, 
Pinckey  Foster,  to  her  and  the  heirs  of  her 
body,  and  to  them  alone,  the  following  tracts 
of  land,  &c., ;  also  seven  negroes  and  their 
increase,  namely:  Sal,  Anny,  Caroline,  Cyn- 
thia, Beck,  Jim,  Charity;  also  one  bed  and 
furniture  furnislied  equally  to  tlie  one  above 
mentioned." 

In  December,  183.3,  Josiah  Foster  sold  Sal 
aud  her  children,  born  since  the  death  of  tes- 
tator, to  wit:  Jerry,  Daniel  and  Buri-el,  to 
defendant  Kerr  and  in  February,  1836,  sold 
Caroline  to  defendant  l^drihgton.  Pinckey 
Foster  died  about  18.35,  and  Josiah  Foster 
died  intestate,  in  1836. 


"Wardlaw,  Ch.  The  question  is,  wliether 
the  bequest  is  of  a  separate  estate  in  the 
slaves  to  the  wife,  Pinckey  Foster,  in  exclu- 
sion of  the  rights  of  the  husband.  The  gift 
is  'to  her  and  the  heirs  of  her  bod.v,  and  to 
them  alone.'  It  has  been  long  ago  settled, 
that  tliese  terms,  without  the  last  clause, 
would,  in  a  gift  of  personalty,  carry  the 
absolute  estate,  upon  which  of  course  the 
rights  of  a  husband  would  attach,  and  the 
only  dispute  is  as  to  the  ineaning  and  effect 
of  the  words,  "and  to  them  alone."  I  con- 
strue these  words  according  to  their  natural 
and  grammatical  reference,  to  qualify  the 
force  of  the  word  'heirs'  only,  and  to  convey, 
by  a  common  pleonasm,  the  meaning  of  the 
testator,  that  none  but  heirs  of  the  body,  not 

*391 
heirs  general,  should  take  *by  succession 
from  the  first  taker.  Upon  this  construction, 
the  quantity  of  estate  in  the  wife,  and 
through  her  in  the  husband,  would  not  be 
limited  by  the  words.  But  the  consequence 
would  be  tlie  same,  if  we  construe  the  words 
reddendo,  singula  singulis,  as  referring  as 
well  to  the  wife  as  to  the  heirs:  for  then  the 
meaning  would  be,  that  none  besides  the 
wife  and  the  heirs  of  her  body,  sucessively, 
should  take  the  estate,  which,  as  to  chattels, 
would  be  a  gift  absolute  to  the  wife,  upon 
the  fixed  technical  construction,  often  de- 
feating the  real  wishes  of  donors.  Myers  v. 
Pickett,  1  Hill,  Eq.  37.  No  doubt  can  arise 
in  the  case,  except  by  torturing  the  phrase 
heirs  of  the  body,  into  children,  and  deduc- 
ing that  those  in  existence  at  the  death  of 
the  testator,  shall  take  jointly  with  their 
mother.  If  we  held  the  children  thus  to  take 
as  original  donees  and  purchasers,  all  of  the 
plaintiffs  would  now  be  barred  by  the  statute 
of  limitations,  except,  perhaps,  Susan  Morris  ; 
but  I  reject  this  forced  construction.  A 
separate  estate  in  a  married  woman,  in  de- 
rogation of  tlie  husband's  common  law  right, 
can  be  created  only  by  express  terms,  or  by 
necessary  and  uneciuivocal  implication.  Wil- 
son V.  Bailer,  3  Strob.  Eq.  260  [51  Am.  Dec. 
678J.  The  implication  in  this  case,  to  ex- 
clude the  husband,  is  much  feebler  than  in 
^^^^^at^1Vrford  v.  Tate,  2  Strob.  E(i.  27.  where 
it'  ^was  regarded  as  insufficient.  The  gift 
there  was  to  a  married  woman  for  life,  and 
at  her  death  to  the  heirs  of  her  body,  with  a 
provision  that  the  property  should  not  be 
sold  by  the  husband,  nor  removed  from  the 
State ;  and  this  was  held  to  confer  an  ab- 
solute estate  on  the  husband,  upon  his  re- 
duction of  the  property  into  possession. 

It  is  ordered  and  decreed,  that  the  bill  be 
dismissed. 

The  plaintiffs  appealed,  on  the  ground,  be- 
cause it  is  apparent  tliat  it  was  the  inten- 
tion of  the  testator  to  create  a  separate  es- 
tate in  Pinckey  Foster  and  her  children,  free 
from  and  beyond  the  control  of  her  husband, 
Josiah  Foster ;    and  the  decree  should  have 


©=>For  other  cases  see  same  topic  and  Kj<;i -NUMBER  iu  all  Key-Numbered  Digests  and  Indexes 


158 


BAKi:il  V.  LAFITTE 


^393 


ordered  that  intention  to  lie  ciirried  into  ef- 

flHt. 

A.  W.  Tlionison.  ft>r  aiipeliants. 
Hoyce,  Boylston.  conlia. 

*392 
♦I'EK  C'linAM.  This  Court  is  satisfied 
witli  tlie  (ieeree  of  the  Chancellor  from  which 
the  appeal  is  taken  ;  and  it  is  ordered  that 
the  same  he  allirmed,  and  the  ajtpeal  dis- 
missed. 

JOllNSTOX.  KINKIX  and  DAIUJAN,  CC, 
concurriiif.'. 

Alil>eal  dismissed. 


4    Rich.  Eq.  392 

A.  BAKER  and  Wife  v.  D.  M.  LAFITTE  ot  al. 

(ColiMuhia.      May    Torn),    ISulJ.) 

\Rcfrrcncc  C^afiT.] 

Where  a  party  is  not  ready  to  go  on  with 
a  reference,  a  niotion  to  continue  should  he  made 
liefore  the  commissioner,  and  it  is  irregular  to 
liass  him  by  and  make  the  niotinn  before  the 
Court. 

lEd.  Note.— For  other  cases,  see  Reference, 
Cent.  Dig.  §  87:    Dec.  Dig.  (©=>r»T.l 

[Uuardinn    and    Ward   <>=;3l.")().1 

A  guardian  by  failing  to  make  returns  does 
not  forfeit  his  commissions. 

I  Ed.  Note. — For  other  rases,  see  Guardian 
and  Ward,  Cent.  Dig.  §  507;  Dec.  Dig.  <£=> 
loO.l 

\r rusts   C=3lili>.l 

.  Tlioiigli  till  re  are  cases  in  which  trustees 
have  been  ciiarged  with  com|)ound  interest,  yet 
the  course  i>{  tlie  Court  is  to  disi'ourage  the 
compounding   of   interest. 

[Ed.  Note.— Cited  in  IIug;;ins  v.  lilakely,  J) 
Rich.  Ivi.  40!) ;  (Jraveley  v.  Graveley,  25  S.  C 
L':j.  GO  Am.   Rep.  47N. 

For  other  cases,  see  Trusts,  Cent.  Dig.  § 
:!17;    Dec.   Dig.  <®=321J>.] 

[Guanliiin  and  Mdrd  <g=>54.1 

Rules  by  which  guardians  and  other  trus- 
tees should  be  rhai-ged  with  or  allowed  interest 
on  their  accounts,  stated. 

[Ed.  Note. — Cited  in  (Jriflin  v.  Bonham.  !) 
Rich.  Eq.  M.  Sli ;  I'ettus  v.  Sutton,  10  Rich. 
E(|.  .■557;  Adams  v.  Latban.  14  Ricii.  Ei].  ."OS; 
Ex  parte  (ileiin.  liO  S.  C.  04.  OS.  71 ;  Tucker 
V.  Richards,  5S  S.  C.  27,  28.  3(5  S.  E.  3. 

For  other  cases,  see  (Juardian  and  Ward, 
<'ent.  Dig.  SS  242-25:'.;    Dec.  Dig.  <©=>54.| 

I  Triisfs  c=>:\()A.] 

Where  a  trustee  adnnts  his  aceoimtai>ility, 
lie  must  tile  with  bis  answer  a  stated  account 
simwing  the  b:ilance  wiiicb  be  adnnts  to  he  due. 
Wli're  this  is  dune  (and  the  answer  is  incom- 
plete and  sid)ject  to  exce)»tion.  if  it  is  not  donet 
tlie  iilaintifT  is  entitled  to  a  short  order  that  the 
sum   a(hnitted   be  jiaid   to  liim. 

I  Ed.  Note. —  For  other  <ases.  see  Trusts,  Cent. 
Dig.  S  -113;    Dec.  Dig.  <C=>304.1 

Before  Dargan,  Cli..  nl  r.aniwcil.  I'cliru- 
ary.  1S52. 

In  is:!;i.  tlie  defendant,  I  >.  M.  I.alitte.  was 
appointed  guardian  of  the  idaintitV.  Eaura 
I>.  Baker,  (then  (Jarvhi,)  and  William  L.  Gar- 


vin  became  his  surety.     This  hill,   fdod  Au- 
gust 10,  1S51,  wa.s  for  an  account. 

In  Fohruary,  1.S30.  certain  slaves  of  the 
plaintiff  were  sold  under  an  order  of  the 
Court,  by  the  coniniissioner,  on  a  credit, 
with  interest,  payable  annually.  In  January, 
1S40.  the  commissioner  was  ordered  to  pay 
the  annual  interest  on  receipt  thereof,  and 
also  the  amount  of  the  sales,  when  collected, 
to  the  defeiulant.  The  couuuissioner  received 
considerable  sums  of  money  on  account  of 
the  .sales,  and  paid,  at  dilTerent  times,  sums 
of  money  to  the  defendant;    but  a  consider- 

393 
aide  jiorlioii  of  the  *moiiey,  received  by  the 
commissioner,  reumiiu'd  uncalletl  for  in  his 
hamls,  until  after  the  internmrriage  of  the 
plaintiffs,  when,  by  direction  of  defendant,  it 
was  jiaid  to  the  plaintifls. 

The  plaintilTs  held  their  lirst  and  oidy  ref- 
erence on  Tue.sday.  the  27tli  day  of  .January. 
18.52 ;  the  conimi.ssioner  then  api»ointed 
Wednesday,  the  4th  day  of  February  for  the 
defendant's  reference.  On  Wednesday,  D. 
M.  Latitte  did  not  attend,  and  assigned  the 
causes  of  his  absence  in  a  letter  to  his  so- 
licitor, dated  on  the  3d  day  of  February. 
1852,  as  follows:  "I  did  not  get  home  from 
Barnwell  C.  M.  until  Saturday  eveidng  last, 
and  that  with  great  ditliculty.  .My  physical 
inability  at  present  is  so  great,  that  it  is  im- 
possible I  can  withstand  the  fatigue  of  at- 
tending the  reference  apiuiinted  for  to-mor- 
row, hut  I  will  attend  as  soon  as  I  shall  have 
recruited  sutliciently  to  get  uii  my  witness- 
es— of  my  disiiualitication  at  this  time  to 
transact  business,  I  am  not  able  to  send  an 
athdavit,  as  the  nearest  magistrate  to  my 
residence  is  fourteen  miles  oil.  and  I  have 
not  strength  to  go  to  him.  At  tlu'  reference 
on  Tuesday  last,  I  was  in  no  condituni  for 
business;  bodily  suffering  caused  me  to 
overlook  bringing  to  the  notice  of  the  com- 
nnssioner  a  statement  from  his  iirediH-essor 
showing  an  account  of  my  administration  as 
guardian  up  to  January  12.  Is44,  which, 
with  some  other  umtters  then  neglected,  are 
essential  to  making  out  a  corri'Ct  report ; 
besides  there  are  live  witnes.ses  that  I  desire 
should  be  examined.  You  will  therefore 
please  emleavor  to  procure  some  jiostpone- 
nieiit  on  my  account,  particularly  as  I  ileeni 
m.v  iiresence  at  the  reference  to  he  of  im- 
portance." On  the  receipt  of  this  letter  the 
solicitor  of  D.  M.  Latitte  exhibited  it  to  the 
solicitors  of  the  plaintiffs,  and  reiiueste<l 
their  con.sent  to  ft  continuance  of  the  cause, 
as  but  four  days,  iiuluding  Sunday,  would 
intervene  iK'fore  the  sitting  of  the  Court. 
The  plaintiffs"  .solicitors  ridused  their  con- 
sent to  a  coittinimnce,  but  agreed  that  tlie 
letter  should  be  read  as  if  sworn  to  by  the 
defendant,  when  the  <"ause  was  called  by  the 
Chancellor,  and  a  motion  made  to  continue. 

The  c«)mmissioner  made  up  his  reiuirt,  to 


^;=^l'or  other  eases  see  samu  topic  auU  KKV-^;L'MLilill  iu  all  Key-Numbered  Digests  aud  Indexes 


159 


*r.94 


4  niCilAKDSON'S  KtH'lTY  RErOKTS 


*394 
which  inuiierous  ex*ci'i)tioiis  were  taken  by 
phiintiffs  and  defendant.  AVhen  the  case  was 
called  a  motion  for  a  continuance  was  made 
and  overruled.  His  Honor  reconmiitted  the 
report,  lioldiu.i;,  that  defendant  was  charge- 
alle  with  interest  on  the  moneys  received  by 
the  commissioner  and  not  called  for;  that 
defendant  was  not  chargeable  with  coni- 
pound  interest,  or  interest  upon  interest ; 
and  that  defendant  was  not  entitled  to  com- 
missions for  the  years  in  which  he  had  fail- 
ed to  make  returns  as  guardian.  The  com- 
missioner reformed  his  repoi-t,  to  which  ex- 
ceptions were  again  taken.  His  Honor  over- 
ruled the  exceptions  and  confirmed  the  re- 
port. Both  parties  appealed — the  defendant 
on  the  grounds,  inter  alia,  that  his  motion  to 
continue  should  have  lieen  granted ;  that  he 
was  not  chargeable  with  interest  on  the  mon- 
eys collected  by  the  commissioner  and  not 
paid  to  him ;  that  he  was  entitled  to  all  his 
commissions ;  and  that  there  were  errors  in 
the  calculation  of  interest,  which  should  be 
corrected:  and  the  plaintiffs,  on  the  ground, 
that  defendant  was  chargeable  with  interest 
upon  interest,  according  to  annual  balances. 

J.  T.  Aldrich.  for  defendant. 
Bellinger,  for  plaintilfs. 

The  opinion  of  the  Court  was  delivered  by 

JOHNSTON,  Ch.  Upon  the  subject  of  the 
continuance,  this  Court  is  of  opinion,  that 
the  Chancellor's  discretion  was  well  exer- 
cised. Indeed,  it  is  hardly  proper  to  say 
that  the  motion  to  continue  was  properly 
brought  before  him.  The  accounts  were  be- 
fore the  conunissioner,  and  it  was  to  him  the 
motion  should  have  been  submitted  before 
the  close  of  the  reference.  This  was  not 
done;  and  it  was  very  irregular  to  pass  by 
the  commissioner,  and  bring  before  the  Chan- 
cellor a  motion  which  should  have  been  made 
to  and  decided  by  the  former,  according  to 
his  discretion. 

On  the  subject  of  the  commissions,  this 
question  was  argued  before  the  Chancellor 
as  if  the  penalty  for  not  making  returns, 
contained  in  the  statute,  was  by  the  terms  of 
the  statute  api^licable  to  guardians  as  well 
as    to    executors    and    adminLstrators.      The 

*395 
*distinction,  in  that  respect,  established  in 
the  case  of  Muckenfuss  v.  Heath,  1  Hill  Ch. 
182,  was  not  brought  to  his  view.  We  are  of 
opinion  that  his  ruling  on  that  point,  result- 
ing from  the  cause  just  mentioned,  was  er- 
I'oneous,  and  that  the  guardian,  irrespective 
of  his  returns,  is  entitled  to  commissions  on 
his  receipts  and  disburS'-ments. 

There  is  no  authority  for  the  position  con- 
tended for  by  the  plaintiffs  that  the  defend- 
ant should  be  charged  with  compound  inter- 
est in  this  case.  There  are  cases  in  which 
a  trustee  employing  the  funds  of  the  cestui 
que  trust  for  his  own  benefit,  and  subjecting 
IGO 


them  to  the  casualties  of  trade,  and  there  is 
no  means  of  ascertaining  the  profits  made, 
has  been  subjected  to  compound  interest  by 
annual  and  even  semi-annual  rests;  of  which 
an  instance  exists  in  Sdiieffelin  v.  Stewart, 
1  Johns.  Ch.  620.  But  there  is  nothing  of 
tliat  kind  liere;  and  the  course  of  this  Court 
is  to  discourage  the  compounding  of  inter- 
est, as  will  appear  in  a  note  subjoined  in 
which  the  cases  are  collected,  (a) 
*396 

*We  are  satisfied  with  the  Chancellor's  rul- 
ing that  the  guardian  was  chargeable,  vuider 
the  evidence,  with  the  money  he  neglected  to 
receive  from  the  commissioner. 

The  remaining  (juestions  in  the  case  relate 
to  the  computation  of  interest,  (of  course  I 
mean  simple  interest,)  on  the  guardian's  ac- 
counts.    It  is  a  subject  of  great  difficulty. 

The  general  principles  applicable  to  the 
subject  are,  that  a  tru.stee  is  not  to  make 
profit  out  of  the  trust  funds  in  his  hands, 
and   that   he   shall   exercise    that   degree   of 


((I)  Authorities  on  mode  of  computing  interest: 

Dan-el  v.  Eden,  3  Des.  241  [4  Am.  Dec.  (113], 
holds,  that  from  1797.  when  the  case  of  Stuart 
v.  Carson  [1  Desaus.  500J  was  decided,  the 
cour.se  has  been  to  allow  interest  on  executors' 
aceounts.  But,  says  the  Coiu't,  the  account 
niu.st  l)e  made  uj)  yearly,  and  the  interest  should 
be  kept  in  a  separate  column,  and  compound  in- 
terest should  not  be  allowed. 

Jenkins  v.  Fickling,  4  Des.  .370,  holds,  that 
executors  ousht  to  pay  interest. 

Benson  v.  Bruce,  4  Des.  4ti4,  holds,  that  inter- 
est shall  be  charged  against  an  administrator, 
because  he  kept  the  money  of  the  intestate  in  his 
hand  an  imreasonable  time,  (fee.  ' 

Walker  v.  Byuum,  4  Des.  555.  The  Court 
laid  down  the  rule,  that  where  an  executor,  ad- 
ministrator, or  guardian,  receives  money,  he  is 
bound  to  pay  debts  or  put  it  out  at  interest  on 
proper  securities,  and  that  when  he  receives  con- 
siderable sums  and  no  circumstances  exist  for 
retaiidng  it,  he  is  bound  to  i)av  interest. 

Taveau  v.  Ball,  1  McC.  Eq.  456.  The  Court 
held,  that  defendant  wis  not  chargeable  with 
interest  except  on  annual  balances,  and  that 
time  should  be  allowed  an  executor  to  look  out 
for  proper  investments,  after  the  balance  is  as- 
certained. 

Black  V.  Blakely,  2  McC.  Eq.  1.  The  Court 
say,  the  rule  for  calculating  interest  has  long 
been  settled  in  this  State.  It  is.  where  partial 
payments  have  been  made,  to  apply  the  payment, 
in  the  first  place,  to  the  discharge  of  the  interest 
then  due.  If  the  payment  exceeds  the  interest, 
the  surplus  goes  to  discharge  the  piincipal,  and 
interest  is  computed  on  the  balance  of  princi- 
pal. If  the  payment  be  less  than  the  interest, 
the  surplus  of  interest  must  not  be  taken  to  aug- 
ment the  prim  'i)al.  but  interest  continues  on 
the  former  principal  until  the  period  when  the 
payments  taken  together  exceed  the  interest 
then  due.  That  method  of  calculating  interest 
has  been  settled  by  the  decisions  of  our  Courts 

*396 
for  more  than  *thirty  yeai's.     The  Court  then 
adds,  that  they  had  never  known  compound  in- 
terest  allowed   on   a   mere  neglect  to  pay  over 
monev. 

Wriiiht  V,  Wright,  2  McC.  Eq.  194.  Nott,  J., 
in  delivering  the  opinion  of  the  Court,  says, 
that  the  allowance  of  compound  interest  seems 
to  be  an  invention  of  modern  date.  That  there 
is  no  such  general  rule,  and  that  even  if  it  were 
the  rule  in  the  English  Coiu'ts,  it  would  be  im- 
practicable in   this  country,   where  money  can- 


BAKER  V.  LAFITTE 


398 


diligence  in  relation  to  the  trust  estate,  wliicli 
men  of  ordinary  prudcnc-e  exercise  witli  re- 
spect to  tlieir  own  estates,  and  if  any  loss 
result  from  his  failure  in  this  respect,  he, 
and  not  his  cestui  (pie  trust,  must  hear  it. 
The.se  principles  must  Kiiide  in  the  deci.sion 
of  all  ca.ses;  and  the  application  of  any  uni- 
versal and  intlexihle  rule  is  impossihle.  he- 
cause  such  rule  would,  under  some  circum- 
stances, serve  rather  to  sacritice  than  to 
advance  the  general  princii)les.  which  it  is  its 
intention  and  purpose  t<)  carry  out. 

If  a  trustee  should  have  in  his  hands  se- 
curities, hearinj;  interest,  which  .securities 
are  not  realized  until  just  liefore  his  settle- 
ment with  his  ct'stui  (jue  trust,  in  such  case 
it  is   clear   th.it    he  should   i)e  cliariied    with 

*397 
the  interest  borne  by  the  securities,  and  *no 
more;  and  whatever  expenditures  he  may 
have  made  in  the  meantime  out  of  his  owii 
funds,  should  bear  a  simple  interest  in  his 
favor  from  their  dates  respectively.  In  such 
a  case  as  this  which  I  have  mentioned,  there 
is  neither  necessity  nor  propriety  in  casting 
annual  balances,  and  computinj,'  interest  upon 
them. 

If  a  security  comes  into  the  trustee's 
hands,  bearing  interest,  he  is  not  allowed  to 
take  the  interest  to  himself;  and  in  such  case 
there  is  no  propriety  in  deferrinj;  the  compu- 
tation of  interest,  .so  far  as  that  security  is 
concerned,  until  the  end  of  the  year.  It  is 
not  necessary  to  allow  time  for  investment — 
an  investment  already  existing  in  the  secu- 
rity itself. 

Again:  Although  the  general  rule  be  not 
to  charge  trustees  with  interest  upon  sums 
received  until  the  end  of  the  year  in  which 
they  are  received,  yet  if  it  should  happen 
that  a  large  sum  should  come  into  his  hand.s 
on  the  first  day  of  January,  and  he  should 
not  pay  it  out  until  the  last  day  of  December, 
it  would  not  seem  proper  to  excuse  him  from 
interest  from  .some  reasonable  time  after 
the  money  came  into  his  hantls.  lie  should 
have  put  it  out,   as   a   prudent   man   would 


not  ahyay.s  be  let  out  promptly,  much  less  safe- 

O,  at  mterest.     Simple  interest  is  iisiinllv  more 

than  can  be  realized   with  the  utmost  diligiuice 

Rowland  V.  Be.st.  2  McC.  K,,.  :VJl.     The  rul!: 

Uut^r.,  ''  ^'^^^''■;:-"^t  ^"i  f'^^-  ">uiual  balances, 
but  not  so  a.s  to  allow  r..iniinun,|  interest;  and 
on    appeal,    tins   was    sustained. 

Scinell  V.  .Schroder.  Hi.il.  Kq.  li'.]^.  Brown 
^;.,^"'V"-<i.  Id..  4m:  Jones  v.' w4  L'  llil" 
r..l,  note;  Davi.s^v.  Wright.  1,1.  .-,(;0;  Dixon  v 
Jl.u.ter.  ;j  Hdl  204.  All  these  rases  recoi^w  i/e 
the  princii.h.  of  annual  balanc-s.  an.!  sin.plr  in 
teie.st  k..pt  u.  a  separate  .•olunin.  all  repu.jiate 
the  doctrnie  of  (•omi)ound  inten-st.  In  Dixon  v 
Hunter.  ,t  is  said:  the  j^rnrra!  rule  laiddown 
m  Jones  v.  ^\  est,  and  D.vis  v.  Wright.  .-harL-in-' 
interest  on  annual  balan.,.s.  n,ay  I.e  just  in  ts 
operation  wluue  the  re<-eipts  exce..!  the  expendi- 
tures of  the  current  year.     Rut  wheiv  the  pav- 

r"i^/fT'  /''*-'    '••'^•^''"f-^-    ti.e    re,-..ipts   sh.  Id 
be   added   to   the   annual   balan.v  on    han.l     a 
from   the  aggregate   the  payinnits  of  that    v     ,• 

^S'be^j;la;;!::i.""  ^"'^  ""'"'"•••  -"^-  ^^^-"^  i- 

4Rich.Eq.— H 


I  have  done  with  his  own.  But  if.  on  the  other 
hand,  lie  should  show  that  he  was  obliged 
to  keep  the  money  ready  for  the  creditor,  it 
would  be  very  unfair  to  <-ompel  him  to  pay 
interest  on  it.  The  circumstances  must  gov- 
ern in  the  tlecisiou  of  such  cases. 

Again:  Though  the  general  rule  is  to  de- 
duct from  the  last  annual  balance,  and  the 
sums  received  during  the  current  year,  all 
siuiis  expended  during  the  same  year,  reserv- 
ing the  balance  thus  left  as  that  uiMin  which 
interest  sliouhl  be  computed  from  the  begin- 
ning of  that  year;  yet  there  may  be  siie<'ial 
circumstances  attending  particular  <ases. 
which  should  deflect   the  rule. 

We  see  no  special  circumstances  In  this 
case,  however,  to  take  it  out  of  the  general 
rule  and  practice,  which  are.  that  a  trustee 
is  not  chargeable  with  interest  upon  moneys 
received  (where  there  are  both  receli)ts  and 
expeiKlituresi  until  the  end  of  the  year  in 
which  they  are  received;  imr  is  he  entitled  (in 
such  a  easel  to  Interest  upon  his  expenditures 

■  *398 
until  the  end  of  the  year.  The  re*celpts  and 
expenditures  are  set  otf  against  each  other, 
and  the  balance  carries  Interest  from  the  end 
of  the  year  In  favor  of  the  party— trustee  or 
cestui  que  trust— In  whose  favor  It  is  cast. 
The  balance,  however,  may  he  reduced,  (and 
of  course  the  computation  of  Interest  varied.) 
by  the  receipts  and  expenditures  of  the  year 
following  that  in  which  it  is  established. 
As  for  instance:  if  in  that  succeetling  year 
the  trustee  expends  more  than  he  receives, 
he  should  be  presumed  to  have  held  so  much 
of  the  last  annual  balance  as  was  necessary 
to  make  up  the  difference;  in  which  case  lii- 
terest  should  be  computed  only  on  the  res- 
idue of  the  balance  not  thus  employed.  Or 
he  may,  on  the  other  hand,  have  received 
more  than  he  expended,  in  which  case  the 
excess  of  receipts  over  expenditures  should 
be  applied  to  the  extinguishment  of  any  bal- 
ance that  may  have  been  previously  estab- 
lished In  his  favor;  leaving  only  the  residue 
of  that  balance  to  bear  interest  for  his  ben- 
efit. 

According  to  these  rules.  \Ve  think  this  ac- 
count should  have  been  stated  by  the  com- 
missioner, and 

It  is  ordered  that  the  account  be  remanded 
to  the  Circuit  Court,  and  to  the  commission- 
er, to  be  stated  according  to  the  opinion  ex- 
pressed by  this  Court. 

But  In  seiullng  the  case  back,  the  Court 
must  accompany  It   with  a   further  order. 

In  Booth  V.  .Sineath,  2  Strob.  Kq.  Vil.  the 
Court  has  laid  it  down  that  when  a  trustee 
admits  his  accountability,  he  must  file  with 
his  answer  a  stated  account  showing  the 
balance  which  he  admits  to  be  due.  Where 
this  Is  done,  (and  the  answer  is  incomiilete 
and  subject  to  exception.  If  it  is  not  done.) 
the  plaiiititr  Is  entitled  to  a  short  order  that 
the  .sum  admitted  be  paid  to  him.  And  such 
an  order   might  have   been  granted   in   this 

161 


*398 


4  EICHAKDSON'S  EQUITY  REPORTS 


case,  if  the  account  filed  with  the  answer  had 
stated  the  interest  which  the  defendant  ad- 
mitted, and  had  struck  a  balance.  As  it  is, 
the  Court  perceives  clearly  that  all  interest 
overcast  against  the  defendant,  and  all  com- 
missions improperly  disallowed  to  him  can- 
not possibly  amount  to  eight  hundred  dollars. 

*399 
Deducting  that  sum,  *therefore,  from  the 
sum  of  five  thousand  three  hundred  and 
eighty-one  dollars  and  seventy-seven  cents, 
reported  by  the  commissioner,  it  is  impossible 
that  the  defendant  can  he  injured,  if  the 
Court  should  now  order  him  to  pay  to  the 
plaintiffs,  within  thirty  days  after  notice  of 
this  decree,  the  balance,  in  round  numbers, 
four  thousand  five  hundred  and  eighty  dol- 
lars. And  it  is  ordered  that  he  do  pay  them 
the  last  mentioned  sum  accordingly. 

DUNKIX,  DARGAN  and  WARDLAW,  CC, 
concurred. 
Decree  modified. 


4   Rich.  Eq.  399 

CATHARINE  RAINES   and   Her  Children   v, 
R.  C.  WOODWARD,  Sheriff,  et  al. 

SAME  V.   JOHN   ADAMS,    Sheriff,    et   al. 

(Columbia.     May  Term,  1852.) 

[Trusts   <®='86.] 

Feme  covert  purchases  negroes  for  valuable 
consideration,  taking  conveyance  to  herself  "for 
her  sole  and  separate  use."  The  conveyance 
needs  no  registration,  and  creditors  of  husband 
impeaching  it  must  show  that  the  negroes  were 
purchased  with  the  funds  of  husband. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent. 
Dig.  §  128;    Dec.  Dig.  <S=»86.] 

ITriists  €=140.] 

A  mother,  in  consideration  of  love  and  affec- 
tion for  her  daughter  C,  a  feme  covert,  and 
for  "the  purpose  of  contributing  to  the  support 
and  maintenance  of  said  daughter  during  the 
term  of  her  natural  life,  and  for  the  better 
support,  maintenance  and  education  of  the  chil- 
dren of  said  daughter,  born  or  hereafter  to  be 
born,"  conveyed  certain  slaves  to  the  said  C, 
"in  trust  for  the  use,  benefit  and  behoof  of  the 
said  C.  for  and  during  the  term  of  her  natural 
life,  and  from  and  immediately  after  her  death, 
in  trust  for  the  use,  benefit  and  behoof  of  all  the 
children  of  the  said  C,  equally  to  be  divided 
between  them;  in  case,  however,  if  any  of  the 
children  of  the  said  C.  ^hall  have  died  in  her 
life  time  leaving  issue,  living  at  the  time  of  her 
death,  such  issue  shall  take  the  same  share  of 
said  slaves,  which  the  deceased  parent  would 
have  been  entitled  to  if  living:"  Held,  that  C. 
took  a  life  estate  in  the  slaves,  with  remainder 
to  her  children. 

[Ed.  Note. — For  other  cases,  see  Trusts,  Cent. 
Dig.  §  186;    Dec.  Dig.  (©=^140.] 

[Husband  and  Wife  <©=pS.] 

That  the  marital  rights  of  her  husband  at- 
tached thereon,  and,  therefore,  that  the  life  es- 
tate was  liable  to  be  sold  under  fi.  fas.  against 
him. 

[Ed.  Note.— Cited  in  Wade  v.  Fisher,  9  Rich. 
Eq.  363. 

For  other  cases,  see  Husband  and  Wife,  Cent. 
Dig.  §  24;    Dec.  Dig.  <^=^S.] 


[Tnisfs  <©=>151.] 

Tliat  the  children  were  entitled  to  an  order, 
that  the  purchasers  at  sheriff's  sale  should  give 
security  for  the  forthcoming  of  the  slaves. 

[Ed.  Note. — For  other  cases,  see  Trusts,  Cent. 
Dig.   §  195;    Dec.  Dig.  (g^^lol.] 

*400 

*Before  Wardlaw,  Ch.,  at  Fairfield,  July, 
1851. 

Wardlaw,  Ch.  These  bills,  filed  by  the 
wife  and  children  of  William  G.  Raines,  pray 
that  the  sheriffs  of  Fairfield  and  Lancaster 
may  be  enjoined  from  selling  certain  slaves, 
seized  under  executions  against  said  W.  G. 
Raines,  on  the  ground  of  a  separate  estate 
in  the  wife,  for  life,  to  the  slaves,  with  re- 
mainder to  the  children. 

It  appears  that  William  Moore,  then  sheriff 
of  Fairfield  district,  on  July  7,  1828,  under 
executions  of  Musco  Boulware  and  of  Robert 
Cathcart,  against  William  G.  Raines,  sold 
slaves  of  said  W.  G.  Raines,  and  conveyed 
by  bills  of  sale  Viny,  Milly,  Crecy,  George, 
Hannah,  Caroline,  Lewis,  Fanny  and  Betsy, 
to  Musco  Boulware,  for  the  price  of  $868, 
and  Nathan,  Ally,  William,  Henson.  Joe  and 
William,  to  Robert  Cathcart,  for  $686.  On 
January  8,  1829,  Musco  Boulware,  under  his 
hand  and  seal,  attested  by  W.  R.  Boulware, 
assigned  the  bill  of  sale  he  had  received 
from  the  sheriff  in  the  following  words: 
"Received  of  Mrs.  Catharine  Raines,  wife  of 
Wni.  G.  Raines,  sole  dealer,  $868,  the  amount 
for  which  I  purchased  the  within  named  ne- 
gro slaves,  and  hereby  assign  this  bill  of  sale 
to  her,  for  her  sole  and  separate  use,  but 
without  further  responsibility  on  me."  On 
JanuaiT  10,  1829,  Robert  Cathcart.  under  his 
hand  and  seal,  attested  by  I).  McDowell,  as- 
signed the  bill  of  sale  he  had  received  from 
the  sheriff,  in  the  following  words:  "Receiv- 
ed of  Mrs.  Catharine  Raines,  wife  of  Wm. 
G.  Raines,  sole  dealer,  $686,  the  amount  for 
which  I  purchased  the  within  named  negro 
slaves,  and  hereby  assign  tliis  bill  of  sale  to 
her,  for  her  sole  and  separate  use,  and  with-, 
out  further  responsibility  on  me."  It  is 
quite  clear  on  the  proof,  that  Musco  Boul- 
ware was  paid  for  the  negroes  bid  off  by 
him  at  sheriff's  sale,  from  the  proceeds  of 
cotton  raised  upon  W.  G.  Raines's  plantation, 
but  marked  in  the  name  of  C.  Raines  ;  and 
it  is  probable  that  Cathcart  was  paid  in  the 
same  way.  Without  her  conducting  the  busi- 
ness of  a  merchant,  or  acting  otherwise  than 
as    a   planter's    wife,    Mrs.    C.    Raines    was 

*401 
treated  as  a  sole  *dealer.  The  assignments 
of  the  sheriff's  bills  of  sale  were  drawn  up 
by  counsel  learned  in  the  law,  but  were  not 
recorded.  The  visible  property  of  Raines 
was  sold  by  the  sheriff  in  1829,  and  he  was 
regarded  as  insolvent  luitil  1835,  when  he 
seemed  prosperous,  and  obtained  extensive 
credit,  and  so  continued  until  1847  or  1848, 
when  he  was   again   sold   out,   except   as  to 


162 


®:=>For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


RAINES  V.  WOODWARD 


*403 


twelve  or  fonrteon  negroes,  which  he  remov- 
ed clandestinely  from  the  State,  Uuivin;:  a 
large  amount  of  executions  unsatisfied.  The 
negroes  in  question  were  all  tliis  time  work- 
ed in  commnn  witli  W.  <!.  Itaines'  other 
slaves. 

On  Oi-tolwr  f>.  l.S.'?4,  Ninny  Ilnulware.  nintli- 
er  of  Catharine  I{ain<'s,  e.\e<uted  a  hill  of 
sale  ti>  said  Catharine,  of  tlie  slaves  Milly 
and  Mary.  Ilannali  and  four  eluldren,  Wil- 
liam, Xan<-y.  Harry  and  January,  in  winch 
the  grantor  recited  as  consideration,  lier  love 
and  affection  for  lier  daughter,  and  "the  pur- 
Iiose  of  coutrihuting  to  the  support  and  main- 
tenance of  said  <langliter  during  the  term  of 
her  natural  life,  and  for  the  hetter  .sui)port, 
maintenance  and  educati(m  of  the  children 
of  said  daughter,  horn  or  hereaft«'r  to  he 
horn,"  and  conveyed  said  slaves  with  their 
future  increase  to  the  said  Catharine  Raines, 
"in  trust  for  the  use,  henetit  and  hehoof  of 
the  .said  Catharine  Raines,  for  and  during 
the  term  of  lier  natural  life,  and  from  and 
iunnediately  after  her  death,  in  trust  for  the 
use,  benefit  and  helnx)f  of  all  the  children  of 
the  said  Catharine  Raines,  equally  to  be  di- 
vided between  them;  in  case,  however,  if 
any  of  the  children  of  said  Catharine  shall 
have  died  in  her  life  time  leaving  issue,  liv- 
ing at  the  time  of  her  death,  such  i.ssue  shall 
t.ike  the  same  share  of  said  slaves,  which 
the  deceased  parent  would  have  been  entitled 
to,  if  living."  This  deed  was  drawn  by  coun- 
sel. It  was  recorded  in  the  register's  office, 
Fairfield,  May  2.  1S:'.G.  These  negrt^es  were 
not  treated  differently  from  the  negroes  that 
belonged  to  W.  G.  Raines.  Catharine  Raines, 
however,  from  1829  to  lS;i4,  kept  separate 
accounts  with  factors  in  Charleston,  and  in 
that  interval  of  time,  sold  more  than  two 
hundred  hags  of  cotton.  The  negroes  con- 
veyed by  Nancy  Boulware  had  been  bought 

*402 

l>y  her.  ♦when  they  were  sold  under  execu- 
tions as  the  property  of  W.  G.  Raines. 

The  bills  of  sale  by  Houlware  and  Cathcart 
to  Catharine  Raines,  have  all  the  material 
elements  of  a  voluntary  settlement  by  a  hus- 
band end)arrassed  with  debt  upon  his  wife. 
It  is  demonstratetl  by  the  proof  that  Boul- 
ware was  i»aid  from  the  crop  made  on 
Haines'  jilantation  in  1828.  and  that  a  sulH- 
clency  of  means  for  the  reindnn-sement  of 
Cathcart  was  also  received  by  Mrs.  Kaines 
from  her  husliand's  crops:  and  .she  furnished 
no  evidence  of  her  having  other  funds.  She 
is  denominated  in  the  assignments  of  these 
bills  of  sale  a  sole  dealer,  l)ut  there  is  no 
evidence  that  she  filled  such  anomalous  char- 
acter; that  she  ever  gave  the  notice  re(iuin>d 
by  the  Acts  of  1S2;5  and  1S24,  (6  Stat.  2i:?, 
230;)  that  she  ever  carried  on  any  separate 
trade  or  business  whatsoever.  A  wife  who 
assumes  to  be  a  sole  trader,  while  her  hus- 
band's affairs  are  endjarrassed.  and  wlio  pur- 
chases his  property,  must  show  clearly  that 


she  had  the  means  to  make  the  purchases 
independently  of  lier  husband.  In  default  of 
such  showing  her  pureha.ses  are  fraudulent. 
Miller  v.  Tolli.son,  Harp.  Ivi.  14.5  |14  Am. 
DtH-.  7121;  McMeekin  v.  Kdmoiids.  1  Hill  Va\. 
2i)2  [2(;  Am.  Dec.  20.';].  Where  the  husliand 
really  furnishes  the  funds  for  the  purchases, 
no  matter  what  may  lie  tlie  form  of  tlie  con- 
veyance to  the  wife,  tlie  transjiction  is  in 
substance  a  voluntary  settlement  by  the  hus- 
band :  and  the  conveyame  slioidd  be  re- 
corded as  a  marriage  .settlement.  Price  v. 
White.  Car.  I-.  .1..  2M7  (1  Railey  Kq.  244]. 

The  (piestion  as  to  the  negroes  embraced 
in  tlie  deed  from  Xancy  Boulware  depends 
upon  different  juinciples.  .So  far  as  there  Is 
any  evidence  on  the  subject.  N'ancy  Boulware 
fairly  acquired  title  to  the.se  slaves,  and  for 
good  consideration  transferred  them  to  her 
daughter.  This  conveyance  is  not  a  marriage 
settlement  needing  regi.stry.     Banks  v.  Brown. 

2  Hill  E(|.  '>{'>'»  (.".O  Am.  Dee.  :i.s(>].  The  diffi- 
culty in  the  way  of  Catharine  Kaines  is  that 
the  deed  contains  no  suHicient  exi)re.ssi<m  of 
any  intention  of  the  donor  to  exclude  the 
marital  riglits  of  W.  (i.  Raines.  There  is 
nothing    in    the    provision    that    the    slaves 

*403 
should  be  for  the  use,  benefit  and  *behoof  of 
Catharine  Raines  for  life,  inconsistent  with 
their  being  subject  to  his  marital  rights. 
Tyler  v.  Lake,  2  Russ.  ,and  Myl.  is.'',;  Black- 
low  v.  Laws.  2  Hare.  40;    Wilson  v.   Bailer. 

3  Rtrob.  Eq.  200  [51  Am.  Dec.  r.TSl.  It  was 
argued  that  the  fact  of  the  gift  being  to  her 
"in  trust"  for  her  use.  &c.,  was  suHicient  to 
exclude  the  husband.  In  Tyler  v.  Lake,  in 
Stanton  v.  Hall,  2  Russ.  and  Myl.  175,  and 
other  cases,  the  gifts  were  to  tru.stees.  and 
did  not  impair  the  husl>and's  rights;  in  the 
present  case  no  trust  Is  definitely  created. 
I  think  the  injunction  granted  by  the  com- 
missioner, of  the  sale  of  tliese  negroes  under 
fi.  fas.  against  W.  G.  Raines,  must  be  counter- 
manded, so  far  as  the  life  estate  of  Catha- 
rine Raines  is  concerned. 

I  supiX)se,  however,  that  the  children  of 
Catharine  Raines  take  the  remainder  in  fee 
of  said  slaves,  as  purchasers,  after  the  ter- 
mination of  her  life  estate.  The  construc- 
tion of  the  instrument  of  gift  is  clear,  that 
her  children  were  intended  to  take  at  her 
death  as  tenants  in  common.  Myers  v.  Amler- 
soii,  1  Strob.  E(i.  344  [47  Am.  Dec.  537) ; 
Henry  &  Talbird  v.  Ardier,  Ball.  E(i.  5.35. 
The  plaintiffs,  who  are  children  of  Catharine 
Raines,  are  entitled  to  have  .security  for  the 
forthcoming  of  the  slaves  at  the  termination 
of  the  life  estate,  from  those  who  may  pur- 
chase the  life  estate  at  sheriff's  sale.  Prlngle 
V.  Allen,  1  Hill  Eq.  137;  Cordes  v.  Ardrian, 
lb.  157. 

It  Is  ordered  and  decreed,  tliat  the  bill  be 
dismissed  as  to  all  matters,  except  the  claim 
of  the  children  of  Catluirine  Raines  to  the 
slaves  conveyed  by  Nancy  Boulware  upon  the 
death  of  said  Catharine.     It  is  further  or- 

1G3 


*403 


4  RICHARDSON'S  EQUITY  REPORTS 


dered  and  decreed,  that  upon  the  sale  of  so 
many  of  these  slaves  as  have  been  taken  in 
execution,  the  purchasers  shall,  before  de- 
livery of  the  slaves,  enter  into  bond  to  the 
commissioner  of  this  Court,  with  good  sure- 
ties to  be  approved  by  him,  in  penalties 
equal  to  twice  the  value  of  the  slaves,  condi- 
tioned that  said  slaves  shall  not  be  taken 
beyond  the  limits  of  this  State,  and  that 
those  of  them  then  living,  with  any  increase 
of  the  females,  shall  be  forthcoming  at  the 
termination  of  Catharine  Raines'  life  estate 
therein.  Costs  to  be  paid  out  of  the  sales. 
*404 
*The  complainants  appealed: 

1.  Because  the  Chancellor  erred  in  decid- 
ing that  the  deeds  made  by  William  Moore, 
sheriff,  to  Robert  Cathcart  and  Musco  Boul- 
ware,  for  certain  slaves,  and  by  them  assign- 
ed to  Catharine  Raines,  for  her  sole  and 
sepai'ate  use,  are  fraudulent  as  to  creditors, 
on  the  ground,  that  there  was  no  proof  of  any 
funds  belonging  to  Catharine  Raines,  to  pay 
for  the  same,  when  from  the  proof  it  appeared 
that  the  money  to  pay  for  said  slaves  was 
made  by  their  labor,  on  the  lands  of  Mrs. 
Raines,  secured  to  her  sole  and  separate  use. 

2.  Because  the  Chancellor  erred  in  deciding 
that  by  the  terms  of  the  deed  for  certain 
slaves  from  Nancy  Boulware  to  Catharine 
Raines,  no  separate  estate  was  secured  to 
lier,  when  from  the  expressions  in  the  ileed, 
said  slaves  were  conveyed  expressly  in  trust 
to  the  said  Catharine  Raines,  for  the  support 
of  herself  and  education  of  her  children,  and 
being  given  in  trust,  this  Court  should  protect 
the  trust,  and  secure  them  from  the  creditors 
of  the  husband. 

McAliley,  for  appellants. 
Buchanan,  contra. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW,  Ch.  The  two  claims  present- 
ed by  the  plaintiffs  are  distinct  in  their  ori- 
gin, in  the  principles  which  govern  the  deci- 
sion of  them,  and  I  may  add,  in  the  interests 
of  the  claimants. 

1.  As  to  the  transfers  of  slaves  from  Musco 
Boulware  and  Robert  Cathcart  to  Catharine 
Raines. 

The  instruments  of  conveyance  transfer  the 
title  of  the  slaves  to  her,  expressly  for  her 
"sole  and  separate  use."  If  such  independent 
title  in  her  had  proceeded  from  the  gift  of 
the  grantors,  or  from  sale  by  them  where 
the  purchase  money  had  been  paid  from  her 
separate  funds,  undoubtedly  such  title  would 
have  been  valid,  and  the  instruments  of  con- 
veyance would  need  no  registration.  Banks 
V.  Brown,  2  Hill,  Eq.  565  [30  Am.  Dec.  3S0]. 
And  as  the  instruments  here  are  formally  for 
the  separate  use  of  the  wife,  and  acknowl- 
edge   payment    by    her,    the    defendants   are 

*405 
bound   to   show   *that   they   present   a   false 
appearance,  and  that  the  payment  was  really 
164 


made  from  the  funds  of  the  husband.  Cn  r.i- 
tors  of  the  hxisband  had  no  just  cause  of 
complaint,  unless  property  of  the  luisbaud, 
liable  to  the  satisfaction  of  their  claims,  has 
been  improperly  diverted  to  the  support  of 
the  husband's  family.  The  conclusion  that 
there  was  such  misapplication  of  the  hus- 
band's funds,  depends  mainly  on  the  assump- 
tion that  tue  plantation,  which  afforded  the 
means  of  payment,  belonged  to  the  husband, 
at  least  as  to  the  usufruct.  But  the  proof  on 
this  point  is  not  satisfactory.  It  appears 
from  the  notes  of  evidence,  that  the  planta- 
tion was  derived  from  the  bounty  of  ihe 
father  and  brother  of  the  wife ;  and  some 
implication  that  the  husband  had  no  owner- 
ship of  it,  arises!  from  the  fact  that  vhe 
creditors  did  not  seize  and  sell  it  under  their 
executions.  It  is  strongly  asserted  before  us, 
that  it  was  settled  to  the  separate  use  of  the 
wife.  We  are  little  disposed  to  encourage 
appeals,  on  questions  of  fact,  from  a  Chancel- 
lor's conclusions  from  the  evidence ;  or  to 
allow  parties  to  be  again  heard  after  one 
fair  opportunitj'  of  establishing  their  claim 
or  defense.  But  in  the  present  instance,  the 
Chancellor  who  heard  the  cause,  upon  review, 
concurs  in  the  propriety  of  another  investiga- 
tion for  the  fuller  development  of  the  facts: 
and  such  is  the  determination  of  this  Court. 

2.  As  to  the  slaves  conveyed  by  Nancy  Boul- 
ware to  Catharine  Raines. 

In  Tyler  v.  Lake,  (6  Con.  Eng.  Ch.  R.  4,52,) 
the  trust  was  to  pay  the  proceeds  of  real  es- 
tate! into  the  proper  hands  of  a  married 
woman  for  her  own  use  and  benefit.  Lord 
Brougham  says:  "I  take  the  principle  to  be 
thoroughly  established,  that  Courts  of  Equity 
will  not  deprive  the  husband  of  his  rights 
at  law,  unless  there  appears  a  clear  inten- 
tion, manifested  by  the  testator,  that  the 
husband  should  be  excluded."  He  further 
remarks:  "If  sufficient  strength  of  negative 
words  is  not  to  be  found  in  the  gift  or  limi- 
tation, you  are  not  allowed  to  fish  about  for 
indications  of  intention  from  other  parts  of 
the  instrument."  This  latter  remark  has 
much   force  and   point,   but  it  must   not   be 

*406 
pressed  to  the  *extent  of  making  an  exception 
as  to  this  particular  case  of  marital  rights 
from  tlie  general  rule  of  construction,  that 
the  intention  is  to  be  collected  from  the  whole 
instrument.  Sir  James  Wigram  truly  says, 
in  Blacklow  v.  Laws,  (24  Eng.  Ch.  R.  50): 
"Courts  of  Justice  invariably  affirm  the  prop- 
osition that  an  intended  gift  shall  take  effect, 
provided  the  Court  can  find  in  the  instrument 
a  declared  intention  to  give,  although  the 
simple  words  of  limitation,  unaided  by  im- 
plication arising  out  of  other  parts  of  the 
instrument,  might  leave  the  intention  un- 
certain." 

It  is  argued  from  the  consideration  express- 
ed in  Nancy  Boulware's  deed,  to  provide  not 
only  for  the  maintenance  of  Catharine  Rain- 
es, but  for  the  maintenance  and  education  of 


BOGGS  V.  ADGER 


*408 


her  children,  that  we  may  infer  the  inten- 
tion of  tlie  donor  to  create  a  trust  for  the 
immediate  joint  benefit  of  the  children  with 
their  mother.  If  we  collate  the  terms  in  the 
consideration  with  the  terms  of  limitation, 
it  is  altogether  plain  that  it  was  the  inten- 
tion of  the  donor  to  give  not  a  joint  estate, 
but  the  whole  estate  to  Mrs.  Raines  for  life, 
and  after  her  death  to  her  children.  The 
case  of  the  plaint  ilTs  would  not  be  helped  by 
regarding  the  gift  for  the  joint  use  of  the 
wife  and  children.  In  Wardle  v.  Clayton, 
(IG  Eng.  Ch.  R.  524,)  a  testator  bequeathed 
his  residuary  estate  to  trustees,  in  trust,  to 
pay  the  income  to  his  wife  for  life,  to  he  by 
her  applied  for  the  maintenance  of  herself 
and  such  children  as  he  might  leave  at  his 
death.  The  widow  married  again,  and  claim- 
ed the  income  for  her  separate  use.  V.  C. 
Shadwell  rejected  the  claim  because  she  was 
not  the  sole  object  of  bounty.  It  is  natural 
and  usual  for  a  donor  who  is  under  parental 
obligation  to  the  donee,  to  express  as  the 
motive  of  gift,  that  the  donee  may  better 
support  himself  and  those  who  are  dependent 
upon  him;  and  the  expression  of  such  motive 
cannot  operate  restrictively  upon  the  gift. 

The  terms  of  gift  or  limitation  in  the  pres- 
ent case  create  no  definite  trust.  We  have 
the  word,  but  not  the  thing.  A  trust  is  an 
equitable  title  in  property,  distinct  from  the 
legal  ownership  thereof.     But  a  gift  to  one 

*407 
in  trust  for  himself — and  a  gift  of  *chattels 
to  a  wife  is  a  gift  to  the  husband — confers 
the  whole  estate,  legal  and  equitable,  upon 
the  donee.  Here  no  trust  or  confidence  is 
reposed  in  the  nominal  trustee;  no  duty  or 
obligation  distinct  from  ownership  is  pre- 
scribed to  her.  Her  legal  and  equitable  in- 
terests are  commensurate,  and  nothing  is  to 
be  done  by  her  legal  representatives  after 
her  death  for  the  protection  of  the  rights  of 
her  children  in  remainder.  The  Chancellor 
was  well  justified  by  the  precedents  he  cites 
in  protecting  the  legal  rights  of  the  children 
in  remainder,  by  requiring  forthc-oming  bonds 
from  the  purchasers  of  the  life  estate ;  and 
no  remedy  more  complete  could  be  afforded  to 
them.  If  we  regarded  their  rights  as  eiiuitablo. 

We  approve  the  decisions  of  Rice  v.  Bur- 
nett, Speers,  Eq.  579  [42  Am.  Dec.  33G],  and 
lorr  v.  Hodges,  Speers,  Eq.  59.3;  but  those 
cases  recognize  the  merger  of  the  legal  and 
equitable  estates  where  the  trustee  has  no 
duty  to  perform. 

The  case  of  Jones  v.  Fort,  1  Rich.  Eq.  50, 
so  strongly  pressed  upon  us  in  the  argument, 
goes  quite  as  far  as  we  are  willing  to  follow, 
but  is  distinguishable  from  the  case  in  hand. 
There,  certain  slaves  were  given  to  the  hu.s- 
band  in  trust  for  the  joint  use  of  himself  and 
wife  during  her  life,  and  at  her  death  to  be  ! 
distributed  among  her  children;  and  the 
trust  was  held  to  be  effectual.  Rut  the  hus-  I 
band  was  express  trustee:   the  wife's  right  of  ■ 


survivorship  could  only  be  protected  by  pre- 
venting the  fusion  of  the  legal  and  equitable 
estates ;  these  estates  were  not  connueu- 
surate.  Chancellor  Harper,  in  delivering  the 
judgment,  says:  'As  trustee,  he  (the  hus- 
band) has  an  absolute  estate  in  the  proi>erty, 
or,  as  it  is  sometimes  .said,  the  fee;  as  ces- 
tui que  trust  he  has  only  an  estate  for  the 
joint  lives  of  him.self  and  wife.  The  legal 
estate  is  exclu.sively  in  him  as  trustee:  he 
takes  the  equitable  estate  jointly  with  his 
wife." 

It  is  ordered  and  decreed  that  so  much  of 
this  case  as  relates  to  the  slaves  transferred 
by  M.  Roulware  and  R.  Cathcart  be  remanded 
to  the  circuit  Court  to  be  heard  and  deter- 

*408 
mined  anew ;   *and  that  the  circuit  decree  be 
modi  lied  in  this  particular,  and  in  other  mat- 
ters l)e  affirmed. 

JOHNSTON  and  DARGAN,  CC,  concurred. 
Decree  modified. 


4   Rich.  Eq.   408 

GEORGE    W.    I{()(;(;s   iiiid    ISAT'.KLLA,    His 

Wife.  V.  JOHN  AHGER. 

(Columbia.     .May  Term,  1S52.) 

[Guardian  and   Ward  <S=>;;!».1 

In  1S.30  an  adininistrator  Iiavinp:  in  his 
haiuls  funds  of  an  infant,  distributcp  of  liis  in- 
testato,  invested  the  same  in  stock  of  ♦^lu'  Bank 
of  the  Initi'd  States:  iu  ItCJo  a  guardian  was 
appointed  for  tlie  infant,  who  received,  from  the 
administrator,  the  stock,  in  full  of  the  infant's 
share,  &c. :  the  B;ink  was  iu  lugii  credit  until 
1839,  when  the  price  of  the  stock  sank  suddenly 
and  greatly  in  the  market.— it  finally  became 
almost  worthless:— //cW,  that  the  guardian  was 
not  liaide  for  the  depreciation  in  the  value  of 
the  stock. 

I  Ed.  Note. — For  other  cases,  see  Guardian 
and  Ward,  Cent.  Dig.  §  170;   Dec.  Dig.  <@=539.| 

[Trmfn  <©=218.] 

There  is  no  rule  in  this  State  prescribing 
the  securities  on  which  trust  funds  shall  be  lent 
or  invested:  and  where  a  trustee,  in  investing 
funds,  acts  faithfully  and  with  conunon  dili- 
gence and  sagacity,  he  will  not  be  liable  if  tlio 
funds  be  lost. 

[Ed.  Note.— Cited  in  Sollee  v.  Croft.  7  Rich. 
E(i.  46;  Moore  v.  Hood.  9  Rich.  Eq.  32.S.  70 
Am.  Dec.  210;  .knelling  v.  McCrearv.  14  Rich. 
E<i.  .300 ;  xXance  v.  Nance.  1  S.  C.  221.  224  ; 
I'ope  V.  Mathews.  18  S.  C.  448. 

For  other  cases,  see  Trusts.  Cent.  Dig.  SS 
310-313;     Dec.    Dig.    <©=»21S.l 

Before  Wardlaw,  Ch.  at  Fairticld.  July, 
1851. 

William  Adger,  jun.  died  intestate  in  1826, 
and  his  father,  William  Adger,  sen.,  became 
his  administrator.  The  estate  was  converted 
into  money,  and  the  administrat<u-.  having 
paid  the  plaintiff,  Isabella,  who,  as  widow  of 
the  intestate,  was  one  of  his  distrilnitees.  her 
share  in  full,  made  a  return  to  the  ordinary, 
in  June,  1830,  in  which  he  charged  himself, 
on  one  side,  with  the  share  of  William  Law 
Adger.  an  infant  son  of  the  intestate  and  the 


^=»For  other  eases  see  same  topic  and  KL  V- Xl'.MBEK  in  all  Key-Numbered  Digests  and  Indexes 


165 


*408 


4  RICHARDSON'S  EQUITY  REPORTS 


plaintiff  Isaljella,  and  a  distributee  of  tlie  in- 
testate, and  discharged  liimself,  on  the  other 
side,  with  the  purchase  of  a  number  of 
shares  in  the  stock  of  the  Bank  of  the  Unit- 
ed States,  at  $120  a  share. 

The  defendant  was  appointed  by  the  Court 
of  Equity,  March  14,  1835,  guardian  of  Wil- 
liam Law  Adger,  and  immediately  after  his 
appointment  received  from  the  administra- 
tor   of    William   Adger,    jun.,    the    aforesaid 

*409 
shares  in  the  stock  of  the  Bank  of  the  *Uuit- 
ed  States,  in  full  of  his  ward's  interest  in  the 
estate  of  his  father.  This  stock,  for  con- 
venience of  receiving  dividends  and  making 
transfers,  stood,  at  the  time,  in  the  name  of 
James  Adger,  a  merchant  of  Charleston  of 
high  reputation  for  experience,  intelligence 
and  probity ;  and  so  continued  to  stand  until 
February  28,  1838,  when  James  Adger,  con- 
templating a  trip  to  Europe,  transferred  the 
certificates  to  the  defendant  as  guardian. 
James  Adger  teistilied,  that  soon  after  his  ap- 
pointment, defendant  took  the  counsel  of  wit- 
ness as  to  the  policy  of  retaining  for  his 
ward  the  investment  already  made  in  the 
Bank  of  the  United  States,  and  of  making 
further  investments  therein  from  accruing 
dividends,  and  other  profits  of  the  ward's  es- 
tate; that  witness  highly  recommended  this 
stock  as  safe  and  profitable,  but  as  the  Bank 
of  Charleston  was  about  to  go  into  operation, 
it  was  agreed  that  the  defendant  for  his  ward 
should  subscribe  for  shares  in  that  institu- 
tion, and  accordingly,  on  May  30,  1835,  de- 
fendant sold  out  30  shares  in  the  Bank  of  the 
United  States,  at  $112.50.  and  subscribed  for 
shares  in  the  Bank  of  Charleston,  but  on  the 
apportionment  among  the  subscribers,  from 
the  extraordinary  excess  of  subscriptions  to 
the  stock,  received  only  3  shares  in  the  Bank 
of  Charleston,  as  his  allotment ;  and  in  Oc- 
tober and  November,  1835,  under  James  Ad- 
ger's  counsel,  he  again  bought  30  shares  in 
the  Bank  of  the  United  States,  at  $108  and 
$109. 

The  defendant  in  his  first  return  as  guard- 
ian, to  the  commissioner,  made  April  10,  1836, 
charged  himself  to  his  ward  with  41l^  shares 
in  the  stock  of  the  Bank  of  the  United  States, 
and  with  3  shares  in  the  Bank  of  Charles- 
ton. In  his  subsequent  annual  returns,  he 
charged  himself  with  dividends,  and  discharg- 
ed himself  by  the  purchase  of  a  few  addi- 
tional shares  in  the  Bank  of  the  United 
States,  and  other  investments. 

William  Law  Adger  died  June  11,  1842, 
aged  about  twenty  years,  intestate;  and 
plaintiffs  administered  on  his  estate.  This 
bill,  which  was  for  an  account,  was  filed 
May  31,  1847. 

Wardlaw,  Ch.  The  question  submitted  to 
me,  is  whether  defendant  as  guardian  must 

*410 
be  responsible  to  the  representatives  of  *his 
ward,  for  the  depreciation  in  value  of  the 
stock  of  the  Bank  of  the  United  States,  in 

166 


which  a  large  portion  of  the  ward's  funds 
was  invested.  The  defendant  when  appointed 
guardian,  received  such  stock  from  tlie  for- 
mer trustee  of  his  ward,  and  after  an  un- 
successful attempt  to  change  the  investment 
into  stock  of  a  Bank  of  the  State,  he  contin- 
ued the  original  investment ;  and  the  Bank 
of  the  United  States  became  bankrupt,  and 
the  stock  almost  worthless. 

Much  denunciation  was  uttered,  in  the 
course  of  the  case,  against  the  Bank  of  the 
United  States,  as  a  foreign,  political  and 
speculating  institution.  The  only  question, 
in  which  we  are  concerned,  is  whether  in- 
vestment in  the  stock  of  this  bank,  and  the 
maintenance  of  the  investment,  can  be  re- 
garded as  .iudieious  operations,  under  the 
circumstances  of  this  case.  In  I^ngland, 
trust  funds  are  usually  required  to  be  invest- 
ed in  consols ;  but  we  have  no  rule  prescrib- 
ing the  securities  on  which  trust  funds  shall 
be  lent  or  invested.  A  trustee,  here,  is  re- 
quired to  act  faithfully  in  the  interests  com- 
mitted to  him,  but  the  general  management 
is  left  to  his  discretion.  It  is  well  establish- 
ed by  the  copious  evidence,  that  this  bank 
was  in  high  credit  in  this  State,  and  its 
stock  eagerly  sought  for  investments  by  capi- 
talists, trustees  and  bodies  corpora*"e,  until 
the  fall  of  1839,  when  the  price  of  the  stock 
sank  suddenly  and  greatly  in  the  market. 
Long  after  this  time  the  hope  was  entertain- 
ed by  astute  and  practical  men,  that  the 
stockholders  would  be  finally  re-iml)ursed ; 
and  few  persons  acted  upon  the  policy  of  sell- 
ing out  at  the  prices  so  suddenly  reduced. 
The  result  has  been  the  sacrifice  of  about 
three  millions  of  capital  to  this  State,  fall- 
ing even  disproportionately,  upon  the  pru- 
dent, and  the  circumspect.  Some  sagacious 
pei-sons  distrusted  the  bank  long  before  its 
downfall,  but  they  failed  to  infuse  their  su.s- 
picions  into  ordinary  men  of  business. 

The  office  of  trustee  is  onerous  in  itself, 
and  the  exercise  of  it  commonly  demanded 
in  the  affairs  of  society ;  and  to  require  from 
a  trustee  more  than  connuon  sagacity  and 
diligence,  is  against  policy.     In  many  of  our 

*411 
cases,  it  has  been  laid  down  as  a  rule,  *that 
a  trustee  is  answerable  for  those  losses  only, 
which  are  occasioned  by  such  acts  or  omis- 
sions, as  a  prudent  man  would  not  do  or  omit 
in  his  own  affairs.  Taveau  v.  Ball,  1  McC. 
Eq.  464;  Bryan  v.  Mulligan,  2  Hill  Eq.  3(>4 ; 
Glover  v.  Glover,  McMul.  Eq.  153;  Odell  v. 
Young,  lb.  155.  Upon  this  rule,  the  trustee 
in  the  present  case  must  be  excused  from  lia- 
bility. He  managed  the  funds  of  his  ward 
as  prudent  men  in  the  State  managed  their 
own  affairs.  In  Hext  v.  Porcher,  1  Strob. 
Eq.  170,  the  liability  of  the  trustee  is  placed 
generally  upon  his  faithfulness ;  and  it  is 
justly  remarked  that  the  rule  quoted  above 
is  subsidiary  and  illustrative.  To  the  present 
defendant  no  intentional  unfaithfulness  is 
imputed  in  the  discussion,  nor  could  be  im- 


HICKS  V.  TEGUES 


*41J 


imtt'tl  with  any  iiroprifty  accordinj^  to  the 
evidence.  He  lias  honestly  endeavored  to 
fiillil  his  duty.  No  nef.'li;renoe,  no  unusual 
mistake,  has  attended  his  nianaj;euient.  I 
am  of  oiiinion,  that  the  loss  on  the  stock  in 
the  Haid<  of  the  I'nited  States  must  fall 
upon  the  estate  of  his  ward. 

It  is  ordered  and  decreed,  that  the  eomniis- 
sioner  of  this  Court  take  the  account  between 
the  parties,  upon  the  i)rincii>les  stated  in  this 
o[iinion;  that  the  plaintitYs  are  entitled  to 
cliarjre  the  defendant  with  the  funds  received 
iiy  defendant  as  guardian  of  Wm.  L.  Adj,'er, 
on  the  settlement  in  l.S''.r».  with  subseciuent 
increment:  and  that  defendant  is  entitled  to 
he  discharjied  as  to  his  investment  in  the 
stock  in  the  liank  of  the  I'nited  States,  ui)on 
transferrin?,'  the  scrip,  or  payinj?  its  present 
value.  Costs  to  be  paid  from  the  estate  ol 
William  L.  Adf^er. 

The  plaintift's  appealed  and  moved  to  n)od- 
ify  the  decree,  on  the  ground: 

That  if  the  United  States  liank  stock,  own- 
ed by  Wm.  Adger.  sen.,  had  been  lawfullj' 
transferred,  the  defendant,  as  guardian,  ought 
not  to  have  received  it  in  payment  of  the 
shares  of  his  ward,  William  Law  Adger,  in 
his  father's  estate,  and  ought  not  to  have 
continued  said  funds  in  said  bank,  or  to  have 
re-invested  the  profits  therein  ;  and  after  the 
charter  of  the  Bank  of  the  United  States  had 
expired,  March  1,  IS.'iG.  defendant  was  espe- 

*412 
cially    at    *fault   in    re-investing   his    ward's 
funds  in  the  I'ennsylvania  Bank,  called  the 
United    States   Bank   of   Pennsylvania,    and 
further  in  continuing  the  funds  in  said  bank. 

Boyce,  for  appellants. 

Boylston,  contra.  The  Court  of  Eijuity  has 
always  treated  trustees,  acting  in  good  faith, 
with  great  tenderness.  In  Knight  v.  The 
Karl  of  IMymouth,  a  receiver  had  deposited 
money  with  a  banker  of  good  credit,  who  aft- 
erwards failed,  and  as  he  was  not  charge- 
able with  any  willful  default  or  fraud,  he 
was  not  held  responsible  for  the  loss  of  it. 
"Suppose,"  said  Lord  Ilardwicke,  "a  tru.stee 
liaving  in  his  hands  a  considerable  sum  or 
money,  places  it  out,  for  the  benefit  of  the 
cestui  que  trust,  in  the  funds,  which  after- 
wards sink  in  their  value,  or  on  a  security 
at  the  time  perfectly  good,  and  which  after- 
wards turns  out  not  to  be  so,  was  there  ever 
an  instance  of  the  trustee's  being  made  to 
answer  for  the  actual  sum  so  placed  out?  I 
answer,  no!  If  there  was  no  mala  fides, 
nothing  wilful  in  the  conduct  of  the  trustee, 
the  Court  will  always  favor  him.  For  as  a 
trust  is  an  office  necessary  in  the  concerns 
lietween  man  and  man,  and  which,  if  faith- 
fully discharged,  is  attended  with  no  small 
degree  of  trouble  and  anxiety,  it  is  an  act  of 
great  kindness  in  nny  one  to  accept  of  it.  To 
add  hazard  or  risk  to  that  trouble,  and  to 
subject  a  trustee  to  losses  which  he  could  not 


foresee,  would  be  a  manifest  hardshiii.  and 
would  be  deterring  every  one  from  accepting 
so  necessary  an  office."  Dick.  IL'O;  S.  C.  3 
Atk.  480.  The  same  rule  was  followed  in 
Kowth  V.  Howell,  'd  Ves.  505.  In  Wilkinson 
V.  Stafford,  1  Ves.  juu.  41,  Lord  Thurlow 
held,  that  a  trustee  was  not  answeral)le  for 
having  applied  the  trust  proin-rty,  even  to 
what  turned  out  to  be  a  losing  adventure, 
if  without  fraud  or  negligence.  Though  an 
executor  or  trustee  may  be  liable  for  negli- 
gence, it  must,  as  Lord  Keei)er  North  ob- 
serves, be  very  supreme  negligence,  1  Vern. 
144:  it  nmst  be  crassa  negligentia.  or  gross 
negligence,  1  Madd.  H.  L'StO.  When  a  trustee 
acts  by  other  hands,  either  fnuu  necessity 
or  conformably  to  the  common  usage  of  man- 
kind, he  is  not  to  be  matle  answerable  for 
losses,  Amb.  i.'19.     The  following  authorities 

•413 
*were  also  cited  and  commented  upon:  2 
Story  Eq.  §  1272;  Taveau  v.  Ball.  1  McC. 
Ch.  464;  Bryan  v.  Mulligan,  2  Hill  Ch.  ;i64: 
(ilover  v.  Glover.  .Mc.M.  Eq.  15:^;  Gdell  v. 
Young.  lb.  155:  Hext  v.  Porcher.  1  Strob. 
Eq.  170:  The  Vestry,  &c..  of  Prince  George 
Winyaw  v.  The  Prot.  Epis.  Soc.  &c.,  MS. 
Charle.ston,  January.  1849. 

Dargan,  same  side,  was  stopped  by  the 
Court. 

Buchanan,  in  reply. 

PER  CURIAM.  This  Court  perceives  no 
error  in  the  decree  appealed  from.  It  Is 
therefore  ordered,  that  the  same  be  affirmed, 
and  the  appeal  dismi.ssed. 

JOHNSTON.     DUNKIN,     DAKGAN     and 
WARDLAW.  CC,  concurring. 
Appeal  dismissed. 


4   Rich.  Eq.  413 

ANN  V.  HICKS  V.  THOMAS  E.  R  PEGUES 

et    al. 

(Columbia.     May  Term.  1852. » 

[Wills   <S=5(>;!4.] 

Devise  of  property,  resd  and  porsoiinl.  to  C. 
B.  in  fee.  "but  if  she  should  die  without  leaving 
issue  livin;;  at  her  deatii'"  then  over  to  W.  \'.  in 
fee:  W.  \'.  died  in  the  life  time  of  C.  P...  and 
she  then  died  without  issue:  JJcld.  that  W.  Vs. 
estate  in  expectancy,  both  in  the  real  ami  per- 
sonal property,  passed  at  his  death  to  his  licirs 
then  existing,  and  that  they  and  their  represent- 
atives were  entitled  to  distriliution  of  tlie  prop- 
erty when  the  expectancy  fell  in  :  and  that  the 
heirs  of  W.  V.  existing  at  the  time  the  ex- 
pectancy fell  in  were  not  exclusively  entitled. 

fEd.   Note.— Cited  in  Varu  v.  Varn,  .".2  S.  C 
7'.).  10  S.  E.  820. 

For  other  cases,  see  Wills,  Cent.  Di;;.  §  1497; 
Dec.  Dig.  <©=3G:54.1 

[Descent  and  Dintrihution  C=>17.] 

Under  the  Act  of  distributions  of  tins  State, 
actual  seisin  is  not  necessary  to  enable  one,  hav- 
ing a  i)reseut  title  to  an  estate,  to  become  the 
stock  or  root  of  inheritance:  contingent  re- 
mainders and  ex<H*utorj-  devises  are,  by  that  Act, 


®=»For  other  cases  see  same  topic  aud  KKY-NUMBEH  iu  all  Ke^-Numbered  Digests  aud  Indexes 


167 


*4K 


4  RICHARDSONS  EQUITY  RErORTS 


distributable  among  the  heirs  existing  at  the 
death  of  the  person  entitled  to  the  estate  in  ex- 
pectancy, and  not  among  his  heirs  existing  when 
the  expectancy  falls  in. 

[Ed.  Note.— Cited  in  Evans  v.  Godbold,  6 
Rich.  Eq.  38;  Glover  v.  Adams,  11  Rich.  Eq. 
267;  Blount  v.  Walker,  31  S.  C.  30,  9  S.  E. 
804. 

For  other  cases,  see  Descent  and  Distribu- 
tion, Cent.  Dig.  §  51;    Dec.  Dig.  <©=3l7.] 

Before  Wardlaw,  Cli.,  at  Marlboro',  Febru- 
ary, 1851. 

The  only  question  in  this  case  arose  upon 
the  following  clause  in  the  will  of  Malachi 
N.  Bedgegood: 

"I  give,  devise,  and  bequeath  luito  my  wife, 
*414 
Catharine  Bedge*good,  a  negro  man  slave, 
named  Primus,  and  the  one-half  of  the  re- 
maining part  of  all  my  real  and  personal 
estate,  which  has  not  herein  before  been  dis- 
posed of,  to  her  and  her  heirs,  provided  she 
shall  live  single  until,  or  should  marry  and 
leave  lawful  issue  living  at  her  death ;  but 
in  case  she  should  marry,  and  die  without 
leaving  lawful  issue  living  at  her  death,  I 
then  give,  bequeath,  and  devise  the  same  to 
her  for  life,  and  no  longer;  and  after  her 
decease,  I  give,  devise,  and  bequeath  the 
same  unto  my  nephew,  William  Vernon,  and 
his  heirs." 

Catharine  Bedgegood  married,  and  died, 
leaving  no  issue.  Williams  Vernon  died 
many  years  previously,  intestate,  leaving  the 
complainant,  an  aunt  of  the  whole  blood, 
and  Mary  Elizabeth  Hamer,  an  aunt  of  the 
half  blood,  surviving  him,  they  being  his 
nearest  relations  at  the  time  of  his  death. 
Mary  Elizabeth  Hamer  afterwards  intermar- 
ried with  one  Charles  Gee,  and  died  before 
Catharine  Bedgegood,  leaving  her  husband 
and  several  children  her  surviving.  The 
complainant  in  her  bill  claimed  all  the  in- 
terest of  William  Vernon,  under  the  forego- 
ing clause  in  Malachi  N.  Bedgegood's  will,  in 
exclusion  of  the  husband  and  children  of 
Mary  E.  Hamer,  on  the  ground,  that  she  was 
the  nearest  relation  to  Vernon,  at  the  time  of 
the  happening  of  the  contingency  upon  which 
his  interest  was  to  vest.  The  defendants  in- 
sisted in  their  answer,  that  Mary  E.  Hamer, 
being  alive  at  the  death  of  William  Vernon, 
acquired  thereby  a  right  to  one-half  of  the 
interest  aforesaid,  which,  on  her  death,  was 
transmitted  to  her  heirs  at  law. 

The  presiding  Chancellor  being  of  opinion, 
that  the  distributees  of  Vernon,  existing  at  the 
time  of  his  death,  were  entitled  to  the  bene- 
fit of  the  limitation  to  him,  and  that  the  com- 
plainant, who  stood  in  the  nearest  relation  to 
him  at  the  time  of  the  expectancy  falling  in, 
was  not  exclusively  entitled,  it  was  decreed 
that  a  writ  of  partition  do  issue,  to  allot  to 
the  complainant  one-half  of  the  interest  of 
the  said  William  Vernon  in  the  real  and  per- 
sonal estate,  instead  of  the  whole,  as  claimed 
by  her  bill. 


The  complainant  ai)pealed,  on  the  groiuid, 
*415 
that  being  nearest  *of  kindred  to  William 
Vernon  at  the  time  of  the  expectancy  falling 
in,  she  is  exclusively  entitled  to  the  benefit 
of  the  limitation  to  him. 

Dutlley,  Johnson,  for  api)ellant. 
Inglis,  contra. 


Curia  per  JOHNSTON,  Ch.  Being  direct- 
ed by  my  brethren  to  announce  the  affirma- 
tion of  the  circuit  decree,  and  to  oiler  the 
reasons  for  this  decision,  I  cannot  express 
them  better  than  by  referring  to  the  opinion 
I  lately  delivered  in  the  Circuit  Court  of 
Charleston,  in  the  case  of  Buist  &  Dawes  (a) 

*416 
upon    the    same    *point;     a    copy    of    which 
accompanies  this  opinion.    That  decision  was 


(o)  George  Buist,  Adm'r.,  v.  H.  P.  Dawes 

et    al. 
[Wills   <s=s506.1 

[Cited  in  Evans  v.  Godbold,  6  Rich.  Eq.  38, 
to  the  point  that  heirs  of  the  same  person  may 
be  different  individuals  at  different  epochs.] 

[Ed.  Note.— For  other  cases,  see  Wills.  Cent.  Dig. 
§  1090;    Dec.  Dig.   ©=3506.] 

[This  case  is  also  cited  in  Blount  v.  Walker,  31 
S.  C.  30,  note,  9  S.  E.  SU-J,  and  distinguished 
therefrom.] 

This  cause  was  heard  in  the  Circuit  Court 
of  Charleston,  in  February,  1852,  by  Johnston, 
Ch.,  upon  tiie  following  case  stated,  and  ques- 
tions submitted,   by  counsel. 

Edward  Tonge  devised  his  real  and  personal 
estate  to  his  wife,  during  widowhood,  with  re- 
mainder, in  case  of  her  death,  or  marriage,  to 
his  mother,  for  life, — remainder  to  James  Boone 
I'erry  for  life.  i.  e.  "the  use  thereof  for  life, 
and  at  his  decease  the  said  lands,  slaves  and 
premises  shall  be  and  is  hereby  vested  in  the 
male  issue  of  the  said  .James,  (and  in  default  of 
such  in  the  issue  femalei  surviving  him;  and 
if  a  general  failure  shall  be  at  the  death  of  the 
said  James,  I  give  said  land  and  slaves  to  my 
cousin,  John  W.  Sommers,  on  the  same  terms, 
conditions,  limitations  and  reservations  as  this 
is  made  liable  to,  in  respect  to  James's  interest 
therein,  in  pursuance  of  this  my  Mill;  and 
should  there  be  a  total  failure  of  issue  (immedi- 
ate) on  the  decease  of  the  said  .John  W.  Sora- 
mers,  I  give  the  said  land  and  slaves,  and  the 
issue  and  increase  of  the  female  slaves  to  his 
(the  said  J.  W.  S's.)  brother,  James  D.  Som- 
mers,  his  heirs  and  assigns  forever." 

The  widow  married  again ;  and  testator's 
mother  succeeded  to  her  life  estate ;  and  .James 
liooue  I'erry  having  died  without  issue,  in  her 
life  time,  at  her  death  the  estate  passed  into 
the  possession  of  John  W.   Sommers. 

James  D.  Sommers  died  in  the  life  time  of 
James  Boone  Perry  and  John  W.  Sommers, 
intestate  and  without  issue. 

John  W.  Sommers  died  in  January,  1848, 
without  issue,  leaving  a  will. 

At  the  death  of  James  D.  Sommers,  his  heira 
at  law,  or  distributees,  were  his  sisters,  Mary 
Buist  and  Henrietta  Rowand,  and  his  brother, 
John  W.  Sommers,  all  deceased. 

At  the  death  of  John  W.  Sommers,  the  heirs 
at  law,  or  distributees  of  James  D.  Sommers, 
or  persons  then  answering  that  description,  were 
and  are,  his  nieces  and  nephews,  Mary  S.  Lamb, 

*416 
(wife   of   Jas.    Lamb.)    *Martha    Buist,    George 
Buist,  Rev.  Ed.  T.  Buist,  liobert  Rowand,  Mar- 


168 


<&=»FQr  other  cases  see  same  topic.and_KEYz NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


BUI6T  V.  DAWES 


*418 


acquiesced   in   by    the   eminent   counsel   con-  ] 
cerned. 

It  is  ordered  that  the  decree  be  ulHrujed, 
and  the  appeal  dismissed. 

DINKIX.  DAKGAX  and  WAICDLAW,  CC  , 
concurred. 

Appeal  dismissed. 


tha   S.   Drayton,   (wife   of   Alfred   R.   Drayton.) 
and    IMnry    K.    Simons,    (wife    of   Dr.    Thos.    Y. 

Simons.) 

At  June  Tei-m,  ISIS.  Chancellor  Dargan  held 
that  tilt'  ultorior  limitations  of  Edward  Tungc's 
will  were  valid  as  to  tiie  personal  estate:  and 
that  James  1).  Summers  touk  a  cdntin^jcnt  inter- 
est in  the  same  that  was  transmissii)le  to  his 
personal  representative ;  and  that,  at  the  death 
of  John  W.  Summers  without  issue  living,  tiie 
said  personal  ('state  w  is  distrihutaMe  amon^ 
them,  and  that  those  peisons  (parties  to  the  bill) 
were  to  be  regarded  as  the  distributees  of  J.  p. 
Sommers,  who  would  fall  within  that  de.scrip- 
tion  at  the  period  of  his  death,  and  his  or  her 
or  their  leual  rei)resentatives. 

As  to  the  real  c'state  he  held,  that  the  terms 
of  the  devise  created  a  fee  conditional  in  James 
Koone  I'erry,  and  that,  on  his  death  without 
issue,  the  same  reverted  to  the  right  heirs  of 
testator,  and  he  adjutlucd  Ann  I'erry  to  be  en- 
titled to  the  same  as  tiie  .sole  surviving  heir  of 
Edward  Touge;  and  he  ordered  that  each  party 
pay  his  own  costs. 

From  this  decision  there  was  an  appeal,  on 
the   following  among  other   grounds: 

That  the  real  estate  of  Edward  Tonge  is,  by 
his  will,  well  devised  over,  on  the  deaths  of 
James  Boone  I'erry  and  John  W.  Sommers, 
without  leaving  issue,  to  James  D.  Sommers 
in  fee. 

That  both  the  real  and  personal  estate  of  tes- 
tator, on  the  death  of  John  W.  Sommers  with- 
out issue,  passed,  under  testator's  will,  to  Jas. 
D.  Sommers.  and  are  distributable  among  the 
jiersons  answering  the  desoriiitiou  of  heirs  or 
distributees  of  .James,  at  the  death  of  .John,  and 
not  among  those  answering  that  description  at 
the  death  of  James,  as  decreed  by  the  Chan- 
cellor, in  relation  to  the  personalty. 

That  the  decree  as  to  each  party  paying  his 
own  costs  should  be  modified,  several  of  the  de- 
fendants being  minors,  one  having  filed  a  dis- 
claimer, and  several  others  having  been  made 
parties  only  to  cpiiet  the  title  to  the  property. 

The  Equity  Court  of  Api)eals,  at  January 
Term,  1849,  affirmed  Ch.  Dargan's  decree  as  to 
the  personalty,  but  referred  to  the  Court  of 
Errors  the  construction  of  the  will  as  to  the 
real  estate,  and  as  to  wnat  estate  James  Boone 
Perry  took  therein  under  the  said  will,  whether 
he   took    a   fee   conditional    therein,    and,    if   so, 

*417 
whether  there  *could  be  a  limitation  thereon,  by 
way  of  executory  devise,  to  John  W.  Sommers, 
and  if  he  died  without  issue  to  James  D.  Som- 
mers(&). 

The  Court  of  Errors,  at  January  Term.  1852. 
merely  decided  that  .Tames  Boone  Perry  did  not 
take  a  fee  conditional  in  the  real  estate. 

The  following  questions  remain  for  adjudica- 
tion. 

1.  Whether  the  limitation  over  of  the  real  es- 
tate in  fee  to  James  D.  Sommers,  on  the  death 
of  John,  without  issue   living,  is  valid? 

2.  Whether  if  said  linutation  over  be  good,  the 
said  real  estate  is  to  be  disfributed  among  the 
heirs  of  .Tamos,  at  the  death  of  .Tames,  or  the 
heirs  of  .Tames  at  the  death  of  John. 

Yeadon.  The  T^nglish  rule  is  cleay.  3  Cruise. 
412,  Tit.  i:)esceut;  Fearn^.  501.  note  a;  2  Wil- 
son, 20,   Goodright  v.   Searle;  2  Hill,   Ch.   .j.jO, 

(b)  See  the  case  reported  [Buist  v.  Dawes]  4 
Strob.   Ea.   37. 


Wilson  V.  Freer.  The  .\ct  of  1701,  (5  Stat.  1G3,> 
has   not   altered   this   rule. 

There  is  no  express  rule  of  English  descents, 
e.\cept  in  the  special  cases  where  estates  were 
to  be  distributed. 

Hayne.  contra.  J.  D.  Sommers  takes  a  fee. 
It  is  cuiitin'-ent.  but  it  is  in  a  per.-^ou  designated. 
It  is  real  estate:  and  transmissihle.  assignable, 
inheritable.  2  Mill,  04.  .McDtmald  v.  McMul- 
laii  ;  2  Saund.  K.  .'{NS.  note.  Purefoy  v.  Rogers, 
lie  aught  devise  or  release  it.  By  the  2d  sec- 
tion of  the  Act  personalty  shall  be  distributed 
as  realty  is.  1  Hill.  Ch.  2(is.  Adams  v.  Chap- 
lin; 2  Id.  247,  Deas  v.  Horry;  id.  41G,  Ed- 
wards v.  Barksdale;  2  Tuck.  Bl.  Append.  14, 
IG. 

Memminger.  same  side.  Devisable  and  dis- 
tributaltle  are,  under  our  Acts,  cuunter|)arts. 
Whatever  can  be  devised,  if  not  devised,  is  dis- 
tributed. 

Petigru,  in  reply.  The  Act  of  1701  has  not 
abolished  the  pre-e.xisting  rule.  It  does  not  de- 
stroy the  distinction  between  realty  and  i)erson- 
alty  in  ihe  following  particulars:  1.  The  real 
does  not  go  to  the  administrator:  .Vliter  as  to 
personalty.  2.  Descent  is  still  the  law  of  real; 
the  personal  is  merely  transnussilde.  3.  Alien- 
age  and  citizenship  still  alTrct   descent   of   leal. 

4.  The  ordei-  of  lial)ility  for  debts  is  not  altered. 

5.  The  statute  does  not  abolish  tlie  difference 
in  construction  of  deeils  of  real  and  i)ersonal. 

Descent — connexion  of  blood.  Seabrook  v. 
Seabrook.  Mc.M.  Eq.  2(il,  Act  1701.  S  7  and  §  0. 
The  Act  of  1701  relates  to  vested  estates,  and 
in  that  view  the  rule  is  as  stated  by  Fearue, 
559;  Chancy  v.  Graydon,  2  Atk.  (il(i.  The 
estate  to  James's  heirs  is  to  arise  only  on  John 
W.  S's.  death. 

JoiiN.sTOX,  Ch.  With  much  hesitation  as  to 
the  i)ropriety  "of  taking  cognizance  of  the  ques- 
tions submitted  to  me  in  this  case.  I  have,  at 
the  urgent  request  of  both  parties,  consented  to 
hear  them.  My  apprehension  is,  that  those 
questions  are  properly  uefore  the  Court  of  Er- 
rors as  part  of  "the  construction  of  this  will  as 

*418 
to  the  real  estate,"  or  *remain  in  the  Court  of 
Appeals  in   E(iuity.   to   be  determined   upon   the 
return  of  the  judgment  of  the  Court   of  Errors. 

The  first  question  is  tree  from  difticulty.  I 
understand  the  Court  of  Errors  to  have  tlecided, 
that  the  estates  of  James  B.  Perry  and  John 
W.  Sommers.  and  their  issue.— preceding  the 
limitation  over  to  James  D.  St)mmers, — are  not 
fees  conditional.  T'nless  they  are  fees  ct>ndition- 
al,  they  must  be  either  fee  simple  estates  in 
James  B.  I'erry  and  Jt)hn  W.  Sommers,  succes- 
sively, or  estates  for  life  to  them,  with  re- 
m;iinder  to  their  issue  in  fee.  In  either  case, 
the  limitation  over  is  after  a  fee  simple,  and 
is  good,  as  an  executory  devise:  for  all  the 
authorities  agree  that  an  executory  devise  may 
be  limited  after  an  estate  of  that  character. 

The  second  question  is  more  dillicult.  James 
1).  Sommers,  to  whom  the  estate  was  limited 
over  in  fee.  died  before  the  expiration  of  the 
prior  estates  ;  and  the  <iuestion  is.  whether  the 
fee.  which  was  limited  over  to  him.  is  dis- 
tributable among  the  heirs  left  by  him  and  ex- 
isting at  his  death,  or  among  the  heirs  existing 
when  the  prior  estates  failed  or  expired. 

It  is  tolerai)ly  plain  how  this  question  would 
have  been  decided   in  E  igland. 

"The  rules."  says  Cruise, (cl  "laid  down  in  the 
preceding  chai)ter  respecting  tbe  descent  of  es- 
tates in  possession  do  not  apply  to  the  descent 
of  estates  in  remainder  and  reversion,  expectant 
on  an  estate  of  freehold:  because,  where  there 
is  a  preceding  estate  of  freehold,  the  actual  seisin 
is  in  the  possessor  of  that  estate,  not  in  the  per- 
son entitled  to  the  estate  in  remaindi-r  or  rever- 
sion. It  f<illows.  from  this  jirinciple.  that  where 
a   person  entitled   to  an   estate  in   remainder  or 


(c)  3  Cruise,  Tit.  29,  Descent.  Ch.  IV.  Sec.  1. 


16» 


*418 


4  KICHARDSON'S  EQUITY  REPORTS 


reversion,  expectant  on  a  freehold  estate,  dies 
during  the  continuance  of  the  particular  estate, 
the  remainder  or  reversion  does  not  descend  to 
his  heir;  because  he  never  had  a  seisin  to  ren- 
der him  the  stoclv  or  mot  of  an  inheritance: 
but  it  will  descend  to  the  person  who  is  heir 
to  the  first  purchaser  of  such  remainder  or  re- 
version, at  the  time  when  it  comfs  into  posses- 
sion." 

Upon  the  same  footing  stand  executory  devises, 
which  are  not  regarded  as  mere  possibilities, 
but  as  resembling  contingent  remainders,  in  re- 
spect to  the  transmissibility  of  the  interest. (d) 

But  our  stature  of  1791  (5  Stat.  102)  provides, 
that  "where  any  person  possessed  of,  interested 
in,  or  entitled  unto,  a  real  estate  in  his  or  her 
own  right  in  fee  simple,  shall  die,  without  dis- 
posing thereof  by  will,  the  same  shall  be  dis- 
tributed in  the  following  manner,"  &c. — among 
persons  left  by  the  decedent,  and  described  in 
the  eleven  sections  of  the  1st  clause. 

Chancellor  Harper,  in  the  case  of  Adams  v. 
Chaplin  (1  Hill,  Eq.  269)  remarks  on  this  stat- 
ute, that  "it  has  so  far  altered  the  English 
law  that  actual  seisin  is  no  longer  necessary  to 
enable  one  who  has  a  present  title  to  an  es- 
tate, to  become  the  stock,  or  root,  of  inheritance. 

*419 
It  provides  for  *distribution  'where  any  person 
possessed  of,  interested  in  or  entitled  to  a  real 
estate,  in  his  own  right  in  fee  simple'  shall  die 
intestate.  "This,  I  suppose,"  says  he,  "would 
be  held  to  apply  to  a  reversion,  or  remainder, 
after  an  estate  for  life,  or  an  estate  tail,  (if  such 
were  allowed  in  this  country,)  because  such  re- 
mainder or  reversion  is  an  estate  of  fee  simple." 
He  held,  however,  in  the  particular  case  before 
him,  which  related  to  a  mere  right  of  reverter 
after  a  fee  conditional,  that  it  was  not  affected 
by  the  statute,  but  must  go  as  at  common 
law ;  because,  according  to  the  authorities,  it 
was  no  estate  in  the  land,  but  a  mere  possibility. 

Estates,  such  as  this  of  James  D.  Sommers, 
although  contingent,  are  nevertheless  coupled 
with  such  an  interest  as  to  render  them  dis- 
tributable under  the  Act  of  1791. 

"It  seems  now  to  be  established,"  says  the 
note  to  Purefoy  v.  Rogers,  (2  Saund.  R.  388,  k,) 
"notwithstandmg  some  old  opinions  to  the  con- 
trary that  contingent  and  executory  estates  and 
possibilities,  accompanied  with  an  interest  are 
descendible  to  the  heir,  or  transmissible  to  the 
representative  of  a  person  dying ;  or  may  be 
granted,  assigned,  or  devised  by  him,  before  the 
contingency  upon  which  they  depend,  takes  ef- 
fect:" and  reference  is  made  to  Willes's,  Rep. 
211,  Goodtitle  v.  Wood;  2  Burrows,  1131,  Sel- 
win  V.  iSelwin;  S.  C.  Black.  Rep.  251;  2  Wil- 
son, 29,  Goodright  v.  Searle;  1  Black.  Rep.  605, 
Roe  V.  Griffiths;  Moor  v.  Hawkins,  before  Lord 
Northington,  cited  in  1  Hen.  Black.  30,  Roe  v. 
Jones;  and  3  Term  Rep.  88,  where  Roe  v. 
Jones  was  affirmed  in  K.  B.  on  error ;  Cas. 
Temp.   Talbot,    117,   King   v.    Withers. 

Cheves,  Justice,  in  McDonald  v.  McMullen, 
(2  Mill,  94,)  speaking  of  a  limitation  over  to  a 
specified  person,  who  died  before  the  contin- 
gency on  which  he  was  entitled  to  the  posses- 
sion, says:  "It  was  argued  that  it  was  not  a 
vested  interest ;  and  that,  therefore,  it  was  not 
transmissible.  It  is,  perhaps,  not  a  vested  in- 
terest in  the  technical  sense  of  that  word.  It 
is  frequently  called  a  possibility  only.  But  it 
is  nevertheless,  vested  in  such  manner  as  to  be 
transmissible,  and  according  to  the  later  author- 
ities transmissible  by  will.  (Fearne  on  Ex.  de- 
vis.  4th  Edit.  522,  523 ;  Cas.  Temp.  Talb.  123, 
King  V.  Withers;  Toml.  205.)  It  is  only  nec- 
essary that  the  person  to  take  should  be  ascer- 
tained and  certain  to  make  such  an  interest 
transmissible,  (Fearne,  4th  Edit.  542,  546).  The 
point  is  very  clear." 

(rf)  Goodright  v.  Searle.  2  Wils.  29;  McDonald  v. 
McMullen,  2  Mill,  94. 

170 


If,  under  the  English  statute  of  wills  such  an 
interest  is  the  subject  of  devise,  much  more  is 
it  so  under  our  statute.  The  English  statute 
enables  those  only  to  devise,  "who  have  manors, 
lands,  tenements,  or  hereditaments:"  whereas 
our  Act  enables  those  who  have  lands,  tene- 
ments, «S:c.,  "in  possession,  reversion,  or  re- 
maintler."(c) 

Xow,  our  statute  of  distributions,  in  sub- 
stance, proposes  to  distrilmte  estates  in  default 
of  their  being  "disposed  of  by  will."  If  not 
disposed  of  by  will,  they  shall  be  distributed  ac- 
cording to  that  Act,  which  may  be  regarded  as 

*420 

testamentum  legis.  It  is  conceded  that  *  James 
D.  8ommtrs  might  have  devised  his  interests 
now  under  cousuleration;  which  is  very  near 
equal  to  admitting  that,  in  default  of  a  will  on 
his  part,  those  interests  descended,  immediately 
upon  his  death,  to  such  distributees  as  he  then 
left. 

I  am  of  opinion  they  did  thus  descend.  Not 
that  they  became  transmissible,  and  shifted 
from  heir  to  heir,  until  the  estate  fell  in,  as  in 
England ;  but  that  the  right  passed  upon  his 
death,  and  fixed  eo  instanti  in  his  distributees, 
only  to  await  a  future  enjoyment. 

The  only  obstacle  to  an  immediate  descent 
from  ancestor  to  heir  in  England  in  such  cases 
was  the  want  of  seisin  in  the  ancestor.  But 
our  statute  of  1791,  while  it  enlarges  the  class 
who  are  to  take,  effectually  removes  that  ob- 
stacle by  rendering  seisin  unnecessary  to  the  in- 
heritance. 

There  is  a  consideration,  of  great  force,  lead- 
ing to  this  conclusion,  which  I  have  aot  yet 
mentioned:  and  it  is  that  the  statute,  by  its 
second  clause,  declares  that  "the  personal  es- 
tates of  intestates  shall  be  distributed  in  the 
same  manner  as  their  real  estates  are  disposed 
of  by  this  Act."(/) 

Now,  in  this  case,  the  personal  estate  has 
been  adjudged  to  the  distributees  living  at  the 
deatli  of  James  D.  Sommers:  and  it  would 
establish  a  very  uunecessarj-  anomaly,  if  the  real 
estate    should    be    distributed    differently. 

I  do  not  intend  to  say,  that  all  distinctions 
between  real  and  personal  intestate  estate,  have 
been  abolished  by  the  statute.  Very  far  from 
it.  It  is  perfectly  true,  as  has  been  argued, 
that  the  real  goes  immediately  to  the  distributees, 
and  the  personal  to  the  administrator.  But  the 
distribution  of  both  is  the  same.  The  law 
makes  them  both  liable  for  debts,  and  the  per- 
sonalty liable  in  the  first  instance;  but  that 
impediment  removed,  the  same  persons  succeed 
to  the  enjoyment  of  the  property. 

It  is  true,  also,  that  alienage  is  a  disqualifica- 
tion to  the  right  to  distribution  in  the  case  of 
real  estate,  and  not  in  that  of  personal;  but  that 
is  a  distinction  introduced  upon  grounds  of  pub- 
lic policy,  and  does  not  affect  the  question  be- 
fore us.  Alienage  would  operate  as  a  disqualifi- 
cation to  any  particular  heir,  whether  the  in- 
heritance be  adjudged  to  the  heirs  existing  at 
James  D.  Sommers's  death,  or  at  the  falling  in 
of  the  estate.  The  question  before  us  is,  which 
class  of  these  heirs  is  to  take,  leaving  the  par- 
ticular disqualifications  of  the  several  heirs  en- 
tirely out  of  the  decision,  and  for  a  separate 
consideration. 

Another  distinction  between  real  and  personal 
property  has  not  been  abolished  by  the  statute 
of  1791:  the  difference  of  construction  of  deeds 
— or  other  instruments  oy  which  they  are  to  be 
conveyed  or  assigned.  This  is  true,  as  has  been 
insisted.  But  what  bearing  has  that  upon  the 
question  of  inheritance? 

My  judgment  is,  that  the  inheritance  fell  up- 
on the  distributees  left  by  James  D.  Sommers 
at  his  death;  and  let  the  decree  be  drawn  ac- 
cordingly. 


(e)  P.  L.  138. 


(/}  5  Stat,  163. 


IN  THE  COURT  OF  ERRORS 

CHARLESTON— JANUARY,   1852 


Alt,  tiik  Judgrs  and  Ciianckllors  Present. 


4  Rich.  Eq.  *42l 

*GEORGK    RIIST.    Adnrr.    v.    HTGII    I'. 

DAWKS  et  iil.(r») 

(Cliarlostun.     Jan.  Toriu,  lSol2.) 

\Wilh  ©=:5(j():j.] 

Devise  of  "the  use"  of  lands  "to  J.  I*,  for 
life;  and.  at  his  decease,  the  said  lands  shall 
he,  and  is  her('l)y  de(dar<'d  to  he.  vested  in  tiie 
male  issue  of  the  said  .1.  I'.,  and  in  (h'fault  of 
sueb,  in  the  issue  female  surviving  liim ;  and 
if  a  general  failure  should  he  at  the  decease  of 
the  said  .7.  P.."  then,  over:— //rW.  that  J.  P. 
tlid  not  take  a  fee  conditicuial  in  the  lands. 

IKd.  Note.— Cited  in  McCorkU-  v.  Hhu-k,  7, 
Rich.  Kq.  410,  415):  Powers  v.  Bulhvinkle.  :{:5 
S.  C.  ;>00.  lis.  E.  971 ;  Selman  v.  Rohert.son, 
4(5  S.  C.  L'f;i),  li4  S.  E.  1.S7:  I)u  Pont  v.  Du 
P.OS.  52  S.  C.  12(!1.  L'i)  S.  E.  <;(!.".:  Owinus  v. 
Hunt.  O:;  S.  C.  1!H).  :\\  S.  E.  1^:;7 ;  Ilarkev  v. 
Neville,  70  S.  C.  V^,  4!)  S.  E.  liLS. 

For  other  eases,  see  Wills,  Cent.  Dig.  §  1.".54 ; 
Dee.  Dig.  <©=3G0:}.] 

Upon  the  questions  referred  by  the  Equi- 
ty Court  of  Appeals  to  this  Court,  (see  4 
Strob.  Ec].  o7.  57-S,)  the  cause  was  now- 
heard. 

Yeadon,  for  apitclhuits.  on  the  first  ques- 
tion said,  the  intention  of  the  testator,  if  it 
he  consistent  with  law,  should  always  pre- 
vail. That  the  testator,  here,  intended  to  sjjive 
James  Boone  I'erry  an  estate  for  life  only,  is 
clear;  and  if  he  is  held  to  take  a  fee  condi- 
tional, it  must  be  by  im[ilication — an  implica- 
tion which  defeats  the  manifest  intention.  In 
Enj,'land  an  estate  tail  will  be  implied,  but 
that  implication  is  always  made  in  aid  of 
and  to  carry  out  the  intention — never  to 
defeat  it.  In  this  State  a  fee  conditional 
should  never  be  implied,  for  such  implica- 
tion can  never  be  made  in  aid  of  the  in- 
tention. Its  effect  always  is  to  defeat  the 
intention.  He  cited  and  commented  on 
Scanlan  v.  Porter,  1  Rail.  429;  3  Strob. 
Eq.    223;     Bedon    v.    P.edon.    2    Bail.    231; 

♦422 
Forth  *v.  Chapman.   1   1\  Wms.  GG6;    Shef- 
field V.  Lord  Orrery,  3  Atk.  288:    Fomiereau 
v.   Fonnereau.  .3  Atk.  318;    2  Ves.  sen.  181; 
Dodson   V.  Grew,  2   Wils.  324;    Edwards  v. 


(n)   [See     dissenting     opinion     of     Chancellor 
Wardlaw,  post,  49(5.] 


Barksdale,  2  Hill.  Ch.  2S4 :  Smith  v.  Hill- 
iard.  3  Strol).  Eq.  211  ;  I-'earnc.  .37(i.  On  the 
second  (juestictn.  he  admitted  that  an  execu- 
tfiry  devise  could  not  i)e  limited  to  take 
effect  after  the  natural  elllu.x  of  a  fee  con- 
ditional. For  instance,  if  an  estate  be  giv- 
en to  A.  and  the  heirs  of  his  body,  and  it 
at  any  time  the  heirs  of  the  itody  of  A. 
should  l)ecome  e.xtinct,  then  to  B.  in  fee,  such 
an  executory  devise  to  B.  wonld  lie  void.  But 
he  saw  no  rea.son  why  an  executory  devi.se 
could  not  be  limited  to  take  effect  in  de- 
struction or  defeasance  of  a  fee  conditional- 
Suppose  an  estate  given  to  A.  and  the  heir.s; 
of  his  body,  but  if  A.  slicudd  die  without 
leaving  a  son  living  at  the  time  of  his  death,. 
then  to  B.  and  his  heirs. —  would  not  the 
devise  to  B.  be  good?  If  the  gift  to  A.  were 
to  him  and  his  heirs,  so  as  to  make  his  es- 
tate a  fee  simple,  tlien  no  one  would  ques- 
tion the  validity  (tf  the  limitation  to  R.: 
and  no  sufficient  reason  could  i»e  found  for 
making  a  distinction  between  the  two  cases„ 

Memminger.  contra,  cited  Jesson  v_ 
Wright.  1  Bliiih,  1  :  atul  contended,  first, 
that  the  estate  devised  t<^  James  Boone  Per- 
ry was  a  fee  conditional.  I'nder  the  stat- 
ute of  uses  to  give  one  the  use  for  life  is 
to  give  him  the  land  itself.  By  the  terms  of 
the  will  James  Boone  Perry  took  an  es- 
tate for  life.  Then  follows  the  gift  to  his 
issue.  The  Intention  clearly  was  to  create 
a  limitation  to  the  issue;  l)Ut  the  rule  in 
Shelley's  case  comes  in  and  declares  that  the 
issue  shall  take  as  hell's.  Feariie.  28,  193; 
Broadhurst  v.  Morris.  2  B.  &  Ad.  1 ;  King 
V.  Milling.  1  Vent.  22");  2  Jarm.  on  Wills. 
.337.  .399;  Robinson  v.  Robinson.  1  Bur.  .38; 
Robinson  v.  Hicks,  3  Bro.  I*.  C.  ISO;  Hull 
v.  Hull,  2  Strob.  I-:<i.  190;  Jackson  v.  Rob- 
ins. 1(5  Johns.  R.  r).37.  Seciuidly.  that  the 
limitation  over  to  John  W.  Sommers  was 
void,  and  cited  Blesard  v.  Simpson,  42  Eng. 
C.  L.  R.  4S.3:  Mary  Portington's  case,  10 
Coke,  42  ;    Fearne,  514. 

Petigru,    in    reply.      The    estate    given    to 
•423 
James  Boone   Perry    *was   for   life   only.      2 
Bl.   Com.   114:     Rutledge   v.   Rutledge,    Dud. 


^=»F)r  other  cases  see  sa;na  lopic  aui;  KEV-NLMUEH  iu  all  K.ny-Numbered  Digests  and  luUexes 


171 


*423 


4  RICHARDSON'S  EQUITY  REPORTS 


201.  Unless  issue  was  used  by  the  testator 
in  the  sense  of  heirs,  the  rule  iu  Shelley's 
case  does  not  apply ;  and  it  is  clear  that 
he  did  not  use  it  in  that  sense.  On  the  sec- 
ond question  he  cited  Fearne,  295;  Porter 
V.  Bradley,  3  T.  R.  146;  Pitts  v.  Brown, 
Cro.  Jac.  590. 

The  opinion  of  the  Court  was  delivered  by 

O'NEALL,  J.  Of  the  two  questions,  sent 
up  to  this  Court  by  the  Court  of  Appeals  in 
Equity,  only  one  will  be  considered,  viz : 
Did  James  Boone  Perry  take  a  fee  condi- 
tional? For  a  majority  of  the  Court  hav- 
ing come  to  the  conclusion,  that  he  did  not, 
it  is  unnecessary  to  consider  the  other  ques- 
tion, whether  a  good  executory  devise  can  be 
limited  on  a  fee  conditional? 

As  far  back  as  1831,  in  the  case  of  Bedon 
v.  Bedon,  (2  Ball.  246,)  I  stated  my  repug- 
nance to  the  raising  of  an  estate  in  fee 
conditional,  by  implication.  The  same  was 
repeated  in  1833,  in  Adams  v.  Chaplin,  (1 
Hill,  Eq.  282):  and,  in  Edwards  v.  Barks- 
dale,  (2  Hill,  Eq.  198,)  in  1835,  with  the 
assent  of  my  brother.  Judge  Johnson,  (thus 
constituting  a  majority  of  the  Court  of  Ap- 
peals,) I  laid  it  down,  that  a  fee  condition- 
al could  not  arise  by  implication,  and  if 
that  Court  had  not  been  broken  up  in  1836, 
no  question  would  have  ever  again  arisen, 
about  a  fee  conditional,  on  any  other  words 
than  on  a  direct  gift  to  A.  and  the  heirs  of 
his  body,  general  or  special. 

The  dissolution  of  that  Court  led  to  the 
re-agitation  of  many  questions,  which  it 
had,  with  great  labour  and  much  care,  sift- 
ed, examined,  and,  as  was  then  supposed, 
settled. 

The  question  of  raising  an  estate  of  fee 
conditional,  by  implication  from  such  words 
as  in  England  would  create  a  fee  tail,  was, 
as  might  be  expected  from  Judge  Harper's 
opinion  being  at  variance  with  those  of  John- 
son and  O'Neall,  the  other  members  of  the 
Court,  soon  again  brought  under  discussion, 
in  the  tribunal,  of  which  he  was  a  member 
and  an  ornament,  the  Court  of  Appeals  in 
Equity.      But    it    received    no    adjudication, 

*424 
which  gave  it  *the  force  of  law,  in  that 
Court.  It  is  true,  in  Wlii.tworth  v.  Stuckey, 
(1  Rich.  Eq.  404,)  he  reiterated  the  opinion 
which  he  had  expressed  in  Edwards  v. 
Barksdale,  Adams  v.  Chaplin,  and  which, 
as  counsel  in  Bedon  v.  Bedon,  he  had  main- 
tained before  he  went  on  the  Bench,  that 
a  devise  to  A.  for  life,  and  if  he  should  die 
without  lawful  issue,  living  at  the  tme  of 
his  death,  then  over,  was  a  fee  conditional 
in  A.,  and  that  the  executory  devise  was 
void.  It  will  be  seen,  however,  on  reading 
that  case,  that  this  was  merely  the  state- 
ment of  his  own  views,  and  that  the  deci- 
sion rested  upon  the  fact,  that  the  purchas- 
er of  the  estate,  at  whose  instance  the  hill, 
172 


quia  timet,  was  filed,  was  in  possession,  and 
had  a  good  marketable  title,  and  had.  there- 
fore, no  ground  of  complaint,  as  was  sub- 
sequently decided  in  \'anlew  v.  Parr,  (2 
Rich.  Eq.  321.)  In  McLure  v.  Young,  (3 
Rich.  Eq.  5.59,)  the  same  subject  was  agitat- 
ed, and  Chancellor  Johnston  having  held  on 
the  circuit,  that  a  devise  to  C.  D.  for  and 
during  her  natural  life,  and  at  her  death 
to  her  "lineal  descendants,"  and  in  the  event 
of  her  dying  without  lineal  descendants,  to 
two  of  her  brothers  and  one  sister,  was  a 
fee  conditional  in  C.  D.,  and  that  her  hus- 
band had  an  estate  by  the  curtesy,  (she  hav- 
ing had  issue,  who  survived  her,)  which 
exempted  him  from. an  account  for  rent  after 
her  death:  the  case,  on  a  division  in  the 
Court  of  Appeals  in  Equity,  found  its  way 
into  the  Court  of  Errors,  and  that  Court 
at  May  term,  1S51.  held  that  C.  D.  did  not 
take  a  fee  conditional,  and  that  her  son 
("the  lineal  descendant")  took  the  estate, 
after  her  death,  as  a  purchaser;  and,  there- 
fore, that  her  husband  could  have  no  estate 
by  the  curtesy.  The  opinion,  in  that  case, 
was  delivered  by  Chancellor  Dunkin,  and 
certainly,  both  by  its  words  and  authority, 
goes  very  far  to  deny  the  doctrine,  that  an 
estate  of  fee  conditional  is  ever  to  be  im- 
plied in  this  State. 

This  glance  at  the  previous  cases  decided, 
would,  even  without  the  case  of  Williams 
V.  Caston,  (1  Strob.  130,)  leave  us  unfettered 
by  decisions,  as  to  the  necessity  of*  constru- 
ing words,  which  in  England  would  he  held 
to  be  a  fee  tail,  to  be  here  a  fee  conditional. 
That  case  is  a  strong  authority,  in  favor  of 

*425 
rejecting  any  *such  artificial  rule,  and  plac- 
es the  argument,  in  that  behalf,  ver.y  much 
in    advance   of   anything   to   be   claimed,   on 
the  other  side. 

The  whole  reasoning  (with  due  deference  I 
speak  it)  seems  to  me  to  he  false,  which  con- 
tends for  an  artificial  rule  to  subvert  the 
intention  of  the  testator.  In  general  a  man 
has  the  right  to  dispose  of  his  property  as 
he  pleases.  He,  in  this  respect,  constitutes 
the  law  by  which  it  is  to  be  regulated.  As 
only  one  member,  however,  of  the  body  poli- 
tic, it  is  his  duty  to  make  his  disposition 
conform  to  the  law.  Hence  he  cannot,  in  a 
devise,  create  a  perpetuity.  For  this  is 
against  the  settled  policy,  and  rules  of  the 
connnon  law.  But,  with  this  exception,  I 
know  of  no  other  control,  which  can  right- 
fully be  said  to  attach  to  a  disposition  by 
devise,  in  relation  to  the  devisees,  and  the 
period  at  which  they  may  succeed  to  the  en- 
joyment of  it.  In  England,  the  rule  in  Shel- 
ley's case,  as  it  is  called,  has  been  made  the 
means  of  recasting  estates,  so  as  more  effec- 
tually to  carry  out  the  intention  of  the  tes- 
tator. That  rule  means  no  more,  than  that 
the  words  heirs  and  heirs  of  the  body  "are 
never  words  of  purchase,  and  where  a  devise 
is  to  them,  as  they  can  only  take  by  descent, 


BUIST  V.  DAWES 


•42S 


the  whole  estate  must  be  in  the  ancestor." 
Fearne  on  Rem.  28,  note  c.  By  an  easy  tran- 
sition, this  rule  was  made,  in  England,  to 
cover  another  class  of  cases,  as  when  the  de- 
vise was  to  A.  for  his  life,  and  after  his  death 
to  his  issue,  and  then  over.  This  was  adjudg- 
ed to  be  a  descendible  estate,  and  by  the  rule 
iu  Shelley's  case,  the  whole  estate  was  in  the 
first  taker  for  life,  and  then  in  his  issue  as 
tenants  in  tail,  with  remainder  over.  This 
was  all  very  well  in  England,  both  to  support 
tiieir  aristocratic  institutions,  and  also  to 
carry  out  the  intention  of  the  testator.  Here, 
however,  where  tlie  statute  de  ck)nis  never 
was  of  force,  if  we  adopt  the  same  artiticial 
rule  of  construction,  we  have  to  apply  the  rule 
in  Shelley's  case  to  such  a  case,  as  that  sup- 
posed, and  make  the  estate  a  fee  conditional 
to  descend  per  formani  doni,  with  the  power 
in  the  tenant  in  fee  conditional  to  aliene  and 
incumber,  and  thus  to  defeat  the  descent,  and 
in  the  very  creation  of  the  estate,  to  prevent 
the  remainder  over ;   and  most  prol)ably  even 

*426 
an  executory  *devise  over,  from  having  effect 
on  account  of  its  remoteness,  when  attached 
to  such  an  estate.  The  case  of  Izard  v.  Izard, 
(Bail.  Eq.  228,)  is  a  perfect  illustration  of  the 
power  of  the  tenant  over  the  estate  in  fee 
conditional,  both  as  to  the  power  to  aliene 
and  also  to  incumber.  Mazyck  v.  Vander- 
horst,  (Bail.  Eq.  4S,)  is  full  to  the  point,  that 
a  remainder  cannot  be  limited  on  a  fee  con- 
ditional, and,  also,  that  an  executory  devise 
over  is,  on  account  of  its  remoteness,  void. 
If  a  devise  to  A.  for  life,  and  to  his  issue 
living  at  his  death,  and.  failing  sucli.  then, 
over,  would  he  adjudged  a  fee  conditional, 
who  would  take  the  estate  as  heirs  of  the 
body?  The  descent  is  per  formam  doni  and 
at  common  law.  Our  statute  of  distributions 
would  not,  possibly,  help  such  a  case.  Would 
it  not  be  a  startling  result,  if  the  eldest  son, 
as  the  heir,  should  take  the  whole  V  These 
consequences,  whether  certain  or  only  possi- 
ble, certainly  are  enough  to  make  us  refuse  to 
adopt  any  artificial  rule  which  so  signally  de- 
feats and  over-rides  the  intention.  But  it  is 
.said,  we  are  bound  to  adopt  it,  because  it 
is  a  part  of  the  common  law.  I  deny  that  it 
is  so.  For  the  purposes  of  cases  like  this,  it 
is  a  rule  adopted  in  England  to  break  down 
the  otherwise  certain  force  of  tne  statute  de 
donis  to  perpetuate  estates.  Here,  where  the 
statute  de  donis  never  existed,  how  can  it  be 
pretended  that  it  is  a  part  of  our  connnon 
law?  We  only  adopted  it,  (the  common  law,) 
so  far  as  it  comported  with  our  situation, 
and  institutions.  In  this  State,  since  the  Act 
of  1824.  we  have  no  necessity  to  appeal  to 
the  rule  in  Shelley's  case.  For  unless  the 
devise  cuts  the  estate  down  to  less  than  a  fee, 
it  is  to  be  so  regarded.  There  is.  therefore, 
no  artificial  rule,  which  compels  us  to  give  a 
construction,  against  the  plain  meaning,  to 
the  words  of  the  testator. 
What  is  a  fee  conditional?    It  is  such  au 


testate,  as  is  to  descend  indefinitely,  in  the 
I  line  of  the  first  taker.  To  decide  what  is 
I  the  estate  of  James  Boone  Perry  we  must 
i  see,  whetlier  the  devi.se  to  him  can  have  this 
!  effect.  The  words  are  a  i>lain  devise  to  him 
for  life,  and  at  his  death  the  estate  is  to  l>e 
I  vested  in  his  issue  male,  and  in  default  of 
I  such  to  his  issue  female  surviving  him,  and 
I  if  a  general  failure  should  be,  at  the  decease 
I  ♦427 

I  of  the  said  James,  ♦then  to  his  cousin  John 
Witiungham  Sonnners.  with  like  lindtations, 
]  and  if  there  sliould  1k>  a  total  failure  of  issue, 
I  innn»>diate  on  the  decea.se  of  the  said  John 
Withingham.   then   over  to  James   Sonnners, 
his  heirs  and  assigns  forever. 
I      It  seems  to  me.  that  if  this  were  adjudged 
:  to  be  a  fee  conditional,  it  would  be  sxUiversive 
I  of  every   rule   regulating   executory  devises. 
j  But  before  we  examine  it  ui  tills  liehalf,  it 
woidd  be  well  to  test  it  by  rules  especially 
applicable    to    fees   conditional.      If   it    be   a 
fee  conditional,  it  is  alternative,  fir.st  in  the 
j  male  line,  and,  failing  that  at  his  death,  in 
.  tiie  female.     How  could  such  an  estate  have 
indefinite  succession?     If   a  son  first  took  the 
estate  and  had  a  daughter,  there  would  be  an 
end  of  it  iu  that  way.    For  if  there  were  also 
a  daughter  and  she  had  a  son,  this  would  not 
help   the   matter.      For,   says   Blackstone,   (2 
Com.   114,)   "in    ca.se  of  an  entail   male,  the 
heirs    female    shall    never    inherit    nor    any 
derived  froyi  them,  and  e  converso,  the  heirs 
male,  in  the  case  of  a  gift  in  tail  female." 
Such  consequences  would  be  enough  to  pre- 
vent   any    implication. 

Mr.  Fearne  (on  Rem.  418)  tells  us  that  an 
executory  devise  cainiot  be  prevented,  or 
destroyed,  by  any  alteration  whatsoever  in 
the  estate  out  of  which,  or  after  which,  it  is 
limited.  If  James  Boone  Terry's  estate  be  a 
fee  conditional,  he  could  have  aliened  or  en- 
cumbered it  on  the  birth  of  issue,  so  as  to 
defeat  utterly  the  executory  devise  over,  on 
his  dying  without  leaving  issue  him  surviv- 
ing. Such  a  consequence  is  enough,  one 
would  think,  to  startle  the  boldest  in  apply- 
ing an  artificial  rule.  Indeed,  it  is  plain, 
that  such  a  result  shows  that  the  whole  is 
an  estate  to  James  Boone  Perry  for  life,  with 
a  good  remainder  to  his  issue,  male  or  fe- 
male, living  at  his  deatii,  and  which  words 
are  synonymous  here,  with  children  or  grand- 
children, and  wiio  conse(iuently  take  as  pur- 
chasers, and  with  a  good  executory  devise 
over  to  persons  in  esse.  The  rule  very  plain- 
ly is,  where  the  estate  is  to  one  for  life  and 
to  go  over,  in  the  event  of  dying  without  is- 
sue, which  must  take  effect  in  the  compass 
of  twenty-one  years  after  a  life  or  lives 
In  being,  that  the  executory  devise  is  good. 

♦428 
(Fearne  on  Rem.  ♦470.)  In  this  case  there  is 
no  doubt  about  the  period — the  whole  is  lim- 
ited to  the  death  of  the  first  taker,  then  the 
issue  were  to  take,  then  if  there  were  no  is- 
sue, the  executory  devise  over  took  effect.   The 

173 


*428 


4  RICHARDSON'S  EQUITY  REPORTS 


term  "issue"  when  found  in  a  devise  lias  no 
such  technical  meaning,  as  compels  us,  ex  vi 
termini,  to  hold  it  a  word  of  limitation,  and 
not  a  word  of  purchase.  For  ^Ir.  Fearne  (on 
Rem.  106)  tells  us  that  "issue,  in  legal  con- 
struction, is  a  word  of  purchase."  In  general 
whenever  it  is  used,  not  as  the  turning  point 
of  a  devise,  and  there  is  a  direct  gift,  with 
such  words  as  will  tie  up  the  meaning,  so  as 
to  designate  a  class  of  children  or  grand- 
children to  take  at  the  death  of  the  first 
taker,  it  is  a  good  word  of  purchase,  and  the 
devise  is  good.  In  this  will  the  devise  is  to 
James  Bopne  Perry  expressly  f<»r  life.  There 
is  no  necessity  to  enlarge  this  estate.  Indeed, 
I  do  not  perceive  how  we  can,  since  the  Act  of 
1824.  The  words  show  that  he  was  not  to 
have  a  fee  of  any  kind.  It  is  said,  by  one  of 
the  Court,  that  a  gift  to  A.  and  his  issue, 
is  a  fee  conditional  without  implication.  I 
should  be  pleased  to  see  that  proved.  Issue 
is  not  a  word  of  descent;  it  is  only  by  imply- 
ing that  the  testator  used  it  in  the  sense  of 
"heirs  of  the  body,"  that  in  England  it  is 
ruled  to  be  enough  to  make  an  estate  tail. 
The  devise  to  the  issue,  male  or  female,  is, 
in  the  clause  of  the  will  under  consideration, 
peculiarly  expressed;  the  estate  at  the  death 
of  James  Boone  Perry  is  declared  to  be 
"vested"  in  such  issue.  This  is  equivalent  to 
a  devise  to  the  issue  male  and  his  heirs. 
For  to  be  vested  in  him,  it  is  necessary  it 
should  have  just  the  effect  of  a  devise  to  him 
and  his  heirs.  In  such  a  case,  it  is  clear  the 
words  "issue  male"  are  words  of  purchase. 
So,  too,  the  words  "surviving  him"  have  nec- 
essarily the  effect  to  make  the  terms  "issue, 
male  or  female,"  words  of  purchase.  For  the 
issue,  in  whom  the  estate  is  to  vest,  must 
be  alone  those,  who  are  found  alive,  at  the 
death  of  the  first  taker,  and  hence  are  equiv- 
alent to  children  or  grand-children,  which 
are  always  words  of  purchase. 

But  the  limitation  over  is  to  a  person  in 
esse,  and  is  to  take  effect  at  the  death  of  the 

*429 
first  taker.  Beyond  all  doubt  this  is  a  *good 
executory  devise.  (Fearne  on  Rem.  468,  et 
seq.)  With  all  these  matters  clearly  and 
fully  ascertained  in  the  devise,  and  thus 
fully  sustaining  every  part  of  it,  as  estates 
created  by  devise,  not  repugnant  to  any 
known  rule  of  law,  how  can  we  be  called  up- 
on to  apply  an  artificial  rule,  which  is  to 
overturn  everything  intended  by  the  testa- 
tor? I  confess  I  should  be  slow  even  to  yield 
to  a  known  artificial  rule  having  such  an 
effect;  but  when  I  am  called  on  to  make  it, 
I  should  feel  I  was  doing  more  than  the  leg- 
islator would  do,  were  I  to  yield  to  such  a 
call.  The  only  case  to  be  found  in  the  Eng- 
lish books  of  an  implied  fee  conditional  is 
that  of  Blesard  v.  Simpson,  42  Eng.  C.  L.  R. 
483,  and  that  was  in  copyhold.  There,  too, 
the  implication  defeated  the  executory  devise 
over,  and  the  testator's  intention.  That  case 
has  no  binding  effect  on  us.  It  is  of  an  estate, 
174 


copyh<ild,  of  which  we  have  nothing  like  in 
this  State.  It  is  a  recent  decision,  and  Is, 
therefore,  in  no  shape  to  affect  us.  In  this 
State,  as  I  have  shown,  we  have  nothing  to 
bind  us  in  the  shape  of  authority  to  imply  a 
fee  conditional. 

On  the  contrary  the  weight  of  our  au- 
thority is  against  it.  So,  too,  reason  for- 
bids its  adoption.  Most  generally  it  would 
defeat  the  intention  of  testators,  which  it 
is  our  duty  to  carry  out.  So  that  I  should 
never  be  disposed  to  make  an  estate  in  fee 
conditional  by  implication.  Here,  however, 
it  is  only  necessary  to  say,  on  the  words  of 
the  will,  the  devisee,  James  Boone  Perry, 
took  no  such  estate. 

DUNKIX,  Ch.  and  FROST.  WITHERS 
and  WHITNER,  JJ.  concurred. 

WARDLAW,  J.  I  join  five  members  of 
the  Court  in  saying,  that  under  the  devise 
in  question,  James  Boone  Perry  did  not  take  a 
fee  conditional:  and  so  there  is  a  bare  ma- 
jority of  the  Court  in  favor  of  that  result: 
but  I  do  not  maintain  the  leading  positions 
which  are  assumed  in  the  opinion  that  has 
been  read  by  the  President  of  the  Court:  in- 
deed, to  some  of  them  I  am  earnestly  op- 
posed. 

I  have  not  time  to  write  out  my  views; 
*430 
most  of  them  are  such  *as  are  entertained 
by  the  larger  portion  of  those  members  of 
the  Court  who  dissent  from  the  result,  and 
on  some  points  I  may  signify  my  acquies- 
cence in  the  opinion  which  one  of  those 
members  is  expected  to  prepare. 

I  think  that  a  devise  to  A.  for  life  and 
at  his  death  to  his  issue,  creates  a  fee  condi- 
tional, not  by  implication,  but  by  express 
words. 

The  rule  in  Shelley's  case  I  regard  as  a 
rule  of  property,  wise  in  itself,  long  settled, 
a]Kl  fully  recognized  by  our  own  cases. 

I  can  know  the  intention  of  a  testator 
only  from  the  words  of  his  testament.  Con- 
struction is  proper  to  ascertain  the  meaning 
of  those  words,  never  to  discover  an  inten- 
tion outside  of  them.  The  testator's  own 
definition,  when  he  has  given  one,  is  decisive 
of  the  sense  in  which  he  used  a  word.  Such 
definition  may  some  times  be  found  in  the 
context,  and  some  times  may  be  supplied  or 
aided  by  evidence  concerning  the  condition 
of  the  testator,  his  family,  his  property,  or 
other  matters,  which  show  the  circumstances 
under  which  a  word  was  used.  But  if  there 
be  nothing  to  show  that  words  were  used 
in  a  peculiar  or  extraordinary  sense,  I  un- 
derstand them  in  their  ordinary  sense,  and 
give  to  technical  words  technical  meaning, 
to  technical  phrases  a  technical  effect. 

A  fair  interpretation  of  tlie  whole  will, 
I  think,  shows  that  the  devise  was  not,  at 
the  death  of  James  Boone  Perry,  to  his  is- 
sue male,  and  in  default  of  his  issue  male 


BL'TST  V.  DAWES 


to  his  issiio  female,  in  indefinite  succession ;  | 
l)nt  was.  in  fact,  to  that  iiartinilar  class 
of  his  lineal  descendants  that  niitiht  l>e  liv- 
ing at  his  death,  the  males  to  he  preferred 
to  the  females  of  the  class.  The  special  In- 
♦lividnals  of  issue  thus  indicated  \v<»nld.  un- 
der our  Act  of  1S24,  have  taken  a  fee  simple. 
I  dissent  from  the  intimation  made  by  tne 
President,  that  an  executor.v  devise,  to  take 
effect  upon  an  event  clearl.v  witiiin  the  pre- 
scrilied  time,  may  not  he  limited  upon  a  fee 
conditional. 

DARGAN.  Ch.,  dissentiii;:.  The  testator, 
IMward  Ton^e.  devised  and  hequeathed  his 
real  and  personal  estate  to  his  wife  durin;^ 
widowhood,   with  remainder,   in  case  of  her 

*431 
death  or  mar*na.i,'e,  to  his  mother.  Susannah 
Ton;;e,  during  her  life.  He  then,  hy  way  of 
remainder,  gave  to  .Tames  Boone  Perry  the 
use  thereof  for  life,  "and  at  his  decease  the 
S.I  id  land,  slaves  and  premises  shall  he  and 
is  lierehy  vested  in  the  male  issue  of  the  said 
James,  and  in  default  thereof,  in  the  issue 
female  surviving  him:  and  if  a  general  fail- 
ure shall  he  at  the  death  of  the  said  James, 
1  give  said  land  and  slaves  to  my  cousin, 
John  Withingham  Sommers,  on  the  same 
terms,  conditions,  limitations,  and  reserva- 
tions as  this  is  made  liable  to  in  respect  to 
James's  interest  therein  in  pursuance  of 
this  my  will,  and  should  there  he  a  total 
failure  of  issue  (innnediate)  on  the  death 
of  the  said  John  Withingham  Sommers,  I 
give  the  said  lands,  slaves,  and  the  issue 
of  the  female  slaves,  to  his.  the  said  John 
Withingham  Sommers's  brother,  Jas.  Som- 
mers. his  heirs  and  assigns  forever." 

The  Court  of  Appeals  in  Equity  referred 
two  (|uestions  arising  on  the  construction 
of  this  will  to  the  Court  of  Errors: 

1.  What  estate  did  James  Boone  Perry 
take  in  the  lands  devised  to  him  by  the  will? 

1.*,  And  if  it  should  be  ruled  that  he  took 
a  fee  conditional,  whether  an  executory  de- 
vise could  be  limited  upon  such  fee  con- 
4litionalV 

A  majority  of  this  Court  have  hell,  that 
James  Boone  Perry  took  but  a  life  estate 
in  the  lands:  remainder  to  his  own  issue  as 
purchasers;  and.  in  default  of  such  issue, 
remainder  to  John  Withingham  Sonuners,  &c. 
Tills  decision  rendered  the  other  question  re- 
ferred unimportant  in  this  particular  case. 
It  has.  therefore,  not  Ikhmi  decided.  The 
judgment  of  the  majority  differs  so  widely 
from  what  I  humlily  conceive  to  be  the  true 
construction  of  the  will,  that  I  feel  con- 
strained to  express  my  dissent,  and  some  of 
the  grounds  upon  which  my  dissent  is  placinl. 
I  think  I  shall  be  able  to  show,  that  the 
decision,  which  has  beccnne  at  least  the  law 
of  this  case,  is  utterly  at  variance  with  all 
the  precedents  and  authorities  upon  the  sub- 
ject. 

I  do  not  think  it  possible  for  any  one  to 


rise    from    the    study   of   the    English   cases, 
and  English  authorities  of  the  very  highest 

♦432 
re*pute.  without  having  adopted  the  con- 
clusion, that  in  Wt'st minster  Hall.  James 
Boone  Perry  would  be  considered  as  having 
taken  a  fee  tail;  a  fee  tail  male  in  the 
lirst  instance:  and  in  default  of  male  issue,  a 
fee  tail  female.  In  onler  to  present  this 
(piestion  in  a  more  striking  and  naked  form, 
snpi»ose  James  P.oone  Perry  to  have  died, 
leaving  issui'  (either  male  or  female)  surviv- 
ing him.  what  estate  would  such  issue  have 
taken  in  England?  Who  can  doul>t  that  they 
would  there  have  taken  the  estate  by  de- 
scent, and  not  as  punhasers?  If  the  issue 
of  James  P.oone  Perry  (had  he  left  such  is- 
sue* would  not  have  taken  by  descent,  what 
becomes  of  the  rule  in  Shelley's  case?  The 
rule  Is,  "that  when  the  ancestor  by  any  gift 
or  conveyance  taketli  an  estate  of  freehold, 
and  in  the  same  gift  or  conveyance  an  estate 
is  limited,  either  mediately  or  immediately 
to  his  heirs  in  fee,  or  in  tail ;  the  heirs 
are  words  of  limitation  of  the  estate,  and 
not  words  of  purchase."  1  Rep.  104.  The 
rule  is  applied,  where  the  words  heirs  or 
heirs  of  the  body  are  used  in  a  general 
sense,  without  such  qualificiition  as  would 
restrict  their  meaning  to  a  particular  class 
or  description  of  persons,  other  thaa  those 
who  would  take  under  the  canons  of  de- 
scent: or  in  the  case  of  a  fee  conditional, 
other  than  those  who  would  take  as  heirs 
of  the  body  generally,  or  heirs  male  or  fe- 
male of  the  body.  I  have,  in  the  circuit 
decree,  given  sutlicient  reasons  why  this  rule, 
which  is  a  rule  of  prt>perty.  and  not  of  con- 
struction, and  which  has  existed  as  a  prin- 
ciple of  the  common  law  for  more  than  live 
hundred  years,  should  not  be  violated  or  dis- 
regarded. 

It  is  said  that  this  is  not  a  case  falling  with- 
in the  operation  of  the  rule;  that  a  fee  condi- 
tional cannot  be  implied ;  that  the  will  gives 
the  estate  at  the  death  of  James  Boone 
Perry,  not  to  the  heirs  of  his  body,  but  to 
his  issue,  and  that  to  construe  the  will,  so 
as  to  make  the  estate  a  fee  conditional, 
would  be  to  create  that  estate  by  implica- 
tion. I  deny  the  correctness  of  every  part 
of  the  foregoing  propositions.  I  apprehend 
that  the  same  rules  of  interpretation  would 
apply  to  fees  conditional,  as  exist  in  Eng- 
land in  reference  to  estate's  tail.    "A  devise 

*433 
to  A.  and  his  heirs  male  *forever,  (Baker 
V.  Wall.  1  Ixird  Raym.  1S5.)  or  to  A.  for 
life,  and  after  his  death  to  his  right  heirs 
male  forever.  (Eord  Ossuslton's  case,  3  Salk. 
334.)  has  been  held  to  confer  an  estate  tail 
male:  the  addition  of  the  word  "male"  as 
a  qualitication  of  "heirs"'  showing  that  a 
class  of  heirs  less  extensive  than  heirs  gen- 
eral was  intended.  And  the  same  construc- 
tion obtains,  where  a  devise  to  a  person  and 
his  heirs  (Slater  v.  Slater,  5  T.  R.  335,)  or 

175 


*433 


4  RICHARDSON'S  EQUITY  REPORTS 


to  a  person  simply  without  any  words  of 
limitation,  (Blaxton  v.  Sloue,  3  Mad.  123.)  is 
followed  by  a  devise  over  in  ease  of  his 
death  without  an  heir  male.  It  has  even 
been  decided  that  a  devise  to  one  et  hteredi- 
bus  suis  legitime  procreatis.  creates  an  es- 
tate tail,  though  the  addition  merely  de- 
scribes a  circumstance  which  is  included  in 
the  definition  of  heir  simply,  an  heir  being 
ex  justis  nuptiis  procreatus.  Such  was  the 
doctrine  of  the  early  authorities,  and  it  was 
recognized  and  followed  in  the  more  recent 
case  of  Nanfan  v.  Legh,  7  Taunt.  S5,)  where 
a  devise  to  H.  when  he  should  attain  twenty- 
one,  "and  to  his  heirs  lawfully  begotten  for- 
ever, was  held  to  make  the  devisee  tenant 
in  tail."  2  Jarm.  on  Wills,  232.  In  all  these 
cases,  and  many  others  that  might  be  cited, 
an  estate  tail  was  created  by  implication. 

But  in  this  case,  no  resort  to  implication 
is  necessary.  The  will  after  the  life  estate  to 
James  Boone  Perry,  gives  the  property  di- 
rectly to  his  issue,  and  the  word  issue  is  a 
term  equivalent  to  and  convertible  with 
"heirs  of  the  body."  "A  devise  to  A.  et 
semini  suo,  (Co.  Lit.  96,)  or  to  A.  and  his  is- 
sue (Nightingale  v.  Burrell,  15  Pick.  104,) 
clearly  creates  an  estate  tail."  2  Jarm.  on 
Wills,  236.  That  the  word  issue  is  equivalent 
to  heirs  of  the  body  in  questions  like  this,  see 
Broadhurst  v.  Morris,  2  B.  and  Ad.  1 ;  Rob- 
inson V.  Robinson,  1  Burr.  38 ;  Dodson  v. 
Grew,  2  Wils.  322 ;  Edwards  v.  Barksdale.  2 
Hill.  Eq.  196 ;  Whit  worth  v.  Stuekey,  1  Rich. 
Eq.  404 ;    Hull  v.  Hull,  2  Strob.  Eq.  174. 

The  fee  conditional  was  an  estate,  which  ex- 
isted from  the  earliest  periods  of  the  English 
Common  Law.  It  was  originally  what  it  was 
afterwards  made  by  the  statute  de  donis  con- 
ditionalibus,    incapable    of    alienation    from 

*434 

the  course  of  descent  marked  *out  by  the 
terms  of  the  gift  or  conveyance.  But  it  hav- 
ing been  ruled  by  the  Judges  of  England, 
that  when  the  tenant  in  fee  conditional  had 
issue  born  alive  capable  of  inheriting  the  es- 
tate, he  had  so  far  performed  the  condition 
upon  which  he  held,  as  to  enable  him  to  alien- 
ate, or  subject  it  to  incumbrances,  the  great 
landed  aristocracy  found  it  necessary  for  the 
preseiTation  of  their  hereditary  rank,  wealth 
and  influence,  to  restore  the  law,  (by  the 
interposition  of  Parliament)  to  Its  ancient 
condition.  The  statute  de  donis  conditionali- 
bus  was  the  consequence ;  a  law,  which, 
however  it  may  be  looked  upon  by  republic- 
ans, is  doubtless  weir  adapted  to  the  state  of 
things  existing  in  that  country,  and  emi- 
nently conducive  to  the  preservation  of  their 
social  and  political  institutions. 

It  was  upon  the  estate  in  fee  conditional 
that  the  statute  de  donis  operated.  It  modi- 
fied the  estate  as  it  then  existed  and  was 
construed.  It  preserved  the  estate  for  the 
benefit  of  the  issue  of  the  grantee,  and  the 
reversion  for  the  benefit  of  the  donor,  de- 

176 


priving  the  grantee  of  the  power  of  aliena- 
tion, and  prescribed  that  the  heirs  should 
take  the  estate  per  formam  doni.  Thus, 
whatever  estate  was  a  fee  conditional  at 
Common  Law,  became  under  the  statute  de- 
donls  a  fee  tail ;  and,  e  converso,  what  would 
be  construed  an  estate  tail  in  England,  must 
be  a  fee  conditional  wherever  the  Connuon 
Law  prevails  without  the  statute  de  donis. 

This  statute  has  never  been  of  force  in 
South  Carolina.  But  the  Act  of  1712.  whicli 
adopted  the  Common  Law  (with  certain  ex- 
ceptions) as  a  code  or  body  of  laws  for  this 
State,  (then  a  province,)  has  been  considered 
as  making  of  force  such  parts  of  the  Common 
Law  as  relate  to  the  estate  in  fee  conditional. 
The  estate  has  been  judicially  recognized  as 
existing  in  South  Carolina,  by  repeated  de- 
cisions. The  principles  of  the  Connnon  Law, 
in  relation  to  this  estate,  have  been  enforced 
as  rules  of  property.  Titles  have  been  settled, 
and  the  devolution  of  landed  estates  has 
taken  place  to  a  great  extent,  in  accordance 
with  these  principles.  And  whenever  ques- 
tions of  this  nature  have  arisen,  the  Courts 

*435 

*have  always  resorted  to  the  ancient  Com- 
mon Law  for  the  principles  which  were  to 
govern  their  decisions.  It  is  probable  that 
the  estate  was  recognized  as  existing  in  the 
earliest  period  of  our  history.  For  we  find 
decisions  to  this  effect  in  the  first  Law  and 
Ecpiity  Rejiorts  that  were  ever  pul)lished  in 
South  Carolina,  in  which  the  subject  was 
treated  as  familiar,  and  the  rules  applicable 
well  settled.  In  Murrell  v.  Mathews,  decided 
in  1S02,  2  Bays's  Rep.  397,  the  testator,  Rob- 
ert Murrell,  devised  the  land  in  dispute  to 
the  plaintiff,  John  Jonah  Miu-rell,  (who  was 
his  son.)  "and  the  lawful  heirs  of  his  body ;" 
but  in  case  he,  or  the  lawful  heirs  of  his 
body  should  die,  without  lawful  heirs,  he 
devised  the  estate  to  his  grand-son,  Robert 
Huggins,  and  the  lawful  heirs  of  his  body 
forever.  John  Jonah  Murrell  had  lawful  is- 
sue born  alive ;  and  during  the  life  time  of 
such  issue,  he  alienated  the  land,  in  fee 
simple,  to  the  defendant,  Mathews.  In  this 
case,  all  the  Judges  were  of  the  opinion  that 
John  Jonah  Murrell  took  a  fee  conditional 
in  the  land,  and  that  the  birth  of  issue,  and 
the  alienation  barred  the  remainder-man, 
and  all  claiming  under  him.  The  title  of  the 
defendant  was  held  to  be  good;  and  judg- 
ment rendered  against  him  on  the  bond, 
which  was  given  for  the  purchase  money. 

In  Cruger  v.  Hey  ward,  2  Des.  Rep.  422, 
Col.  Daniel  Heyward  devised  his  island, 
Callewashie,  to  his  son,  Benjamin,  but  in 
case  he  died  "without  lawful  issue,  to  his, 
(the  testator's)  grand-son,  Daniel  Heyward, 
and  his  heirs  forever."  It  was  argued  at  the 
bar,  and  held  by  the  Court,  that  Benjamin 
took  a  fee  conditional.  It  was  a  fee  con- 
ditional  by   implication,   and  one  in   which 


BULST  V.  DAWES 


the  word  Issue  was  considered  as  equivalent 
to  heirs  of  the  body. 

.nV'l  "r,^  '"''^*""*^''  '■'^"^'  '^  ^"=^t  of  Jones 
ads.  Postell  and  I'otter.  Harp.  92  It  arose 
under  the  will  of  Thomas  Snipes,  who  de- 
vised the  land  in  <niestion  to  his  son.  William 
tla.v  Snipes,  -to  l,i,„  a„,|  ^,,^  j,^.,,.^  ^^^  ^.^ 
body  forev,>r."  The  Court  says,  in  delivering 
its  judgment,  "there  can  be  but  one  opinion 
as  to  the  character  of  the  estate  which 
JiUiani  Clay  Snipes  took  vnuh.r  the  will  of 
Thomas    Snipes.      The    terms    used,    "to    him 

*436 
and  the  heirs  ♦of  his  body  forever'  are 
precisely  those  which  Lord  Coke,  and.  on  his 
authority.  Sir  William  Rlack.stone.  define  as 
creating  at  Common  Law  a  qualified  oi-  con 
ditional  fee."  It  was  further  ruie<l.  in  that 
case,  that  the  tenant  in  fee  conditional, 
though  he  had  i.ssue  born,  could  not  bv  a  de- 
vise prevent  the  estate  from  descending  per 
formam  doni  ;  a  rule  which  has  been  followed 
ever  since. 

From  this  period  to  the  present  time,  our 
reports  are  full  of  cases  of  this  complexion. 
The    following    are    some    of   the    published 
cases    in  which  the  estate  in  fee  conditional 
has   been    recognized:   in    some,   incidentallv 
and.  in  others.  ,]irectly,  by  judicial  decision' 
affecting  the  rights  of  the  parties,     (^arr  v 
Porter^  1  McC.  Eq.  60;    Henry  v.  Felder    2 
McC.  Eq.  330:    Mazyck  v.  Vanderhorst.  Bail 
Eq.    48;     Izard    v.    Izard.    Kail.    Eq.    2-^S  • 
Bedon  V  Bedon,  2  Bail.  231 ;   Adams  v.  ChTnp- 

iS  -^^^,;  ./'^^l^-'i'-'l--  V.  Barksdale,  2  Hill.  Eq. 
184  ;    \\  hitworth  v.  Stuckey,  1  liid,.  Eq   404  • 
Hull  y.  Hnll.  2  Strob.  E,j.  190  .•    Hay  v.^IIav! 
3  Rich.   Eq.  384.     Some  of  these  cases   will 
be  referred  to  hereafter  in  a  more  particulai 
manner.     Besides  the  published  cases    there 
are  others  that  have  not  been  rei.orted.    And 
there  IS  a  great  multitude  of  circuit  decisions 
in  which  the  rights  of  parties  have  been  af- 
fected, that  have  never  been  carried  before 
the    appellate    tribunals,    and    consequentlv 
have   not   found    their  way   into  the  book.s 
.So   that   the  estate   in   fee   conditional   has 
struck    root,    deeply    and    broadlv,    in    our 
system  of  law,  as  an  institution  of  property 
10  do  It  violence  now,  by  undermining,  or  by 
direct  assault,  to  rob  it  of  its  just  propor- 
tions, to  deny  it  this  or  that  attribute,  or  to 
withhold  from  it  those  ancient  rules  of  con- 
struction by  which  the  estate  was  ascertain- 
ed,  would   be    unwi.se   and   inconsistent      It 
would  be  setting  every  thing  afloat  (as  to  tills 
subject)   upon  a  wide  sea  of  confusion  and 
uncertainty.     We  do  not  affect  to  be  wiser 
than  our  predecessors,  and  Courts  above  all 
other  places  should  be  and  are  distinguished 
by  a  firm  adherence  to  establLshed  principles 
And  It  is  certainly  better  in  every  point  of 

*437 
view,  unless  change  *be  imperativelv  called 
for  by  a   change   of  circumstances, 'to  sub- 
4  Rich. Eq.— 12 


»438 


nut  to  principles  that  have  been  sanctioned 
by  long  usage,  than  for  the  Court  to  under- 
take the  dangerous  experiment  of  ciianging 
the  old  and  establishing  a  new  rule.  And 
even  where  change  is  inq)eratively  lalied  for 
by  a  change  of  circumstances,  it  is  better  to 
invoke  the  interpo.sition  of  the  law-making 
power. 

Our  Courts  have  repeatedly  said,  that  what 
constitutes  a   fee   tail   in   England   is  a   fee 
conditional   in   South   Carolina.     Thev   have 
given  this  as  a  test,  or  .standard,  bv'  which 
to  ascertain   when  or  where  the  fee  condi- 
tional exists.     And  a  very  proper  test  it  is ; 
for,  as  has  already  been  remarked,  the  stat- 
ute de  donis  operated  only  upon  fee  condi- 
tional   estates:     converting    tiiem    into    fees 
tail.     Without  reiiuiring  any  thing  a.l.litional 
(•r  stronger  in  the  way  of  la nirua :.'.'.  it   fur- 
nished  a   different   rule  of  interpretation  of 
the    same    words.      It    is    obvious    ui.oii    the 
slightest  reflection,  that  the  structure  of  the 
two  estates  is  preci.sely  the  same ;    and  they 
only  differ  in  regard  to  the  right  of  aliena- 
tion.    I  have  been  led  into  this  course  of  re- 
mark from  the  fact,  that  the  decision  of  the 
nia.]ority  of  the  Court  in  this  case  could  (uilv 
have  been  made  on  a  denial  of  this  rule  of 
interpretation  as   to   what   constitutes  a   fee 
conditional. 

I  will  now  advert  again,  for  a  brief  space 
to  the  rule  in  Shelley's  case.     In  addition  to 
Its  feudal  origin,  as  has  been  shown  in  the 
circuit  decrw,  there  is  a  i)rofound  philosophv 
in  the  rule,  which  well  adapts  it  to  the  stat'e 
of  modern  society,  and   makes  it  an   imi)or- 
tant  i)rinciple   in   every  system   of   jurispru- 
dence,   where   it   is   essential    to   preserve   a 
distinction    between    estates   by   descent  and 
estates  by  purchase.     Its  i.olicv  is,  "that  no 
r)erson  should   be  permitted  to  rai.se   in   an- 
other   an    estate,    which    was   essentiallv    an 
estate  of  inheritance,  and  at  the  .same  "time 
to   make  the   heirs  of  that   person   purchas- 
ers;"    4  Kent  Com.  208.     The  reason  which 
recommends  it  to  the  modern  legislator  and 
.lurist,   is   the   necessity   of   adhering   to   the 
manifest    distinctions    between    de.scent    and 
purchase,   and   to   prevent    title    bv    descent 
from  being  stripped  of  its  incidents,  and  dis- 
guised   with    the  properties   of  a    purchase. 

*438 
*Harg.  Law  Tracts,  489.  Or.  as  Lord  Thur- 
low  tersely  and  clearly  expresses  the  same 
Idea  in  Jones  v.  Morgan.  1  Bro.  200.  whoever 
"takes  m  the  character  of  heir  must  take 
in  the  quality  of  heir." 

It  was  this  i)olicy.  doubtless,  which  recom- 
mended it  to  the  Courts  of  South  Carolina 
It  was  recognized  in  this  State  as  early  as 
1795,  in  Dott  v.  Cunnington,  1  Bav,  453  fl 
Am.  Dec.  024].  and  Carr  v.  I'orter'  1  McC 
Kq.  GO,  was  decided  upon  the  authority  of 
the  rule.  Since  that  ca.se,  it  has  uniformlv 
been  considereil  as  of  binding  obligation  in 
a  case  proper  for  its  application ;   and  many 

177 


*438 


4  mCIIARDSONS  EQUITY  REPORTS 


cases  might  be  cited  to  this  effect.  After 
all  this,  I  am  not  a  little  astonished  to  hear 
learned  jurists  sneering  at  the  rule  as  arti- 
ficial and  arbitrary,  and  one  that  it  was  de- 
sirable to  get  rid  of  by  the  .iudicial  author- 
ity. I  will  assume,  therefore,  in  what  I 
shall  hereafter  say,  that  the  rule  is  of  bind- 
ing force  in   South  Carolina. 

Let,  then,  the  construction  of  Edward 
Tonge's  will  be  squared  by  the  requirements 
of  the  rule.  He  gave  to  James  Boone  Perry 
an  estate  for  life,  and  at  his  decease  he  gave 
the  estate  to  his  issue.  Is  not  this  the  very 
case  to  which  the  rule  applies? 

In  Robinson  v.  Robinson,  1  Burr.  3S,  the 
testator  gave  the  estate  to  Launcelot  Hicks, 
during  his  life,  "and  no  longer,  and  after  his 
death  to  such  son  as  he  may  leave  lawfully 
begotten,"  aud  for  default  of  such  issue, 
over.  It  was  construed  to  be  an  estate  tail, 
and  not  a  gift  to  the  issue  as  purchasers. 
And  Lord  Mansfield  said  that  "by  law  the 
testator  could  by  no  words  make  the  father 
tenant  for  life,  and  the  heirs  male  of  his 
body  purchasers." 

King  V.  Burchell,  Amb.  379,  Fearne  163,  is 
a  leading  case  to  the  effect,  that  a  devise 
for  life,  with  remainder  to  issue  male,  and 
for  want  of  svich  issue  to  issue  female,  and 
on  failure  of  such  issue  then  over,  created 
an  estate  tail  by  virtue  of  the  rule;  and  the 
words  "to  the  hei<*s  and  assigns  of  such  is- 
sue, male  or  female,"  did  not  prevent  the  op- 
eration of  the  rule.  This  case  bears  a  strik- 
ing resemblance  to  the  one  arising  under  Ed- 
ward Tonge's  will. 

*439 

*In  Dodson  v.  Grew,  2  Wils.  322,  a  devise 
(o  one  for  his  natural  life,  and  after  his  de- 
cease to  the  use  of  the  male  issue  of  his 
body,  and  the  heirs  male  of  the  body  of  such 
issue  male,  and  for  want  of  such  issue  male, 
then  over,  was  held  to  create  a  fee  tail. 

Cases  of  this  kind  might  be  multiplied  to 
an  indefinite  extent.  There  are  many  cases 
in  which  a  gift  or  devise  to  a  person  for 
life,  and  after  his  death  to  the  heii's  of  his 
body,  or  the  issue  of  his  body,  have  been 
construed  as  giving  the  first  taker  only  a 
life  estate,  with  a  remainder  to  the  issue 
as  purchasers.  But  this  result  happens  by 
force  of  the  context,  in  which  words  are  used, 
which  modify  and  restrict  the  meaning  of  the 
words  heirs  of  the  body  or  issue,  so  as  to 
make  them  designate  a  particular  class  of 
persons.  In  these  cases,  the  heirs  of  the 
body  as  such  do  not  take  as  purchasers. 
They  take,  because  the  words  are  explained 
to  be  used  in  a  limited  sense,  descriptive  of 
the  individuals  amongst  the  heirs  general, 
who  are  to  take. 

It  is  clear  that  the  rule  is  not  violated  in 
cases  like  these,  because  it  does  not  apply. 

In  Edward  Tonge's  will,  thei-e  is  nothing 
in  the  context  to  control  the  general  mean- 
ing of  the  word  "issue."    There  are  no  words 

178 


of  modification  showing  that  the  issue  are  to 
take  in  a  way  inconsistent  with  the  usual 
course  of  devolution  in  the  case  of  an  estate 
tail,  or  fee  conditional.  He  intended  the  is- 
sue of  James  Boone  Perry  to  take  in  indefi- 
nite succession.  He  did  not  intend  that  the 
estate  should  go  over  to  John  Withingham 
Soramers,  from  the  line  of  James  Boone  Per- 
ry, as  long  as  there  was  any  of  his  issue  ex- 
tant. If  this  be  true,  and  who  can  doubt  it, 
then  it  was  a  fee  conditional. 

It  was  urged  with  much  fervor,  that  James 
Boone  Perry  was  to  take  a  life  estate,  and 
his  issue  as  purchasers,  because  the  limita- 
tion over  on  the  failure  of  such  issue  to  John 
Withingham  Sonuners,  &c.,  restricted  the 
words  of  the  direct  grant  to  the  issue,  so  as 
to  make  them  mean  a  particular  class  of  is- 
sue: that  is  to  say,  i.ssue  living  at  James 
Boone  Perry's  death  only.  This  is  demand- 
ing as  a  postulate,  that  which  remains  to  be 

*440 
proved.  It  is  *of  course  not  denied,  in  rela- 
tion to  personal  property,  that  when  there  is 
a  direct  grant  to  the  issue,  or  heirs  of  the 
body,  generally  in  the  first  place,  which 
standing  by  itself,  would  make  the  limitation 
too  indefinite  and  remote  for  the  issue  to  take 
as  purchasers,  but  which  is  followed  by  an 
ulterior  valid  limitation  in  favor  of  a  third 
party,  this  subsequent  limitation  has  the  ef- 
fect of  restricting  the  generality  of  the  terms 
of  the  gift  to  the  issue,  so  as  to  make  them 
mean  a  grant  to  issue  living  at  the  death  of 
the  first  taker:  in  which  ca.se  the  issue  would 
take  as  purchasers.  That  rule  of  construc- 
tion was  applied  to  the  will  of  Edward  Tonge 
as  to  the  personal  estate,  by  the  circuit  de- 
cree in  this  very  case,  and  affirmed  by  the 
Court  of  Appeals,  though  both  the  real  and 
personal  estate  was  disposed  of  in  the  same 
words.  A  bequest  to  one  and  his  issue,  or 
the  heirs  of  his  body,  with  a  limitation  over 
on  his  dying  without  leaving  issue  at  the 
time  of  his  death,  will  give  the  issue  an  es- 
tate as  purchasers  after  the  termination  of 
the  estate  for  life  of  the  first  taker.  Read 
V.  Snell,  2  Atk.  642;  Lampley  v.  Blower,  3 
Atk.  396;  Henry  v.  Means,  2  Hill,  32S;  Hen- 
ry «&  Talbird  v.  Archer,  Bail.  Eq.  535. 

But  where  is  the  authority  that  this  cir- 
cumstance alone  is  suflicient  to  warrant  the 
same  construction  in  reference  to  real  es- 
tate? The  words  heirs  of  the  body  or  issue 
are  capable  of  restrictive  modifications  by 
the  context,  both  as  to  the  real  and  personal 
estate.  This  is  clear.  That  their  meaning, 
however,  is  more  controllable  and  suscepti- 
ble of  explanation  in  another  than  the  techni- 
cal sense,  when  applied  to  the  former,  than 
the  latter,  is  also  indisputable.  And  what  I 
insist  on  is  this:  that  when  real  estate  is 
given  to  one,  and  the  issue  or  heirs  of  his 
body,  the  simple  fact,  that  there  is  a  valid 
limitation  over  on  the  event  of  the  first  tak- 
er's dying  without  leaving  issue,  or  heirs  of 


BUIST  V.  DAWES 


*443 


his  body,  is  not  suflicient  to  make  the  issue 
or  heirs  of  the  body  take  an  estate  in  re- 
mainder as  iturehasers,  as  it  does  in  the  case 
of  personal  estate.  Fortli  v.  rijapman,  1  P. 
W.  ()(!.•}:  Mazyck  v.  Vanderliorst.  Bail.  Eq. 
4s:  Hull  V.  Hull,  2  Strob.  E(i.  190.  This  is 
not    sullicieut    to    qualify   the    technical    and 

♦441 
general  sense  of  those  *\vords.  And  yet  it 
seems  to  me  that  the  decision  tif  a  majority 
of  this  Court  has  turned  in  a  jireat  measure 
upon  such  a  doctrine.  Some  of  the  cases  tro 
a  fii't'iit  tlt'al  further,  and  decide  that  where 
real  estate  is  {livi'ii  to  one  and  the  heirs  of 
his  body,  or  his  issue,  with  a  limitation  over 
in  the  event  of  the  first  taker's  dying  with- 
out issue  of  his  body  living  at  the  time  of  his 
death,  .still  this  does  not  ciualify  or  restrict 
the  general  sense  of  the  words  of  a  direct 
gift  to  the  issue,  so  as  to  make  them  take  as 
purchasers. 

In  Kiihards  v.  Lady  Bergavenny.  2  Vern. 
.■>24,  the  devi.se  was  to  Lady  Bergavenny  for 
life,  and  to  such  heir  of  her  body  as  should 
he  living  at  the  time  of  her  death,  and,  in 
default  of  such  issue,  then  over.  The  issue 
did  not  take  as  purchasers.  It  was  held  to 
be  an  estate  tall. 

In  Wright  v.  Pearson,  Ami).  358,  the  devise 
was  to  K.  and  his  assigns  for  life,  remainder 
to  trustees  to  support  contingent  remainders, 
remainder  to  the  use  of  tlie  male  heirs  of  the 
body  of  I{.  lawfully  to  he  begotten,  and  their 
heirs:  provided,  that  in  case  K.  should  die 
without  leaving  any  Issue  of  his  body  living 
at  his  death,  then  over:  it  was  held  by  Lord 
Keeper  Henley,  to  create  an  estate  tail  in  Iv. 
Fearne  on  Kem.  12(5. 

"Where  a  devise  to  a  person  and  his  issue, 
(or  to  him  and  the  heirs  of  his  body,)  is  fol- 
lowed by  a  limitation  over  in  case  of  his 
dying  witht)ut  leaving  issue  living  at  his 
death,  the  only  effect  of  these  special  words 
is  to  make  the  remainder  contingent  on  the 
described  event.  They  are  not  considered  as 
explanatory  of  the  species  of  issue  included 
in  the  prior  devise,  and  therefore  do  not  pre- 
vent the  prior  devisee  from  taking  an  estate 
tail  under  it.  The  result  simply  is,  that  if 
the  tenant  in  tail  has  no  issue  at  his  death, 
the  devise  over  takes  effect:  if  otherwise, 
the  devise  over  is  defeated,  notwithstanding 
a  sul>se(iuent  failure  of  issue."  2  Jarm.  on 
Wills.  :•,.-.<). 

In  Whit  worth  v.  Stuckey,  1  Rich.  E(i.  404. 
the  devise  under  the  will  of  John  P.axter 
Kriiser  was  to  his  son,  "for  and  during  his 
natural  life,  and  at  his  death  to  the  lawful 
issue  of  his  body;  and  if  he  should  die  with- 
out  lawful   Lssue  living  at  the  time   of  his 

•442 
==death,  then  over.  It  was  held,  that  the  lim- 
itation to  the  lawful  issue  of  the  devi.see's 
l)ody  served  only  to  enlarge  his  estate  to  a 
fee  conditional  at  common  law.  and  did  not 
give   the   issue   a   remainder    as   purchasers. 


See  Hull  v.  Hull,  2  Strob.  Eq.  100.  and  Hay 
V.  Ilay,  :i  Rich.  Eq.  .384.  where  the  same  rule 
of  construction  prevailed. 

Much  was  said  at  the  bar  about  the  ab- 
surdity of  a  rule  of  construction,  which  as  to 
the  personalty  would  give  the  issue  as  pur- 
chasers an  estate  by  way  of  remainder,  while 
as  to  the  realty,  devised  in  the  same  lan- 
guage, and  in  the  same  clause  of  the  will, 
the  first  taker  should  be  considered  as  taking 
an  estate  in  fee  conditional.  I  cannot  under- 
take to  say  how  far  the  judgment  of  the  ma- 
jority of  this  Court  has  been  infiuenced  by 
this  kind  of  argument.  That,  in  a  case 
where  real  and  per.sonal  estate  are  given,  in 
the  same  clause  and  language,  to  one  and  his 
issue,  or  the  heirs  of  his  body,  and,  if  he 
dies  without  leaving  issue,  then  over,  the 
first  taker  will  have  a  fee  conditional  in  the 
real  estate,  and  a  life  estate  in  the  personal- 
ty, with  renuiinder  to  the  issue  as  purchas- 
ers, is  sustained  by  the  most  conclusive  au- 
thorities. The  distinction  is  taken  upon  the 
most  satisfactory  grounds.  It  results  from 
the  different  nature  of  the  two  species  of 
property.  In  reference  to  the  real  estate,  it 
comes  under  the  operation  of  the  rule  in 
Shelley's  case,  which  is  established  upon  im- 
pregnable foundations  of  reason  and  authori- 
ty. As  to  both  species  of  property,  it  is  ob- 
viously the  intention  of  the  testator  to  give 
an  estate  to  the  issue.  Inasmuch  as  the  real 
estate  is  descendible,  the  intention  is  satLs- 
fied,  without  infringing  the  rule  in  Shelley's 
case  by  the  issue  taking  by  way  of  limitation. 
The  estate  must  descend  to  them  per  forinam 
doni,  unless  the  first  taker,  upon  the  perfor- 
mance of  the  condition,  shall  have  alienated. 
But  personal  propert}'  not  being  descendible, 
the  issue  or  heirs  of  the  body,  as  such,  could 
take  nothing  under  a  bequest  like  this.  Un- 
less they  take  as  purchasers,  the  first  taker 
must  have  an  absolute  estate.  Therefore,  as 
the  rule  does  not  apply  to  personal  estate, 
and   the  intention  of  the  testator   would  be 

*443 

otherwise  defeated,  the  issue  *are  allowed, 
by  a  favourable  construction  in  their  behalf, 
to  take  as  purchasers,  which  is  the  only 
character  in  which  they  could  take  at  all. 

Forth  v.  Chapman,  1  P.  Wms.  (K!o,  is  the 
leading  case  in  the  English  Courts  ui»on  this 
point.  It  has  been  strictly  followed  in  our 
Courts,  in  Mazyck  v.  Vanderliorst,  Bail.  Eq. 
4S.  and  in  Hull  v.  Hull,  2  Stroli.  Eq.  lOU. 
Instability  as  to  the  rules  which  regulate 
the  descent,  and  distribution  of  property,  re- 
sulting from  a  change  of  judicial  opinions, 
is  mischievous  to  the  last  degree. 

There  was  a  disposition,  in  the  construc- 
tion of  Tonge's  will,  to  give  to  the  testa- 
tor's intention  a  controlling  force  and  eftect, 
which,  in  questions  of  this  sort,  is  beyond 
what  is  legitimate.  The  rule,  that  the  testa- 
tor's intention  is  to  govern,  is  subordinate  to 
other  rules.    (Jne  of  these  is,  that  where  the 

179 


*443 


4  RlfllAIiDSON'S  EQUITY  REPORTS 


testator  lias  used  technical  words,  the  tech- 
nical meaning  Avill  prevail,  unless  he  has 
sufficiently  explained,  in  the  context,  that  he 
has  used  those  \Aords  in  some  other  than  the 
technical  sense.  The  intention  is  to  be  care- 
fully and  patiently  sought.  But  to  seek  for 
it,  without  the  aid  of  this,  and  other  rules, 
which  have  been  sanctioned  by  wisdom  and 
experience,  is  to  embark  upon  the  voyage  of 
discovery  Avithout  chart  or  compass.  It 
would  give  rise  to  the  greatest  degree  of  un- 
certainty. The  interpretation  of  no  will 
could  be  known,  until  it  had  undergone  ju- 
dicial construction. 

If  it  be  ascertained,  that  the  technical  im- 
port of  the  language  employed,  and  which  is 
not  explained  in  the  context  to  have  been  used 
in  a  different  sense,  would  create  a  particular 
kind  of  estate,  then  the  intention  of  the  tes- 
tator in  contradiction  of  this,  is  wholly  un- 
important. Thus,  in  the  case  of  a  gift  to  one 
generally,  and  the  heirs  of  his  body:  or  a 
gift  to  one  for  life,  and  at  his  death  to  the 
issue  of  his  body,  if  it  appears  from  an  ex- 
amination of  all  the  parts  of  the  will,  that  it 
was  the  testator's  intention  to  give  the  estate 
to  the  first  taker,  and  to  his  issue  after  him 
in  indefinite  succession,  it  is  a  fee  tail  in 
England,  and  a  fee  conditional  in  South  Car- 
olina,  no    matter  what   may   have  been   the 

*444 
further  ''intention  of  tho  testator.  When  the 
primary  intention  to  create  what  is  consid- 
ered a  fee  conditional  is  manifest,  the  ex- 
press limitation  of  the  estate  of  the  an- 
cestor to  the  period  of  his  life,  is  utterly 
immaterial.  And  the  most  positive  and  un- 
equivocal words  restricting  the  ancestor's  es- 
tate to  the  period  of  his  life,  and  inhibiting 
its  continuance  beyond  that  period,  will  not 
aifect  tlie  construction. 

The  express  limitation  of  the  estate  to  the 
ancestor  for  life,  is  as  clear  an  indication, 
that  his  e.state  is  not  to  be  extended  beyond 
that  period,  as  any  superadded  words  of  ne- 
gation however  strong,  could  possibly  make 
it.  It  is  the  gift  of  the  estate  to  the  issue 
generally,  to  be  enjoyed  by  them  in  indefinite 
succession  which  stamps  the  estate  as  a  fee 
conditional:  the  attributes  of  which  the  tes- 
tator is  not  permitted  to  change,  or  modify, 
whatever  may  be  his  intention,  (a)  On  the 
contrary,  if  an  estate  be  given  to  one,  and  at 
his  death  to  the  heirs  of  his  body,  and  it  ap- 
[tears  from  tlie  context,  that  it  was  the  tes- 
tator's intention    not    to    give   the   estate   to 


(a)  Robinson    v.    Robinson,    1    Burr, 
Burr,  2571);    2  Wm.  Bl.  Ul)8. 

ISO 


]S;     4 


the  heirs  of  the  body  generally,  but  to  a  par- 
ticular class  of  his  heirs,  namely,  those  who 
should  be  living  at  the  death  of  the  first 
takei",  the  ancestor  would  take  but  a  life  es- 
tate, and  the  heirs  of  his  body  living  at  his 
death,  would  take  in  remainder  as  purchas- 
ers.    (Jesson  V,  Wright,  2  Bligh,  1.) 

By  reference  to  Edward  Tonge's  will,  it 
will  be  perceived,  that  after  the  life  estate 
given  to  his  wife  and  mother,  he  gave  to 
James  Boone  Perry  a  life  estate,  and  at  his 
decease,  to  his  male  issue,  and  in  default  of 
such,  (that  is,  of  such  male  issue,)  to  his  is- 
sue female  surviving  him,  &c.  Is  tliere  any 
thing  here,  clearly  to  indicate,  that  the  male 
issue  were  not  intended  to  take  in  indefinite 
succession,  if  they  took  at  all:  for  we  have 
shown,  in  the  preceding  pages,  that  there  be- 
ing a  limitation  over,  which  as  to  the  per- 
sonal estate  would  be  valid,  is  not  sufficient 
to  qualify  the  generality  of  the  term  "issue" 
when  applied  to  real  estate,  so  as  to  make  it 
mean  issue  living  at  the  death  of  the  first 
taker.     It  was  only  on  the   default  of  the 

*445 
male  issue,  that  the  estate  was  to  go  *over  to 
the  issue  female  surviving  him,  (James 
Boone  Perry.)  It  was  not  to  go  to  the  fe- 
male issue,  until  the  whole  line  of  the  male 
issue  had  run  out,  and  this  might  not  be 
until  a  remote  period. — There  are  a  thou- 
sand cases  to  show  that  the  words  "in  de- 
fault of  issue"  or  "in  default  of  such  issue," 
mean  an  indefinite  failure  of  issue.  Some 
stress  was  laid  upon  the  word  "surviving" 
him,  which  was  applied  in  the  will  to  the 
female  issue,  and  not  to  the  issue  male. 
This  could  have  no  effect  upon  the  gift  to 
the  male  issue.  This  could  not  be  stronger 
than  if  the  testator  had  said,  upon  the  de- 
fault of  the  male  issue,  I  give  the  estate  A. 
B.  and  C.  the  daughters  of  James  Boone  Per- 
ry. This  clearly  would  not  have  given  the 
estate  to  the  male  issue  as  purchasers:  for 
it  was  to  descend  in  the  nmle  line,  until  it 
had  entirely  failed,  before  it  was  to  go  to 
the  female  issue  at  all. 

For  the  foregoing  reasons  I  dissent  from 
file  judgment  of  a  majority  of  this  Court.  It 
is  calculated  to  produce,  if  it  prevails  as  an 
authority,  some  radical  changes  in  the  rules 
of  law  on  this  subject,  and  will  probably  lead 
to  much  litigation. 

I  had  intended  to  submit  some  remarks 
on  the  other  question  referred  to  the  Court 
(of  Errors.)  But  thi-s  opinion  is  already  long, 
and  any  thing  I  might  say  on  the  other 
branch  of  the  case  would  be  mereiy  specula- 
tive. 


IN  THE  COURT  OF  ERRORS 


COLUMBIA— MAY,   1852. 


All  the  Judges  and  Chaxckllors  Present. 


4  Rich.  Eq.  ♦447 

♦MOSES  S.  McCALL  v.  JAMES  S.  McCALL 

et   al. 

(Columbia.     May,  1852.) 

[WiUs    <g=>.".Sl.l 

Tpstiitrix,  Jiavins  sixty-four  iiefyioes,  made 
Iipr  will  by  which  she  bequeathed  sixty-two  by 
naiiio:  of  the  sixty-two,  sixty  were  properly 
named,  and  two  were  bequeathed  by  tiie  names 
of  lyittle  Harry  and  Alonzo:  she  bad  no  negroes 
l)y  those  names,  but  had  four  not  named  in  the 
will,  to  wit.  Little  Harriet,  Manza,  Lydia  and 
Tom:  by  a  codicil  she  lK>queathed  I>ydia  and 
Tom  as  nejrroes  not  named  in  her  will:— //eW, 
that  Little  Harriet  and  ^L1nza  passed  under  the 
bequest  of  I^ittle  Harry   and  Alonzo. 

[Kd.  Note.— Cited  in  Rosborouuih  v.  Hemphill, 
n  Rich.  Eq.  99:  Boyd  v.  Satterwhite,  12  Rich. 
E.l.  490:  Scaife  v.  Thomson.  15  S.  C.  .•{(>(): 
Cunincham  v.  Cuningham.  20  S.  C.  ,S.^0 :  Re\- 
nolds  V.   Reynolds,  6.")  S.  C.  r',94,  4^  8.   E.  STS. 

Fur  other  cases,  see  Wills.  Cent.  Dig.  §  1268; 
Dec.  Dig.  <S=»581.] 

Before  Johnston,  Ch.,  at  Darliugton,  Feb- 
ruary, ISol. 

This  case  arose  out  of  the  will  of  the  late 
Mrs.  Hannah  Sanders,  of  Darlin^iton. 

The  te.statrix  died  the  l.'Jth  of  April.  1S47. 
By  the  7th  clause  of  her  will,  which  was  duly 
executed  the  2()th  of  .January.  I.s44,  she  be- 
(luealhed  as  follows: 

To  Moses  McCall  (the  plaintiff)  "I  give  and 
beiiueath  tlie  following  negroes,  to  wit:  Bet- 
ty. August,  Eliza,  Thilip,  Little  Harry  and 
Alonzo,"  in  trust  'for  the  sole  and  separate 
use.  henetit  and  behoof  of  Elizabeth  H. 
llaynsworth,  wife  of  Thomas  B.  Hayn.s- 
worth." 

The  will  contained  a  residuary  clause,  by 
which  the  testatrix  g:ivc  one  lialf  llic  rest  and 

♦448 
residue  of  her  e.state  to  Jan)es  S.  *Mc('all, 
and  din>cted  that  the  other  he  sold,  and  the 
proceeds  laid  out  in  the  purchase  of  negroes, 
lor  the  use  and  beiielit  of  the  cinldren  of 
James  M.  Sanders. 

It  appeared  at  the  hearing,  that  the  te.sta- 
tri\  enijdoyed  eminent  coun.sel  to  draw  her 
will.  That  when  her  lawyer  was  taking  notes 
for  the  draft  of  it,  she  directed  him  to  dispose 


dren,  In  trust  for  .Mrs.  llaynsworth. — That 
Eliza  was  at  the  plantation,  some  20  miles 
otf.  and  had  three  children,  named  Philip, 
Little  Harriet  and  .Manza  ;  that  the  testatrix 
not  knowing  or  recollecting  the  names  of  the 
two  latter,  called  in  a  woman  i«ervant,  to  give 
their  names  to  the  counsel. — The  counsel  un- 
derstood her  to  give  their  names  as  Little 
Harry  and  Alonzo,  and  so  drew  the  will, 
which  was  subsequently  read  and  duly  ex- 
ecuted. 

It  also  appeared  that  the  testatrix  had  no 
negroes  by  the  names  of  Little  Harry  and 
Alonzo. 

The  bill  was  to  obtain  such  a  construc- 
tion or  correction  of  the  will,  as  would  pass 
Little  Harriet  and  Manza  under  the  seventh 
clau.se. 

The  ca.se  was  heard  at  Darlington,  the  10th 
of  February.  1851,  and  the  fon-going  evidence 
was  received  subject  to  objection. 

It  further  appeared  at  the  hearing,  that 
the  testatrix  had,  at  the  date  of  her  will, 
sixty-four  negroes.  The  negroes  named  in 
the  different  clauses  of  the  will  are  .sixty- 
two  in  numl>er.  Two,  by  the  names  of  Lydia 
and  Tom.  whose  names  were  omitted,  were 
subse(iuently  specitically  be(iueathed,  by  a 
codicil  executed  the  18th  of  November,  1840. 

Johnston.  Ch.  When  I  heard  this  cause,  I 
intended  to  take  notice  in  my  decree  of  the 
numerous  authorities  referred  to  by  the  coun- 
sel in  their  argument.  But  the  already  over- 
whelnung,  ami  continually  increasing,  busi- 
ness o(  this  Court,  has  left  me  neither  time 
nor  strength  to  undergo  that  labor — nor  is  it, 
in  my  opinion,  necessary. 

The  cases  are  very  numerous,  and.  it  must 
*449 
be  confessed,  con*tUc-ting;  .so  nuich  so,  that 
it  is  impossible  to  reconcile  them.  T'nder 
such  circumstances,  it  is  safer  to  depend  on 
principles  than  precedent. 

There  are  certain  leading  principles,  well 
sustained  by  authority,  and  reconnnended  by 
rea.son  and  .sound  iKJlicy,  from  which  Courts 
should   never  depart,    let   the   circumstances 


of  Betty.  August  and  Eliza,  with  Elizas  chil-   of    hardship   or   injustice    in    the    particular 


©=3For  other  cases  see  same  topic  aud  KEV-NUAIUER  iu  all  Key-Numbered  Digests  and  Indexes 


181 


*449 


4  RICIIARDSONS  EQUITY  REPORTS 


case  before  them  plead  as  strongly  as  they 
may  for  the  deviation. 

No  degree  of  moral  rectitude  in  the  admin- 
istrators of  law  can  compensate  for  that 
uncertainty,  which  they  must  ever  introduce, 
when  they  aliandon,  or  lose  sight  of.  those 
sound  principles  which  alone  can  secure  jus- 
tice generally  and,  without  their  guidance, 
vainly  attempt  to  attain  the  justice  of  each 
particular  case. 

One  great  object  for  which  Courts  are  in- 
stituted, is  that  their  decisions  may  form 
rules  of  action  and  rules  of  property  to 
which  men  may  conform  without  the  neces- 
sity of  litigation.  This  would  be  entirely 
frustrated,  by  the  mode  of  procedure  indi- 
cated, even  with  the  greatest  rectitude,  and 
the  strongest  judgment,  on  the  pait  of  the 
judges.  But  what  must  be  the  result,  when 
bad  men,  untrannneled  by  rules,  or  princi- 
ples, occupy  the  forum.  Caprice  and  atfec- 
tion  must  dictate  the  law  ;  and  intolerable 
oppression  and  tyranny  must  usurp  the  place 
of  justice. 

There  are  well  ascertained  principles  ap- 
plicable to  this  case,  and  from  these  there 
should  be  no  departure,  notwithstanding  the 
anomalous  cases  to  be  found  here  and  there 
in  the  books. 

One  of  these  principles  is,  that  where  the 
law  requires  the  intention  of  a  party  to  be 
expressed  in  writing,  you  cannot  dispense 
with  the  writing,  and  gather  the  intention 
from  parol.  Another  is,  that  where  a  party, 
though  not  compelled  by  law  to  do  it,  does 
employ  writing  as  the  vehicle  of  his  inten- 
tion, you  cannot  resort  to  parol  as  a  better 
vehicle. 

The  statute  of  1S24  imperatively  requires 
wills  of  personalty  to  be  executed,  in  all  re- 
spects, as  wills  relating  to  realty  were  pre- 
viously required  to  be  made.  Suppose  I  was 
to  receive  the  evidence  of  mistake  in  the  7th 
clause  of  Mrs.  Saunders's  will,  that  would  be 

*450 

very  *good  to  prove  that,  that  is  not  in  the 
clause,  which  she  intended  to  put  in  it.  But 
how  can  I  put  into  that  clause  any  words, 
names,  or  provisions,  which  she  did  not  in- 
sert? If  I  were  to  amend  her  will,  in  any 
part  or  in  any  way,  I  must  do  it  upon  a 
princii)le  that  would  justify  and  require  me 
to  amend  it  in  every  part  and  in  every  way 
that  parol  evidence  might  point  out.  And 
after  I  had  so  altered  the  will,  could  I  hold 
it  up  and  point  to  her  signature  as  proof  that 
she  had  executed  it,  with  the  alterations,  as 
required  by  the  statute? 

The  evidence  offered  might  be  good  to 
prove  that  no  such  names  as  Little  Harry 
and  Alonzo  should  be  in  the  7tli  clause  of 
the  will,  being  inserted  by  mistake.  That 
evidence  would  be  very  good  by  way  of 
avoiding  the  will ;  and,  if  this  were  the 
forum  for  that  purpose,  it  would  be  worthy 
of  consideration.  But  suppose  I  were  to 
IS2 


strike  out  the  names  now  in  the  clause,  that 
would  not  be  sutHcient,  unless  I  inserted 
others  in  their  place ;  and  the  question  is, 
can  I  upon  parol  take  the  names  of  other 
negroes,  forming  at  the  time  I  in^erfere  with 
them,  part  of  the  residuum,  and  covered  by 
the  residuary  clause  of  the  will,  and  insert 
them  in  the  7th  clause?  Can  I  upon  parol, 
transfer  property  from  the  residuary  clause 
to  any  prior  or  specific  clause?  Can  I  upon 
evidence  thus  change  the  operation  of  the 
different  parts  of  the  will? 

If  I  can,  the  statute  of  1824  is  a  nullity. 
If  I  can  do  what  is  proposed,  no  one  need 
hereafter  trouble  himself  with  arguments  to 
shew  the  construction  of  a  testamentary  pa- 
per. All  he  has  to  do  is  to  prove  that  the 
instrument  was  differently  intended  from 
what  appears  on  its  face,  and  then  it  may 
be  altered  to  conform  to  the  evidence. 

Chancellor  Harper,  in  one  of  our  cases, 
discussed  the  same  principles  in  relation  to 
reforming  a  deed,  and  all  liis  objections,  in 
that  case,  arising  out  of  the  statute  of 
frauds,  are  just  as  strong  in  relation  to  wills 
under  the  statute  of  1824. 

This  view  of  the  case  is  sutttcient  to  dis- 
pose of  it.  But  if  we  omit  the  statute  al- 
together, still  in  my  apprehension,  the  result 
must  be  the  same. 

*451 

*It  is  a  familiar  observation  that  you  may 
and  should  learn  the  exact  posture  of  a  tes- 
tator's affairs  at  the  date  of  his  will ;  and 
that  this  knowledge  may  be  obtained  by 
parol.  Certainly,  the  posture  of  a  testator's 
property  can  hardly  be  learned  otherwise 
than  by  parol.  Parol  is  competent,  therefore, 
to  prove  it.  But  for  what  purpose  is  this  in- 
formation desiralde?  Is  it  not  simply  to 
enable  the  Courts  to  apply  the  will  to  the 
property  ? 

You  see  in  the  will  property  described  so 
and  so,  and  disposed  of  thus  and  thus.  You 
learn  by  parol  that  there  is  property  an- 
swering to  the  description.  The  will  is  then 
applied  to  it  in  the  way  directed.  This  is 
construction. 

If  there  be  two  or  more  subjects  to  which 
a  given  provision  may  be  applied,  that  one  is 
supposed  to  be  intended  which  answers  most 
completely  to  the  descriiition  given.  But  no 
provision  can,  upon  any  safe  or  sound  prin- 
ciple, be  applied  to  a  subject  which  does  not, 
in  some  sense,  answer  to  tiie  description 
given. 

If  the  testator  gives  stock,  for  example, 
you  apply  his  will  to  bank,  or  government 
stock,  stock  in  trade,  or  in  a  joint  stock 
company,  or  co-partnership,  or  to  live  stock, 
according  as  he  may  own  one  or  the  other. 
If  he  owns  all  these  kinds  of  stocks,  you 
look  to  the  usages  of  language  or  to  the  con- 
text of  the  will  to  ascertain  liis  intention. 

If  the  description  given  in  the  primary,  or 
more    limited,    or    stricter    meaning    of    the 


McCALL  V.  McCALL 


*454 


words,  finds  no  f<miii«'riijirt  in  the  testator's 
property,  Imt  suliji-cts  are  fmind  to  wliicli 
the  words  in  some  other  sensi-  will  apply, 
you  aiiply  them  to  these  subjects.  lUit  it 
should  be  steadily  observed,  that  it  is  the 
will  of  the  testatdr.  and  lutthini,'  but  the  will, 
that  is  to  be  so  applied.  It  is  his  words, 
found  in  his  will,  that  are  to  be  applied ; 
not  the  words  of  a  witness  testifying  what  he 
meant  or  what  lie  did  not  nn-an. 

The  words  are  to  be  ai)plied  by  construc- 
tion, and  not  by  proof  of  the  intention  with 
which  they  were  employed.  If,  in  themselves 
they  are  capable  of  no  constructidu  api)li- 
<able  to  the  subject  projiosed.  you  ar«'  not  to 
learn  from  any  foreij,'ii  source,  from  any  wit- 
ness, or  from  any  docuuients  not  referred  to 

*452 
in  the  will,  *that  the  words  were  intended 
to  have  any  operation  different  from   what 
they  puiport. 

And  here  I  would  observe,  in  order  to 
show  the  utter  incompetency  of  parol  expla- 
nation, or  parol  evidence,  to  .show  what 
Mrs.  Saunders's  real  dispositions  were,  that 
though  if  the  testatrix  had  referred  by  her 
will  to  any  document  extrinsic  to  it,  that 
would  have  been  part  of  her  will — a  full 
testamentary  paper  in  writing,  in  the  sense 
of  the  statute:  yet  if  her  will  had,  in  so 
maiiy  words,  declared  that  her  dispositions 
had  been  confided  to  one  of  her  friends,  who 
was  instructed  to  declare  and  explain  them 
by  parol,  this  would  have  been  no  will.  If 
such  itarol  declaration  could  have  no  ettica- 
<-y  as  a  testament,  how  can  parol  be  allowed 
to  operate  when  offered  by  way  of  a  testa- 
mentary explanation?  A  written  will  is  the 
only  means  of  disi)lacing  the  law  of  intes- 
tacy. It  is  the  only  authority  which  Courts 
'•an  have  to  treat  the  property  of  a  deceased 
person  as  testate  property ;  and  must  there- 
fore be  the  measure  of  their  interference 
with  the  property.  The  clue  to  the  property 
must  be  found  in  the  will  itself. 

The  witness  in  this  case  says,  the  testatrix 
intended  to  give  Eliza's  children  along  with 
Kliza  herself.  If  she  had  said  .so  in  her  will, 
1  would  have  given  effect  to  it.  That  would 
have  been  a  good  be<iuest  of  the  children, 
notwithstanding  the  subsi><iuent  misnaming 
of  them.  But  there  is  nothing  of  that  kind 
in  the  will. 

Nor  does  it  appear  in  the  instrument  that 
Harry  and  Alonzo  were  given  as  children  of 
Kliza  ;  or  that  any  relation  iK'tween  Kliza 
and  the  negroes  so  named  was  in  the  mind  of 
the  testatrix.  The  negroes  are  given  sepa- 
rately and  distinctively.  Suppose  between 
the  execution  of  the  will  and  the  dealh  of 
her  mistress,  Eliza  had  borne  two  thildren, 
called  Harry  and  Alonzo;  or  that  any  other 
wench  on  the  plantation  had  borne  two  such 
•  hiidren.  or  that  Mrs.  Saunders  had  bought 
or  inherited  two  negroes  bearing  tbes.-  names 
— iu  either  of  these  cases,  would  Harriet  and  I 


Manza  still  pass  under  the  7th  clause? 
Again,  as  the  will  is  silent  as  to  any  con- 
nection between  the  two  misnamed  negroes 

•453 
♦and  Eliza,  why  are  we  to  select  Harriet  and 
Manza  particularly  to  supply  their  place? 
Why  not  take  Lydia  and  Tom.  whose  names 
are  omitted  in  the  will,  as  well  as  these  two? 
The  truth  is.  there  is  no  guide  but  i>arol, 
and  that  is  incomi)etent. 

I  conclude  by  observing,  that  this  is  not  a 
case,  as  was  argued,  where  partd  is  admis- 
sible to  exjilain  an  ambiguity. 

Where  an  ambiguity  exists  in  the  terms  of 
a  will,  themselves,  that  cannot  be  explaine«l 
by  matter  dehors  the  will.  This  is,  however, 
not  a  ease  of  that  sort. 

Where  a  will,  in  itself  plain,  is  rendered 
ambiguous  by  parol  evidence,  then  its  intend- 
ed operation  may  be  stated  by  parol. 

This  is  supposed  to  be  a  case  of  the  latter 
sort.     liut  it  is  not. 

Where  a  subject  has  been  found  among  a 
testator's  property  answering  in  some  sort, 
a  description  given  by  him,  iu  one  of  his 
legacies,  parol  may  be  received  to  show  the 
existence  of  another  subject  or  article  of 
property,  better  answering  the  description, 
and  then  the  will  is  applied  to  that.  But 
this  is  not  evidence  to  explain  the  meaning 
or  intention  of  the  will. 

A  case  of  ambiguity,  where  it  is  lawful  to 
explain  the  intention,  is  where  the  will  is 
plain  in  its  terms,  but  there  are  shown  to 
exist  two  or  more  subjects  equally  coming 
within  the  terms.  If  the  words  of  the  will 
are  not  equally  ajiplicable  to  both,  the  will 
is  applied  by  construction,  and  not  by  expla- 
nation, to  that  one  most  fitting  to  the  words, 
I  and  no  parol  evidence  of  intention  can  be 
received.  It  is  only  when  the  words  are  as 
applicable  to  the  one  as  the  other  that  am- 
biguity exists,  (and  this  is  the  very  meaning 
of  the  word.)  Then  parol  is  receivable  to 
show  which  was  intended;  as  in  the  familiar 
case,  where  a  legacy  is  given  to  testator's 
.son  John,  and  he  has  two  ^ons  of  that  name; 
or  where  he  gives  his  black  horse,  ha\ing 
two  or  more  of  that  color. 

This  is  evidently  not  a  case  fully  within 
the  principle  stated.  On  the  whole.  I  cannot 
sustain  the  bill:  and  it  is  orden-d  that  it  be 
ilismissed. 

The  complainant  apiiea!e<l,  on  the  follow- 
ing grounds: 

First.  Because  the  testimony  of  the  wit- 
♦454 
ness  who  drew  the  ♦will,  and  of  the  witness 
who  was  present  at  the  time  of  instructions 
given,  was  competent  and  should  have  been 
received. 

Second.    Because,  by  the  case  made  on  the 

pleadings,  the  complainants  were  entitled  to 

a  decree  for  the  negroes  claimed  by  the  bill, 

as  the  legacy  of  Mrs.  Haynsworth. 

The  case  was  ordered  by  the  Equity  Court 

183 


*454 


4  RICHARDSON'S  EQUITY  REPORTS 


of  Appeals  to  this  Court,  where  it  was  now 
heard. 

Moses,  for  appellant,  cited,  on  the  first 
ground,  3  Swinb.  896,  pt.  7,  §  5;  Stookdiile 
V.  Bushby,  19  Ves.  381;  Beaumont  v.  Fell, 
2  P.  Wuis.  140;  Prec.  in  Cli.  229;  Pendleton 
V.  Grant,  2  Vern.  517;  2  A^es.  276;  Selwood  v. 
Mildmay,  3  Ves.  306;  Door  v.  Geary,  1  Ves. 
255;  Hodgson  v.  Hodgson,  2  Vern.  593;  Cuth- 
bert  V.  Peacock,  2  Vern.  594;  Walpole  v. 
Cholmondeley,  7  T.  R.  138 ;  Doe  de  LeCheva- 
lier  V.  Huthwaite,  5  Eng.  C.  L.  R.  407;  Mas- 
ters V.  Masters.  1  P.  Wms.  145;  Cheney's 
case,  5  Coke,  68;  Gorvey  v.  Hibbert,  19  Ves. 
125 ;  Harrison  v.  Harrison,  5  Cond.  Eng. 
Ch.  R.  390;  Garth  v.  Meyrick,  1  Bro.  C.  C. 
30;  Smith  v.  Coney,  6  Ves.  43;  Colpoys  v. 
Colpoys,  Jac.  451:  Green.  Ev.  §  287,  note; 
River's  case,  1  Atk.  410 ;  Roper  on  Leg.  494, 
note  9;  Whithread  v.  May,  2  B.  &  P.  593; 
Stephenson  v.  Heathcock,  1  Eden,  38;  Baugh 
V.  Read,  1  Ves.  jun.  2.59;  Doe  v.  Brown,  4 
East,  441;  Doe  v.  Oxenden,  3  Taunt.  147; 
Goodtitle  v.  Southern,  3  M.  &  S.  171;  Sand- 
ford  V.  Chichester,  1  Mer.  653;  Bradwin  v. 
Harper,  Anib.  374 ;  Thomas  v.  Thomas,  6  T. 
R.  671;  1  Story.  Eq.  §  180;  2  Dana,  47; 
Geer  v.  Winds,  4  Des.  85 ;  Hatch  v.  Hatch, 
2  Hayw.  32;  Thomas  v.  Stephens,  4  Johns. 
Ch.  607;  Miner  v.  Boneham,  15  Johns.  R. 
226;  Powell  v.  Dibble,  2  Dall.  71;  Doe  v. 
Roe,  1  Wend.  541;  Ryers  v.  Wheeler,  22 
Wend.  148;  Webley  v.  Landstaff,  3  Des.  504; 
Wilson  ads.  Robertson,  Harp.  Eq.  56 ;  Don- 
ald V.  Dendy,  2  McM.  130.  On  the  second 
ground  he  cited  State  v.  Scurry,  3  Rich.  69. 

Harllee,  contra,  cited  Rothmaler  v.  Myers, 
4  Des.  215;  Dupree  v.  McDonald,  Id.  209; 
Jackson  v.  Sill,  11  Johns.  R.  202;  Mann  v. 
Mann,  1  Johns.  Ch.  231;   3  P.  Wms.  345. 

*455 

*The  opinion  of  the  Court  was  delivered  by 

WARDLAW,  Ch.  In  ascertaining  the  sub- 
ject of  a  te.stato_r's  disposition,  the  Court 
may  inquire  into  the  situation  of  his  estate, 
and  into  every  jnaterial  fact  which  is  auxil- 
iary to  the  just  interpretation  of  his  words, 
for  the  purpose  of  identifying  the  thing  in- 
tended by  the  words  employed. 

In  the  present  case,  if  the  codicil  had  never 
been  executed,  it  would  appear  from  the  will 
and  competent  evidence,  that  the  testatrix 
owned  sixty-four  slaves,  of  which,  excluding 
the  two  improperly  named,  sixty  are  be- 
queathed. If  the  construction  of  the  legacy 
to  the  plaintiff  were  to  be  made  in  this  pos- 
ture of  affairs,  it  might  be  doubted  whether 
the  legacy  of  the  two  negroes  in  question 
would  not  be  made  up  by  applying  it  to  Tom 
and  Lydia,  as  well  as  by  applying  it  to  Har- 
riet and  Manza;  and  it  might  be  dangerous 
to  apply  it  to  either  by  parol  proof. 

But  if  the  codicil  afterwards  made,  spe- 
cifically  disposing   of  Tom   and  Lydia,   haa 

184 


been  introduced  originally  as  a  clause  of  the 
will,  the  case  would  then  be,  that  a  testatrix, 
having  sixty-four  slaves,  bequeaths'  sixty- 
two  of  them  specifically  and  without  ambi- 
guity, and  bequeaths  two  other  slaves,  but 
applies  wrong  names  to  them.  In  that  con- 
dition of  things,  we  should  ascertain  from 
the  will  and  the  evidence,  that  nothing  was 
left  upon  which  the  legacy  to  the  plaintiff 
in  trust  for  Mrs.  Haynsworth  could  operate, 
so  as  to  give  her  the  number  of  negroes  ex- 
pressly intended  for  her,  unless  we  resorted 
to  Harriet  and  Manza. 

The  bequest  being  of  negroes,  there  is 
enough  of  certainty  in  that  descrii)tion  to 
sustain  the  gift,  notwithstanding  the  partial 
mis-description  arising  from  the  misnomer. 
The  legacy  cannot  be  applied  to  horses  or  to 
any  other  thing  than  negroes;  and  it  should 
be  applied  to  negroes,  if  these  be  found. 

A  description  false  in  part  may  be  made 
sufficiently  certain,  by  reference  to  extrinsic 
circumstances,  to  identify  the  subject  in- 
tended; as  where  a  false  description  is  super- 
added to  one  which  by  itself  is  correct  and 
adequate.  Thus,  if  a  testator  bequeath  his 
black  horse,  having  but  one  horse  which  was 

*456 
white;  or  devise  his  *freehold  houses,  having 
only  leasehold  houses ;  the  white  hor.se,  in 
the  one  case,  and  the  leasehold  houses,  in  the 
other,  clearly  pass.  The  substance  of  the 
subject  intended  is  certain,  and  if  there  be 
but  one  such  substance,  the  superadded  mis- 
description inapplicable  to  any  subject,  intro- 
duces no  ambiguity.  Any  evidence  is  admis- 
sible which  merely  tends  to  explain  and  ap- 
ply what  the  testator  has  written:  and  no 
evidence  can  be  admitted  which  merely  shows 
what  he  intended  to  write.  The  most  accu- 
rate description  of  the  subject  of  a  gift  in  a 
written  instrument  requires  identification  by 
proof,  of  extrinsic  circumstances;  and  the 
least  accurate  description  which  satisfies  the 
mind  of  the  Court  of  the  (,louor's  meaning,  ii? 
within  the  same  principle.  If  the  judgment 
of  the  Court  be  founded  upon  a  comparison 
of  the  terms  of  description  employed  in  the 
written  instrument  with  the  extrinsic  evi- 
dence of  the  identity  of  the  subject,  no  at- 
tempt is  made  to  vary  a  w^ritteu  instrument 
by  pai'ol  evidence,  nor  to  ascertain  the  in- 
tention of  the  donor  Independently  of  his 
written  words.  The  Court  does  no  more 
than  to  ascertain  the  application  of  the  de- 
scriptive words  in  the  instrument  of  gift. 
Wigram  on  Wills,  pi.  9,  67,  70. 

The  sound  doctrine  on  this  subject  is  well 
stated  in  Swinburne  on  Wills,  895,  (part  7, 
§  5,) — "The  error  of  the  testator  in  the  proper 
name  of  the  thing  bequeathed,  doth  not  hurt 
the  validity  of  the  legacy,  so  that  the  body 
or  substance  of  the  thing  bequeathed  be  cer- 
tain: for  example,  the  testator  doth  bequeath 
his  horse  Bucephalus,  whereas  the  name  of 
his  horse"  (testator  having,  as  1  understand, 
the   example,    but   one   horse,)    "is  Arundel; 


SOUTH  CARoLIN'A  R.  R.  CO.  v.  JONES 


*459 


this  crmr  is  not  hurtful.  Imt  tliat  the  lej:a- 
tary  may  olitain  tlie  hor.se  Arundel,  if  the 
te.stator's  meaning  be  certain:  for  names  were 
■devised  to  discern  tliinj^s:  if  therefore  we 
have  the  thin^  it  skilleth  not  for  the  name. 
The  error  in  the  name  apiH'llative  of  the 
thinj;  beiiiieathed  doth  destroy  the  legacy: 
for  example,  the  testator  intending;  to  be- 
queath a  horse  doth  bequeath  an  ox,  or  mean- 
ing to  bequeath  gold,  doth  bequeath  apparel ; 
in  both  these  cases  the  legacy  is  void.     The 

•457 
reason  of  this  diflerence  is  because  *a  proper 
name  is  an  accident  attributed  to  some  sin- 
gular or  individual  thing,  to  distinguish  the 
same  from  other  singular  things  of  the  same 
kind  whereas  names  appellative  do  respect 
the  substance  of  things,  and  being  common 
to  every  singular  of  the  same  kind  make 
them  to  differ  from  things  of  other  kind  or 
substance." 

It  is  justly  remarked  by  Judge  Richard« 
son,  in  the  State  v.  Scurry,  ^  Rich.  (iS.  that 
"the  names  of  slaves  are  vague  and  vary 
like  the  names  often  applied  to  other  chat- 
tels." 

The  testatrix,  in  the  case  before  us,  had 
the  right  to  change  the  names  of  her  negroes 
at  her  will.  That  she  exercised  this  right 
in  relation  to  Harriet  and  Manza  is  plaus- 
ibly argued  from  the  fact  that  in  the  codicil, 
she  bequeaths  Tom  and  r^ydia  as  'two  ne- 
groes not  named  in  her  said  will,'  and  leaves 
the  other  negroes  to  pass  by  the  names  men- 
tioned in  the  will.  That  sht'  could  not 
have  intended  such  valuable  property  as 
slaves  to  pass  under  the  residuary  clause, 
may  be  inferred  from  the  doubting  manner 
in  which  she  mentions  the  existence  of  any 
residue.  She  gives  "the  rest  and  residue  of 
her  estate,  if  there  be  any." 

If  the  testatrix  had  owned  the  two  slaves 
Harriet  and  Manza  and  no  more,  and  had 
bequeathed  two  slaves,  mis-naming  them, 
it  could  hardly  be  doubted  that  the  legatee 
would  take  Harriet  and  Manza.  Yet  that 
would  not  differ  from  the  present  case  in 
principle;    and  should  not  differ  in  result. 

Thus  the  construction  would  stand,  if  the 
codicil  had  formed  a  clause  in  the  will  orig- 
inally. 

But  the  execution  of  a  codicil  is  a  republi- 
cation of  a  will ;  and  both  papers  must  gen- 
erally be  construed  in  i)ari  materia,  as  if 
they  formed  but  one  instrument,  uttered  uno 
flatu.  A  testament,  with  all  its  codicils,  rep- 
resents the  wishes  of  the  testator  concerning 
the  disposition  of  his  i)roperty  after  his 
death,  and  however  numerous  may  be  its 
parts,  it  is  to  be  construed  as  one  declara- 
tion of  intention,  uttered  at  the  death  of 
testator. 

It  is  at  this  point,  we  di.ssiMit  from  the 
circuit  decree.  "We  do  not  assail  the  general 
doctrines  of  the  decree  concerning  tlii>  ad- 
missiiiility  of  parol  evidence  to  varv  ji  writ- 


MSB 
ten  Instrument;  but  we  *suppose  the  Chan- 
cellor has  overlooked  the  proposition  that 
the  will  and  codicil  are  to  be  c<mstrued  as 
one.  entire  instrumt  nt. — His  attention  seems 
not  to  have  been  directed  to  this  point  on  the 
circuit;  even  in  the  learutHl  argument  here, 
the  point   was  barely  suggested. 

It  may  be  olijecte<l  that  the  will  as  it  real- 
Ij-  stofxl  originally,  independent  of  the  codi- 
cil, nuist.  uium  just  reasoning,  mean  the 
same  thing  after  the  codicil  as  it  meant  be- 
fore: and  if  it  could  not  have  been  con.strued 
to  n>fer  to  Harriet  and  Manza  at  the  date 
of  its  execution,  its  meaning  could  not  be 
changed  by  matter  subsequently  arising. 
The  objection  is  more  specious  than  solid. 
It  is  competent  for  a  testator,  by  subsiMjuent 
testamentary  disposition,  to  declare  his  in- 
tention in  matters  pn'viously  dubious;  or 
to  interpret  a  prior  disposition  where  it  Is 
not  dubious:  or  even  to  declare  his  meaning 
in  opposition  to  the  plain  import  of  the 
terms  previously  employed.  All  his  testa- 
mentary dispositions  make  one  testament. 

It  is  ordered  and  decreed  that  the  circuit 
decree  be  reversed  in  the  particular  above 
mentioned  ;  and  it  is  declared  and  adjudged 
that  the  plaintiff  is  entitled  to  the  slaves 
Harriet  and  Manza. — Defendant  must  ac- 
count for  the  hire  of  these  slaves,  if  any 
accrued.  Costs  to  be  paid  from  the  estate 
of  testatrix. 

O'XEALU  EVANS.  WARDLAW,  FROST. 
WITHERS  and  WIHTNKR,  JJ.,  and  JOHN- 
STON. DINKIN  and  HARGAN,  CC,  con- 
curred. 

Decree   reversed. 


4  Rich.  Eq.  *459 

♦THE  SO.  CA.  R.  R.  CUM  1 'A NY  v.  JAMES 

JONES  and  J.  J.  KENNEDY. 

(Columbia.     May,  18.1:.'.) 

[Bridfjcfi   <©=>:}.'■>. 1 

Charter  autlionzing  the  grantees  to  collect 
toll,  at  the  Augusta  bridge,  across  the  Savannah 
river,  from  persons  noiiig  fn)m  the  South  Carolina 
side;  "hut  the  collecting  of  said  toll  sludl  not 
subject  the  R.  R.  Company,  or  the  comiiumity, 
to  the  payment  of  double  toll:"'  Jlcld,  not  to 
authorize  the  grantees  to  collect  toll  from  per- 
.soiis  going  from  the  South  Carolina  side,  as  long 
as  such  persons  are  required  to  pay  again  at  a 
irarc!  on  tlie  fJeorgia  side  owned  by  the  City 
Council  of  Aui,'usta. 

I  Ed.  Note. — For  other  cases,  see  Bridges, 
Cent.  Dig.  §  70;    Dee.  Dig.  <g=>:W.] 

By  an  Act  of  1813  of  the  Legislature  of 
South  Carolina.  (9  Stat.  471.)  Henry  Shultz 
and  Lewis  Cooper  were  authorized  to  build 
a  toll  bridge  over  the  Savannah  river,  ex- 
tending from  this  State  to  the  town  of  Au- 
gusta, in  the  State  of  (Jeorgia,  and  the  .same 
was  vested  in  them,  their  heirs  and  assigns, 
for  twenty-one  years.  In  Decend)er.  1830, 
the    Legislature    renewed    the    charter    then 


«g=>Kor  other  cases  see  same  topic  auU  KEY-NUMBER  in  aU  Key-Numbered  Digests  and  ludexes 


185 


*4ri9 


4  RICIIARDSONW   K'.^ITITY  REPORTS 


aliont  to  expire,  and  re-established  tlie  toll  | 
bridge,  whicli  had  been  built,  for  fourteen  j 
years  after  the  expiration  of  the  said  twen- 
ty-one years,  in  the  Bank  of  tlie  State  of 
Georgia,  who  were  represented  to  have  be- 
come the  proprietors  of  said  bridge  by  legal 
purchase,  (9  Stat.  589.)  The  city  of  Augusta 
subsequently  became  the  proprietor  of  all 
the  rights  and  interest  in  the  premises  of 
the  Banli  of  the  State  of  Georgia. 

In  1814,  the  Legislature  of  the  State  of 
Georgia  granted  similar  privileges  to  Henry 
Shultz  and  John  McKinne,  (to  whom  the 
right  of  Lewis  Cooper  had  been  assigned)  for 
the  term  of  twenty  years.  In  183.3,  the  Leg- 
islature of  the  State  of  Georgia,  at  the 
instance  of  the  Bank  of  the  State  of  Georgia 
representing  that  the  Bank  was  sole  pro- 
prietor of  the  bridge,  extended  the  Act  of 
1814  in  behalf  of  the  Bank  of  the  State  of 
Georgia  and  its  assigns,  for  ten  years  from 
November,  1834.  And  in  December,  1840, 
the  Legislature  of  Georgia  vested  in  the  City 
Council  of  Augusta,  represented  to  have  be- 
come the  purchasers  of  said  bridge,  all  the 
powers,  authorities,  and  privileges  vested  by 
law  in  the  late  owners  of  said  bridge. 
In  1845,  a  bill  was  filed  in  the  Circuit 
*560 
Court  of  the  United  *  States  in  behalf  of 
Henry  Shultz  against  the  City  Council  of 
Augusta  and  others,  alleging  certain  matters 
to  show  that  he  was  entitled  to  the  Augusta 
bridge  and  an  account  of  the  tolls  received, 
and  praying  relief  accordingly.  The  cause 
was  heard  on  demurrer,  and  in  184»>  the  Cir- 
cuit Court  sustained  the  demurrer,  and  order- 
ed the  bill  to  be  dismissed ;  from  which  decree 
an  appeal  was  taken  to  the  Supreme  Court 
of  the  United  States.  Pending  this  appeal, 
to  wit,  on  December  17,  1848,  the  charter 
granted  by  the  State  of  South  Carolina  ex- 
pired; and  on  December  19,  1848,  an  Act 
was  passed  by  which  the  bridge  was  re- 
chartered,  and  vested  in  Henry  Shultz  and 
John  McKenne  for  fourteen  years:  rates 
of  toll  were  prescribed;  and  the  charter 
contained  the  following  proviso:  "that  the 
said  Henry  Shultz  and  John  McKenne  shall 
not  be  allowed  to  charge  and  collect  toll  as 
aforesaid  at  the  South  Carolina  end  of  said 
bridge,  until  the  litigation  now  pending  in 
the  Supreme  Court  of  the  United  States  in 
relation  to  the  said  bridge,  and  the  proceeds 
of  the  sale,  shall  be  determined  against  the 
City  Council  of  August."     (11  Stat.  532.) 

In  December,  1849,  this  proviso  to  the  Act 
of  1848  was  repealed,  and  Henry  Shultz  and 
John  McKenne  were  "authorized  to  collect 
the  rates  of  toll  now  established  by  law, 
at  the  South  Carolina  end  of  the  said  bridge, 
from  all  persons  going  from  the  South  Caro- 
lina end,  but  not  from  persons  coming  from 
the  Georgia  end  of  the  bridge;  but  the  col- 
lecting of  said  toll  shall  not  subject  the  Rail 
Road  Company,  or  the  community,  to  the 
payment  of  double  toll,"     (11  Stat.  615.) 

186 


After  the  passage  of  the  Act  of  1849, 
Henry  Shultz  died,  and  administration  of 
his  chattels  and  credits  was  committed  to 
the  defendants,  who  erected  a  gate  on  the 
public  highway  leading  to  the  bridge,  and 
proceeded  to  collect  toll  from  the  plaintiffs 
and  all  persons  going  from  the  South  Caro- 
lina side,  although  such  per.sons  were  com- 
pelled to  pay  again  at  the  gate  owned  and 
kept  up  by  the  City  Council  of  Augusta  on 
the  Georgia  side. 

The   bill   prayed    a   writ   of  injunction   to 
*461 
restrain    the    defendants    *from    demanding 
toll   of  the   plaintiffs   and  from  keeping   up 
their  gate. 

The  case  was  submitted  to  his  Honor 
Chancellor  Wardlaw  at  Chambers,  who  made 
a  pro  foiuna  decree  dismissing  plaintiffs'  bill ; 
from  which  decree  an  appeal  was  taken. 

The  Equity  Court  of  Appeals  ordered  the 
case  to  this  Court,  where  it  was  now  heard. 

Petigru,  Waddy  Thompson,  for  appellants. 
Bauskett,  Carroll,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DUNKIN,  Ch.,  [who,  after  stating  the 
facts  and  quoting,  lastly,  the  provisions  of 
the  Act  of  1849,  above  quoted  proceeded  as 
follows:]  It  seems  difficult  to  misconceive 
tlie  purpose  of  the  Legislature  in  this  last 
provision.  In  all  charters  of  this  character 
it  is  the  great  duty  of  the  Legislature  to 
protect  the  interests  of  the  public.  Cor- 
porations or  individuals,  applying  for  fran- 
chises or  exclusive  privileges,  are  usually 
sufficiently  awake  to  their  own  interests. 
But  while  the  Legislature  should  promote 
enterprises  whose  object  is  the  public  conven- 
ience as  well  as  private  emolument,  they 
should  adopt  every  reasonable  precaution, 
that  these  exclusive  privileges  should  not  be- 
come instruments  of  oppression  or  annoy- 
ance. When  application  was  made  to  the 
Legislature,  in  1848,  it  was  well  known  that 
the  City  Council  of  Augusta  had  a  toll  house 
on  the  Georgia  side  of  the  bridge,  at  which, 
they  received  tolls  from  all  persons,  &c., 
passing  over  the  bridge  from  the  Georgia 
or  South  Carolina  side.  It  was  expressly 
provided  that  no  tolls  should  be  collected, 
by  the  grantees  until  the  Supreme  Court  of 
the  United  States  should  recognize  and  es- 
tablish their  rights  against  the  City  Council 
of  Augusta.  It  will  not  be  suggested,  that 
under  that  Act,  strictly  provisional,  the 
grantees  had  any  authority  to  collect  toll 
until  the  right  had  been  determined  by 
the  Supreme  Court  in  their  favor.  This  pro- 
viso was  repealed  in  the  subsequent  Act  of 
1849.    But  in  lieu  of  it,  the  Act  declares,  not 

*462 
only    that   the    grantees    should   not   col*lect 
toll  "from  persons  coming  from  the  Georgia 
end  of  the   bridge,"   but  that  the  collecting 
of  toll  from  persons  going  from  the   South. 


YARBOROUGH  &  .SIIUI/FZ  v.  RANK  OF  GEORGIA 


•464 


f'lirilina  (-iid  of  the  lirid'-'f  "should  not  sub-! 
j  ( t  till'  Rail  Road  ConipiHiy,  or  the  coni- 
iimnity.  to  tho  paynitMit  of  doiilde  toll."  It 
sciMiis  supiTfluons  to  say  that  this  provi- 
.sioii  was  not  intt'iidcd  for  the  Iciirtit  of  the 
jiranti'es.  It  was  to  protect  the  travelling 
imMie.  and  particularly  the  Rail  Road  Couj- 
pany,  from  the  annoyance  and  injury  to 
which  they  would  he  subjected  by  the  con- 
(lictinj;  claims  of  the  City  Council  of  Au- 
;:usta.  and  those  who  misht  demand  toll  un- 
der the  authority  of  the  Act  of  1.S49.  It 
is  objected,  that  this  constniction  renders 
the  charter  valueless.  That  was  for  the  con- 
sideration of  those  who  accepted  it.  It 
certainly  was  not  the  intention  of  the  I-eg- 
islature  to  subject  the  citizen  to  the  pay- 
ment of  double  toll  (contrary  to  their  express 
declaration.)  and  then  lesive  him  to  the  casu- 
alties and  expense  of  litij^ation  in  order  to 
ascertain  from  which  party  he  mifiht  be  en- 
titled to  redress.  Ilaitpily  the  Act  imposes 
no  burthen.s  on  the  grantees,  and  exacts  no 
consideration  from  them.  The  utmost  that 
can  be  said  is  they  have  not  derived  from 
file  muniticence  of  the  State  the  advantages 
which  they  hoped  and  contemplated. 

Alany  other  and  far  more  dirticult  and  im- 
portant subjects  have  been  brought  into  the 
<liscussioii,  but  upon  which  the  Court  deems 
it  inexpedient,  on  this  occasion,  to  express 
any   judgment. 

On  the  second  ground  of  appeal  taken  by 
the  complainants,  the  Court  is  of  opinion  that 
they  were  entitled  to  the  injunction  as  pray- 
ed by  the  bill,  which  is  ordered  accordingly; 
and  the  decree  of  dismissal  is  reverst»l. 

JOHNSTON,  DARGAN  and  WARDLAW, 
CO.,  and  O'NEALL,  EVANS.  WARDLAW, 
FROST,  WITHERS  and  WHITNER,  JJ., 
concurring. 

Decree  reversed. 


Tiic  foU.,\ving  case,  I'.UUUJliUl  (ill  iV 
SllUI/rZ  V.  THE  BANK  OF  GEORGIA  and 
Others,  tried  before  Hari)er,  Cl>.,  at  Edgefield, 
June,  184li,  is  aiipeiidcd  as  a  note  to  the  above 
case : 
[Equity   ,©=>184.] 

[Cited  in  Myer.s  v.  O'Hanlon,  12  Rich.  Eq.  210, 
to  the  point  that  if  defendant  submits  to  answer  he 
must   answer   fully.] 

[Ed.     Note. — For    other    cases,    see    Equity,    Cent. 
Dig.    §§    422-125:     Dec.    Dig.    <S=184.] 

llAKPKK,  Ch.  In  1813,  the  State  of  South. 
*463 
Carolina  granted  to  Henry  *Shultz  and  Lewi.s 
.Coofter,  a  charter  for  a  bridge  over  tiie  Savan- 
nah river,  extending  from  this  State  into  the 
town  of  Augusta,  for  the  term  of  twenty-one 
years;  and  in  the  year  1.S14,  the  State  of 
Georgia  granted  a  charter  for  the  same  i)rid;;e 
for  tlie  term  of  twenty  years.  In  IMtJ.  tlie 
said  Henry  ."^iiidtz  and  .Toiin  MeKiniie  formed 
a  i)artnerslii|»  in  the  bu>;iness  of  banking,  un- 
der the  name  and  style  of  tlie  Hridne  Company 
of  Augusta.  Hi'iiig  tiien  the  joint  owners,  they 
entered  in  the  partneisiiip  book  of  the  Company 
the  bridge,  vahied  at  ."^^To.UUO,  and  other  pro[)- 
erty,  as  the  partnersiiip  stock,  with  various 
stipulations  which  it  is  not  necessary  to  reca- 
[litulate.      On    the   I'lst    April.    ISls,"  the    com-  i 


plainant.  Siiultz.  sold  and  transferred  his  inter- 
est in  the  partnersiiip  to  Rarna  MeKinne ; 
conveying  the  bridge  and  other  real  prui)erty. 
The  consideration  fur  this  transfer  was  the  sum 
of  .Sr,.-;.(MIO.  ill  wiiieh  Shultz  was  indebted  to  the 
(irm,  and  whieji  was  paid  by  giving  him  credit 
on  the  books  of  the  tirm.  and  charging  the 
amount  to  Hariia  M(dviiine.  The  Cdiniiany  l)e- 
came  greatly  emijarrassed.  in  cousequeuce  of 
the  failure  of  certain  mercantile  firms,  with 
which  .Tfihn  and  liarna  MeKinne  were  con- 
nected,  and  thev  being  indebted  to  the  Rank  of 

th<>  State  of  (J -gia.  in  the  sum  of  .V4(t.(«in.  ap- 

plieij  to  the  Rank  for  a  further  advance  of 
."!;.")( ),<  1(10.  The  evidence  is,  that  in  making  the 
applic.ition  to  the  Rank  for  the  advance  of  $")0,- 

CMM),   tl bj.-ct  of   it   is   stated   to  be  to  relieve 

the  I'.ridge  Comi)any,  and  enable  it  to  wind  up 
its  affairs;  but  after  the  loan  was  effected, 
only  a  portion  of  the  sum,  perhaps  two-fifths, 
was  applied  Ui  the  use  of  tin-  Company.  Notes 
were  given  for  the  a<lvance  of  .$,"»0,(lOO.  signed 
iiy  .John  MeKinne.  and  endorsed  by  Rarna 
MeKinne  and  James  I.ampkin.  To  secure  the 
[layment  of  the  entire  sum  of  ."<!M».0(M».  a  mort- 
gage was  executed  bv  John  and  Rarna  McKhine, 
of  the  date  of  the  ijd  of  May.  isi'.t.  of  eighty 
negroes,  the  property  of  John  MeKinne;  of 
McKinne's  warehouse  stpiare,  and  of  the  bridge; 
conditioned  to  i)e  vnid  as  to  the  negroes  upon 
the  payment  of  ."}!4( ».( M l( ►.  and  upon  the  payment 
of  the  remaining  .$oO,0<J().  to  i)e  void  altogether. 
In  conseciuence  of  some  mistake  in  the  corporate 
name  of  the  Bank,  another  mortgage  of  the 
same  tenor  and  effect  was  executed  on  the  10th 
June  of  the  .same  year.  On  the  :.".tth  of  May, 
ISli),  the  Bridge  Rank  stopped  payment.  I'pon 
being  apprised  of  this,  the  c<jmi)lainant,  Shultz, 
who  had  made  arrangements  for  going  to 
Europe,  returned  and  resunuHl  his  place  in  the 
firm,  i)y  some  agreement  with  Rarna  MeKinne, 
who  (luitted  it,  and  took  no  further  share  in 
the  management  of  its  business.  The  evidence 
is,  that  Shultz  advanced  .$ir>,000  of  his  own 
funds,  to  pay  the  deposits  in  the  Bank.  An 
advertisement  was  issued  signed  by  John  Me- 
Kinne and  Henry  Shultz  and  Barua  MeKinne. 
stating  tli(^  resources  of  the  Bank,  in  order  to 
]u event  the  holders  of  the  bridge  bills  from 
saciilieing  them,  with  a  notice  signed  by  .John 
M(d\inne  and  Henry  Shultz,  ailvertisiug  for 
sale  a  number  of  negroes  ami  the  britlge,  and 
stating  that  before  tlie  making  of  titles  to  the 
latter,  the  lien  which  the  Bank  of  the  State  of 
Georgia    had    on   it  should    be    removed.      I^    a 

*464 

deed  bearing  date  the  *first  of  July,  1S20,  Bar- 
na  MeKinne  re-conveyed,  released,  and  quit 
claimed  to  Henry  Shidtz,  all  his  interest  in  the 
firm  or  its  property.  The  mortgage  to  the  Bank 
is  charged  by  tiie  bill  to  be  void,  by  virtue  of 
the  Act  of  the  State  oi  Georgia,  wliich  provides 
that  if  any  [lerson  unaliie  to  pay  his  debts,  shall 
make  "any  assignment  or  transfer  of  real 
or  personal  property,  stock  in  trade,  debts,  dues, 
or  demands,"'  in  favor  of  any  particular  cred- 
it<ir,  whereby  other  creditors  shall  be  excluded, 
"such  assignment,  transfer,  deed,  (U*  conveyance, 
shall  be  null  and  void,  and  considered  in  law 
and  ecpiity  as  fraudulent  against  creditors; 
lirovided,  nothing  in  the  Act  contained  shall  pre- 
vent any  per.son  from  bona  fide  selling  any  por- 
tion of  his  property. 

In  ISJl,  a  petition  was  tiled  on  beV^alf  of  the 
Bank  of  the  State  of  (Jeorgia,  in  the  Superior 
Court  for  Richmond  county,  (ieorgia,  praying 
for  a  foreclosure  of  the  mortgage,  and  at  May 
Term  of  tiiat  year  a  rule  was  issued,  directed, 
according  to  the  jiractice  of  that  State,  to  John 
and  Barna  M(d\inne,  reipiiring  them  to  pay  the 
amount  of  principal  and  interest  due  on  the 
mortgage,  or  to  be  foreclosed.  This  having  been 
served  and  no  defence  made,  at  .May  Term,  1822, 
the  rule  was  made  absolute,  and  the  defendanta 

187 


*4CA 


4  RICHARDSON'S  EQUITY  REPORTS 


were  dfclnred  to  be  forever  foreclosed;  the 
sum  of  .f()!).4!).*l  was  adjudged  due  to  the  Bank 
for  their  debt,  prhieipal  and  interest,  and  the 
sum   of  dollars   for  their   costs.      It   was 

further  ordered  and  decreed,  that  the  mortgaged 
property  should  be  sold,  and  the  surplus,  if  any, 
paid    to    the    mortgasors.      No    sale    was    made 
under  this  decree,  as  the  sale  was  en.ioined,  on 
a   bill   filed    by    Henry    Shultz.  Christian    Breit- 
haupt,  and  others,  against  the  Bank  of  the  State 
of  Georgia  and  others,  in  the  Circuit  Court  of 
the  United  States  at  Savannah,  for  the  purpose 
of   obtaining    a   sale    under    the    decree    of    that 
Court,  so  that  a  full  and  unencumbered  title  to 
the  whole  bridge  might  be  made  to  the  purchas- 
er,  and   praying  that   the   proceeds   of  the   sale 
might  be  applied  to   the  payment  of  the  cred- 
itors of  the   Bridge  Company,  and   particularly  [ 
to  the  holders  of  certain  judgments,  founded  on 
bridge  bills.      In  this  case,   by   consent  of  par- 
ties,   an   order   was   made    for   the    sale    of   the  [ 
bridge,    and    Freeman    Walker  and    Christopher  i 
Fitzsimons,    esquires,    were    appointed    commis-  j 
sioners    for    the    purpose    of    making    the    sale,  j 
and  it  was  ordered  that  the  parties  should  ex-  j 
ecute    powers    of   attorney    for   that   purpose   to 
the  said   commissioners.      In   pursuance   of  this 
order,  a  power  of  attorney,  signed  by  Christian 
Breithaupt  and  Henry  Shultz.  was  executed  on  | 
the  19th  of  January,  1S2L'.     The  sale  was  made 
accordingly    on    the    28th    of    November,    IH'2'2, 
and  the  Bank   of  the  State  of  Georgia   became 
the    purchaser,    at    the    price    of    $70,000.      For 
this  amount,   the   Bank  issued   scrip,   which,  by  j 
the  order  of  the  Court,  was  deposited  with  its 
clerk. 

The  case  was  afterwards  certified  to  the  Su- 
preme Court  of  the  United  States,  upon  a  divi- 
sion of  opinion  between  the  Judges  of  the  Cir-  j 
cult  Court,  and  at  January  Term,  182.S.  was 
dismissed  for  want  of  jurisdiction.  The  ground 
of    the    dismissal   was,    that    the    bill    contained 

*465 
*no  allegation,  that  the  parties,  plaintiffs  and 
defendants,  were  citizeis  of  different  States. 
L  pon  this,  a  negotiation  for  a  compromise  took 
place.  Some  difficulties  were  experienced  in 
the  course  of  the  negotiation,  but  in  consequence 
of  it,  and  with  a  view  to  the  compromise,  the 
cause,  was,  by  consent  of  parties  reinstated  on 
the  docket  of  the  Supreme  Court,  and  removed 
to  the  Circuit  Court.  The  necessary  amend- 
ment being  made,  a  final  decree  was  made  by 
consent  of  all  parties,  on  the  8th  of  May,  1830. 
By  that  decree,  the  sale  made  by  the  commis- 
sioners in  1822  was  ratified  and  confirmed,  and 
the  Bank  of  the  State  of  Georgia,  declared  to 
be  "vested  with  a  full,  absolute  and  perfect  ti- 
tle to  the  said  bridge,  and  its  appurtenances, 
under  the  said  sale,  freed,  acquitted,  released 
and  discharged  from  all  manner  of  liens,  claims 
or  incumbrances,  in  law  or  equity,  on  the  part 
of  the  said  Henry  Shultz,  John  McKinne,  Barna 
McKinne,  Christian  Briethaupt,  or  any  other 
person  or  persons,  parties  to  the  said  bill  of 
complaint."  It  was  further  decreed,  that  the 
scrip  issued  by  the  Bank,  should  be  cancelled 
and  delivered  up  to  it,  and  the  bill  dismissed  as 
to  all  other  matters  contained  in  it. 

This  decree  was  entered  in  consequence  of 
the  compromise  which  had  already  been  carried 
into  effect  by  the  parties  to  the  suit.  The  Bank 
of  the  State  of  Georgia  paid  to  Christopher 
Fitzsimons  and  Christian  Briethaupt,  holders 
of  judgments,  founded  on  bridge  bills,  and  to 
the  complainant  Shultz,  each,  the  sum  of  ten 
thousand  dollars;  in  consideration  of  which 
payments,  they  released  to  the  Bank  all  their 
respective  rights  in  the  bridge,  or  the  proceeds 
of  its  sale,  and  all  debts,  dues,  actions  and  de- 
mands whatever,  in  the  most  comprehensive 
terms  possible.  The  rehase  of  Shultz,  is  dated 
the  15th   Sept.  1829. 

On  the  15th  October,  1828,  the  complainant 
Shultz,  being  in  custody  of  the  sheriff  of  Edge- 

188 


field  district,  oy  virtue  of  a  writ  of  eai)i:is  ad 
satisfaciendum,  in  order  to  obtain  the  Itenefit  of 
the  insolvent  debtor's  Act,  assigned  his  estate 
and  effects  to  Thomas  Harrison,  Treasurer  of 
tlie  L'pper  Division  of  the  State,  for  the  benefit 
of  his  creditors.  The  assignee  declined  to  ac- 
cept the  trust.  On  the  2d  of  May.  18:^,2.  a  bill 
was  filed  by  John  Stoney,  John  Magrath.  and 
others,  against  the  present  complainant  Shultz 
and  others,  which  was  heard  by  Chancellor  John- 
ston at  Edgefield,  on  the  19th  June,  1832.  and 
finally  decided  by  the  Court  of  Appeals,  Janu- 
ary, 1834.  In  the  course  of  this  proceeding, 
Ker  Boyce  and  Thomas  Harrison  were  appoiutei} 
trustees  for  the  creditors  of  Shultz.  iu  place- 
of  Harrison,  who  declined  to  accept  alone,  an<l 
on  the  8th  December,  1830,  they  were  made  par- 
ties to  the  bill.  The  object  of  the  bill,  (indeed 
there  were  several  bills  which  were  all  disposed 
of  together,)  was  to  obtain  payment  of  certain 
demands  against  Shultz.  out  of  his  property, 
and  lots  of  Shultz,  in  the  town  of  Hamburg, 
and  from  the  purchasers  of  lots  sold  by  him. 
By  the  final  judgment  of  the  Court,  certain 
rents  were  received,  and  propeity  sold  to  a 
considerable  amount,  (.$70,000  as  it  was  al- 
leged)   and   it   was   iu   evidence,    that   a   portion 

*466 
of  those  proceeds  were  applied  to  the  *payment 
of  judgments  against  Shultz.  founded  on  bitdge 
bills.  The  releases  of  Fitzsimons,  Briethaupt 
and  Shultz,  were  in  evidence  in  that  cause.  Tbe 
complainant,  Yarborough.  was  substituted  trus- 
tee in  the  place  of  Harrison  and  Boyce,  on 
the  application  of  Shultz,  iu  1840. 

By  an  Act  of  the  Legislature  of  the  State  of 
South  Carolina,  of  the  18th  December,  1830, 
the  charter  of  the  bridge  was  renewed  for  a 
term  of  14  years,  and  granted  to  the  Bank 
of  the  State  of  Georgia,  and  on  the  23d  of  De- 
cember, 1833.  by  an  Act  of  the  State  of  Georgia, 
a  similar  grant  was  made  to  the  same  grantee, 
for  a  term  of  ten  years. — On  the  4th  May,  1838, 
the  Bank  of  the  State  of  Georgia  sold  and  con- 
veyed the  bridge  and  appurtenances  to  the  de- 
fendant Gazaway  B.  Lamar,  of  that  State,  for 
the  con'^ideration  of  .$70,000.  On  the  21st  Jan- 
uary, 1840,  the  said  Gazaway  B.  Lamar,  sold 
and  conveyed  to  the  defendants,  the  City  Coun- 
cil of  Augusta,  for  the  consideration  of  -$100,- 
0(K).  Both  these  defendants  deny  explicitly  any 
notice  of  the  assignment  of  Shultz.  at  the  time 
of  their  respective  purchases.  Tiiere  was  no 
evidence  whatever,  of  notice  to  the  defendant 
Lamar,  at  the  time  of  his  purchase.  Some  ev- 
idence was  oft'ered  of  notice  to  the  City  Council 
of  a  claim  of  Shultz,  on  the  bridge,  before  the 
purchase ;  but  there  was  a  difference  as  to  the 
terms  of  it,  by  the  evidence.  One  witness  stat- 
ed, that  it  was  a  notice  of  the  claim  of  Shultx 
him.self  only,  and  that  upon  taking  legal  advice, 
they  were  assured  he  could  have  no  claim. 
Another  witness  stated  notice  to  be  given  of 
claims  of  his  creditors.  I  do  not  consider  the 
fact  of  notice  to  be  established. 

The  bill  charges  that  the  sale  made  under  the 
judgment  of  the  Federal  Court  is  null  and  void, 
'  the  bill  having  been  dismissed  for  want  of  ju- 
risdiction ;  that  the  mortgage  to  the  Bank  of 
the  State  of  Georgia,  being  void  under  the  law 
of  Georgia,  the  bridge  still  remains  partnershii* 
property  ;  that  creditors  of  the  partnership  have 
an  equity  to  be  satisfied  out  of  the  partnership 
property,  in  preference  to  creditors  of  the  in- 
dividual partners ;  that  the  debt  of  the  Bank 
is  the  individual  debt  of  John  and  Barna  Mc- 
Kinne ;  that  partnership  debts  having  been 
satisfied  by  the  individual  property  of  the  com- 
plainant Shultz,  he  or  his  assignee  and  cred- 
itors, claiming  in  his  right,  have  a  right  to  b« 
subrogated  to  the  equity  of  the  partnership 
creditors,  whose  debts  have  been  so  paid.  It 
charges  that  if  the  sale  be  valid,  the  Bank  i* 
accountable  to  the  complainant  for  the  amount 
of  the  purchase  money   and   interest.     The  bill 


YARHOKOUGII  Sc  SIIULTZ  v.  UAXK   OF  GEORGIA 


*469 


prays  that  tlif  liridi;o  may  be  sold,  anil  tin-  pro- 
ceeds appropriated  amniig  the  parties  according 
to  their  resiu-ctivo  rights;  that  the  defendants 
may  account  foi-  the  income  of  tiie  hridse.  dur- 
ing tile  time  that  it  has  iieen  in  tiieir  iKjsscssion 
respectively,    and    for    general    relief. 

The  defentlants  answer  at  length  to  the  charg- 
es of  the  l)ill.  and  among  other  matters  of  tie- 
fence,  the  lianU  of  the  State  of  (Jeorgia  relies 
by  way  of  pleading,  on  the  want  of  jurisdiction 
in  this  Court;  that  being  a  corporation  of  an- 
other State,  and  having  no  property  within  the 
limitB  of  this. 

♦467 

*lt  might  sufBcieutly  dispose  of  all  the  matters 
of  the  i>resent  hill,  to  say  that  they  are  conclud- 
ed by  the  decree  of  the  Fedi'ral  Court.  AH  the 
claims  now  made,  were  made  by  that  bill.  It 
claimed  that  the  proceeds  of  the  brhlge  should 
be  applied  to  the  payment  of  iiartnersliip  cred- 
itors, an  1  that  the  defendant  should  ■•iccount 
for  income;  and  as  to  these  matters  the  bill 
was  dismissed.  In  the  case  of  Cillett  v.  I'owell 
[Speers,  Kq.  14'2],  in  which  I  considered  the 
subject  very  fully,  and  in  which  the  decree  was 
affirmed  bv  the  Apiieal  Court  at  its  last  sitting. 
I  held,  that  the  Circuit  Courts  of  tlu'  United 
States,  wei'e  superior  Courts  of  general  juris- 
diction, whose  judgments,  whatever  error  or  ir- 
regularity they  contain,  must  be  respected  by 
all  other  tribunals,  until  arrested  or  reversed 
by  themselves.  1  do  not  think  it  necessary  here 
to  repeat  the  reasoning  which  led  me  to  that 
conclusion.  It  is  sufhcient  to  refer  to  the  opin- 
ion in  that  case.  But.  in  truth,  what  error  or 
irregularity  appears  on  the  present  judgment? 
The  bill,  as  amended,  makes  the  allegation  nec- 
essary to  give  jurisdiction — that  the  i)arties, 
plaintiff  and  defendant,  are  citizens  of  different 
States.  Can  I  go  into  evidence  to  try  the 
truth  of  this  allegation?  And  if  I  could,  no 
such  evidence  has  been  offered,  but  rather  the 
contrary.  Or,  is  it  sujiposed  that  I  am  to  in- 
quire and  decide  as  to  the  regularity  of  the 
practice  of  the  Supreme  Court  of  the  Ignited 
States,  by  which,  after  having  dismissed  the  bill 
for  want  of  jurisdiction,  it  i)ermitted  the  cause 
to  be  reinstated  on  the  docket,  and  remanded 
to  the  Circuit  Court  for  the  purpose  of  being 
amended  and  heard?  and  more  especially  when 
there  is  no  doubt  that  this  was  done  by  the 
consent  of  the  parties  to  the  suit.  By  the  prac- 
tice of  the  English  Chaniery,  it  does  not  review 
its  own  decrees  for  error,  apparent  on  the  face 
of  them,  wiien  they  have  been  made  by  the  con- 
sent of  parties. 

But  the  present  complainant,  Shultz.  and  all 
claiming  in  his  right,  must  be  estopped  by  the 
power  of  attorney  to  Walker  and  Fitzsimons. 
by  which  the  sale  was  authorized.  It  is  true 
that  the  power  was  executed  under  the  order 
of  the  Court;  but  I  do  not  know  that  the  com- 
plainant was  in  custody,  so  as  to  give  it  the 
character  of  a  tiwd  olitained  by  duress  of  im- 
prisonment, nor  that  the  liability  to  lie  attached 
for  failing  to  perform  the  order  of  the  (\)urt. 
could  constitute  such  duress.  But  in  truth,  the 
order  of  the  Court  was  entered  by  consent.  It 
was  nier(dy  the  initiative  of  a  contract,  which 
was  afterwards  carried  into  effect  by  the  re- 
lease and  the  Hnal  decree.  Supposing  it  to  be 
void  as  an  order  of  the  Court,  it  was  still  bind- 
ing on  the  parties  as  matter  of  contract. 

Then  as  to  any  right  of  the  coniiiliiinants  in 
the  bridge  itself,  it  would  lie  sullicient  to  sa^. 
that  all  the  coinjilainant.  Shultz's.  right  and  in- 
terest therein.  Had  passed  away  liy  the  expira- 
tion of  his  charter.  The  franchise  or  exclusive 
privilege  winch  constituted  it  his  ]iroperty,  no 
longer  exists,  and  the  material  structure  is  at- 
tached to  and  part  of  the  soil,  and  woidd  be 
the  property  of  the  States,  the  owners  of  that 
soil,  if  the  franchi.se  had  not  been  renewed  to 
another.  It  was  renewed  to  the  defendant,  the 
Bank,    by    both    States,    South    Carolina    and 


r  *468 

(ieorgia.  It  *is  true,  that  there  are  cases  in 
which  the  trustees  of  a  franchise,  obtaining  a 
renewal  of  it  in  his  own  name  to  the  [irejudice 
of  his  cestui  (jue  trust,  has  been  hehl  to  con- 
tinue a  trustee.  But  I  cannot  perceive  any 
plausil)le  or  even  imaginable  ground  on  which 
the  Bank  could  be  held  a  trustee  in  this  case. 
It  cl;iinn'd  adverselj  under  its  mortgage,  which 
was  certainly  good  as  against  the  parties  to 
it.  and  all  claiming  under  them,  which  the  com- 
plainant. Shultz.  must  do  if  he  claims  at  all. 
It  was,  so  far  as  appears,  for  a  bona  tide  debt. 
It  was  prosecuted  as  a  hostile  claim  by  the  pro- 
ceeding to  foreclose  it,  in  the  Court  of  (ieorgia, 
and  I  think  its  validity  established  liy  the  judg- 
ment of  that  Court. 

The  Act  of  the  State  of  Georgia  seems  to  re- 
late only  to  assignments  of  tangible  jiroperty, 
or  choses  in  action,  and  not  to  the  jueferiing  of 
one  creditor  t<i  another  liy  pa.vment  of  money. 
I  perceive  nothing  in  the  Act  to  authorize  a 
proceeding  for  the  reclaiming  of  the  money  in 
case  of  such  payment  oeing  made.  So  if  the 
parties  privatcdy  insolvent,  shoidd  execute  such 
mortgage,  and  before  theii-  absolute  and  avowed 
insolvency,  should  redeem  the  mortgage  by  pay- 
ing the  money,  I  perceive  nothing  to  authorize 
the  other  creditors  to  pursue  that  money  in  the 
hands  of  the  mortgagees.  So  if  before  any  pro- 
ceeding by  creditors  to  invalidate  the  mortgage, 
the  mortgagee  shovdd  foreclose  by  the  judgment 
of  a  Court ;  if  the  mortgaged  projierty  should 
be  sold.  an(l  the  money  pai(l  over  in  pursuance 
of  the  judgment,  there  seems  still  less  ground 
for  supposing  that  creditors  would  be  at  liberty 
to  follow  the  money.  In  this  case  the  bridge 
was  not  actually  sold  under  the  judgmi'ut  of 
the  Court  of  Georgia;  but  this  was  only  pre- 
vented by  the  act  of  the  present  comiilainant. 
in  obtaining  the  injunction  from  the  Court  of 
the  I'nited  States.  The  amoinit  of  their  debt 
was  awarded,  to  the  plaintiff's  liy  the  Court  of 
(Jeorgia,  and  the  bridge  ordered  to  be  sold,  and 
equity  regards  that  as  done  which  is  ordered  to 
be  done.  It  is  analogous  to  the  case  of  a  judg- 
ment, founded  on  a  security  which  was  void  for 
usury,  wliei'e  the  confessing  or  the  entering  of 
the  judgment  was  not  part  of  the  original  usuri- 
ous contract,  but  it  was  obtained  in  ailversum. 
Though  the  contract  were  absolutely  void  for 
the  usury,  yet  when  carriivl  into  a  judgment 
that  judgment  is  valid  against  creditors  of  the 
insolvent  usurious  debtor,  and  against  all  the 
world. 

Or.  if  it  be  said  that  the  judgment  of  the 
Court  of  Georgia  could  only  operate  in  rem  as 
a  foreclosure  upon  the  half  of  the  bridge  lying 
within  the  State  of  Georgia,  and  conld  have  no 
effect  upon  the  moiety  lying  within  the  State  of 
South  Carolina,  which  is  only  subject  to  laws 
and  tribunals  of  that  State,  then  there  is  noth- 
ing Ml  the  laws  of  South  Carolina  to  invalidate 
the  mortgage  of  that  portion  of  the  bridge. 

But  so  far  as  respects  any  right  in  the  bridge 
itself,  there  are  other  conclusive  grounds  against 
complainant's  claim.  The  defendant.  (Jazaway 
B.  Lamar,  purchased  without  notice  of  the 
claim  of  the  assignee,  or  creditors  of  the  com- 
plainant. Shultz.  and  purchasing  from  him.  the 
City  Council  of  Augu.sta  would  be  protected 
as  a  purchaser  from  a  iiuichaser  without  notice. 

*469 
This  was  determined  in  the  case  of  the  *City 
Council  of  Charleston  v.  Page.  [Speers,  Eq. 
injt.l  decided  at  the  last  sitting  of  the  Court 
of  Appeals.  But  as  I  have  intimated.  I  do 
not  think  the  notice  to  the  City  Council  suffi- 
cient. If  it  was  the  notiie  of  the  claim  of 
Shultz  himself,  and  not  of  his  as.signee  or  cre<l- 
itors.  knowing  of  his  release  of  1S2'.I.  they  would 
irresistibly  be  led  to  the  conclusion,  that  he 
could    have   no  claim  whatever. 

But.  indeed.  I  think  the  whole  claim  of  the 
bill  is  founded  on  a  misconception  of  the  doc- 
trine relative  to  the  applying  of  partnership  ef- 

189 


*469 


4  RICHARDSON'S  EQUITY  RETORTS 


fects  to  partnership  debts.  It  is  said  to  be  the 
equity  of  one  partner  to  enforce  sucli  appliea- 
tion/in  order  tliat  liis  private  pruperty  may 
not  be  made  liable  to  partnership  debts,  until 
the  partnership  effects  arc  exhausted.  It  is 
also  said,  that  in  cases  t)f  insolvency,  this  e<iuity 
may  he  enforced  at  the  instance  of  partnership 
creditors,  who,  through  this  eijuity  of  the  pai't- 
ners,  obtain  the  benefit  of  such  application. 
But  this  must  be  taken  to  relate  to  property 
in  the  hands  of  the  partners  at  the  time  of  total 
and  acknowledged  insolvency,  and  when  there  is 
some  proceeding  to  wind  up  the  affairs  of  the 
insolvent  tirm.  It  cannot  relate  to  property 
which  the  partners  have  before  alienated,  bona 
fide,  as  in  payment  of  a  .just  debt.  Now.  in  this 
case,  the  partners  had  alienated  before  the 
acknowledged  insolvency.  As  I  have  .said,  the 
mortgage  was  good  and  valid  as  against  the 
partners  themselves  who  executed  it  and  all 
claiming  under  them.  As  to  the  mortgage,  it 
was  bona  tide,  and  it  is  immaterial  that  it  was 
executed  by  the  parties  in  their  individual 
names.  Such  a  method  of  execution,  especiall.v 
as  regards  real  property,  is  usual  and  proper, 
if  not  necessary.  Now  suppose  that  Barn  a  Mc- 
Kinne  had  remained  a  member  of  the  firm  :  had 
been  sued  on  bridge  bills,  or  (^ther  partnership 
debts,  and  compelled  to  pay  them,  is  it  to  be 
supposed  that  he  would  be  permitted  to  invali- 
date his  own  deed  for  the  jnn'pose  of  reimburs- 
ing himself.''  So  if  Shiiltz  had  not  gone  out  of 
the  firm,  but  had  joined  in  tlie  execution  of 
the  mortgage,  and  afterwards  ])aid  partnership 
debts,  as  he  has  done,  he  would  stand  on  the 
same  footing.  But  I  think  this  is  his  actual 
predicament.  By  resuming  his  place  in  the 
tirm.  and  accep*^ing  a  re-conveyance,  he  has  put 
himself,  to  all  intents  and  i)urposes.  in  the 
place  of  Barna  McKinne,  and  must  be  estopped 
by  whatever  would  estop  McKinne.  He  can 
only  claim  through  him.  He  does  not  properly 
come  as  a  partnership  credit(n'.  or  the  assignee 
of  such  creditor,  to  have  a  distribution  of  ])art- 
nership  assets,  but  as  a  partner  who  has  joined 
in  the  alienation  of  partnership  property,  and 
then  lieen  compelled  to  pay  partnei'ship  debts 
out  of  his  own  property.  He  was  liable  for  the 
payment  of  those  debts.  This  view  applies 
equally  to  any  claim,  legal  or  equitable,  in  the 
bridge  itself,  or  the  proceeds  of  its  sale. 

With  respect  to  those  proceeds,  there  are  oth- 
er grounds  on  which  the  claim  must  be  held  un- 
tenable, and  among  these  is  the  objection  to  the 
jurisdiction  of  this  Court,  taken  b.v  the  Bank 
of  the  State  of  Georgia.  Having  no  interest, 
legal  or  equitable,  in  the  bridge  itself,  they 
have  no  property  within  the  State.     In  the  case 

*470 
of  Bowden  v.  Schatzell.  Bail.  *Eq.  360  [23  Am. 
Dec.  170].  it  was  determined  that  the  resident 
of  another  State,  having  property  within  this 
State,  might  be  made  a  party  in  Court  under 
our  Act  of  the  Legislature,  though  there  were 
not  any  party  witliin  the  State  having  posses- 
sion or  control  of  the  property.  But  it  has 
never  occurred  to  any  one  to  go  further  and 
say.  that  a  party  neither  found  or  domiciled 
within  the  State,  nor  having  proiterty  within 
it.  might  be  made  amenable  to  our  jurisdiction. 
It  was  urged  in  argument,  that  by  answering  to 
the  bill,  the  defendants  have  submitted  to  the 
jurisdiction,  and  must  abide  the  decree  on  the 
merits.  But  it  is  a  perfectly  familiar  practice, 
that  a  defendant  may  take  advantage  of  that 
which  would  be  properly  the  subject  of  a  plea, 
by  way  of  pleading  in  his  answer.  This  the 
Bank  lias  done.  When  it  is  said  that  the  an- 
swer overrules  a  plea  or  demurrer,  it  is  meant 
that  the  defendant  must  answer  fully.  The  ob- 
ject of  a  formal  plea  is  to  excuse  the  defendant 
from  answering.  He  is  not  to  shield  himself 
from  making  a  full  answer,  on  the  ground  of 
the  excuse  which  he  has  offered  in  the  answer 
itself.  These  defendants  might  properly  an- 
swer for  the  purpose  of  showing  the  fact,  that 

190 


they  had  no  proi)ert.v  within  the  State,  and  were 
therefore  not  amenable  to  the  jurisdiction. 
They  might  also  ijropei'l.v  answer,  for  tlie  pur- 
pose of  defending  tlie  tith»  of  their  v«'n(lees. 
But  is  it  not  perfectly  apparent,  that  any  decree 
which  I  could  make  with  rcsix'ct  to  this  fund 
would  be  i»erfectly  nugatory V  If  I  should  de- 
cree the  payment  of  the  money  what  jirocess 
could  the  complainant  have  for  enforcing  the 
decree?  If  I  should  order  them  to  account,  how 
could  the  Court  enforce  that  orderV  If  it  were 
sought  to  enforce  such  a  decree  in  the  Courts  of 
(Georgia,  is  it  probable  that  those  Courts  would 
recognize  the  validity  of  it? 

On  the  ground  of  time  in  analogy  to  the  stat- 
ute of  limitations.  Whatever  ground  there  may 
have  been  for  regarding  these  defendants  as 
mortgagees  in  possession,  before  the  sale  of 
1822,  and  the  fund  produced  by  the  sale  as  in 
custody  of  the  Federal  Court,  they  must  cer- 
tainly be  regarded  as  claiming  the  fund  adverse- 
ly from  the  time  of  Shultz's  release  of  182!I.  or  at 
all  events,  from  the  decree  of  the  Federal  Court. 
This  decree,  in  effect,  awards  the  fund  to  them, 
and  has  relation  back  to  the  sale  of  1S22.  But 
from  the  time  of  the  decree  in  1830,  to  the  filing 
of  the  present  bill  in  1841.  more  than  ten  years 
ha\e  elapsed,  and  if  it  were  necessary  that  the 
assignees  of  Shultz  should  have  notice  of  this 
adverse  claim,  they  certainly  had  it  so  early 
as  the  hearing  of  the  cause  of  Stoney  and  Ma- 
grath  in  1832.  There  are  various  other  grounds 
which  might  be  considered,  leading  to  the  same 
conclusion,  and  throwing  insuperable  dilliculties 
in  the  way  of  the  complainant's  success,  but 
which  I  do  not  think  it  necessary  to  consider 
at  length. 

It  does  not  appear  that  this  fund,  which 
was  sulistituted  for  the  bridge,  was  included  in 
Shultz's  assignment  of  1828.  The  assignment 
was  of  his  interest  in  the  bridge  itself,  and 
though  the  assignee  of  an  insolvent  debtor  ma.v 
be  authorized,  under  the  law  of  this  State,  to 
recover  any  property  or  interest  which  the  in- 

*471 
solvent  has  in  the  hands  of  any  person  *ia  the 
State,  the  law  of  South  Carolina  does  not  op- 
erate within  the  limits  of  Georgia.  The  assign- 
ment of  a  chose  in  action  in  another  State,  can 
only  be  made  effectual  as  the  personal  act  of 
the  assignor.  If  this  assignment  were  present- 
ed to  a  Court  of  Georgia,  could  the  assignment 
of  Shultz,  of  his  interest  in  the  bridge,  be  re- 
garded as  an  assignment  of  money  in  the  vaults 
of   the   Bank? 

There  was  evidence  of  a  previous  assignment 
by  Shultz,  of  all  his  interest  in  the  bridge,  to 
Gaston,  of  Savannah. 

I  could  make  no  decree  concerning  this  fund, 
without  a  full  account  of  all  the  transactions 
of  the  Bridge  Company,  which  could  only  be 
done  by  having  the  representative  of  Barna  Mc- 
Kinne a  party,  as  well  as  John  ]McKinne.  It 
appears,  indeed,  that  both  these  were  largely 
indebted  to  the  concern.  It  appears  from  the 
testimony  of  William  Y.  Hansel,  the  former 
cashier  of  the  Bridge  Bank,  that  these  parties 
had  withdrawn  very  large  sums  from  the  firm, 
for  the  use  of  themselves  and  other  firms  of 
which  they  were  members:  which,  according  to 
the  testimony  of  the  same  witness,  (and  I  can 
have  no  doubt  of  the  fact,)  occasioned  the  fail- 
ure of  the  Bridge  Company.  But  I  could  de- 
cide nothing  on  these  matters,  without  such  full 
account  as  I  have  suggested.  It  appears  that 
Shultz,  at  the  time  he  left  the  Company,  was 
indebted  to  it  in  the  sum  of  .$63,000,  for  whicTi 
credit  was  given  him  on  the  books.  But  on  his 
re-entering  the  firm,  I  suppose  his  indebtedness 
was  reinstated  for  this  amount.  He  is  prima 
facie  liable  to  the  creditors  of  the  Bridge  Com- 
pany ;  indeed,  he  could  not  be  discharged  from 
his  liability  by  the  credit  given,  and  this  is  a 
much  larger  amount  than  the  debt  of  the  Com- 
pany, which  he  has  shown  himself  to  have  jiaid. 

A    question   might    be   made    with    regard    to 


YARlJOHOLCill  A  SlIULTZ  v.  BANK  OF  GEORGIA 


*ilh 


tlio  nri«;iii;il  inwilidity  cif  the  niortfraso.  The 
McKiiiiics  wen-  iircviduslv  iiidchtcd  to  tin-  Hank, 
in  tlie  sum  (if  $4<).(MI0 :  tlicy  hi.now.-d  ."fHO.- 
000  at  tlu'  time,  wliicli  was  I'cpr.'scnt.'d  to  t\\>- 
Bank  to  l)c  for  tlic  use  of  tlu'  Jirid^ic  Conipaiiy, 
and  I  tliink  must  be  roKardcd  as  tin-  di-bt  of  the 
Tompany.  Separate  property,  of  John  Mc- 
Kinne  as  well  as  the  hridfje.  was  inelnded  in 
the  mortgajie.  It  was  stijiiilated.  that  upon  the 
Jiayinent  of  $40.(I(K».  the  iiropmy  of  M<Kinne 
shonld  be  reh-ased,  and  upon  tlie  ]iayinent  of 
tlio  remainiuf;  .$r»().(IOO  tlie  bridp'  should  be  re- 
leased. Xow.  whatever  may  ])e  the  general 
rule,  with  respect  to  a  deed  which  is  void  in 
part,  being  void  in  the  whole,  it  might  well  be 
questioned  whether  we  should  7iot  rcganl  these 
stipidations  as  creating  seiiarate  mortgages  for 
distinct  debts,  though  in<"luded  in  the  same  in- 
stnunent. 

If.  as  I  have  supposed,  the  .$r)().0(IO  were  the 
debt  of  the  Company,  the  defendant.  Shultz.  is 
liable  for  the  whole  of  it.  and  would  be  com- 
l)elle(l  to  bring  it  into  account,  if  the  account 
which   he  claims  should  be  gone  into. 

But  it  is  unneces.sary  to  pursue  these  topics. 
The  case  has  been  an  embarrassing  one,  from  the 
great  ma.ss  of  irrelevant  matters,  evidence,  and 
documents,  with  which  it  has  been  incumbered, 

*472 
rather  than  from  *any  intrinsic  difficulty  with  re- 
gard to  the  merits.  I  hope  that  an  endWill  now 
be  put  to  this  long  protracted  litigation.  The 
complainant  is  naturally  disposed  to  think 
that  he  must  have  suffered  injustice  from  hav- 
ing been  deprived  of  projierty  that  was  not  only 
matter  of  interest,  but  of  pride  and  feeling,  and 
from  having  been  harassed  and  pursued  on 
account  of  his  responsibilities  ft)r  a  Cfimpany, 
to  the  failure  of  which  he.  as  I  am  fully  satis- 
fied, (lid  not  at  all  contribute.  But  I  believe  he 
is  inclined  to  shift  the  blame  from  those  to 
whom  it  properly  belongs,  on  account  of  some 
recollection  of  early  kindness,  and  to  throw^  it 
on  others  who  have  done  nothing  more  than  to 
stand  upon  what  they  fairly  regarded  as  their 
just  rights. 

It  is  ordered  and  decreed,  that  the  bill  be  dis- 
mi.ssed. 

The  plaintiffs  appealed,  on  the  following 
grounds: 

1.  Because  the  interest  of  Henry  Sliultz  in  the 
Augusta  bridge  has  never  been  legally  (lisi>ose(i 
of,  and  is  now  subject,  in  the  hands  of  his 
assignee,  to  the  claims  of  his  creditors. 

2.  I'.ecause  the  alleged  mortgage  of  the  bridge 
from  John  and  Barna  McKinue  to  the  Bank  of 
the  State  of  Georgia,  was  nuU  and  void  under 


the  Act  of  the  State  of  Georgia,  referred  to  in 
the  decree. 

'.i.  l'.ecause  the  bridge  was  the  partnership 
proiK-rty  of  the  Bridge  Comiiany.  and  the  mort- 
gage before  referred  to,  to  secure  the  individual 
debt  of  John  and  P.arna  McKiiuie.  being  void 
it  yet  remains  partnership  property,  and  liaide 
for  the  i)artnership  debts;  and  because  the 
creditors  of  Henry  Shultz  have  the  right  to  be 
subrogated  to  the  etpiity  of  the  partnership 
cri'ditcMs.  whose  debts  have  been  satisfied  by  the 
individual  property  of  the  said  Ilenry  Shultz. 

4.  Because  the  alleged  decree  of  the  Circuit 
Court  of  the  T'niti'd  States,  at  Savannah,  in  the 
ease  of  Christian  Breithaupt.  lli  nry  Shultz  and 
others  v.  The  liank  of  thi'  State  of  Georgia,  is 
of  no  validity,  so  far  as  the  i>resent  plaintiffs 
are  concerned,  the  same  having  been  rendered 
after  the  bill  liad  been  dismissed,  and  after  the 
interest  of  Ilenry  Slndtz,  in  the  matters  in  con- 
troversy, had  been  assigned  and  transferred  to 
his  creditors. 

">.  Because  the  Bank  of  the  State  of  Georgia, 
and  the  other  defendants  claiming  under  the 
said  Bank,  can  derive  no  title  to  the  liridge  un- 
der the  proceedings  of  tho  S»ii>erior  Court  of 
Richmond  county.  Georgia,  as  there  never  was 
a  sale  of  the  bridge  under  order  of  that  Court ; 
and  especially  is  this  so  in  reference  to  the 
South   Carolina   end   of  the  said   bridge. 

G.  Because  the  defendants  bought  with  full 
notice  of  the  claims  of  the  present  plaintiffs. 

7.  Because  the  (Miancellor  ought  to  have  de- 
creed that  the  bridge  should  be  surrendered  or 
sold,  and  that  the  parties  account  for  the  in- 
come. 

8.  Because  the  bridge,  or  at  least  one-half  of 
it,  being  within   the  jurisdiction  of  the  Court, 

*473 
and  the  defendants  having  answered,  the  *Court 
possessed   ample  jurisdiction  of  the  cause,  both 
with   respect  to  the  bridge  itself  and   the   pro- 
ceeds. 

9.  Because  the  Bank  of  the  State  of  Georgia, 
in  any  view,  should  be  required  to  account  for 
the  proceeds  of  the  sale  of  the  bridge,  with  in- 
terest. 

10.  Because,  upon  the  pleadings  and  the  proof, 
the  plaintiffs  were  entitled  to  recover,  and  be- 
cause the  said  decree  is  contrary  to  law  and 
equity  and  the-  evidence. 

Per  Curiam.  The  Court  concurs  general- 
ly in  the  views  of  the  Chancellor,  and  the  decree 
is  affirmed. 

Harper,  Joiixso.x  and  Dunkin,  CO.,  con- 
curring. 

191 


APPENDIX 


4  Rich.  Eq.  *475 

♦CHRISTOPHER    WILLIMAN   et   al    v 
HENRY  M.  HOLMES  et  al. 

(Charleston.     Feb.,  1850.) 
[Trus^fs   <©=3l.31.] 

Thoro  are  three  circumstances  necessary  to 
the  execution  of  a  use  by  the  statute  of  uses : 
(1)  A  person  seized  to  tlie  use  of  some  otlier 
person;  (2)  A  cestui  que  use,  in  esse;  and  (y,) 
A  use  in  esse  in  possession,  remainder  or  re- 
version. And  Avherc  the  use  is  transformed 
trom  an  equitable  to  a  legal  estate,  the  same 
qualities  conditions,  and  limitations  that  Avere 
applicable  to  it  as  a  use  follow  it  in  its  new 
condition  as  a  legal  estate. 

r^^-'L^.?}*'-r^^Kt}}^  l''«ster  v.   Glover,  46  S. 
*-.  uoJ,  ^-i  b.  E.  0(0. 

.-^o^ilther   cases,    see    Trusts.    Cent.    Dig     8S 
l<o,   1<5V.  ;    Dec.   Dig.   <©=>131.]  ^^ 


[Trusts  (©=51,31.]     • 

The  statute  does  not  execute  a  trust,  where 
there  is  some  act  or  duty  to  be  performed  bv 
the  trustee  necessary  to  the  scheme  of  the  trust 


[Wills  «@=>634.] 

Where  an  estate  is  devisod  to  ono  for  life 
witii  i-rmamdor  t.)  such  p.Tson.s  as  tiio  tenant 
tor  UU\  or  any  other  appointor  shall  direct  and 
appoint,  and  in  default  of  such  appointment 
to  a  person  or  class  of  persons  in  esse,  the  re- 
mainder IS  vested  notwithstanding  th."  interposi- 
tion ot  the  power.  The  estate  is  vested  in  the 
remanid(>r-men,  subject  to  be  divested  bv  the 
execution  of  the  power. 

|Ed.  Note.— rited  iu  Farrow  y.  Farrow  12 
'>.  (.  1(2:  liilderback  v.  Kovce,  14  S  C  541- 
Minis  V.  Machlin.  53  S.  C.  5).  30  S.  E.'  o.Ss' 
lindal  V.  Xoal,  59  S.  C.  15.  30  S.  E.  1004- 
Iluniphiey  v.  ('ampbell,  59  S.  C.  43  47  37  S 
^^-  7^1:%  Ketchin  v.  Rion.  68  S.  C.  275,'  47  s' 
E.    .j(b. 

For  other  ca.ses,  see  Wills.  Cent.  Dig  §  149->  • 
Dec.   Dig.  (S=>a34.]  e,    ts  ^~t.  -  . 


[Wills  (©=>506.] 

In  a  devise  by  the  testator  to  his  Might  heir 

at   law      the   word    'heir'   is   iiomen   collectivum, 

and  embraces  all  such  persons  as  are  entitled  to 

take  as  in  cases  of  intestacy  under  the  .statute 

ot  distributions;    and   the  estate  devised  being 

and  which" couTd"noYb7pSo7medbrtlWn,st^^  same    as   that  given   by   law,   they   will   be 

if  the. legal  estate  pfissed  from  him   under  the    Tisi^"^^"^"^  ^^  ^^^^°^  ^^  '^''^^^^  ^^^  ^ot  by  de- 

operation  of  the  statute  ^* 


operation  of  the  statute 

S  ^p'-oo'.''V'v~^'*^'l.?,'?  <"i-"s'it.,u  V.  Pringle,  3 
to.  L.  99,  larr  v.  Gilbreath,  23  S.  C.  512. 

-,Zoi;_oi|'er  c^n.ses.  see  Trusts.  Cent.  Dig.  S8 
1(0,   l(.Dyo;    Dec.   Dig.  <S=>131.] 

[Trusjs  <S=:=131.] 

The  conveyance  or  devise  of  an  estate  to 
trustees,  for  the  sole  an.l  separate  use  of  a 
married  woman,  is  not  such  a  trust  as  is  execut- 
ed by  the  statute.  cxcluc 

[Ed    Xote.-For  other  cases,  see  Trusts,  Cent. 
Dig.   §   l(;ji/,;    Dec.  Dig.   <©=>131.] 

[Trusts  <©=3l31.] 

Where  an  estate  is  devised  to  a  trustee    in 

mn'...-  [  ^^'"^  ^^^^.  "t*^'  Ix^iiefit.  and  behoof  of  a 
married  woman  for  life,  and  after  her  death  -for 

nfcfif  "'"'  ^''''^h  ''^"'^  behoof  of  a  persxm,  or 
class  of  persons,  who  are  in  esse,  and  are  sui 

terV^r'J'^i"^  '''f'  ^"  ^'^  Si^-^^  to  the  trus- 
wffl.^i.^  *^  '^*^"?  ^^  ^^^  <^«t"te  commensurate 
^ith  the  separate  estate  for  life  of  the  marriet 

^l!  .^  l"?  preserve ;  and  the  statute  forthwith 
executes  the  use  as  to  the  residue  in  the  re- 
t^n'.'t'efi""''"'  ^^^.eijuing  whose  interest  the 
trustee  has  no  special  duty  to  perform 

18^S^>-^YQiT^Ar''i'P  ^iowavd  v.  Henderson, 
1^  «•  &  loi'    .Y^-^?"-  ^'-  Craig.  36  S.  C.  109 

539^"64-S  "e.  604.'''"  ''■  ^'''''''  ^-  «•  ^-  ^•^«' 

.^^\^}\\^^-  cases,  see  Trusts,  Cent.  Dig.  S§ 
175,   loVs;    Dec.  Dig.   (®=>131.]  ^^ 

[Trusts  <g=»131.] 

And  so  where  the  legal  estate  given  to  the 
trustee  has  not  amplitude  sufficient  ?S  enable 
Inm  to  perform  the  duties  of  his  trust,  his  e"il 
evtS  r^^  ^'  '"^^^'S*^^  by  implication  to  'l.n 
t?es'?f  ??.??S''*'  ^'"^  '^'  ""^''''^  ^""^  ^"- 


JEd.  Note.— For  other  cases,  see  Wills    Cent 
Dig.  §§  1090-1099;    Dec.  Dig.  <©=:.506  ] 

*476 
[Life  Estates  <©=>27.1 

*Where  an  estate  is  sold  by  a  decree  in 
equity,  it  is  sufficient  to  make  'the  title  good 
against  all  contingent  remainders  and  interests 
It  the  person  who  has  the  first  estate  of  inheri- 
taiioc  IS  a  party  before  the  Court ;  he  being  re- 
garded as  the  representative  of  all  those  con- 
tingent interests  that  are  dependent  upon  and 
are  to  succeed  his  estate.  And  it  would  seem, 
that,  in  a  case  where  there  was  no  vested  estate 
ot  mhentanee.  but  an  estate  for  life,  with  con- 
tingent remainders  and  executory  devises  to 
persons  not  in  es.se,  it  would  be  sufficient  if  the 
tenant  for  life  were  properly  a  party  before 
the  Court  (Bofil  y.  Bofil,  3  Rich.  Eq.  1  [55 
Am.  Dec.  62(].) 

q'  n'^--,^'o*''rf'^;,'>  i"  Clyburn  v.  Reynolds,  31 
o.  U.  llo,  9  S.   E.  9(3. 

.«^m  "ther  cases,  see  Life  Estates.  Cent.  Dig. 
§§  49,  50;    Dec.  Dig.  <@=>27.] 

[Life    Estates    (S=>27.] 

But  where  there  is  an  estata  for  life  with  a 
vested  remainder  to  persons  in  esse,  who  are 
witlun  the  .iunsdiction  of  the  Court,  a  decree 
tor  a  sale  of  the  estate  is  not  binding  upon  the 
reiiiainder-men,  and  does  not  divest  their  right 
unless  they  be  parties. 

.»'^*o'-  .^"ooT'^'^^^'^  ^^  Moseley  v.  Hankinson, 
77  .•  ^-  •"^-'  ^ioore  v.  Scott,  66  S.  C  292 
44  S.  E.   (3(.  ■         ' 

For  other  cases,  see  Life  Estates,  Cent.  Dig 
§  49;    Dec.  Dig.  <©=»27.] 

[Trusts  <S=>194.] 

In  cases  of  trust,  where  the  trustee  is  seized 
of  tlie  legal  estate  in  fee  and  is  a  party  before 
the  Court,  there  is  a  greater  facility  in  giving 
a  perfect  title  to  the  purchaser,  although  all 
the  parties  in  interest  are  not  before  the  Court 


Trich!eq.-13  '''  '''"'  '°''''  ^""^  ^^Y-NUMBER  iu  all  Key-Numbered  Digests  and  Inde.xes 


19c 


*476 


4  RICHARDSON'S  EQUITY  REPORTS 


inasmuch  as  the  decree  for  sale  operates  upon 
the  fee  simple  in  the  trustee,  and  passes  that 
to  the  purchaser  discharged  of  tl^e  equities  of 
the  cestui  que  trusts. 

[Ed.  Note.— For  other  cases,  see  Trusts,  Cent. 
Dig.  S  249;    Dec.  Dig.  <©=>194.1 

[Partition   (©==385.] 

Where  the  Court  of  Equity,  in  the  exercise 
of  its  jurisdiction,  decreed  the  sale  of  an  estate, 
and  the  title  proved  defective  because  some  of 
the  persons  who  were  tenants  were  not  parties 
to  the  proceeding ;  and  the  purchaser  supposing 
that  he  had  bought  the  entire  estate  greatly  im- 
proved the  value  of  some  portions  of  the  es- 
tate (water  lots,)  it  was  ordered,  that  the  parti- 
tion should  be  so  made  as  to  give  to  the  pur- 
chaser the  part  of  the  estate  so  improved,  with- 
out accounting  for  the  improvements,  the  im- 
jiroved  parts  not  being  greater  than  his  rightful 
share  when  he  bought,  and  it  being  shown  to 
the  Court  that  such  partition  could  be  made 
without  injury  to  the  other  parties  in  inter- 
est, (a) 

[Ed.  Note.— Cited  in  Annely  v.  De  Saussure, 
12  S.  C.  520;  Scaife  v.  Thomson,  15  S.  C. 
868;  Trapier  v.  Waldo,  16  S.  C.  282;  Annely 
V.  De  Saussure,  17  S.  C.  392,  393.  395;  In  re 
Covin's  Estate,  20  S.  C.  475;  Lumb  v.  Pinck- 
nev.  21  S.  C.  475;  Buck,  Hefflebower  &  Neer 
v.  Martin,  21  S.  C.  592,  593,  53  Am.  Rep.  702 ; 
.Johnson  v.  Pelot,  24  S.  C.  265,  58  Am.  Kep. 
253;  Hall  v.  Boatwright.  58  S.  C.  548,  36  S. 
E.  1001,  79  Am.   St.  Rep.  864. 

For  other  cases,  see  Partition,  Cent.  Dig.  § 
238;    Dec.  Dig.   (©=85.] 

I  This  case  is  also  cited  in  Humphrey  v.  Camp- 
bell, 59  S.  C.  39,  37  S.  E.  26,  and  distin- 
guished therefrom.] 

*477 
*Before  Dargan,  Ch.,  at  Charleston,   Feb- 
ruary, 1850. 


(a)  Note  by  his  Honor.  The  question,  wheth- 
er compensation  is  to  be  allowed  to  a  tendht  in 
common,  who  has  made  improvements  upon  the 
common  estate,  as  against  his  co-tenants,  has 
been  attended  with  much  difficulty.  Not  to  al- 
low it,  where  the  improvements  are  valuable, 
in  many  cases  is  highly  inequitable ;  yet  no 
safe  rule  of  universal  application  can  be  laid 
down  upon  the  subject.  For  in  some  cases, 
though  the  improvements  may  add  to  the  per- 
manent value  of  the  estate,  it  might  be  unde- 
sii-able,  inconvenient,  and  even  ruinous,  for  the 
co-tenant,  who  has  not  concurred  in  the  im- 
provements, to  meet  his  share  of  the  expense. 

That  compensation  for  such  improvements  in 
ordinary  cases,  will  not  be  allowed,  may  be  re- 
garded as  the  settled  law  of  South  Carolina. 
Thompson  v.  Bostick,  McM.  Eq.  75  ;  Thurston 
v.  Dickinson,  2  Rich.  Eq.  317  [46  Am.  Dec.  56]. 

But  the  obvious  hardship  of  depriving  the 
tenant,  who  has  made  the  improvements,  of  any 
benefit  from  his  expenditures,  and  of  thi'owiug 
the  value  of  the  improvements  into  the  common 
estate  for  partition,  will  induce  the  Court  so 
to  modify  its  decree  as  to  let  the  improving 
tenant  have  the  benefit  of  his  improvements, 
wherever  it  can  be  done  without  injury  to  his 
co-tenant.  The  high  equity  to  be  allowed  com- 
pensation for  permanent  and  valuable  improve- 
ments should  prevail,  wherever  it  can  be  done 
consistently  with  the  rights  of  the  other  parties. 

"In  suits  in  equity  for  partition,"  says  Judge 
Story,  (1  Story  Eq.  §  656,)  "various  other  equi- 
table   rights,    claims    and    adjustments    will    be 

*477 
made,  which  are  *beyond  the  reach  of  Courts  of 
Law.  Thus,  if  improvements  have  been  made 
by  one  tenant  in  common,  a  suitable  compensa- 
tion will  be  made  him  upon  the  partition  ;  or 
the   property   on  which  the  improvements  have 


Christoplicr  Willinian,  by  his  will,  dated 
December  26,  181:!,  inter  alia,  devised  and  be- 
queathed as  follows: 

"I  give,  devise,  and  beiiueath  unto  Mary 
Peters,  (Gilbert  Davidson  and  Margaret  Be- 
thune,  and  to  their  heirs  and  assigns  for- 
ever, all  those  two  houses  and  lots,  situate 
on  the  east  side  of  Meeting  sti-eet,  which  I 
lately  bought  from  Mrs.  Gregorie;  also  all 
that  wharf,  situate  on  South  Bay,  and  the 
land  attached  to  the  same ;  also  my  lands  at 
the  head  of  Tradd  street;  also  all  that 
piece  or  lot  of  land,  known  in  the  plan  of  the 
Grove  Tract  as  No.  2,  containing  about  twen- 
ty acres  of  high  land  and  about  the  same 
quantity  of  marsh  ;  also  all  those  two  plan- 
tations on  Combahee,  known  by  the  names 
of  Boston  Bottom  and  Walnut  Hill ;  also 
one  moiety  or  half  of  all  those  two  islands, 
situate  between  the  Combahee  and  Bull  riv- 
ers, both  known  by  the  name  of  Willinian  Is- 
lands, and  one  undivided  moiety  of  thirteen 
luindred  acres  of  marsh  land  adjoining  them  ; 
also  sixty  negroes,  &c.,  &c.  In  trust  for  the 
sole  use,  behoof  and  benefit  of  my  daughter, 
Eliza  Davidson,  the  wife  of  Gilbert  David- 
son, for  and  during  the  term  of  her  natural 
life,    and    from    and    inunediately    after    the 

*478 
death  *of  my  said  daughter,  in  trust  for  the 
sole  use,  benefit  and  behoof  of  the  said  Gil- 
bert   Davidson,    should    he   survive   my    said 


been  made  assigned  to  him."  The  same  au- 
thor, (1  Vol.  §  655,)  says:  "where  one  tenant 
in  common  supposing  himself  to  be  legally  enti- 
tled to  the  whole  premises,  has  erected  valuable 
buildings  thereon,  he  will  be  entitled  to  an 
equitable  partition  of  the  premises,  so  as  to 
give  him  the  benefit  of  his  improvements." 
Town  V.  Needham,  3  Paige,  546,  555. 

"Courts  of  Equity  will  not  only  take  care, 
that  the  parties  have  an  equal  share,  but  they 
will  assign  to  the  parties  respectively  such  parts 
of  the  estate  as  would  best  accommodate  them, 
and  be  of  most  value  to  them  with  reference 
to  their  respective  situations  in  relation  to  the 
property  before  partition."     1  Story  Eq.  §  655. 

The  dispo.sition  of  the  Court  is  always  to  give 
the  tenant  making  the  improvements  the  benefit 
thereof,  as  far  as  is  consistent  with  the  equity 
of  his  co-tenants.  In  Hancock  v.  Day,  McM. 
Eq.  298,  it  was  held,  that  the  occupying  tenant 
of  a  tenancy  in  common  is  not  bound  to  account 
for  the  rent  of  land  rendered  productive  by  his 
own  labor.  This  case  was  decided  on  the  au- 
thority of  the  preceding  cases  of  Thompson  v. 
Bostick,  and  Kerr  v.  Robertson,  McM.  Eq.  475. 
In  the  case  last  mentioned,  it  was  held,  that 
one  tenant  in  common  was  not  bound  to  pay 
rent  for  land  that  he  had  himself  cleared  and 
reduced  to  a  state  of  cultivation.  See  Lyles  v. 
Lvles,  1  Hill,  Eq.  86  and  Volentine  v.  Johnson, 
lb.  49. 

*478 

*Thus,  it  seems  to  be  clearly  settled,  that  the 
tenant  in  possession,  who  has  made  improve- 
ments, is  entitled  to  the  whole  of  the  profits  re- 
sulting from  such  improvements,  during  the 
continuance  of  the  tenancy  in  common.  And  it 
would  seem  to  be  equally  clear,  that  where  the 
tenant  who  has  made  improvements,  has  not 
improved  more  than  his  share,  and  that  share 
with  the  improvements  can  be  set  apart  to  him 
in  the  partition  without  injury  to  the  rights  of 
his    co-tenants,   considered    in    reference    to    the 


194 


<g=^For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


WILIJMAN  V.  HOLMES    . 


•480 


(laughtor,  for  aud  during  the  term  uf  his  nat- 
ural life,  and  from  and  immediately  after 
the  death  of  the  survivor  of  them,  then  in 
trust  for  the  sole  use.  benefit  and  behoof  of 
such  of  my  children  and  grand-children,  as 
Die  said  Eliza  Davidson  shall,  by  her  last 
will  and  testament,  or  by  any  deed  under 
hand  and  seal  executetl  in  the  presence  of 
three  or  more  credible  witnesses,  direct,  lim- 
it and  ai»i)oint,  and  in  default  of  such  direc- 
tion, limitation  and  appointment,  then  in 
trust  for  the  sole  use,  benetit  aud  behoof  of 
my  right  heir  at  law." 

DAUGAX,  Ch.  The  very  full  and  elab- 
orately prei)ared  statement  of  the  facts, 
which  has  been  furnished,  and  which  I  adopt, 
renders  It  entirely  superfluous  for  me  to 
preface  my  decree  with  the  usual  prelimi- 
nary narrative.  I,  therefore,  proceed  at 
once  to  the  consideration  of  the  questions 
that  are  made  in  the  pleadings,  and  that  have 
been  discussed  in  the  argument. 

The  great  question  of  the  case,  and  an  in- 
teresting aud  important  one  it  is  in  any  point 
of  view,  is  whether  the  .sale  made  under  the 
decree  of  this  Court,  in  the  suit  of  Eliza 
Davidson  v.  Mary  Peters  and  others,  is 
valid  against  the  remainder-men,  who  are 
the  complainants  in  this  bill,  und  are  seek- 
ing to  have  that  sale  vacated  so  far  as  it  af- 
fects their  rights.  In  the  threshhold,  as  it 
were,  an  important  preliminary  problem  pre- 
sents itself,  which  it  is  necessary  to  solve. 
In    my    judgment,    much    depends    upon    the 

*479 
solution  *of  this  question ;  which  arises  ujv 
on  the  construction  of  Christopher  Willi- 
man's  will.  Does  the  devise  to  Eliza  David- 
son create  a  trust  estate?  Does  the  statute 
of  uses  execute  the  trust,  and  transfer  the 
legal  title  to  Eliza  Davidson  as  to  the  life 
estate,  on  the  death  of  the  testator?  And 
again,  does  the  statute  of  uses  execute  the 
use  as  to  the  remainder-men,  and  transfer 
the  legal  estate  in  the  remainder  to  them, 
before  the  termination  of  the  precedent  life 
estate? 

If  Eliza  Davidson,  had  been  a  feme  sole, 
there  would  have  been  specious  reasons  for 
the  opinion,  that  the  statute  would  have 
executed  the  uses  on  the  death  of  the  testa- 
tor, and  that  she  would  forthwith  have  been 
invested  with  the  legal  title,  discharged  of 
the  trust.  But  she  was  at  that  time  the 
wife    of    Gilbert    Davidson.      And    the    form 


state  of  the  property  as  it  originally  stood,  or 
as  it  would  liavc  stood,  hail  no  sucli  improve- 
ments been  made,  tiie  partition  ought  so  to  be 
made,  as  to  give  the  tenant,  who  has  spent  his 
money,  that  part  of  the  estate  in  which  the 
expenditures  havo  been  made. 

In  the  case  to  wliicli  these  remarks  are  at- 
tached as  a  note,  the  oeciipyiiig  tenant  had 
tlie  additional  ecpiity  of  liavinjj;  purchased  bona 
tide,  for  a  valuable  consideration,  the  fee,  and 
was  ignorant,  when  making  tlie  improvements, 
of  any  outstanding  claim  of  thti  plaintiffs 
against  Lim  for  a  partition. 


and  language  of  the  devise  Is  peculiarly 
adapted  for  the  creation  of  a  separate  es- 
tate in  trust  for  the  benefit  of  a  married 
woman;  and  one.  which  the  potential  magic 
<»f  the  .statute  would  fail  to  destroy.  The 
e.state  is  given  to  trustees,  to  whom  the  le- 
gal estate  passes  in  the  first  instam-e.  If  it 
l>e  such  a  trust  estate  as  the  statute  would 
execute,  it  passes  through  and  out  of  the 
trnste«'S.  eo  instanti,  and  vests  in  the  cestui 
<pie  trusts.  But  if  there  Ite  any  thing  for  the 
trustees  to  do;  if  there  be  a  duty  imposed 
ui)on  them  in  connexion  with  the  trust,  for  the 
performance  of  which  it  is  necessary  that  the 
trustees  should  remain  seized  of  the  legal  es- 
tate, the  statute  then  does  not  execute  the 
use;  but  the  legal  estate  abides  with  them 
until  the  executory  trusts  are  performed. 
After  the  execution  of  the  trusts,  the  title 
liasses  away  from  them,  silently,  and  by 
operation  of  law.  A  trust  to  preserve  the 
separate  estate  of  a  married  wt)man.  is  of 
tliat  class  of  trusts,  which  the  statute  of 
uses  does  not  execute.  The  words  of  this 
devise,  ("in  trust  for  the  .sole  use,  l)enefit 
and  behoof."  &c.)  are  technically  expres- 
sive, (if  any  words  in  relation  to  such  a  de- 
vise can  be  considered  as  technical.)  of  an 
intention  to  create  a  separate  estate  in  Eliza 
Davidson. 

It  has  been  urged  with  much  ingenuity 
and  force,  that  notwitlistanding  the  expres- 
sive form  of  the  language,  it  Is  yet  still  a 

*480 
*(luestion  of  intention,  whether  the  testator 
really  did  mean  to  create  a  separate  estate 
in  Eliza  Davidson.  After  the  death  of  his 
daugliter.  Eliza  Davidson,  he  gave  the  es- 
tate •'In  trust  for  the  sole  use.  benefit  and 
behoof  of  Gilbert  Davidson,  should  he  .sur- 
vive."' &c.  On  the  death  of  the  survivor, 
the  estate  was  to  be  held  in  "trust  for  the 
sole  use,  benefit  and  behoof  of  such  of  my 
children  or  grand-children,  as  the  said  Eliza 
Davidson  shall  by  her  last  will  and  testa- 
ment, or  by  any  deed  under  her  hand  and 
seal,  executed  in  the  presence  of  three  or 
more  credible  witnesses,  limit,  direct  and 
appoint,  and  in  default  of  such  direction, 
linutation  and  appointment,  then  in  trust 
for  the  sole  use.  benefit  and  behoof  of  my 
riglit  heir."  It  is  contended,  that  the  testa- 
tor could  not  have  intended  to  create  sepa- 
rate estates  in  all  these  renminders,  and  as 
he  used  precisely  the  same  form  of  lan- 
guage in  reference  to  them,  that  he  did  in 
the  devise  to  Eliza  David.son,  he  could 
not  have  intended  to  create  a  sejiarate  es- 
tate in  her.  The  argument  is  ingeni<ni.s.  but 
its  fallacy  consists  in  assuming,  that  the  tes- 
tator did  not  intend  what  he  has  expressed. 
He  may  have  been  ignorant  that  the  law 
does  not  permit  indefeasible  estates  to  be 
enjoyed  by  persons  who  are  capable  of  act- 
ing .sui  juris.  He  may  have  supposed,  that 
among  his  children  and  grand-children,  or 
amoug  his  heirs  at  law,  there  would  be  fe- 

195 


*480 


4  RICHARDSON'S  EQUITY  REPORTS 


males  and  feme  coverts,  who  would  be  pro- 
tected in  the  enjoyment  of  a  separate  es- 
tate; and  in  reference  to  the  estate  which 
he  gave  to  Gilbert  Davidson,  as  well  as  that 
which  he  gave  to  his  children,  &c.  he  may 
have  intended  to  riiake  it  inalienable,  and 
not  subject  to  debts.  He  may  have  been 
ignorant  of  his  want  of  power  to  stamp 
such  attributes  upon  an  estate.  He  could 
not  have  used  the  word  "sole"  as  the  syno- 
nym of  "several,"  for  two  of  the  contingent 
interests  were  given  to  a  class.  His  meaning 
in  these  subsequent  dispositions  of  the  es- 
tate may  be  ambiguous ;  but  so  appropriate 
is  the  language  of  the  will  to  the  creation  of 
a  separate  estate  in  Mrs.  Davidson,  that  its 
construction  ought  not  to  be  affected,  by  the 
uncertainty  of  his  meaning,  when  he  em- 
ploys the  same  forms  of  expression  in  other 

*481 
and  subsequent  parts  of  his  *will.  He 
seems  to  have  intended  to  sow  separate  es- 
tates broad  cast  through  his  will ;  and  if 
some  of  them  have  fallen  upon  stoney 
ground,  and  have  proved  ineffectual,  and 
his  language  in  relation  to  them  becomes 
ambiguous  or  unmeaning,  it  will  not  pre- 
vent the  separate  estate  in  favor  of  Eliza 
Davidson  from  taking  effect,  where  not  only 
is  the  language  appropriate,  but  the  sex, 
relations  and  circumstances  of  the  devisee 
are  propitious  to  the  creation  and  existence 
of  such  an  estate  The  will  then  created  a 
trust  estate  for  the  sole  use  of  Eliza  David- 
son for  her  life.  &c.,  which  the  statute  of 
uses  did  not  execute. 

The  legal  estate  devised  to  the  trustees 
was  in  fee.  The  use  was  limited  to  Eliza 
Davidson  for  life,  remainder  to  her  hus- 
band, Gilbert  Davidson,  if  he  was  the  sur- 
vivor, for  life,  remainder  to  such  of  the 
children  or  grand-children  of  the  testator  as 
Eliza  Davidson  should  by  will  appoint  and 
in  default  of  such  appointment,  remainder 
to  the  testator's  right  heirs.  If  the  estate 
had  been  given  in  trust,  for  the  sole  use  of 
Eliza  Davidson  for  life,  and  at  her  death  to 
the  use  of,  or  in  trust  for  some  ascertained 
individual,  and  on  an  event  that  was  cer- 
tain, it  would  certainly  be  a  vested  remain- 
der. But  for  the  interposition  of  the  power 
of  appointment,  there  could  have  been  no 
doubt  that  the  remainder  to  the  right  heirs 
of  the  testator  was  vested,  and  not  con- 
tingent. Then,  the  order  of  succession  in  the 
enjoyment  of  the  estate,  prescribed  by  the 
will,  would  have  been  thus:  to  Eliza  David- 
son for  life;  remainder  at  her  death  to  Gil- 
bert Davidson,  if  he  was  then  living;  at  his 
death,  or  at  her  death,  if  she  was  the  surviv- 
or, remainder  to  the  right  heirs  of  the  testa- 
tor. It  may  be  doubtful  whether  this  last  is 
not  a  reversion  instead  of  a  remainder.  If,  by 
the  words  his  "right  heir,"  he  means  statu- 
tory heirs,  (as  I  think  he  does,)  it  would 
be  a  devise  of  this  residuum  of  the  estate 
to  the  same  persons  who  would  be  entitled 

196 


to  it  by  law,  in  case  of  intestacy.  The  rule 
is,  that  if  a  testator  devises  his  lands  to  his 
heirs  at  law,  without  any  restriction  or 
modification  as  to  the  enjoyment  or  posses- 
sion, they  will  take  by  descent  rather  than 
by  the  devise.  But  it  will  be  found  inuua- 
terial  in  the  result  of  this  case,  whether  the 

*482 
limitation   *to  the  right  heirs  of  the  testa- 
tor will  operate  as  a  reversion  or  remainder. 
I  will,  for  the  present,  speak  of  it  as  a  re- 
mainder. 

Considering  it  as  a  remainder,  it  is  valid; 
for  it  was  made  to  depend  upon  an  event 
that  must  happen  within  the  period  pre- 
scribed against  remoteness.  If  the  interpo- 
sition of  the  power  did  not  prevent  its  vest- 
ing, then  it  was  also  a  vested  remainder ; 
for  it  was  upon  an  event  certain,  (the  death 
of  the  survivor  of  Eliza  and  Gilbert  David- 
son,) and  to  persons  in  esse — the  right  heirs 
of  the  testator,  who  existed  at  liis  death  as 
a  class. 

Regarding  the  estate  given  to  the  right 
heirs  as  a  remainder,  I  am  of  the  opinion 
that  it  was  vested  and  not  contingent,  not- 
withstanding the  power  to  Eliza  Davidson 
to  appoint  among  the  testator's  children  or 
grand-children.  Tlie  fee  vested  directly  in 
the  right  heirs,  subject  to  be  divested  by 
the  exercise  of  the  power  of  appointment. 
This  is  an  abstruse  branch  of  the  law  of 
real  estate.  Some  of  the  rules  are  exceed- 
ingly artificial  and  finely  spun,  and  some 
very  subtle  distinctions  have  prevailed  on 
the  subject.  A  question  like  this  must  de- 
pend mainly  upon  the  authorities.  On  a 
reference  to  these,  it  will  be  found  that 
there  is  some  conflict;  or  rather,  that  there 
has  been  a  change  in  the  course  of  the  Eng- 
lish decisions.  According  to  the  second  res- 
olution in  Lovies'  case,  (10  Rep.  78,)  where 
the  donor  by  an  indenture  limited  to  him- 
self an  estate  for  life,  with  the  power  to 
lease,  &c.,  and  to  the  use  of  any  persons  to 
whom  he  should  devise  any  of  the  estate, 
with  a  remaijider  over  in  tail,  &c.,  this,  and 
all  the  subsequent  remainders  were  held  to 
be  contingent  and  not  to  be  executed  till  the 
death  of  the  donor. 

In  Walpole  v.  Lord  Conway,  cited  in  the 
argument  of  Doe  v.  Martin,  (4  Term.  Rep. 
57,)  from  Barnardiston's  Rep.  in  Ch.  153, 
(and  commented  on  by  the  Chief  Justice,) 
money  was  directed  to  be  laid  out  in  lands, 
to  be  settled  to  the  use  of  Lord  Conway  for 
life,  remainder  to  his  intended  wife  for  life, 
remainder  in  trust  for  such  child  or  chil- 
dren, and  for  such  estates  absolutely  or  con- 
ditionally, and  in  such  proportions  as  Francis 
Lord  Conway  should  appoint,  and  in  default 
of  such  appointment,  to  the  use  of  all  and 

*483 
♦every    the    daughters,    younger    sons,    and 
the   heirs   of   the   bodies,    &c.      One   of   the 
questions   which   arose  was   whether   a   son 
of  one  of  the  daughters,  who  was  dead,  was 


WILLIMAN  V.  HOLMES 


»485 


entitled  to  his  mother';?  share.  And  that  | 
dei>ended  on  the  question  whether  the  re- 
mainders to  the  dauKliters  were  coiitin{,'ent, 
or  vested  and  liable  t<>  lie  divested  Ity  the 
appointment.  Lord  Hardwieke  held  the  re- 
mainders to  be  eontinKent.  He  said  that 
"Lord  Conway  had  a  power  durinj;  all  his 
life  time  to  limit  the  estate  anions  his 
daughters  and  younger  sons  in  sueh  manner 
as  lie  thought  proper,  and  therefore  during 
all  that  time  the  remainder  over  to  those 
children,  in  default  of  such  ai»pointment. 
must  have  heen  contingent." 

But  in  Cunningham  v.  Moody,  1  Ves.  Sen. 
174,  Lord  Hardwieke  held  a  dittVrent  opin- 
ion. The  analogy  of  that  case  to  the  one  I 
am  now  considering,  is  very  strong.  There 
money  having  been  agreed,  on  a  marriage 
contract,  to  he  laid  out  in  the  purchase  of 
lands  to  the  use  of  the  husband  and  wife  for 
life,  remainder  to  the  children  in  such  pro- 
l)ortions  as  the  parents  .should  appoint,  and 
111  default  of  such  appointment,  to  all  the 
children  e(iually.  as  tenants  in  common  and 
not  as  joint  tenants ;  the  Lord  Chancellor 
decided  that  the  remainders  were  vested. 
After  saying  that  the  fee  was  not  in  abey- 
ance, he  observed:  "Nor  does  the  power  of 
appointment  make  any  alteration  therein; 
for  tne  only  effect  thereof  is  that  the  fee 
which  was  vested,  was  thereby  suliject  to  be 
divested  if  the  whole  were  appointed."  Tliis 
case  was  adjudged  by  I>ord  Hardwieke  upon 
great  consideration.  And  Lord  Kenyon  ol> 
served  in  I)t)e  v.  Martin,  that  the  oi)inion  of 
his  Lordship  "was  iieculiarly  deserving  of  at- 
tention, because  wlien  the  latter  case  was 
discussed,  the  former  one  of  Walpole  v.  Con- 
way, where  he  had  intimated  a  different  opin- 
ion, was  strongly  pressed  upon  him;  because, 
too,  he  decided  the  last  case  at  a  time  when 
he  had  the  assistance  of  some  of  the  most 
eminent  lawyers  who  ever  attended  the  bar 
of  that  Court." 

Doe  v.  Martin,  4  T.  R.  38.  also  furnishes  a 
striking  parallel.  There,  on  a  marriage  set- 
tlement, lands  were  conveyed  in  trust  to  the 
use  of  the  wife  for  life,  remainder  to  tlie  use 

*484 
of  the  husband  *for  life,  remainder  to  the 
use  of  all  and  every  the  children  of  the  mar- 
riage, or  such  of  them,  and  for  such  estates, 
as  the  husband  and  wife  should  appoint,  and 
for  the  want  of  such  appointment,  to  the  use 
of  all  and  every  the  child  or  children  equal- 
ly, if  more  than  one,  as  tenants  in  common, 
and  if  only  one,  then  to  such  only  child,  his 
or  her  heirs  and  assigns  forever;  remainder 
over.  The  deed  of  marriage  settlement  also 
contained  a  i)Ower  authorizing  the  settlors 
to  revoke  the  uses,  and  to  .>^ell  and  convey  the 
lands.  &c.  The  Chief  Justice,  after  an  elal)o- 
rate  argument,  in  which  the  whole  of  the 
previous  decisions,  passed  under  review,  fol- 
lowing the  decision  in  Cunningham  v.  Mo(Mly. 
held,  that  the  remainders  to  the  children 
were  vested  remainders  in  each  child  when 


he  or  she  was  born,  subject,  however,  to  be 
divested  by  the  parents  exercising  the  power 
of  appointment.  Maundrell  v.  Maundrell,  7 
Ves.  'tVu:  Smith  v.  Lord  Camelford.  "J  Ves. 
jun.  (j!»S;  I'Varne  Con.  Keni.  '_'•_*»'..  '2:v.\:  Sug. 
I'ow.  ch.  2.  4;  Lord  liaymond.  -  vol.  1150; 
Madoc  v.  Jackson.  1'  Hro.  C.  C.  5KS ;  10  Ves. 
jun.  LMJo.  The  coniluslon  at  which  I  arrive 
is,  that  if  the  right  heirs  of  the  te.stator 
were  entitled  to  take  as  remaindermen,  and 
not  t)y  reversion,  the  remainder  was  vested, 
subject  to  have  been  divested  Ijy  the  appoint- 
ment; which,  however,  as  to  the  proi)erty  in 
question  was  not  executed. 

The  next  question  which  I  will  consider,  is 
whether  the  statute  of  uses  has  executed  the 
uses  as  to  the  estate,  which  the  right  heirs 
of  the  testator  took  in  the  property  under 
the  provisions  of  the  will.  My  conclusion 
upon  the  question  last  considered  was  but 
a  step  to  my  conclusion  upon  this.  I  have 
held,  that  if  they  were  entitled  as  remainder- 
men, the  remainder  was  vested:  And  my 
opinion  further  is.  that  whether  they  take  by 
way  of  vested  remainder,  or  reversion,  the 
statute  executes  the  uses  as  to  them,  leaving 
in  the  trustees  a  le-ral  estate  only  for  the 
life  of  Eliza  Davidson.  According  to  this 
view,  on  the  death  of  the  testator,  the  trus- 
tees became  seized  permanently  of  the  legal 
e."<tate  for  the  life  oi  Mrs.  Davidson,  in  trust 
for  her  sole  use.  The  statute  forthwith  ex- 
ecuted the  use  as  to  the   reniaiiuler-men  or 

*485 
rever*sioners.  (as  the  case  may  l)e,)  who  at 
once  became  invested  with  the  legal  estate 
in  fee,  by  way  of  vested  remainder,  to  take 
effect  in  possession  on  the  death  of  Mrs. 
Davidson. 

The  ."Statute  of  uses  by  its  express  terms 
embraces  estates  in  remainder  and  reversion. 
It  declares  "that  in  every  such  case,  all  and 
every  such  person  or  per.sons,  iScc.  that  have 
or  shall  have  any  such  u  e,  contidence  or  trust 
in  fee  simple,  fee  tail,  for  term  of  life,  or 
for  years,  or  otherwise,  or  any  use.  conti- 
dence or  trust  in  remainder  or  reverter,  shall 
from  thenceforth  stand  and  be  si-ized.  deem- 
ed and  ailjudged  in  lawful  .^Jeisin  estate  and 
possession  of.  and  in  the  same  houses,  castles, 
manor  lands.  &c.,  remainders,  reversions," 
&c..  as  the  grantees  to  uses. 

"There  are  three  circumstances  necessary 
to  the  execution  of  a  use  by  this  statute: 
1st.  A  person  seized  to  the  use  of  some  other 
person;  I'd.  A  cestui  que  use,  in  esse;  and 
'Ail.  A  use  in  esse  in  possession,  remainder  or 
reversion."'  1  Crui.<:e  Dig.  412,  1  Hep.  12(3. 
When  the  use  is  transformed  from  an  eq- 
uitable to  a  legal  estate,  the  same  (|ualities, 
conditions  and  limitations,  which  were  apidi- 
calde  to  it  as  a  use.  follow  it  in  its  new  con- 
dition as  a  legal  estate.  So  that  the  execu- 
tion of  the  uses  in  this  case,  in  the  right  heirs 
of  the  testator,  could  not  defeat  the  exe<utiou 
of  the  power  of  :ii»]iointnient.  if  Mrs.  David- 
son had  thought  proper  to  exercise  it. 

197 


M85 


4  RICHARDSON'S  EQUIXY  REPORTS 


1  have  already  shown  that  the  legal  estate 
remained  in  the  trustees  for  the  life  of  Mrs. 
Davidson,  because  it  was  necessary  (to  pre- 
serve her  separate  estate)  that  they  should 
be  seized  of  the  legal  estate  for  her  life.  The 
statute  will  not  permit  the  ti'ustees  to  take 
a  larger  legal  estate  than  is  necessary  to  the 
performance  of  the  executory  trusts  imposed 
upon  them  by  the  will.  If  a  larger  estate 
than  is  necessary  for  this  purpose  is  given 
to  them,  it  will  be  cut  down  by  the  statute, 
and  shaped  to  meet  the  exigencies  of  the  case. 
In  Doe  V.  Simpson,  5  East,  171,  Lord  Ellen- 
borough  said  "that  where  the  purposes  of  a 
trust  can  be  answered  by  a  less  estate  than 
a  fee  simple,  a  greater  interest  than  is  sutti- 
cieut  to  answer  such  purpose  shall  not  pass 

*486 
to  them ;  but  that  *the  uses  in  remainder, 
limited  on  such  lesser  estate  so  given  to 
them,  shall  be  executed  by  the  statute."  In 
Curtis  V.  I'rice,  12  Ves.  89,  an  estate  in  fee 
to  the  trustees  was  cut  down  to  an  estate 
per  autre  vie,  on  the  ground  that  an  estate 
of  that  duration  was  sutticient  for  the  pur- 
poses to  be  answered.  Shapland  v.  Smith,  1 
Bro.  C.  C.  75;  Uoodtitle  v.  Whitby,  1  Burr. 
229;  Edwards  v.  Symonds,  6  Taun.  213;  Doe 
v.  Hicks,  7  T.  R.  433;  Nash  v.  Coates,  3 
Barn.  &  Adolph.  8.39. 

So  where  an  estate  in  fee  is  not  given  to 
the  trustees,  and  such  an  estate  is  necessary 
to  the  execution  of  the  trusts,  their  ehitate 
will  be  enlarged  by  implication  to  the  extent 
necessary.  In  short,  it  is  an  established  rule 
that  trustees  shall  hold  legal  estates  com- 
mensurate only  with  the  necessities  of  the 
trusts.  If  the  estate  given  to  them  is  defi- 
cient, it  will  be  enlarged  by  implication.  If 
in  excess,  it  will  be  cut  down  by  the  opera- 
tion of  the  statute  of  uses,  and  such  excess 
will  pass  to  those  in  remainder. 

On  looking  into  the  will  of  this  testator. 
I  can  discover  no  duties  that  were  to  be  per- 
formed by  the  trustees,  rendering  it  neces- 
sary for  the  legal  estate  to  remain  in  them,  be- 
yond that  of  preserving  the  separate  estate  of 
Mrs.  Davidson.  It  was  certainly  not  necessary 
as  to  the  remainder  to  Gilbert  Davidson,  nor 
as  to  the  remainder  or  reversion  to  the  right 
heirs  of  the  testator.  These  were  trusts  that 
were  executed  by  the  statute,  leaving,  as  I 
have  before  said,  a  legal  estate  in  the  trustees 
only  for  the  life  of  Mrs.  Davidson. 

Such  being  the  state  of  the  title,  and  Eliza 
Davidson,  the  wife  of  Gilbert  Davidson,  be- 
ing entitled  to  an  equitable  and  separate  es- 
tate in  this  property  for  life,  and  her  trustees 
being  rseized  of  a  legal  estate  commensurate 
with  her  equitable  interest,  in  conjunction 
with  her  husband,  who  was  one  of  the  trus- 
tees, on  the  21st  day  of  November,  1817,  filed 
her  bill  in  this  Court  against  Mary  Peters 
and  Margaret  Bethune,  the  other  trustees. 
The  bill  described  the  estate,  recited  the 
devises  of  the  will  and  the  limitations,  charg- 
ed that  the  estate  in  its  then  existing  form 

198 


was  unproductive,  prayed  a  sale  of  a  portion 

*487 
of  the  estate,  and  a  change  *of  investment, 
and  alleged  that  such  sale  and  change  of  in- 
vestment would  be  conducive  to  the  interests 
of  tho.se  entitled  in  remainder,  as  well  as  of 
the  life  tenant. 

On  the  same  day,  Mary  Peters  and  Mar- 
garet Bethune  filed  their  joint  answer,  in 
which  Gilbert  Davidson,  although  a  com- 
plainant, joined,  and  afiixed  his  signature 
thereto.  They  admit  the  title  as  stated  in 
the  bill,  and  the  unproductiveness  of  the 
property.  They  also  state  their  belief,  that 
if  it  was  sold  and  the  proceeds  invested  in 
other  property,  it  would  be  advantageous  to 
the  complainant,  and  not  injurious  to  those 
interested  in  the  estate  of  Ch.  Williman. 
And  they  gave  their  assent  to  the  sale.  The 
case  was  referred  to  the  commissioner,  (Th. 
Hunt,)  who,  on  the  22d  November,  1817,  filed 
his  report,  reconnuending  the  sale  prayed  for 
in  the  bill,  and  stating  it  as  his  opinion  that 
the  sale  would  be  for  the  benefit  of  the  com- 
plainants, and  of  those  interested  in  the  re- 
version, or  remainder  of  the  estate  of  Ch. 
Williman.  On  the  same  day  there  was  a  de- 
cretal order  confirming  the  report,  and  di- 
recting a  sale  by  the  commissioner  on  such 
terms,  and  at  such  time  or  times,  at  public 
or  private  sale,  as  he,  by  and  with  the  ad- 
vice and  consent  of  the  trustees  of  the  com- 
plainant, may  think  most  proper  and  advan- 
tageous to  the  trust  estate.  In  pursuance  of 
this  order  the  property  was  sold,  and  con- 
veyed by  the  commissioner,  and  this  property 
so  sold  and  conveyed,  is  the  subject  of  con- 
troversy in  this  suit.  The  title  of  all  the  de- 
fendants has  been  thence  derived.  On  the 
17tli  November,  1820,  the  commissioner  made 
a  report  of  sales,  which  was  on  the  same 
day  confirmed.  And  again  on  the  19th  Feb- 
ruary, 1821,  he  made  a  report  of  sales,  which 
was  also  confirmed.  The  lust  report  was  a 
repetition  in  part  of  the  first. 

The  defendants  also  inti'oduced  in  evidence 
another  bill  in  equity,  and  the  proceedings 
under  it ;  in  which  Eliza  Davidson  was  the 
complainant.  In  her  first  bill,  she  had  stat- 
ed that  her  trustees  had  purchased  for  her 
from  Henry  Middleton  and  Henry  Middleton 
Rutledge,  a  tract  of  land  called  Jenny's  plan- 
tation, for  the  sum  of  $8,000,  and  that  they 

*488 
had  given  their  own  bond  *for  the  purchase 
money,  and  a  mortgage  of  the  premises.  One 
of  the  objects  of  the  bill  was  to  obtain  the 
funds  to  pay  for  the  Jenny  plantation,  and  to 
confirm  the  purchase  thereof  for  the  trust 
estate,  and  to  invest  the  surplus  in  more 
productive  property.  The  bill  so  prayed,  and 
the  order  of  the  Court  was  in  conformity 
with  the  prayer  of  the  bill.  The  debt  con- 
tracted for  Jenny's  plantation  was  soon  aft- 
erwards paid,  it  is  presumed,  with  tlie  trust 
funds.  Jenny's  liantation  thus  became  sub- 
stituted propert:>    of  the  trust  estate. 


Wir.LTMAX  V.  HOLMES 


♦490 


Oil  the  ITtli  Novenibor,  1S2:5.  Eli/.u  David- 
sdii  fili'd  lier  liill  for  the  sale  of  the  Jenny 
plantation,  and  (jtlier  portions  of  the  trust 
estate,  not  enil»ra<ed  in  tlie  former  order  of 
.sale,  on  the  aile;,'ed  j;roiind  that  the  property 
was  unproductive.  And  she  prayed  that  the 
l»roceeds  of  the  sale  lui^^ht  he  invested  in 
public  or  private  .securities,  yielding  a  cer- 
tain income,  and  subject  to  the  trusts  of  the 
will.  Her  husband,  (Jilbert  l»avid.son,  was 
then  dead.  She  made  the  two  surviving 
trustees,  Mary  Peters  and  .Mariraret  liethune, 
defendants,  and  also  .Maria  J.  Williman  and 
Harriet  K.  Williman.  dauj,'hters  of  the  com- 
plainant, Cli.  Williman,  and  Klizabetli  D. 
J'.etlume.  dau;:hter  of  the  trustee.  Marj,'aret 
r.ethune.  These  last  named  defendants  were 
infants,  and  the  jji'juul-tlau.iihters  of  the  tes- 
tator. They  belonj^ed  to  that  class  of  per- 
sons, in  whose  behalf  the  power  of  appoint- 
ment miglit  be  exercised,  and  this  was  the 
only  interest  they  had  in  the  estate.  Harriet 
K.  Williman  is  the  same  person  with  the 
complainant,  Harriet  Ashby.  On  the  ISth 
Xovember,  isi';',.  by  an  order  of  the  Court, 
Ch.  Williman  was  ai)poiiite(l  the  iiuardian 
ad  litem  of  Maria  J.  and  Harriet  K.  Willi- 
man. and  Marijaret  Bethune  was  appointed 
the  guardian  ad  litem  of  l':iizai)eth  1  >.  IJeth- 
une. 

On  the  lOth  November,  1823,  the  trustees 
answered,  admitting  the  facts  stated  in  the 
bill,  and  assenting  to  the  prayer  thereof. 
And  the  infants,  by  their  guardians  ad  litem, 
answered,  admitting  their  belief  of  the  facts, 
and  submitting  their  rights  to  the  protection 
of  the  Court.  The  answers  of  the  infants 
were  Informal,  to  the  extent  of  wanting  the 

*489 
signature  of  the  guardians.  There  *was  a 
reference  to  the  commissioner,  and  a  report 
by  him.  recommending  a  sale,  followed  by  a 
decree  of  the  Court,  contirming  the  repi>rt, 
and  ordering  a  sale  of  the  property.  By  the 
terms  of  the  decree,  the  proceeds  were  to  be 
paid  to  Mrs.  Davidson  and  the  two  trustees, 
to  be  by  them  invested  in  well  secured  and 
productive  private  or  public  securities,  sub- 
.iect  to  the  uses  and  trusts  of  the  will.  By 
virtue  of  this  decree,  the  property  was  sold. 
But  the  title  of  none  of  the  property  sold 
under  these  last  proceedings  is  brought  in 
(|uestion  in  the  case  now  before  me.  The 
last  bill  contained  a  recital  of  the  proceed- 
ings under  the  first,  and  the  (udy  object 
which  the  def(>ndants  had  in  view,  in  the 
introduction  of  this  evidence,  was  to  bring 
home  to  the  complainant  a  knowledge  of  the 
former  ])roceedings,  and  of  the  sale:  and  to 
deduce  therefrom,  and  from  his  acquiescence, 
an  implied  sanction  and  coufirmation  of  the 
same. 

Kliza  Davidson,  in  tlic  form  jircscribed  by 
the  will,  executed  her  puwi-r  of  aiipointment 
in  regard  to  various  jmrtions  of  the  estate. 
The  power  was  properly  executed,  and  in  be- 
half of  persons  falling  within  the  class,   to 


which  its  exercise  was  restricted.  She  thus 
gave  the  Meeting  street  lots  and  the  South 
Bay  wharf  to  Mrs.  Ashby.  and  the  (Jrove 
plantation  to  .Mrs.  CJracie.  Under  the  power 
given  to  her  in  the  codicil,  she  sold  and  con- 
ve.ved  one-half  of  Willinuurs  islands  to  Na- 
thainel  Ileyward.  The  title  to  this  portion 
of  th«>  estate  is  not  involved  in  the  issues  of 
this  bill.  The  lands  attached  to  South  Bay 
wharf  sold  to  I.  K.  Holmes  and  Wm.  Drayton, 
the  lands  at  the  head  of  Tradd  street  sold  to 
W.  A.  Hiilmes,  the  plantations  called  Boston 
Bottom  and  Walnut  Hills  sold  to  Wm.  Mason 
Smith,  are  claimed  from  the  parties  defend- 
ant, in  possession  respectively  of  said  real 
estate. 

The  testator  left  tive  children,  who  were 
his  heirs  at  law  at  his  death.  nain«'ly:  Eliza 
Davidsctn,  the  devisee  for  life  of  this  prop- 
erty. Mary  I'eters  and  Margaret  Bethune. 
the  trustt'es.  Harriet  D.  Jough.  who  survived 
her  husband  and  left  an  oidy  .son  and  heir, 
Wm.  F.  D.  .lough,  who  is  made  a  ilefendant. 
and    Ch.    Williman.    the    complainant.      The 

*490 
latter  has  conveyed  all  his  right  and  *title 
to  a  i)ortion  of  the  itroperty  in  tlispute  to 
the  late  James  Ashby.  whose  widow  and  ad- 
ministratrix. Harriet  Ashby.  and  his  children. 
an>  joined  as  c(nnplainaiits  in  the  bill.  The 
comitlainants  claim,  that  by  the  terms  of  the 
will,  they  are  entitled  to  the  whole  of  the 
property,  the  same  being  linuted  in  default 
of  the  execution  of  the  power  "to  the  right 
heir"  of  the  testator,  and  failing  in  that 
claim,  they  pray  a  partition,  and  to  be  put 
in  pi>ssession  of  one-tifth  part  of  the  estate, 
as  representing  one  of  the  tive  heirs  of  the 
testator. 

I  have  thus  grouped  together  in  a  sum- 
mary, and  I  trust  sulliciently  perspicuous 
manner,  the  material  facts  bearing  upon  the 
(luestion.  whether  the  complainants'  rights 
have  been  affected  by  tlie  sale  made  under 
the  decree  of  the  Court,  in  the  prf)ceedings 
which  I  have  described.  The  objection  to 
the  validity  of  the  sale  is  easily  stated;  it  is. 
that  the  complainant.  Williman,  and  those 
claiming  under  him,  are  not  bound  by  the 
decree,  because  he  was  not  a  [tarty  to  the 
suit. 

My  judgment  upon  this  (lui-stion  follows 
inductively  from  my  decision  upon  the  (jues- 
tions  previously  discussed.  Had  I  considered 
that  the  trustee*;  were  seized  of  the  legal  es- 
tate in  fee— that  the  statute  had  not  execut- 
t'd  the  uses  as  to  the  remainder-men.  and  cut 
down  the  legal  estate  given  by  the  will  to 
the  trustees  to  a  mere  estate  for  the  life  of 
Eliza  Davidson,  the  decree  would  have  been 
for  the  defendants.  In  that  ca.se  I  should 
have  considered  the  sale  valid,  and  to  have 
carried  the  fee  to  tlie  iturchasers.  But  as 
it  is.  I  think  the  sale  was  only  operative  to 
the  extent  of  conveying  the  life  estate  of 
Mrs.  Davidson.  If  the  trustees  had  been 
seized  of  the  legal  estate  in  fee,  and  merely 

i9y 


*4flO 


4  RICHARDSON'S  EQUITY  REPORTS 


on  their  own  motion  had  sold  and  conveyed 
the  same,  the  purchaser  would  have  taken 
the  fee.  If  the  purchaser  had  bought  with- 
out notice  of  the  equity,  he  would  have  taken 
the  estate  discharged  of  the  trust.  If  with 
notice,  a  trust  would  be  implied  against  him 
in  favor  of  the  cestui  que  trusts.  If  the  trus- 
tees had  been  seized  of  the  legal  estate  in 
fee,  then  the  fee  would  have  been  in  parties 
before  the  Court,  and  the  decree  of  the  Court 

*491 
could  have  *operated  upon  that  estate.  For 
certainly  the  decree  could  affect  and  divest 
all  the  right  and  interest  of  the  parties  to 
the  suit.  When,  in  the  case  supposed,  the 
Court  orders  the  fee  to  be  sold  and  conveyed 
by  the  commissioner,  his  deed  carries  that 
estate,  and  all  the  interests  of  the  parties  to 
the  suit,  precisely  as  if  they  had  themselves 
executed  the  conveyance.  The  purchasers 
would  take  the  legal  estate  in  fee.  discharged 
from  the  trusts  or  not,  according  to  the 
equities.  And  I  think  the  equities  of  the 
purchaser,  in  the  case  supposed,  would  be 
equal  to  those  of  the  cestui  que  trusts,  and 
that  his  legal  title  should  prevail. 

The  jurisdiction  of  this  Court  over  trusts 
is  peculiar  and  unlic;ited.  And  when  one 
creates  a  trust  estate  l)y  deed  or  by  will,  it 
is  equivalent  to  conmiitting  the  estate  to  the 
charge,  and  placing  it  under  the  administra- 
tion of  the  Court  of  Equity.  Such  is  the  legal 
ettect.  The  power  of  the  Court  to  sell  trust 
estates  is  not  doul)ted.  And  when  such  an 
estate  is  sold  under  its  decree,  the  Court  is 
one  of  the  contracting  parties;  is  in  fact  the 
vendor.  It  assures  the  purchaser  of  its  pow- 
er to  sell,  and  to  make  good  titles.  The  pur- 
chaser thus  becomes  the  owner  of  the  fee, 
bona  fide,  and  for  valuable  consideration. 
His  equity  is  high.  AVould  it  not  be  hard  to 
affect  him  with  notice  of  equities,  and  to 
charge  him  with  trusts  which  the  Court  it- 
self nas  overlooked  or  disregax'ded? 

When  the  Court  assumes  the  administra- 
tion and  orders  a  sale,  it  is  its  duty  to  pro- 
tect the  rights  and  interests  of  all  parties  re- 
lated to  the  estate.  If  the  Court  omits  to 
make  the  proper  administrative  orders,  or  the 
persons  to  whom  the  Court  commits  the 
management  or  possession  of  the  funds, 
should  prove  vinfaithful,  and  the  fund  be  lost 
or  wasted,  ought  that  to  affect  the  title  of  the 
purchaser?  I  think  not.  When  he  pays  his 
money  into  Court,  or  into  the  hands  of  its 
confidential  agents,  that  should  discharge 
him.  If  the  Court  is  the  vendor,  he  is  not 
bound  to  look  to  the  application  of  the  pur- 
chase money.  An  attempt  to  do  so,  might  be 
regarded  as  an  impertinence. 

I  will  not  pursue  the  discussion  on  this 
point  farther,  for  as  to  the  case  before  me 
such  discussion  is  abstract  and  speculative. 

*492 
*There  was  no  trust  beyond  the  life  estate  of 
Eliza  Davidson.    And  the  decree  of  the  Court 
ou   account    of   its   jurisdiction   over   trusts, 

200 


could  not  oi)erate  on  the  title  of  the  com- 
plainant, which  was  a  vested  legal  title  ia 
remainder  or  reversion.  There  was  no  i)arty 
before  the  Court  representing  either  the 
legal,  or  the  eipiitable  estate,  beyond  the  life 
estates  of  Gilbert  and  Eliza  Davidson.  The 
ease  of  VauEew  v.  Parr,  2  Rich.  E(i.  :521,  was 
not  a  case  of  trust  estate.  And  there,  several 
members  of  the  Court  of  Errors,  .expressed 
the  opinion  that  the  sale  was  valid,  though 
the  tenants  for  life  alone  were  parties  to  the 
suit.  In  that  case,  I  incline  to  think  I 
should  have  been  of  the  same  opinion.  That 
case,  however,  differs  from  this  in  several 
important  particulars.  It  was  a  case  of  par- 
tition, and  the  right  of  ordering  a  sale  for 
this  purpose,  when  necessary,  or  deemed  nec- 
essary by  the  Court,  is  an  incident  to  tlie 
jurisdiction  in  partition.  This  power  is  es- 
.scMitial  to  the  full  and  ju'rfect  exercise  of 
this  branch  of  eipiity  jurisdiction.  In  this 
respect  the  practice  of  our  Court  is  different 
from   that  of  the   I':iiglisli   Chancery. 

Another  essentially  different  feature  in 
VanLew  v.  Parr,  is.  that  there  the  remain- 
ders were  contingent  and  not  vested  inter- 
ests, and  the  remainder-men  not  in  esse.  But 
in  the  case  before  me,  the  interest  of  those 
who  were  to  take  at  the  termination  of  the 
life  estate  was  vested;  and  the  parties  not 
only  in  esse,  but  living  witiiin  the  jurisiliction 
of  the  Court.  In  Eni'land,  the  rule  is.  that 
the  decree  will  be  binding,  if  the  person  en- 
titled to  the  first  e.'^tate  of  inheritance  is  a 
])ariy.  And  where  the  party  who  would  be 
entitled  to  the  first  estate  of  inheritance  is 
not  in  esse,  it  has  been  observed,  that  a  de- 
cree in  a  suit  where  the  tenant  for  life  is  a 
party,  will  be  binding  upon  those  who  are  to 
succeed  him  representatively.  (Lloyd  v. 
Johnes,  9  Ves.  66;  Pelham  v.  Gregory.  1 
Eden,  520;  Gittard  v.  Ilort,  1  Sch.  &  Lef.  400; 
Reynoldson  v.  I'erkins.  Anib.  564.)  The  doc- 
trine thus  laid  down  is  not  sufficiently  broad 
to  embrace  the  case  I  am  consi<lering. 

In  Giftard  v,  Hort.  1  Sch.  &  Lef.  400,  Lord 
*493 
Redesdale,  *speaking  of  the  rule  above  com- 
mented on,  observes,  that  "contingent  limita- 
tions and  executory  devises  to  persons  ni»t  in 
being,  may,  in  like  manner,  be  bound  by  a  de- 
cree against  a  person  claiming  a  vested  es- 
tate of  inheritance;  but  a  person  in  iieing, 
claiming  under  a  limitation  by  way  of  ex- 
ecutory devise  not  subject  to  any  preceding 
estate  of  inheritance,  by  which  it  may  be  de- 
feated, must  be  made  a  party  to  a  bill  af- 
fecting his  rights."  This  doctrine  of  Lord 
Kedesdale  very  fully  and  clearly  expresses 
what  I  conceive  to  be  the  rule.  The  prin- 
ciple of  representation  to  be  deduced  from 
the  authorities,  may  be  summed  up  in  the  fol- 
lowing legal  proposition;  that  where  the  per- 
son entitled  to  the  first  estate  of  inheritance 
is  a  party  before  the  Court,  he  is  to  be  re- 
garded as  the  representative  of  all  those 
contingent    interests    which    are    dependent 


WILI.TMAN  V.  HOLMES 


*495 


upon,  and  are  to  succeed  his  estate ;  and, 
consequently,  a  decree  against  such  a  party 
will  affect  and  bind  those  who  are  to  suc- 
ceed him.  And,  perhaps,  the  principle  may 
be  extended  so  far  as  to  embrace  the  case, 
where  there  is  an  estate  for  life,  with  a  con- 
tingent remainder  or  executory  devise  to  per- 
sons not  in  esse  without  any  vested  estate 
of  inheritance  interposed ;  as  in  VanF.ew  v. 
Parr.  But  where  there  is  an  estate,  to  one 
for  life,  with  a  vested  remainder  to  persons 
living,  and  within  the  jurisdiction  of  the 
Court,  I  am  aware  of  no  decision  or  author- 
ity, which  countenances  the  doctrine  that  a 
decree  against  the  tenant  for  life  will  affect 
or  defeat  the  rights  of  the  remainder-men, 
they  not  being  parties  to  the  suit. 

The  Court  should,  and  does  go  a  great 
length,  in  sustaining  a  title  made  under  its 
own  decree.  Mere  irregularities  or  informali- 
ties are  in  general  not  sufficient  to  invalidate 
it.  Lloyd  V.  Johnes,  9  Ves.  37 ;  Bennett  v. 
Hamil,  2  Sch.  &  Lef.  575.  But  the  decree  of 
the  Court  can  only  operate  upon  the  title  of 
the  xi'irties  directly  or  representatively  before 
It.  The  principle  of  representation  is  admit- 
ted in  certain  cases,  for  the  sake  of  con- 
venience, and  on  grounds  of  necessity.  But 
beyond  the  limits  established  by  the  cases 
for  its  application,  it  is  not  to  be  admitted. 
The  language  of  Lord  Hedesdale,  in  the  case 

*494 
hist  cited,  *Bennett  v.  Ilamil.  is  worthy  of 
attention.  He  says,  after  admitting  that 
there  was  irregularity  in  the  proceedings,  er- 
ror in  the  decree,  and  probably  fraud  be- 
tween the  parties  to  the  suit,  "but  as  to 
Hart's  representatives  and  Hamil.  the  ques- 
tion is  whether  they  are  i)ersons  who  can  be 
affected,  supposing  the  circumstances  to  be 
clearly  true  as  stated ;  namely,  that  there 
was  error  in  the  judgment  of  the  Court  in 
not  giving  day  to  show  cause;  and  error 
also  in  directing  a  sale  under  the  circum- 
hitances.  Now  on  that  subject  I  must  confess, 
after  considering  this  a  good  deal,  I  think  it 
would  be  too  much  to  say,  that  a  purchaser 
under  a  decree  of  this  description,  can  be 
bound  to  look  into  all  the  circumstances.  If 
he  is,  he  must  go  through  all  the  proceedings 
from  the  beginning  to  the  end.  and  have  the 
opinion  of  the  Court,  that  the  decree  is  right 
in  all  its  parts,  and  that  it  would  be  impossi- 
ble to  alter  it  in  any  respect.  The  cases  war- 
rant no  such  opinion.  On  the  contrary,  so 
far  as  I  can  tind,  the  general  impression  they 
give  is,  that  the  purchaser  has  a  right  to 
jiresume  that  the  Court  has  taken  the  neces- 
sary steps  to  investigate  the  rights  of  the 
parties;  and  that  it  has  in  the  investigation 
properly  decreed  a  sale;  then  lie  is  to  see. 
that  this  is  a  decree  binding  the  parties 
claiming  the  estate,  that  is,  to  .see.  that  all 
proper  parties  to  be  bound,  are  before  the 
Court:  And  he  has  further  to  see  that  in 
taking  the  conveyance  he  takes  a  title  that 
cannot   be   impeached   aliunde.     He  lias   no 


right  to  call  upon  the  Court  to  protect  him 
from  a  title  not  in  issue  in  the  cause,  and 
in  no  way  affected  by  the  decree. 

The  decree  must  be  for  the  complainants; 
but  not  to  the  extent  of  the  claim  set  up  in 
their  bill.  The  ulterior  limitation  of  the  will 
is  to  the  testator's  "right  heir  at  law."  In 
the  designation  of  the  person  or  the  class  of 
persons  to  take,  the  singular  number  is  em- 
ployed. The  complainant.  Ch.  Williman,  is 
the  only  son  of  the  testator,  and  he  claims 
alone  to  answer  the  description,  and  to  rep- 
resent the  character  of  the  right  heir  of  his 
father,  according  to  the  English  Common 
Law  cannon  of  descent.     In  a  country  where 

*495 
the  rights  of  primogeniture  have  been  *abol- 
ished,  and  the  male  and  female  line  placed 
upon  the  most  perfect  equality  in  the  distri- 
bution of  intestates'  estates,  I  am  at  a  loss 
to  perceive  one  specious  reason,  why  under 
the  expression,  the  testator's  "right  heir  at 
law,"  the  son  can  be  considered  as  the  per- 
son intended,  rather  than  the  daughters, 
even  though  he  is  the  oldest  child.  Are  they 
not  all  equally  his  heirs  at  law'.'  Do  they 
not  equally  answer  the  description".'  The 
language  of  the  will  must  be  construed  with 
reference  to  the  law  of  descents  in  South 
Carolina.  My  opinion,  is  that  the  word 
"heir"  in  this  connection  is  nomen  coHecti- 
vum,  and  embraces  the  whole  of  the  testa- 
tor's statutory  heirs.  He  left  five  children  ; 
the  Christopher  Williman  and  the  Ashbys, 
who  claim  under  him,  are  entitled  to  one- 
fifth.  The  heir  of  Harriet  D.  .Tough,  who  is 
a  defendant,  is  also  entitled  to  one-fifth.  The 
other  three  heirs,  all  of  whom  were  parties 
to  the  suit  under  which  tlie  property  was 
sold,  are,  in  my  opinion,  esto[»ped.  But  as 
they  are  not  parties  in  this  case,  it  would  be 
supererogation  to  conclude  any  thing  in  re- 
gard to  their  rights. 

There  is  another  question  which  I  must 
now  decide.  The  lands  at  the  head  of  Tradd 
street,  purchased  by  W.  A.  Holmes,  were 
marsh.  A  portion  of  this  tract,  still  retained 
by  the  Holmes'  family,  has  been  at  great 
expense  lilli^d  up,  converted  into  building 
lots,  and  thus  greatly  enhanced  in  value. 
It  was  all  originally  of  the  same  value.  The 
defendtiuts  are  bona  fide  purchasers  for  a 
valuable  consideration.  They  had  good  rea- 
sons for  believing  their  title  to  be  valid.  Un- 
der these  circumstances,  they  have  an  equity, 
to  retain  the  value  and  benefit  of  their  im- 
provements. It  has  been  satisfactorily  shown 
to  me,  that  in  the  partition  of  the  marsh 
land  in  the  possession  of  the  Holmes'  family, 
one-fiftii  thereof  can  l>e  set  off  to  the  com- 
plainants, and  one-fifth  to  the  defendant,  D. 
.Tough,  without  encroaching  upon  the  parts 
that  are  improved.  And  it  is  ordered  that 
the  partition  hereinafter  directed  be  made 
in  this  way,  so  far  as  regards  the  said  marsh 
lands  now  in  the  possession  of  the  Holmes' 
familj\ 

201 


*495 


4  RICHARDSON'S  EQUITY  REPORTS 


It  is  ordered  and  decreed,  that  the  coiu- 
*496 
plaiiiants  are  entitled  to  *one-fifth  of  the 
lands  claimed  and  described  in  the  bill,  and 
that  the  defendant,  W.  H.  D.  Jough,  is  also 
entitled  to  one-fifth  thereof,  that  a  writ  do 
issue  to  make  partition  thereof,  and  that  the 
parties  have  leave  to  apply  for  orders  to 
carry  into  effect  this  decree. 

It  is  also  ordered  and  decreed,  that  each 
party  pay  his  or  her  own  costs. 

There  was  no  appeal ;    the  parties  having 
acquiesced. 


~  [The  following  dissenting  opinion,  in  the 
Court  of  Errors,  of  his  Honor  Chancellor 
WarOlaw,  in  the  case  of  BUIST  v.  DAWES, 
(ante,  4121),  was  not  furnished  the  reporter 
in  time  to  be  inserted  in  its  proper  place:] 

|Kd.  Noto.— Citod  in  Beckam  v.  De  Saussure, 
0  Rich.  rt'iO:  McCorkle  v.  Black.  7  Rick.  y:<\- 
419:  Sclmau  v.  Robertson,  46  S.  C.  2{j'\  24 
S.  E.  187.1 

WARDLAW,  Ch.  I  dissent  from  the  opin- 
ion of  the  majority  on  the  only  (luestion  de- 
cided by  this  Court,  as  to  the  quantity  of  the 
estate  taken  by  James  Boone  Perry  in  tne 
land  devised  to  him  by  the  will  of  Edward 
Tonge.  On  this  point  I  adopt  the  conclusion 
of  Chancellor  DARCJAN,  that  I'erry  took  a 
fee  conditional  at  the  conmion  law,  and  I 
consider  it  superfluous  to  add  to  the  Cliau- 
cellor's  reasoning,  except  a  single  observa- 
tion for  the  sake  of  my  own  consistency. 
McLure  v.  Young  may  be  considered  within 
the  exception  to  the  rule  in  Shelley's  case  es- 
tablished by  Archer's  case,  as  interpreted  in 
our  case  of  Myers  v.  Anderson. 

A  second  question  was  referred  to  this 
Court  by  the  Court  of  Aiipeals  in  Eipiity, 
namely,  whether  there  can  be  a  valid  limita- 
tion by  way  of  executory  devise  upon  a  fee 
conditional?  If  there  can  be  such  limitation 
by  executory  devise,  it  is  immaterial  to  the 
determination  of  this  particular  case  whether 
J.  B.  Perry  took  a  ^ife  estate  or  a  fee  con- 
ditional as  the  testator  prescribed  that  the 
ultimate  devise  over  should  take  effect,  if 
at  all,  at  the  termination  of  lives  in  being  at 
the  date  of  the  will.  On  this  second  question 
some  remarks  will  be  made. 

*497 

*In  considering  this  question,  we  must  keep 
separate  the  doctrines  applicable  to  a  strict 
remainder  and  to  an  executory  devise.  A 
remainder  is  defined  to  be  a  remnant  of  an 
estate  in  lands  or  tenements,  expectant  on  a 
particular  estate,  created  together  with  the 
same  at  one  time.  Co.  Lift.  14.3,  a.  It  fol- 
lows from  this  definition  that  where  a  fee  is 
first  limited  there  is  no  remnant  of  the 
estate  which  can  be  limited  over.  A  fee  can- 
not be  limited  on  a  fee  as  a  direct  remainder. 
Thus,  if  lands  are  limited  to  one  and  his 
heirs,  and  if  he  dies  without  heirs  to  another, 
the  latter  limitation  is  void.    So,  if  lauds  are 

202 


given  to  one  and  his  heirs  so  long  as  J.  S. 
has  issue,  and  after  the  death  of  J.  S.  with- 
out issue  to  remain  over  to  another,  this 
remainder  is  likewise  void,  because  the  first 
devisee  had  a  fee.  fhougii  it  was  a  base  and 
determinable  fee.  So,  anciently,  before  the 
recognitiou  of  executory  devises  after  a  fee 
simple,  where'  one  devised  lands  to  the  prior 
and  convent  of  B.  so  that  they  paid  annually 
to  the  Dean  and  Chapter  of  St.  Paul's  four- 
teen marks,  and  if  they  failed  of  payment 
that  their  estate  should  cease,  and  tiiat  the 
said  Dean  and  Chapter  and  their  successorsi 
should  have  it;  it  was  held  that  this  limita- 
tion over  was  void,  because  as  the  first  devise 
carried  a  fee,  nothing  remained  to  be  disposed 
of.  Dyer,  '.V.i,  a:  1  Eq.  Ca.  Ab.  l.SU,  pi.  3; 
Eearne,  37.3.  Tiiis  last  case  was  decided  in 
the  reign  of  Henry  VIII.,  in  the  interval  be- 
tween the  .statute  of  uses  and  thp  statute  of 
wills;  to  the  combined  operation  of  which 
statutes  the  establislnnent  of  executory  de- 
vises is  generally  attrilmfed.  Lewis  on  Perp. 
75.  Yet.  in  jv  will,  such  limitations  over,  as 
are  above  mentioned,  are  good  by  way  of 
«'xecutory  devise,  if  dependent  upon  a  contin- 
gency which  nnist  happen,  if  it  happen  at 
all,  within  lives  in  being  at  the  time  of  the 
donation  and  twenty-one  years,  and  one,  or 
in  rare  cases,  two  periods  of  gestation  after- 
wards. An  executory  devise  has  been  defined 
to  be  a  limitation  by  will  of  a  future  estate 
or  interest  in  land,  which  cannot,  consistent- 
ly with  tiie  rules  of  law,  take  effect  as  a  re- 
mainder. 1  .Jarm.  on  Wills,  77.S.  Without 
descrildng  all  the  classes  of  limitations  oper- 
ative iiy  executory  devise  wiiere  by  law  they 

*498 
cannot  take  effect  as  re*mainders,  it  is  suffi- 
cient to  mention,  that  by  executory  devise  a 
fee  may  be  limited  upon  a  fee  within  the  fore- 
going rule  against  perpetuities.  No  rule, 
however,  is  more  clearly  settled  than  this: 
that  no  limitation  of  a  contingent  estate  shall 
l)e  effectual  as  an  executory  devise,  if  it  can 
possibly  take  effect  as  a  remainder.  That 
any  particular  limitation  may  operate  as  an 
executory  devise,  there  must  be  a  necessity 
for  such  operation  in  order  to  its  taking 
effect  at  all,  and  an  impossibility  of  its  taking 
effect  as  a  remainder  mider  the  rules  of 
conmion  law.  But  no  limitation  after  or  up- 
on a  fee,  although  it  be  a  base  or  conditional 
fee,  can  operate  effectively  as  a  remainder; 
and  such  limitation  by  will,  if  it  have  any 
effect,  must  operate  by  way  of  executory 
devise.  This  is  the  established  docrine  as 
to  conditional  fees,  notwitnstanding  some 
early  doubts  to  the  contrary,  both  in  England 
and  in  South  Carolina.  Co.  Lift.  13,  a  ;  [INIaz- 
yck  V.  Vanderhorst]  Bail.  Eq.  48. 

It  has  never  been  doubted  since  the  intro- 
duction of  executory  devises,  that  a  fee  could 
be  limited  by  executory  devise  upon  a  fee 
simple  absolute,  where  there  was  no  objection 
on  the  score  of  i-emoteness ;  and  it  is  diffi- 
cult to  find  any  reason  why  the  same  doc- 


Br  I  ST  V.  DAWES 


•oCl 


trine  siunild  not  he  applied  to  a  fee  simple 
c-oiiditiouiil.  We  have  setMi  tliat  both  these 
classes  of  fees  exhaust  the  estate,  so  that  no 
remnant  exists  for  the  sulyeet  of  a  remainder; 
and  both  e(iually  need  the  benijinant  aid  of 
Courts  in  the  interpretation  of  wills,  in  giv- 
ing effect  to  executory  devises.  If  a  fee 
simple  conditional  be  a  less  estate  than  a  fee 
simple  absolute,  and  yet  not  so  reduced  as  to 
be  a  particular  estate  of  freeiiold,  which  ad- 
mits a  remainder,  there  seems  to  be  stron- 
ger reason  why  Courts  should  recognize  the 
jus  disponendi  of  testators  in  creating  limita- 
tions over  upon  this  estate.  Littleton  says: 
"a  man  cannot  have  a  more  large  or  greater 
estate  of  inheritance  than  a  fee  simple  ;"'  and 
Lord  Coke,  commenting  thereupon,  says: 
"this  doth  extend  as  well  to  fees  simple  con- 
ditional and  qualified,  as  to  fees  simple  pure 
and  absolute.  For  our  author  speaks  of  the 
ampleness  and  greatness  of  the  estate,  and 
not  of  the  perdurahleness  of  the  same ;  and 
he   that    hath    a    fee   simple    conditional    or 

*499 

ciualified.  hath  *as  ample  and  great  an  estate, 
as  he  that  hath  a  fee  simple  absolute ;  so  as 
the  diversity  appeareth  between  the  quantitj* 
and  quality  of  the  estate."  Co.  Litt.  IS,  a. 
The  prominent  distinction  between  these  two 
classes  of  fees  simple,  is  in  the  description 
of  the  heirs  to  which  the  estates  respectively 
descend;  one  to  the  heirs  general,  and  the 
other  to  particular  heirs,  of  the  body  gener- 
ally, or  restricted  as  to  sex,  and  as  to  the 
body  that  shall  bear  them.  This  of  course 
affects  the  duration  of  the  estate  in  the 
donee,  and  the  x-everter  to  the  donor,  but 
both  are  estates  in  fee  simple  of  the  same 
quantity.  All  the  rules  applying  to  estates 
in  fee  are  ecpially  applicable  to  the  estate  of 
fee  conditional,  as  to  its  creation  and  limita- 
tion and  the  time  of  its  continuance  under  the 
limitation,  with  the  exception  of  the  order 
of  its  descent  and  the  right  by  alienation  to 
bar  the  donor.  2  Prest.  on  Est.  320.  A  gift 
in  fee  conditional  vests  no  right  in  the  heirs 
of  the  body  of  the  donee  beyond  what  is 
conmutn  to  otlier  heirs  inider  any  form  of 
gift.  The  person  to  whom  the  gift  is  made 
is  tenant  in  fee,  and  as  such  he  has  the  power 
of  alienation  in  right  of  that  estate  immedi- 
ately after  it  is  conveyed  to  him ;  and  his 
conveyance  will  estop  his  issue  subsequently 
born,  although  it  may  not  defeat  the  reverter 
of  the  donor  if  the  condition  of  having  issue 
be  not  performed.  2  Prest.  Est.  304 :  Bac. 
Ab.  Est.  Tail.  An  estate  in  fee  conditional 
is  not,  as  was  supposed  in  the  argument,  an 
estate  for  life  in  the  first  taker,  capable  of 
being  enlarged  if  issue  be  born  to  him,  but 
it  is  an  estate  in  fee  in  the  tirst  taker,  de- 
feasible upon  the  non-performance  of  a  con- 
dition subseiiuent,  that  issue  be  born  to  him. 
2  Co.  Inst.  333.  A  fee  conditional  during  its 
continuance  is  the  entire  lee  simple  estate. 
Adams  v.  Chaplin,  1  Hill,  Eq.  27S,  and  is  as 


fit  a   suliject   for  executory   devise  as  a   fee 
absolute. 

The  statute  de  donis  conditionalibus.  13  Ed. 
I.  C.  1,  which  converted  fees  conditional  into 
estates  tail,  is  not  of  force  in  South  Carolina, 
and  the  estate  of  fee  conditional  at  the  com- 
mon law  has  been  recognized  as  existing  here 
i)y  many  of  our  cases.  In  England,  since  the 
statute,    an   estate    tail    is    regarded    by    the 

■^500 
Coiu'ts  *not  as  a  full  fee,  but  as  a  particular 
estate  of  freehold  which  is  callable  of  supjiort- 
ing  a  remainder.  A  fee  conditional  with  us 
will  be  a  most  anomalous  estate,  if  we  hold 
it  to  be  incapable  as  a  particular  estate  of 
supporting  a  remainder,  and  yet  exhausting 
the  fee  so  as  to  leave  no  renniant  for  a  re- 
mainder; and  in  both  aspects  not  the  subject 
of  executory  devise — a  fee  and  not  a  fee. 

In  Adams  v.  Chaplin,  and  some  other  of  our 
cases,  the  right  which  abides  in  the  donor 
and  his  heirs  after  a  gift  in  fee  conditional, 
is  treated  as  a  mere  possibility  of  reverter, 
which  cannot  be  devised.  This  doctrine  of 
cour.se  as.sumes  that  a  fee  conditional  is  the 
whole  estate ;  for  contingent  and  executory 
estates,  even  a  possibility  clothed  with  an 
interest,  are  devisable.  Selwyn  v.  Selwyn,  2 
Bur.  1131;  Moor  v.  Hawkins,  2  Eden.  342; 
Roe  V.  Jones,  3  T.  R.  88 ;  1  Ves.  jun.  251 :  7 
Ves.  300;  17  Ves.  173;  4  Kent,  "ill.  In  Eng- 
land, a  reversion  after  an  e.sfate  tail  may  be 
devised.  Badger  v.  Lloyd,  1  Salk.  232;  San- 
ford  V.  Irby.  3  B.  &  A.  0o4;  8  Ves.  25(5;  but 
there  an  estate  tail  is  a  particular  estate  of 
freehold  capable  of  sui)porting  a  remainder, 
and  the  reversion  is  more  than  a  jiossiltility. 
The  English  statutes  of  wills,  32  and  34 
Henry  VIII.,  authorized  those  persons  only 
to  devise  who  have  an  interest  or  estate  in 
fee  .simple;  our  Act  of  178!)  gives  the  power 
to  any  j)erson  not  under  disability,  "having 
right  or  title  to  any  lands,  tenements,  or 
hereditaments  whatsoever."     5  Stat.  100. 

rpon  the  general  (piestion  we  are  consider- 
ing, we  find  hardl.v  any  thing  as  authority  in 
the  English  cases.  The  statute  de  donis,  so 
early  as  A.  D.  1285,  converted  fees  condition- 
al in  freeholds  into  fees  tail;  and  the  estate 
of  fee  conditional  has  not  existed  in  England 
for  nearly  six  centuries,  except  in  copy-holds, 
(which  are  not  within  the  statute,)  in  some 
few  manors  where,  by  custom,  copy-holds  can- 
not be  entailed.  The  only  case  cited  to  us  in 
the  argument  is  one  first  heard  in  the  Com- 
mon Pleas  under  the  name  of  Doe  d.  Simpson 
v.  Simpson,  4  Bing.  X.  C.  .333  (33  Eng.  C. 
L.  R.  373.)  and  afterwards  in  the  Court  of 
Exche(iuer  Chamber  under  the  name  of  Doe 

*501 
d.  Blesard  v.  Simpson,  ;;  M.  &  G.  929,  *(42 
Eng.  C.  L.  R.  48;i.)  In  this  case,  it  was  held, 
that  a  demise  of  copy-hold  lands,  in  a  man- 
or where  there  was  no  custtmi  of  entail,  to  J. 
S.  and  his  heirs,  but  if  .1.  S.  should  die  with- 
out leaving  any  child  or  children  to  M.   B. 

203 


*501 


4  RICHARDSON'S  EQUITY  REPORTS 


and  her  heirs,  passed  a  fee  simijle  conditional 
to  J.  S.— that  'child  or  children'  were  used 
in  the  sense  of  'issue'  generally — that  copy- 
holds being  real  estate,  the  term  leaving  un- 
der the  distinction  established  in  Forth  v. 
Chapman,  1  P.  Wms.  663,  and  recognized  in 
Mazyck  v.  Vanderhorst,  Bail.  Eq.  48,  was  in- 
sufficient to  restrict  the  contingency  of  J.  S. 
dying  without  children,  or  its  synonime  issue, 
to  issue  living  at  the  time  of  his  death,  and 
that  no  remainder  could  be  limited  upon  a 
fee  conditional,  and  that  the  executory  de- 
vise was  too  remote.  Throughout  the  argu- 
ments and  decisions,  it  was  assumed  and  con- 
ceded, that  an  executory  devise  upon  a  fee 
conditional  was  liable  to  no  objection  pecul- 
iar to  the  estate,  and  was  like  every  execu- 
tory devise  upon  a  fee,  to  be  considered  only 
with  reference  to  the  fact  of  remoteness.  It 
may  be  remarked,  too,  that  a  fee  conditional 
was  implied  in  this  case  in  the  absence  of 
technical  words. 

We  have  dicta  but  no  authoritative  deci- 
sion in  South  Carolina  upon  the  point  in 
question.  In  Mazyck  v.  Vanderhorst.  Bail. 
Eq.  48,  it  was  held  that  a  fee  conditional 
could  not  support  a  remainder,  and  that  a 
limitation  over  upon  the  determination  of 
that  estate  by  efflux  or  natural  expiry,  was 
void  by  reason  of  remoteness  as  an  executory 
devise.  The  ruling  in  Forth  v.  Chapman  was 
adopted,  that  the  word  'leaving"  would  not 
as  to  real  estate  restrict  failure  of  issue,  oth- 
erwise indefinite,  to  the  time  of  the  death 
of  the  first  taker.  The  whole  discussion 
upon  the  case  assumed,  that  there  might  be 
an  executory  devise  upon  a  fee  conditional, 
and  the  only  dispute  was  whether  the  words 
of  the  will  created  an  executory  devise  which 
must  take  effect  within  the  time  limited  by 
the  rule  against  perpetuities.  The  case  is 
quoted  in  Adams  v.  Chaplin,  1  Hill,  Eq.  280, 
and  is  thus  interpreted  by  Judge  O'Neall: 
"an  executory  devise  over  after  a  fee  condi- 
tional, is  too  remote,  and  cannot  take  effect, 

*502 

unless  it  be  accompa*nied  by  such  words  as 
will  restrict  the  failure  of  the  heirs  of  the 
body,  to  a  dying  without  leaving  issue  at  the 
death  of  the  first  taker."  Again,  in  Bedon  v. 
Bedon,  2  Bail.  248,  Judge  O'Neall  says:  "if 
the  estate  of  S.  B.  be  construed  a  fee  condi- 
tional, the  estate  in  remainder  to  R.  B.  can- 
not take  effect  as  a  contingent  remainder ; 
for  it  would  be  a  fee  mounted  on  a  fee,  there- 
fore void.  It  could  not  operate  as  an  ex- 
ecutory devise,  for  if  the  devisee  took  an 
estate  in  fee  conditional,  the  limitation  would 
be  after  an  indefinite  failure  of  issue  capable 
of  taking  per  formam  doni."  This  is  sound 
doctrine.  A  limitation  by  will  to  take  eft'ect 
upon  the  natural  efflux  of  a  fee  conditional  is 
necessarily  after  an  indefinite  failure  of  is- 
sue and  void  for  remoteness;  but  if  the  ob- 
jection of  remoteness  can  be  escaped,  this 
estate,  as  other  fees,  admits  of  devises  over. 
204 


It  may  be  remarked  in  passing,  that  it  was 
properly  argued  in  Bedon  v.  Bedon,  as  it  was 
determined  in  Simpson  v.  Simp.son,  that  the 
same  words  in  the  devise  over  could  not  per- 
form the  double  office  of  implying  a  fee  condi- 
tional and  creating  an  executory  devise.  In 
Edwards  v.  Barksdale,  2  Hill,  Eq.  197,  the 
same  eminent  Judge  remarks:  "I  hold  there 
can  be  no  such  thing  as  a  fee  conditional 
where  there  is  a  good  executory  devise  over. 
When  the  limitation  is  within  a  life  or  lives 
in  being  or  twenty-one  years  after,  it  cuts 
down  and  destroys  the  effect  of  a  previous 
devise  to  one  and  the  heirs  of  his  body,  by 
showing  that  the  testator  did  not  look  to  an 
indefinite  succession,  and  that  he  did  not  in- 
tend his  devisee  to  have  all  the  incidents  of 
the  common  law  estate  of  fee  conditional, 
such  as  the  power  to  alien  or  encumber  the 
estate,"  &c.  "This  is  the  only  means  of 
reconciling  two  rules  of  law:  1.  That  a  limi- 
tation over  after  a  fee  conditional  is  void; 
2.  that  a  limitation  over  which  is  to  take  ef- 
fect within  a  life  or  lives  in  being  is  good." 
In  general  this  is  a  good  exposition  of  doc- 
trine, but  the  fault  in  the  reasoning,  as  it 
seems  to  me,  is  in  supi)osing  that  a  restriction 
of  the  power  of  alienation  in  the  first  tenant 
existing  upon,  or  subject  to  the  performance 
of,  the  condition  of  having  issue,  destroys  the 
fee  conditional.     I  suppose  that  this  error  is 

*503 

the  foundation  of  *the  learned  Judge's  repug- 
nance to  the  implication  of  fees  conditional, 
in  contempt  of  English  authority.  There  is 
no  reason  why  the  (pialified  power  of  a  ten- 
ant in  fee  conditional  to  alien  the  estate,  de- 
pendant upon  the  birth  of  issue,  may  not  be 
restricted  by  executory  devise,  which  does 
not  extend  to  a  tenant  in  fee  simple  absolute 
having  a  general  power  of  alienation,  sub- 
ject to  an  executory  devise.  The  alienation 
of  a  tenant  in  fee  simple  absolute,  with  a 
devise  over  if  he  die  without  issue  living  at 
his  death,  is  necessarily  determined  at  his 
death  without  issue  then  living;  and  under 
like  circumstances  the  alienation  of  the  ten- 
ant in  fee  conditional  would  be  determined. 
A  tenant  in  fee  simple  absolute  has  a  general 
power  of  alienation  which  may  be  restrained 
by  executory  devLse;  a  tenant  in  fee  condi- 
tional has  a  power  of  alienation  subject  to  the 
performance  of  the  condition  of  having  issue, 
which  may  be  likewise  so  restrained  by  ex- 
ecutory devise.  The  power  of  alienation  is 
no  more  an  inseparable  incident  of  one  of 
these  fees  than  of  the  other.  One  of  the 
most  characteristic  differences  between  a 
contingent  remainder  and  an  executory  de- 
vise, is,  that  the  former  may  be  barred,  or 
prevented  from  effect  by  common  recovery  or 
other  means  adopted  by  the  first  tenant; 
whereas  an  executory  devise  cannot  be  pre- 
vented or  destroyed  by  any  alteration  of  the 
estate  upon  which  it  is  limited.  Fearne,  418. 
But  I  do  not  understand  the  argument,  whieli 


lUIST  V.  DAWES 


*504 


deduces  from  this  proposition  any  difference, 
as  to  the  point  in  question,  between  fees  ab- 
solute and  conditional.  The  indestructibility 
of  the  devise  over,  applicabU'  to  both  estates, 
is  an  indifferent  circumstance  in  a  question  as 
to  the  capacity  of  either  estate  to  support  a 
devise  over. 

In  Whitworth  v.  Stuckey,  1  Itich.  Eq.  411, 
Chancellor  Harper  treats  an  executory  devise 
upon  a  fee  conditional  as  dependent  for  its 
validity  upon  the  question  of  remoteness.  I 
refer  to  Chancellor  .Johnston's  circuit  opinion 
in  Hay  v.  Hay  [4  Rich.  Eq.  'MH]  as  a  judicious 
explanation  of  Whitworth  v.  Stuckey. 

Without   further   pursuing   the    intpsiry,    I 


announce  my  conclusion,  that,  upon  principle 

*504 
and  autliority,  an  executory  devise  may  *be 
limited  upon  a  fee  simple  conditional,  if  with- 
in the  time  tixed  by  the  rule  against  peipetui- 
ties. 

JOHNSTON,  Ch.,  and  EVANS,  J,,  concur- 
red. 

WAKOLAW,  .7.  I  concur  in  so  much  of 
Chancellor  WAllULAW'S  opinion  as  holds, 
that  an  executory  devLse  of  real  estate  may 
be  engrafted  ou  a  direct  devise  iu  fee  condi- 
tional. 

205 


[End  of  Volume  4  Rich.  Eq.] 


REPORTS 


OF 


CASES   IN    EQUITY 


AKGUUn  AND  OKTHRMINKD  IN  THE 


COURT  OFAriT.ALS  AND  COURT  OF  ERRORS 
OF  SOUTH  CAROLINA 


VOLUME  V 

FROM  NOVEMBER.  1S52.  TO  MAY.   1S5:"..  BOTH   INCLUSIVE 


By  J.  S.  G.  RICHARDSON 

STATE  REPORTER 


I  IIAKI.KSTO.N,    S.  r. 

rUBLLSIIEI>  BY  MC'CARTER  &  CO. 

NO.    116    MKETIKG   STREET 

isr.4 


ANNOTATED    EDITION 

ST.    PAUL 

WEST  PUBLISHING   CO. 

1917 


TABLE  OF  CASES   REPORTED 


Alu'aliams   v.   Cole. 

r.ailcy  V.  lioyoo.  . . 
15oycc  V.  IJoyci'  .  .  . 

Cluirlpston  Ins.  &  Trust  Co 
("liina   V.    Wliit".  .  . 
Coiliott   \'.    Lall^<'Il^ 
Cox  V.   Cox 

l>anncr  v.  Trcscot. 
I  »avis  V.  Keller.  .  .  . 
1  Mike  V.  Fiilnii'r . .  , 
I  >\nican  v.  Dent.  .  . 

IVl.ler  V.  FeMer.  .  . 
I'\)rtune    v.    Hayes. 
I'owke   \.   '^riionipson 
Fox   V.   Ford 

Cibhos  V.  Flliott.  . 
Cihson    V.    M;irshall 

ll.'a.l  V.  llaifonl.  . 
Ilext   V.   Walker.  .. 

Ison   V.    Isoii 

.Tackson  v.   McAliley 

Ketcliin  V.   ISeaty 

MoKinue  v.  City  Council  of  A 
McLure  v.    Askew 
McRae  v.  David.  . 

5  Ricii.IC'/. 


1ST 

.••,412 
4-_'(; 

;'.(■..") 

:!.■)(; 
4;u 

ILM 


ITJ 
•.'AU 


12.",4 

r> 
1.". 

oS 

s:i 


47,".  1 


Mikell    V.    Mikell. 
MofTatt    V.    Tliomsoi 
Moss    V.    li  rat  ton.  . 

Owens  V.   Sinjpson. 

I'arris  v.   Col)li 

I'aslay  v.  Mariin  .  . 
I'erdriau  \.  Wills. 
I'erry  v.  Lojian  .  .  . 
I'imsi   V.   Sandifer.  . 

Kawls   V.   Wall 

Reed    V.    Vidal 

RlH'so  V.  lloliues.  . 
Rpt'ves  V.  Tueker.  . 
Riildle  V.  Riddle..  . 
Rivei's  V.  (Jre^fi.  .  . 
Rosborough  v.  llemi)liill 

Sliands  v.  Triplet.  .  . 
Simons  V.  Soutliwestei 
Siinpsun    V.    Downs.  . 

Smith  V.    I'rown 

Street  \'.  Laurens.  .  .  . 

Thompson    v.    Dulles. 

Vandersmisscn,  Fx  pa 

W.ire.  Fx   parte 

Wilie  V.  Price 

Winslow  V.  I'.arry.  un 
Wriiiht  V.  Faves.  .  .  . 
Wri^'ht   V.   llerron.  . . 


Page 
liUO 

ir,.-, 

1 

40.". 

4.".0 
351 
lid 
'202 
170 

14:; 

2SU 

.-.: ;  L 

l.-.o 

:;i 

274 

il.l 

70 
1270 
4l!l 


r.l'J 

47:^ 
!>l 

L'OO 
SI 

441 


CASES   IX    EQUITY 


AKlilKl)    AM>    DKTKRMI.NKU    IN    TllK 


COURT  OF  APPEALS 


AT  COLUMBIA,  SOUTH  CAROLIXA.  NOVEMLiKK  AXD 
DECKMT.r.R  TERM.  1852. 


ClIAXCKLLORS   PrKSKXT. 

Hon.   .I(»r.   JOHNSTON. 

r.KN.T.    F.    DTNKIX. 
(JKOKCK   W.   1>AI{(;AX, 
F.   H.   WARDI.AW. 


5    Rich.  Eq.    *l 

♦JOSEPH  R.  MOSS   V.  JOHN   S.   lUtATTON 
and  Others. 

(Columbia.   Nov.   and   Doc.   TtMiii.  IS.VJ.) 

[Mortgafies  (S=^}S(>.1 

On  u  bill  for  fort'dosure  by  tli(>  niortj^asoo 
against  the  mortgagor,  tiie  inirchMS(>r  of  the 
equity  of  redemption,  and  a  piireliaser  from 
him  with  general  warranty,  the  Court,  liaviu^ 
all  the  parties  before  it.  will  make  such  a  decree 
as  will  satisfy  all  eipiities  among  the  defend- 
ants, ari.sing  Irom  the  case. 

[Ed.  Note.— Cited  in  Trimmier  v.  Vise,  17  S. 
C.  501',  r.(t:5,  4n  Am.  Rep.  (i24 :  Norman  v. 
Norman.  L'(i  S.  C.  4S,  11  S.  E.  lOlKi:  McAfee 
V.  McAfee.  L»s  S.  C.  '22i.  ">  S.  E.  niKJ ;  Heattie 
V.  Latimer.  42  S.  C.  .".JO.  liO  S.  E.  ").•!;  l?\iist 
V.  Melcliers.  44  S.  C  <»4.  21  S.  E.  41!);  Phil- 
lips V.  Anthonv,  47  S.  C.  4r)2,  2.")  S.  E.  2tt4; 
Brown  v.  (Jreen.  89  S.  C.  328.  71  S.  E.  !)r)S. 

For  other  cases,  see  Mortgages,  Cent.  Dig. 
§  1407;    Dec.  Dig.  <®=»480.1 

[This  case  is  also  citi'd  in  Eraser  &  Dill  v. 
City  Council  (.f  Chariest. >n.  11  S.  C.  511), 
without  specific  application.] 

Doctor  McClerkin,  on  January  30,  1845, 
mortgaged  to  the  plaintiff  a  tract  of  land 
to  secure  the  itaynient  of  a  single  1)111.  and 
also  gave  to  the  defendant  John  S.  Hratton, 
a  confession  of  judguient,  which  was  enter- 
ed on  the  same  day  l)Ut  after  the  execution 
of  tlie  luortgagi".  Hratton  had  tlu'  land  lev- 
ied on  by  the  sheritT  under  iiis  fi.  fa.,  and 
at  the  sale  became  the  purchaser.  The  mort- 
gage had  been  duly  reccuded,  and  notice  of 
It   was   given    at    the   sah>.      Afterwards,   on 

♦2 
March   1.    I.s4s,   in   con*si(h'ratiuM  of  ijilSO  to 
him   paid,    I'.iMtton   cniivrycil    the   hind,    with 
gciicr:il    \\  ari:iiily,    to    llillcu    I  IciiiiMuw  .-ly. 


The  plaintifT  obtained  judgment  nt  law  on 
the  single  bill,  and  Doctor  McClerkin  being 
in.sidvent  and  absent  from  tlie  State,  he.  the 
plaintiff,  having  first  demanded  payment  of 
his  debt  from  Hratton.  tiled  this  bill.  Ajiril 
20.  1850.  against  Doctor  McClerkin,  John  S. 
P.rMtton  and  llellen  Ilendngway,  for  a  fore- 
closure of  his  mortgage,  or  payment  of  his 
debt  in  some  other  mode. 

The  plaintiffs  claim  was  resisted,  jirinci- 
pally  by  Brat  ton,  on  the  ground  that  the  en- 
try of  his  judgment  was  prior  in  time  to  the 
execution  of  plaintiff's  mortgage.  Bratton 
also  insisted  that  the  plaiiitill's  remedy,  if 
be  had  any,  was  against  the  land  exclusivtdy. 

The  cause  was  first  heard,  at  York.  .June, 
1851,  before  his  Honor,  Chancellor  Wardlaw, 
who  ruled,  that  Bratton  was  proi)erly  a  ftar- 
ty  to  the  bill,  and  hehl.  upon  the  testimony, 
that  the  plaintiff  had  the  first  lien  upon  the 
laud.     His  Honor  decreed  as  fidlows: 

It  is  ordered  and  decreeil,  that  it  be  re- 
ferred to  the  Conunissioner  ti)  eiupnre  and 
reitort  as  to  the  amount  remaining  «lue  to 
the  plaintiff  upon  the  debt  of  McClerkin  se- 
cured by  the  mortgage;  and  that,  upon  the 
condng  in  of  that  report,  plaintiff  may  apply 
to  the  Court  for  a  sale  of  the  mortgaged 
premises,  for  foreclosure,  and  that  Helleu 
Hemingway  may  apply  for  an  attachment  or 
execution  against  the  co-defendant,  J(dui  S. 
Bratton.  to  comi>el  re-imbursement  for  any 
payments  .she  may  be  comp«'lled  to  make  iu 
satisfaction  of  the  lien  of  the  mortgage: 
costs  to  be  paid  out  of  the  proceeds  of  the 
sale  of  the  mortgaged  preudses.  if  sutlicient, 
otherwise  as  will  be  hereafter  ordered. 


C=:^Fur  other  cases  .see  same  topic  aucl  KKV-NUMliKR  in  all  Key-Numbered  Digests  aud  Indexes 
5  Klcn.Etj.— 1  , 


*2 


5  RICHARDSON'S  EQUITY  REPORTS 


The  Commissioner  having  reported  that 
the  amomit  due  to  the  plaintiff  was  $147.93. 
the  Court,  sitting  for  Yorlc,  June,  1852,  his 
Honor  Cliancellor  Johnston  presiding,  made 
the  following  decree: 

On  motion  of  Witherspoon,  complainant's 
*3 
solicitor,  it  is  or*dered  that  the  report  made 
I»y  the  Commissioner  in  the  above  case  and 
filed  15th  June,  1852,  be  confirmed.  It  is 
further  ordered,  that  should  Doctor  Mc- 
Clerkin  fail  to  pay  the  amount  of  debt,  inter- 
est and  costs  due,  on  or  before  the  day  of 
sale,  then  the  said  Doctor  McClerkin  is  there- 
after to  be  forever  debarred  his  equity  of 
redemption,  and  that  the  Commissioner  of 
this  Court  do  on  some  public  sale  day  be- 
tween this  and  the  1st  Monday  in  January 
next,  or  the  next  convenient  sale  day,  after 
giving  twenty-one  days  notice,  expose  to  sale 
the  land  described  in  the  pleadings,  to  the 
highest  bidder,  for  cash ;  and  should  the 
land  not  sell  for  a  sufficient  sum  to  pay  the 
costs  according  to  the  decree  of  Chancellor 
Wardlaw,  will  report  the  sales,  amount  of 
costs  and  deficiency.  In  either  event  the 
Commissioner  will  report  to  the  next  Court 
in  what  manner  this  order  has  been  com- 
plied with. 

From  this  decree  Hellen  Hemingway  ap- 
pealed on  the  ground: 

Because  said  decree  and  order  directs  a 
sale  of  the  mortgaged  premises,  when  it  is 
respectfully  submitted  that  the  defendant 
J.  S.  Bratton,  under  the  circumstances  should 
have  been  decreed  to  pay  the  mortgage  debt 
and  costs,  inasmuch  as  said  Bratton,  with 
notice  of  complainant's  mortgage,  conveyed 
the  premises,  with  warranty,  to  the  appel- 
lant, and  ought  not  to  be  permitted  to  defeat 
his  own  title,  that  he  may  make  the  land 
pay  the  costs. 

Smith,  for  appellant. 
Williams,   Witherspoon,   contra. 

The  opinion  of  the  Court  was  delivered  by 

JOHNSTON,  Ch.  The  decree  of  1852  ap- 
pears to  me  to  be  hasty  and  inaccurate. 

If  McClerkin  after  the  execution  of  his 
mortgage,  had  sold  the  mortgaged  premises 
to  Bratton,  subject  to  the  lien  of  the  mort- 
gage upon  it,  it  cannot  be  doubted  that,  as 
between  himself  and  Bratton,  he  would  have 
had  an  equity  to  have  the  mortgage  debt  rais- 
ed out  of  the  land  in  the  first  instance,  in 
exoneration  of  his  own  personal  responsibil- 

ity.  The  purchase  *made  by  Bratton,  from 
the  sheriff,  of  McClerkin's  equity  of  redemp- 
tion, (as  defined  by  the  statute  of  1791,)  had 
precisely  the  same  effect  as  if  McClerkin  had 
conveyed  to  him  with  notice  of,  and  sub- 
ject to,  the  mortgage.  He  bought  McClerk- 
in's right:  i.  e.,  he  obtained  a  title  to  the 
land  encumbered  with  the  lien:  and  he  paid 
for  the  Laud  just  so  much  as  it  was  worth. 


over  and  above  the  lien:  and  though  ho  did 
not  become  personally  bound  for  tlie  mort- 
gage debt,  yet  the  land,  in  his  hands,  was 
specifically  bound,  so  far  as  it  might  suffice, 
for  the  payment  of  that  debt. 

It  appears  that  Brdtton,  after  his  pur- 
chase, conveyed  the  land,  with  general  war- 
ranty, to  Hellen  Hemingway,  for  if  1.50 ;  a 
sum  exceeding  the  debt  and  interest  due  on 
the  mortgage. 

He  thus  received  a  fund  to  satisfy  the 
lien ;  and  as  between  himself  and  Miss  Hem- 
ingway, was  bound,  by  his  covenant,  to  ex- 
onerate the  land  in  her  hands,  from  the  en- 
cumbrance of  the  mortgage. 

All  parties  being  before  the  Court,  my 
opinion  is  that  such  a  decree  should  have 
been  made  as  would  have  done  complete  jus- 
tice in  the  case. 

The  mortgagee  was  entitled  to  all  his  rem- 
edies ;  by  a  decree  for  payment,  so  far  as 
the  lien  of  his  mortgage  might  suffice,— and 
failing  that,  then  to  raise  the  balance  out  of 
McClerkin,  his  debtor.  But,  as  between  the 
defendants,  the  decree  should  have  been  such 
as  to  satisfy  all  equities  among  them,  aris- 
ing from  the  case  of  the  plaintiff"  against 
the  defendants. 

Bratton  should  be  decreed  to  pay  the  mort- 
gage debt,  in  exoneration  of  his  covenantee, 
Hellen  Hemingway;  and  it  is  ordered  and 
decreed  that  he  do  so;  and  that  he  be  en- 
forced to  the  payment  by  fi.  fa.  or  attach- 
ment. 

If  within  three  months  from  the  filing 
of  this  decree  and  the  issue  of  process  there- 
on as  aforesaid,  the  money  be  not  raised 
from  Bratton,  then  it  is  ordered  that  the 
Commissioner  do  proceed  to  raise  it  by  sale 
of  the  mortgaged  premises,  in  the  hands  of 
Hellen  Hemingway.  The  sale  to  be  made  for 
cash ;  after  at  least  twenty-one  days  pub- 
lic advertisement. 

*5 

*  Whatever  excess  may  remain  after  said 
sale,  after  satisfying  said  debt,  to  be  refund- 
ed to  Hellen  Hemingway. 

It  is  further  decreed,  that  if  the  plaintitt''s 
debt  be  not  raised  in  either  of  the  above 
ways,  he  have  execution  or  attachment 
against  McClerkin,  his  debtor,  for  the  de- 
ficiency. 

It  is  further  decreed,  that  Hellen  Heming- 
way have  remedy  over,  by  fi.  fa.  and  attach- 
ment against  Bratton,  for  whatever  sums 
may  be  raised  and  applied  to  the  mortgage 
debt,  out  of  the  lands  conveyed  and  warrant- 
ed by  him  to  her. 

Lastly  it  is  ordered,  that  Bratton,  who 
occasioned  this  suit  by  resisting  the  plain- 
tiff's mortgage,  and  by  failing  to  pay  over 
to  it  the  pi'ice  for  which  he  sold  the  land, 
do  pay  the  costs  of  this  suit. 

And  it  is  ordered,  that  the  order  of  June 
1S52  be  modified  according  to  the  foregoing 
order  and  decree. 

Any  party  to  be  at  liberty  to  apply  to  the 


DUXCAX  V.  DEXT 


anj    fuitlu..    onl.r  necessary   n,    th.  .-nse.        cree  as  to  costs.     WalU.r  and   llalfurd  did 


DFXKIX,  DAIMJAX  and  W  Aia»LA\V,  CC, 
concnrrt'd. 

Decree  luodilied. 


5    Rich.  Eq.    5 

FAAZA   A.   IlEXT  and   Otii.'is  v.  X.   C.   W. 

W.VIJvEU   and    Utliors. 

(Colli. nliin.   Xov.   and   Dec.  Term,   l.sr.2.) 

[Exec  tit  ion   C=5l72.] 

To  a  l)ill  til  enjoin  oxcciitinn  creditors  from 
Itrocoedins  to  eiifuive  their  exe.utions.  the  sher- 
ift  is  not  a  necessary  party.  .\..tic,.  to  lum  of 
the  order  for  an   injiinetion   is  siillieient. 

[Ed.  XotP.— For  other  ea.ses.  see  K.xeeution, 
Cent.  Dig.  §  5l2;{:    Dec.  Dig.  <S=3l72.1 

\CosU  <g=j212.] 

Though  a  decree  as  to  costs  is  not  the  sui)- 
.lect  matter  of  apiieal,  \et  whih'  tiie  ease  is 
before  the  Court  of  App.ais.  inadvertency  or 
oversights  as  to  costs,  will  he  corrected  there 
on  the  suggestion,  or  by  the  consent  of  the 
Chancellor   who   tried   the   cause. 

[Ed  Xote.-Cited  in  St.'gall  v.  Bolt,  11  S. 
C.  524;  P.ratton  v.  .Massev.  IS  s.  c.  otil  • 
Scott  V.  Alexander.  23  S.  C.   12<i. 

For  ()ther  cases,  see  Costs.  Cent.  Dig.  S  SOO ; 
Dec.  Dig.  <S=3212.]  ' 

Before  Dargan,  Cli.,  at  Ilarnwcli.  Fel.ruarv 
1S52. 

Eliza  A.  Hext,  one  of  the  plaintiffs,  was 
the  wife  of  Lawrence  V.  Hext,  one  of  the  de- 

*6 
fendants,  and  the  t>thcr  plaintilTs  *were 
their  children.  The  defendants  were  X.  G. 
W.  Walker,  late  sheritT  of  Barnwell  Dis- 
trict, William  U.  Halford.  his  successor  in 
oflice,  Lawrence  l\  Hext,  and  Maria  Eraser 
and  Kicliard  C.  Ashe  execution  creditors  of 
Lawrence  1'.  Hext.  To  the  original  hill  Hal- 
ford  was  not  a  party:  he  was  made  a  party. 
by  supplemental  hill,  after  he  liad  succeeded 
to  the  ollice. 

Under  the  exeeution.s  of  Maiia  Eraser  and 
Richard  C.  Ashe,  certain  slaves  had  been 
seized  as  the  property  of  Lawrence  1'.  Hext; 
and  this  bill,  which  claimed  that  the  slaves 
had  been  settled  to  the  sole  and  separate  use 
of  Eliza  A.  Hext  for  life,  with  remainder  to 
her  children,  was  for  an  injunction. 

His  Honor,  the  Chancellor,  made  the  fol- 
lowing decree: 

It  is  ordered  and  decreed  that  the  levy 
made  upon  the  negroes  in  the  pleadings  be 
di.schargod,  and  that  the  defendants  and 
their  confederates  be  i>erpetually  enjoined 
from  selling  or  levying  upon  the  said  negroes, 
under  and  by  virtue  of  the  af(u-esaid  execu- 
tions, or  otherwi.se  disturbing  the  complain- 
ants in  their  enjoyment  of. the  said  negroes. 
It  is  further  ordereil  and  d*'creed,  that  the 
defendants  jiay  the  costs. 

From  this  decree  appeals  were  taken  by 
Maria   Eraser  and  Richard  C.  Ashe,  but  not 


not  appeal. 

Bauskett,  for  ajipellant. 

Bellinger  and    Hutson,  contra. 

The  opinion  of  ih,.  Comr  was  delivered  bv 


DAR(;aX,  Ch.  In  this  case  the  Court  con- 
curs fully  in  the  views  which  the  Chancelh.r. 
who  tried  the  cau.se.  lias  expressed  in  the  cii- 
tuit  decree.  And  nothing  more  need  be  said 
as  to  the  grounds  of  apjieal  taken. 

But  the  Chancellor  who  rendered  the  de- 
cree suggests,  that  in  ilecreeing  costs  against 
the  defendants  gen.'rally.  he  has  inadvertent- 
l.v  given  costs  against  X.  (;.  \V.  Walker,  the 
ex-sheriff,  and  Wm.  R.  Halford,  the  pre.sent 
sherifl'.  of  B.irnwell  District,  who  were  form- 
al pa  rHes,  not  int.Mcsted  in  the  event  of  the 
suit,  and   who.  in  the  oi)inion  of  the  Court 

*7 
were  not  ne<'.'ssary  par*tie.s.  An  order  f.»r 
an  injunction  having  been  made  restraining 
the  other  defen.lants  from  proceeding  to  en- 
force their  executions  at  law,  notice  to  the 
sheriir  would  have  been  sutlicient  without 
making  him  a  party  on  the  record. 

A  decree  as  to  costs  is  not  the  subject 
matter  of  apiieal,  nor  has  it  been  ma.le  a 
ground  of  aitpeal  in  this  case.  But  while 
the  case  is  before  this  Court  on  ai)peal,  in- 
advertency or  oversights  as  to  costs,  will 
be  correcteld  here,  on  the  suggestion,  or  by 
the  consent,  of  the  Chancellor  who  tried  the 
cause. 

In  tliis  case  it  is  ordered  and  decreed,  that 
the  circuit  decree  as  to  costs  be  so  modified 
that  the  defendants  Walker  and  Halford  be 
exempt  from  the  i)ayinent  of  any  part  of  the 
costs :  and  that  the  other  defendants  pay  all 
the  costs. 

As  to  the  grounds  of  appeal  taken  before 
and  heard  by  this  Court,  it  is  ordered  and 
decreed  that  the  same  be  dismissed,  and  the 
circuit  decree  be  athrnied. 

JOHX8TOX.    DEXIvLX    and    WARDLAW, 
CC,  Concurred. 
Decree  modi  lied. 


5    Rich.  Eq.    7 

•lOIiX    DlXr.V.X    :,n.l    (tthers   v.    SAMIEL 

DEXT,    Administrator. 

(Columbia.     Xov.  and  Dec.  Term,  isr>2.) 

[Exccuiurs    mid    AihninistrdtDrs    C=>1()4  | 

An  administrator  k.'eping  funds,  after  nav- 
ment  ol  debts,  in  his  hands  without  profit  will 
not  be  excused  from  the  paym.Mit  of  interest 
inerelv  because  v.-irious  persons  claim  the  estate 
III  .linennt  rights,  and  suits  have  been  insti- 
tuted. 

s'c'-l^"^'^^"^'^^^   in   Nettles   v.   McCowu,   5 

For  other  cases,   see  E.xecutors  and  Adminis- 
trators.  Cent.   Dig.   §  424;    Dec.   Di-.   c=3d]()4.| 


<£=;oFor  other  ca.es  see  same  topic  and  KL'l'-NUMUER  iu  all  Key-Numbered  Digests  and  Indexes 


5  RICHARDSON'S  EQUITY  REPORTS 


[Executors  and  Administrators  <©=3473,  474.] 

An  allegation  of  defendant  in  his  answer, 
made  by  way  of  defence  to  an  ordinary  bill  for 
account,  that  be  had  kept  the  funds  in  his 
bands  without  making  interest,  will  not  throw 
the  onus  of  disproving  it  on  the  plaintiff — the 
onus  is  on  the  defendant. 

[Ed.  Note.— Cited  in  Barr  v.  Haseldon,  10 
Rich.  Eq.  62;  Cloud  v.  Calhoun,  Id.  366; 
Burnside  v.  Robertson,  28  S.  C.  5S7,  6  S.  E. 
843. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  2052;  Dec.  Dig.  (©=^473, 
474.] 

Before  Wardlaw,  Ch.,  at  Ricbland,  June, 
1852. 

This  case  came  up  on  exception  to  the 
Counnissioner's  report.  The  report  is  as 
follows : 

*8 

*"In  obedience  to  the  order  of  the  Court, 
I  have  held  a  reference  in  the  above  case, 
and  submit  the  following  i-eport  with  accom- 
panying testimony.  There  is  no  difference  of 
opinion  as  to  the  facts  set  forth  and  stated 
in  the  bill  of  complaint ;  both  complainants 
and  tlefendant,  through  their  solicitors,  con- 
cur as  to  the  facts,  and  that  the  annual  bal- 
ance as  appears  by  the  return  of  the  adminis- 
trator is  correct  and  proper ;  both  complain- 
ants' and  defendant's  solicitors  consent  that 
the  land  should  be  sold,  described  in  the  bill. 
I  therefore  recommend  that  it  is  expedient 
to  do  so.  The  only  question  upon  which 
there  is  a  difference  of  opinion,  or  about 
which  there  is  any  dispute,  is  whether  the 
administrator,  Samuel  Dent,  is  chargeable 
with  interest  on  the  annual  balance  in  his 
hands  under  the  circumstances  of  the  case. 
After  the  payment  of  certain  debts  and  de- 
ducting commissions,  there  was  in  the  hands 
of  the  administrator  $3,401.10,  adding  one 
year's  interest  and  cash  received  for  land, 
leaving  a  balance  in  his  hands  of  $3,149.55, 
20th  July,  1847.  Shall  the  administrator  pay 
interest  on  that  sum  up  to  the  present  time? 
As  a  general  rule  all  executors  and  adminis- 
trators are  chargeable  with  interest  on  annu- 
al balances,  unless  a  sufficient  excuse  or  jus- 
tification is  offered  to  discharge  them.  What 
is  the  excuse  offered  by  the  defendant?  On 
the  1st  of  April,  1846,  A.  Herbemont,  escheat- 
or  of  Richland  District,  notified  the  adminis- 
trator "to  hold  the  proceeds  of  the  sale  of 
the  estate  as  well  as  all  other  monies  which 
may  come  into  your  hands  on  account  of  said 
estate,  subject  to  the  claim  of  the  trustees  of 
the  Academy  of  Columbia."  A  similar  no- 
tice was  served  upon  the  administrator,  20th 
February,  1847,  notifying  him  that  the  trus- 
tees claim  the  funds  as  escheated  estate : 
signed  W.  F.  DeSaussure,  president  of  the 
Trustees  Academy  of  Columbia.  In  addition 
there  is  evidence  of  different  litigations,  com- 
mencing 16th  March,  1848,  and  continuing 
down  to  1851,  the  period  of  the  compromise 
agreement ;  and  evidence  of  defendant's  an- 
swer, not  contradicted  by  proof,  that  after  the 
receipt  of  the  notices,  he  held  the  money  in 


his  hands  ready  at  any  time  to  pay  tlie  same 

*9 
over  to  whoever  *should  be  entitled,  not 
having  used  it.  This  is  the  extent  of  the 
proof  offered  by  the  defendant  to  discharge 
him  from  his  liability.  If  the  administra- 
tor imprudently  neglected  or  omitted  to  lay 
out  the  monies  in  his  hands  he  would  be  lia- 
ble for  the  interest,  or  if  lie  used  the  money, 
or  committed  any  other  misfeasance,  or  if 
he  kept  the  money  dead  in  his  hands  without 
any  apparent  reason  or  necessity,  it  would 
become  negligence,  and  he  would  be  chargea- 
ble with  interest.  An  executor  shall  not 
be  charged  with  interest  inider  a  fair  appre- 
hension of  his  right  to  it.  Outstanding  de- 
mands are  not  sufficient  to  discharge  an  exec- 
utor or  administrator  from  the  payment  of 
interest.  These  are  w^ell  settled  principles, 
and  we  have  only  to  inquire,  do  the  circum- 
stances of  the  case  and  the  proof  justify 
the  administrator  in  retaining  the  money  in 
his  hands?  I  am  satisfied  that  the  evidence 
is  sufficient  to  bring  him  under  the  protection 
of  the  principles  laid  down.  An  outstanding 
demand  would  be  no  excuse,  but  two  or  three 
branches  of  litigation,  the  escheator  and 
President  of  the  Columbia  Academy  all  claim- 
ing the  funds,  it  certainly  was  prudent  for 
the  administrator  to  retain  the  funds  in  his 
hands,  not  knowing  at  what  time,  or  by 
whom,  he  would  be  called  on  for  the  money 
as  legally  entitled  to  it.  There  is  no  proof 
that  he  used  or  that  he  made  profit  out  of  it ; 
but,  on  the  contrary,  that  he  retained  it  in 
his  hands,  ready  at  any  time  to  pay  it  over 
to  the  legal  and  rightful  owner.  The  admin- 
istrator is  willing  to  account  for  the  interest 
received  upon  notes  not  paid  when  due.  I 
have  therefore  charged  the  administrator 
with  the  balance  of  interest  so  received, 
amounting  to  eighty  dollars  and  fifty-four 
cents. 
"The  account  wall  stand  thus: 

Balance  in  hands  of  administrator.  ..$3,149  55 
Add     eighty     dollars     and     fifty-four 
cents  interest 80  54 


Making  the  aggregate  in  the  hands  of 
the  administrator $3,230  09" 

The  complainants  excepted  to  the  Commis- 
sioner's report  on  the  following  grounds: 
*10 

*Because  the  Commissioner  ought  to  have 
charged  the  administrator  with  interest  on 
the  balance  in  his  hands  from  the  date  from 
which  the  said  administrator  had  declined 
to  account  for  interest. 

Wardlaw,  Ch.  This  case  is  presented  to 
me  on  an  exception  by  the  plaintiff'  to  the 
Commissioner's  report  on  the  defendant's 
accounts,  because  the  Commissioner  has  not 
charged  the  defendant,  as  administrator, 
with  interest  on  the  funds  in  his  hands,  be- 
yond the  interest  which  the  defendant^  ad- 
mits that  he  has  actually  received.  The 
facts  and  reasons  upon  which  the  Commis- 


<g=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


DUXCAX  V.  DEXT 


*12 


Bloner   actt.l  ,aro   clearly   statod    in   his    re- 
port, to  wiiirh  I  refer.    The  sulistance  of  de- 
fendant's excuse  from  the  payment  of  inter- 
est,  is,   that   haviiij;  been   nutifu'd  by   the  es- 
cheator   in    lS4(i  that  tlie  estate   in   the  ad- 
niinistrator's   hands   was   claimed  as   an   es- 
cheat,  he   retained   the  fnnds    without    mak- 
ing profit,  to  meet  the  claim.     No  proceeding 
towards   escheat    was   ever    instituted.      Tlie 
only  actual  suits  concerninj:  the  estate,  were 
a  bill  filed  KUh  March,  1S4S,  against  the  ad- 
ministrator,  for  account,    by    persons   claim- 
ing' t<j  be  next  of  kin  of  the  deceast'd,  which 
was  comprondsed  in  isni,  (in  conn«'Ction  with 
the  proceedin.i:   next   mentioned)   and   a   suit, 
first  in  the  Court  of  Ordinary  and  by  appeal 
In  the  Court  of  Connnon  Pleas,  to  set  up  a 
will   of  the   deceased.     This    latter  proceed- 
ing  was  instituted   in  April.    isr>0.  and  was 
terminated  by  compronnse  in  October,  isol, 
according  to  which  a  verdict  was  to  be  found 
establishing  the  will  propounded  for  probate, 
and    the   plaintiffs   as   legatees,    were  to    re- 
ceive one-third  of  the  estate  in  full  of  their 
claims;    the  verdict  was  so  found,  and   the 
defendant  iiromptly  paid  the  portion  of  the 
principal  of  the  estate   to  which   the   plain- 
tiffs, by  the  compromise,  were  entitled.     The 
exemption   from    interest    begins    in    Xovem- 
ber.  1S4G.  and  April,  1S47,  at  the  expiration 
of  a  year  from   the  two  sales  made  bv  the 
adnnnistrator;     the    securities    for   the   pro- 
ceeds of  sale  bearing  interest  from  the  dates 
of  sales,    respectively,    made   a   year   before. 
On   the    authority   of   Chesnut    v.    Strong,    2 
Hill  Eij.  l.-.(t.  I  regard  the  fact  as  estal)lished 

*11  I 

*by  his  answer  in  the  absence  of  any  coun-  | 
tervailing  proof,  that  the  defendant  did  re- 
tain the  funds  of  the  estate  in  his  hands 
without  making  interest.  The  question  in 
the  case  is,  whether  he  was  guilty  of  neg- 
ligence, amounting  to  such  a  breach  of  trust 
as  to  subject  him  to  the  payment  of  interest, 
in  thus  keeping  the  funds  unprofitable. 

In  general,  trustees  to  whom  is  connnitted 
the  management  of  estates,  are  liable  for  in- 
terest if  they  keei)  monies  in  their  hands, 
without  necessity  from  the  exigencies  of  the 
estates,  to  meet  lumiediate  demands.  2 
Wms.  on  Exors.  1309;  Uam.  on  A.ssets  51- ~ 
Newton  v.  Rennet,  1  liro.  C.  K.  351),  ami  Per- 
kin's  Notes;  Littlehales  v.  Ga.scovne,  and 
Franklin  v.  Frith.  3  Bros.  C.  K.  73  and  433; 
Pace  V.  Burton.  1  MeC.  Eq.  liaO ;  Black  v 
Blakely,  2  McC.  E<j.  7;  Taveau  v.  Ball.  1 
McC.  E<i.  4o9.  Notwithstanding  the  report 
of  the  Comnu.ssioner.  and  tlie  earnest  and 
strong  argument  made  for  defi-ndant,  I  am 
unable  to  concluile  that  any  exigency  of  tlie 
estate  under  his  management  justified  the 
defendant  in  keeping  the  monies  di'ad  in  his 
hands,  according  to  the  phrase  of  E(u-d  Thur- 
low.  A  mere  notice  to  the  defendant  that 
the  estate  in  his  hands  was  claimed  as  es- 
cheated, amounted  to  little  or  nothing,  when 
not  followed  by  proceedings  to  escheat;    es- 


pecially when  we  remember  that  under  the 
Act  to  regulate  escheats  (H  Stat.  4li)  such 
proceedings  could  not  be  consummated  under 
eighteen  months,  if  so  somi.  If,  in  this  case, 
the  actual  litigation  concerning  the  estate  be 
held  to  protect  the  representative  of  the  es- 
tate from  interest,  then  every  executor,  ad- 
ministrator or  other  trustt'e.  who  is  called 
to  account  by  suit,  niust  be  saved  from  in- 
terest from  the  beginning  of  the  suit  to 
account.  The  two  ca.ses.  principally  relied 
upon  in  behalf  of  the  defendant.  de"i)end  on 
peculiar  circumstances,  not  existing  in  the 
present  case.  In  pjue  v.  Burton,  the  adnnn- 
istrator. without  being  under  any  trust  as 
to  lands,  lea.sed  certain  lands  of  his  intestate 
to  temmts,  who  were  sued  for  the  recovery 
of  the  lands  and  mesne  profits,  under  what 
proved  to  be  a  better  title.  It  was  held,  that 
the     administi-ator     prudently     kept     in     his 

*12 
hands  the  rents  for  *tin-  Kinds,  to  meet  the 
damages  likely  to  be  reeovered,  in  pending 
suits,  from  tenants  to  whom  he  was  respon- 
sible, and  was  not  liable  for  interest  while 
the  suits  were  in  progress.  In  Chesnut  v. 
Strong,  the  (Executor  was  exempted  from  in- 
terest, not  actually  made,  upon  proof  that 
by  agreement  with  the  lestatt>r.  in  conse- 
quence of  which  he  accepted  the  trust,  he 
was  not  to  be  liable  for  interest. 

Ca.ses  are  not  to  be  brought  witlun  an  ex- 
ception to  a  general  rule,  whieli  are  not 
clearly  within  the  reasons  of  the  exceittion. 
If  a  trustee  do  not  choose  to  use  the  funds 
in  his  hands,  and  there  be  probable  demands 
against  the  trust  estate,  it  is  Ins  duty  to  ap- 
jily  to  the  Court,  as  indicated  in  Black  v. 
Blakely.  for  leave  to  surrender  or  deposit  the 
funds;  otherwise,  except  in  rare  instances, 
it  must  be  inferred  that  he  has  made,  or 
ought  to  have  made,  iirolit  from  tiie  funds, 
eipiivalent  to  interest.  It  is  ordered  and  de- 
creed, that  the  exception  be  sustained,  antl 
that  the  report  be  recommitted  to  the  Com- 
nnssioner  for  the  consetpient  moiliiieation. 
I  think  defendant  should  be  exempt  from 
costs.  i;j  ^'es.  402. 

The  defendant  apiiealed  and  movetl  this 
Court  to  reverse  the  decree  on  the  ground: 
That  the  defeiulant  is  not  liable  for  in- 
terest on  the  money  retained  in  his  hands 
as  adnnnistrator  .)f  the  estate  of  Daw.son 
Wages  from  .\ovendier.  l.S4(;.  and  April.  1.S47, 
to  the  ternnn.ition  of  the  proceedings  in.sti- 
tuted  to  establish  the  will  of  tlu-  .said  Daw- 
son Wag«'s. 

Black.  Arthur,  for  the  motion,  cited  2 
Mad.  11(1;  Bail.  Imi.  4(10.  4S7;  1  McC.  Ch. 
247;  2  Wms.  on  Exors.  l.'UtJt 
1  B.  iV:  B.   r.tl. 

(;regi 

Ch.  :;77 


12   \es.   3S(i 


l»i>    S;iussure.   contra,    cited   2    Hill, 


The  opinion  of  the  Court   was  delivered  bv 


WAItHEAW.  Ch.     We  are  content  witli  the 
general  reasoning  of  the  Circuit  decree,  and 


42 


5  RICHARDSON'S  EQUITY  REPORTS 


with  the  conclusion  attained,  that,  granting 
the  defendant  kept  the  funds  in  liis  hands 
without  profit,  he  must   paj'    interest,    since 

*13 
no  exigency  of  the  estate  *entrusted  to  liis 
management  rendered  it  prudent  that  he 
should  so  retain  the  funds.  No  debt  of  the 
estate  remained  unsatisfied,  and  there  was  a 
clear  balance  in  tlie  administrator's  hands, 
which  was  claimed  by  various  persons  in  dif- 
ferent rights.  The  obvious  duty  of  the  de- 
fendant, under  such  circumstances,  was,  to 
file  a  bill  of  interpleader  against  all  the  ad- 
verse claimants,  and  to  pay  the  money  into 
Court.  If  this  course  had  been  adopted,  and 
the  litigation  had  seemed  likely  to  be  of  long 
duration,  the  Court,  on  the  application  of 
any  of  the  parties,  or  sua  sponte,  might  have 
ordered  the  investment  of  the  money  in  se- 
curities bearing  interest.  Every  man  is  pre- 
sumed to  know  tlie  law ;  and  if  trustees,  who 
are  in  fact  ignorant  of  the  law,  will  act  up- 
on their  blind  judgments  without  consulting 
the  expert,  they  must  bear  the  consequences 
of  their  rashness.  It  may  be  remarked,  that 
the  answer  makes  no  mention  of  the  suit  or 
suits  in  Equity,  and  the  character  of  the  liti- 
gation there  was  not  otherwise  brought  to 
the  attention  of  the  Chancellor,  than  by  a 
statement  at  the  bar  that  the  suits  were 
for  an  account  of  the  estate.  If  the  fact  be 
as  now  suggested,  that  these  were  suits  by 
adverse  claimants  of  the  estate  itself,  this 
fact  does  not  strengthen  the  defence,  for 
such  suits  are  necessarily  dilatory,  and  if 
defendant  did  not  wish  to  use  the  money,  he 
should  have  paid  it  into  Court. 

The  Chancellor,  on  circuit,  in  deference  to 
some  observations  made  in  the  case  of  Ches- 
nut  V.  Strong,  2  Hill,  Eq.  150;  1  Hill,  Eq. 
122,  not  necessary  to  the  decision  of  that 
case  treated  the  allegation  in  the  answer, 
that  defendant  had  kept  the  funds  in  his 
hands  without  making  interest,  as  throwing 
the  burden  of  disproof  of  the  fact  upon  the 
plaintiff.     Such  is  not  our  opinion. 

This  allegation,  made  by  way  of  defence 
from  the  payment  of  interest,  is  not  re- 
sponsive to  an  ordinary  bill  for  account,  so 
as  to  stand  for  proved  until  rebutted  by  two 
witnesses  or  etpiivalent  evidence.  To  an- 
nounce as  the  doctrine  of  the  Court,  that  de- 
fendants to  bills  of  account  migut  thus  by 
unsupported  oath  relieve  themselves  from  the 
charge  of  interest,  would  be  to  tempt  to  per- 
jury by  the  bait  of  lucre:     and   I   fear  we 

*14 
should  *have  many  answers  from  trustees 
alleging  the  retention  of  money  without  prof- 
it. Such  defence  is  clearly  matter  In  avoid- 
ance of  the  plaintiff's  case  in  the  bill,  and 
like  every  other  independent  defence,  must 
be  proved.  The  negative  nature  of  the  state- 
ment may  justify  Courts  in  holding  slighter 
evidence  to  be  sufficient  than  is  required  as 
to  most  matters  of  defence,  but  certainlv  not 


in  dispensing  with  all  proof.  If  a  trustee 
show  to  the  Court  that  in  ordinary  prudence, 
from  the  exigencies  of  the  estate,  he  should 
have  kept  money  on  hand,  this  is  strong  evi- 
dence in  support  of  his  answer  that  he  did 
so  retain  money,  and  needs  little,  if  any, 
corroboration.  In  the  present  case  the  an- 
swer was  entirely  unsupported.  These  views 
are  consistent  with  every  thing  decided  in 
Chesnut  v.  Strong,  although  opposed  to  a 
train  of  reasoning  there.  In  that  case,  the 
testator  by  his  will  in  express  terms  allowed 
his  executors  to  retain  the  legacies  to  his 
children,  who  were  the  plaintiffs,  until  the 
children  attained  the  age  of  twenty-one 
years ;  although  he  did  not  give  to  the  execu- 
tors the  interest  accruing  in  the  interval  be- 
t\\een  his  death  and  the  maturity  of  the  chil- 
dren. Parol  evidence,  (of  doubtful  compe- 
tency,) established  the  existence  of  an  agree- 
ment between  the  testator  and  executors,  that 
they  were  not  to  be  charged  with  interest, 
and  that  they  accepted  the  executorship  on 
that  condition.  There  was  also  evidence, 
that  the  executors  had  in  one  instance  lent 
money  without  interest,  and  in  another  had 
refused  to  accept  full  interest ;  and  that  they 
generally  had  the  money  on  hand.  Upon 
this  strong  evidence  in  supiwrt  of  their  an- 
swer, the  executors  were  excused  f''om  in- 
terest which  they  did  not  make,  and  were  re- 
quired to  pay  so  much  interest  as  they  re- 
ceived. 

It  is  ordered  and  decreed  that  the  decree 
be  affirmed  and  the  appeal  be  dismissed. 

.JOHNSTON,  DUNKIN  and  DARGAN,  CC, 
concurred. 

Decree  affirmed. 


5    Rich.  Eq.  *I5 

*J.   M.    I  SON,   Administrator,  and   Others  v. 
JACOB  I  SON  and   THOMAS  E.   I  SON. 

(Columbia.  Nov.   and  Dec.   Term,  lSo2.) 

[Eqiiiti/  <g=::>340.] 

Bill  for  settlement  uf  an  intestate's  estate 
sought  to  charge  the  defendant  with  a  stallion 
as  an  advancement:  defendant's  answer  admit- 
ted the  gift,  and  alleged  that  he  had  paid  his 
father  for  the  stallion: — Held,  that  ilefendaut's 
answer  as  to  the  payment,  was  not  evidence  for 
him;  and  McCaw  v.  Blewit,  2  McC.  Ch.  101, 
overruled  on  this  point. 

[Ed.  Note. — Cited  in  Barr  v.  Haseldon,  10 
Rich.  Eq.  62;  Cloud  v.  Calhoun.  10  Rich.  Eq. 
366;    Barksdale  v.  Hall,  13  Rich.  Eq.  ISS. 

For  other  cases,  see  Equity,  Cent.  Dig.  §  700 ; 
Dec.  Dig.  (©=3340.] 

[Descent  and  Distrihution  <S=>96.] 

Though  a  gift  for  the  purpose  of  pleasure 
or  amusement  merely,  as  of  a  saddle  horse,  a 
buggy,  «S:c.,  is  not  considered  an  advancement ; 
yet  the  gift  of  a  stallion,  to  be  employed  as  a 
foal-getter  and  for  profit,  is  an  advancement. 

[Ed.  Note.— Cited  in  Rees  v.  Rees,  11  Rich. 
Eq.  lOS ;  Rickenbacker  v.  Zimmerman,  10  S. 
C.  121. 

For  other  cases,  see  Descent  and  Distribution, 
Cent.  Dig.  §  394:    Dee.  Dig.  <£3=>!»6.] 


6 


®=;jFor  other  cases  see  same  topic  and  KEV-NUMDER  iu  all  Key-Numbered  Digests  and  Indexes 


ISON  V.  ISDN 


*17 


{Deacent   atnJ   Disfrihiitiun    C=3ll-_M 

In  asccitiiiniii;,'  tli.-  am.miit  of  an  advanoc- 
raent,  n'fcri-iicc  .slxmld  I,.'  had  to  tin-  dt'scrip- 
tion  of  the  tliatttl  at  the  time  of  tlic  ^ift,  and 
tlie  valiu'  of  u  rliattel  of  tliat  description  at  the 
death  of  the  intestati-:  McCaw  v.  HIewit,  '2 
AIc-C.  (Ml.  10:j,  is,  on  this  |>.iint,  a  h-adin?  oase. 

|Ed.  Note.— rited  in  .Mil. me  v.  Steeh',  14 
Huh.   K(|.   IKJ:    Wilson  v.   Kelly.  L'l   S.   C.  o.'J'J. 

For  other  cases,  see  Descent  an<l  I  Mstributiou. 
Cent.  Dig.  §  421:    Dec.  Dii;.  C=>lll.'.i 

IDcscrnt  and  DixtrUiHtion   <S=3!»."».l 

-V   distributee    is    not  charueaiile,    as    for  an 

'><l\!>iice nt.   with   the   rent   of  land   which   the 

intestate    had    perniittcd    him    to   occupy. 

|Kd.  Note.— Cited  in  Hickenhacker  v.  Zininier- 
nian,  10  S.  C.  115:  Wilsuii  v.  Kdlv,  L'l  S  C. 
n4(». 

For  other  cases,  see  De.scent  and  Distribu- 
tion, Cent.  IMj:.  §  :VX\\    Dec.  Dig.  (S=lir..] 

IJetoie  Johnston,  Cli.,  at  T'nion.  June  1S52. 
This  cn.st'  came  up  un  exceptions  to  the 
Coiuiiiissidiier's  report,  which  is  a.s  foUow.s: 
'"Your  Couiniissioiier,  to  whom  it  was  re- 
ferred to  take  into  account  and  to  reiJort 
upon  the  receipts  and  expenditures  of  the 
administrators,  ]{.  W.  Lee  and  J.  M.  I.son, 
and  al.so  to  ascertain  the  advancements  made 
to  the  distributees  of  Frederick  Ison,  hetrs 
leave  to  report :  that  the  intestate  died  some 
time  in  the  Fall  of  l.S45.  and  the  plaintiffs, 
B.' W.  Lee  and  J.  M.  Ison,  shortly  tlu'ieafter 
took  out  letter.s  of  administration,  and  sold 
the  personal  estate. 

"A  few  days  previous  to  the  death  of  the 
intestate,  he  (ailed  all  his  children  around 
him,  and  attempted  to  e<iualize  them  by  ad- 
vancements ;  and  on  this  occasion  he,  by  way 
of  advancement,  save  to  each  one  of  them  one 
or  more  negroes,  with  tlie  exceiitii»ii  oC  the  de- 
fendant, Jacob  Ison,  and  charged  them  ac- 
cording to  Exhibit  A,  in  compbiinants'  bill, 
with  which  it  is  understood  they  all,  with 
the  exception  of  Jacob,  acipiiesced  at  the 
time,  and  with  which  each  one,  with  the 
.same  exception,  is  still  willing  to  be  charged. 
*16 
*"The  bill  charges  an  additional  advance- 
ment of  a  stallion,  against  Thomas  K.  Ison, 
or  alleges  that  a  recovery  of  one  Smithpeter, 
on  a  note  (given  by  the  intestate  in  his  life- 
time.) against  the  administrators,  was  for 
the  purchase  money  of  a  stallion  which 
Thomas  E.  Ison  received  from  the  intestate, 
and  which  Thomas  had  promised  his  fatlier 
he  would  iiay. 

"On  this  subject  there  was  no  proof,  ex- 
cept what  is  contained  in  his  answer,  in 
which  lie  admits  that  he  received  the  horse 
from  his  father  as  a  gift,  but  says  the  gift 
was  made  to  equalize  him  with  the  other 
children,  who  had  all  received  from  their 
father  one  or  uuu-e  horses.  As  to  this  aver- 
ment in  tlie  answer,  there  was  no  jiroof.  I'.ut 
the  defendant  .states  further  in  his  answer, 
that  he  took  the  horse,  or  acceptt'd  him.  on 
condition  that  he  was  to  pay  his  father  for 
bim  the  amount  his  father  was  to  pay  Sniitli- 
Iieter,  which  he  afterwards  did;  that  h«'  took 


the  horse  with  this  understanding,  and  prom- 
ised his  father  that  he  would  stand  him,  and 
that  if  he  could  make  any  thing  out  of  him, 
he  would  i»ay  him  the  amount  he  was  to  pay 
Smithpeter;  that  he  stood  the  horse  fmm  the 
date  of  the  purchase,  in  \s:V2,  for  .several 
years,  and  after  deducting  neee.-jsary  ex- 
penses, and  charging  nothing  for  his  trouhle, 
he  pai<l  the  i»niieeds  to  the  intestate,  partly 
in  cash,  and  partly  In  notes  an<l  accounts,  in 
the  whole  amounting  to  !?.'J0.">.:)1  VL-.  which  is 
more  than  he  originally  undertook  Xo  pay — 
that  he  snbseipiently  .sold  (he  horse  for  $250. 
"The  evidence  on  tliis  point  was  from  one 
witness,  that  he  put  two  or  three  mares  to 
the  horse,  and  settled  for  the  season  with 
the  int«'state— that  he  also  owed  the  defend- 
ant, Thomas  E.  Ison,  ten  or  fifteen  dollars 
for  work  on  a  gin,  which  he  also  paid  to  the 
old  man.  He  proved  by  another  witness, 
that  in  \s:\W  or  1S40,  the  int«'state  was  in- 
del)ted  to  the  witness,  and  that  Tliomas  E. 
Ison  paid  him  fifty  or  .sixty  dollars  of  the 
debt,  <»r  laid  down  his  money  on  a  talde.  and 
told  his  father  to  take  what  he  wanted,  who 
took  the  amount  stated. 

"Taking  the  case  altogether,  the  Commi.s- 
sioiier  is  not  of  the  o|>inion  that  Thomas  E. 
Ison  should  be  charged  with  the  horse. 
*17 
♦Exception  on  the  part  of  Jacob  Ison  was 
taken  as  follows: 

Because  the  report  does  not  charge  Abraiii 
Ison  and  John  Ison  with  rent  of  land  on 
which  they  "have  lived  and  rai.sed  their  fam- 
ilies— the  rent  of  which,  as  t(»  each,  was 
proved  to  have  been  worth  thirty  or  forty 
dollars  a  year  and  for  which  they  should  ac- 
count, to  do  justice  to  the  other  heirs  at 
law. 

The  complainants  also  ex<eitted  to  the  re- 
port on  the  ground. 

Becaii.se  the  Commissioner,  in  making  up 
his  report,  does  not  charge  Thomas  E.  Ison 
with  the  price  of  the  stalli(ui  given  to  him 
by  the  intt'state.  as  he  admits  in  his  answer 
that  he  rei-eived  it  as  a  gift,  and  there  is  no 
proof  of  any  payment  being  made  by  him  for 
the  .said  horse. 

Johnston,  Ch.  On  hearing  the  report  of 
the  Commissioner  in  this  ca.se.  tlie  exception 
filed  by  the  plaintitTs.  and  the  exception  tiled 
by  the  defendant.  Jacob  Ison.  It  is  ordered 
that  (he  exceittiou  of  iilaintiffs  be  sustained; 
and  that  the  exception  of  the  defendant.  Ja- 
cob Ison.  be  overruled. 

Thomas  E.  Ison  appealed  upcui  the  grounds: 

1.  l'.e<ause  the  answer  of  the  d»'feiidaiit, 
admitting  the  advancement,  but  alleging  ]iay- 
nient  of  it.  being  strictly  responsive  to  the 
bill,  was  evidence  in  his  favor  and  should 
liavt'  been  admitted  as  such,  and  the  whole 
taken   and   construed   together. 

2.  Because  his  Honor  erred,  it  is  respect- 
fully submitted,  in  holding,  that  where  the 
defendant  charges  hiniself.  by  his  own  oath. 


®=^Kor  oUkt  cases  see  same  topic  aud  KliV-NUMBER  iu  all  Key-Numbered  Digests  and  Indexes 


*17 


5  RICHARDSON'S  EQUITY  REPORTS 


with  a  debt,  his  statements  alleging  that  the 
same  is  paid,  are  not  evidence  in  his  favor, 
but  must  be  supported  by  testimony  inde- 
pendent of  his  own  oath. 

3.  Becanse  the  property  charged  as  an  ad- 
vancement in  this  case,  from  its  nature  and 
character,  cannot  rank  as  an  advancement, 
in  the  sense  in  which  the  statute  uses  tlie 
word;  not  being  given  "in  anticipation  of 
what  he  might  inherit,"  or  "with  a  view  to 
his  settlement  in  life." 

4.  Because  there  is  proof  before  the 
Commissioner,  that  sundry  payments  had 
been  made  by  the  defendant,  Thomas  E.  Ison. 
to  the  intestate;   and  as  there  was  no  evi- 

*18 
dence  or  pre*tence  of  any  other  indebtedness, 
they  should  be  held  and  deemed  as  having 
been  made  in  payment  of  this  debt;  and  that 
upon  this  point  the  case  should  have  been 
re-committed  to  the  Commissioner,  to  ascer- 
tain and  report  upon  the  payments  made. 

5.  Because  the  acts  and  declarations  of  the 
intestate,  done  and  made  on  the  2d  Septem- 
ber, 1845,  as  alleged  in  complainants'  bill, 
are  conclusive  evidence,  and  amount  to  an 
admission  by  the  intestate,  that  this  debt 
against  Thomas  E.  Ison  was  paid,  as  there 
Avas  no  charge  raised  against  him  at  this 
time,  which  point  his  Honor  did  not  advert 
to  in  his  decretal  order. 

Jacob  Ison  also  appealed  on  the  ground: 
Because  the  Chancellor  should  have  sus- 
tained his  exception. 

Arthur,  for  Thomas  E.  Ison. 
Thomson  and  Jeter,  for  Jacob  Ison. 
T.  N.  and  J.  Dawkius,  for  plaintiffs. 

The  opinion  of  the  Court  was  delivered  by 

JOHNSTON,  Ch.  The  appeal  of  Thomas 
E.  Ison  is  founded  entirely  in  misconception. 

This  defendant,  in  his  answer  admits  the 
gift  of  the  stallion;  and  whatever  he  says 
afterwards,  of  payments  made  for  him  was 
matter  in  avoidance:  and  is  not  proved  by  the 
answer, — but  must  be  established  by  evidence 
aliunde.  This  is  the  clear  and  well  establish- 
ed rule  on  the  subject.  We  have  observed, 
with  regret,  that  of  late,  a  decision  in  the 
case  of  McCaw  v.  Blewit  (2  McC.  Eq.  101-2,) 
has  been  cited  by  the  bar  as  authority  to  the 
contrary.  However  important  and  valuable 
that  case  may  be,  on  other  points, — on  this 
point  it  is  clearly  erroueous,  and  has  never 
been  followed;  and  we  have  no  hesitation  in 
overruling  it. 

The  question,  whether  a  stallion  is  an  ad- 
vancement, is  one  of  easy  solution,  in  this 
case.  It  is  admitted  that  gifts,  or  contribu- 
tions, made  by  a  father  to  his  child,  for  the 
purpose  of  pleasure  or  amusement  merely, 
are  not,  in  their  nature,  advancements.  A 
saddle  horse,  a  buggy  or  like  articles,  if  given 
with  no   view  to  profit,   but  merely   for  the 


*19 

gratificati-m  of  the  child,  *do  not  come  with- 
in the  idea  of  having  been  bestowed  on  him 
"in  anticipation  of  what  he  might  inherit," 
or  "with  a  view  to  his  settlement  in  life.'Vc) 
But  the  gift  of  a  stallion  to  be  employed, 
as  in  this  case,  as  a  foal-getter  and  for  prof- 
it,— is  the  gift  of  a  tangible  portion  of  the 
father's  estate,  as  so  much  capital:  and, 
whatever  difficulty  may  exist  on  this  general 
head  of  law,  in  other  instances,  is  certainly 
an  advancement  in  this  case. 

Certainly,  in  ascertaining  the  amount  of 
this  advencement,  reference  should  be  had  to 
the  description  of  the  horse  at  the  t'vne  of 
the  gift,  and  the  value  of  a  horse  of  that  de- 
scription at  the  death  of  the  intestate.  The 
rule  is  laid  down  in  McCaw  v.  Blewit.  (2 
McC.  Eq.  10.3-4,)  which  is  the  leading  case, 
in  this  State,  upon  the  subject;  and  has  al- 
ways been  followed  in  subsequent  cases. 

The  decision  of  the  Chancellor  was  merely 
that  the  stallion  was  an  advancement;  not 
the  amount  to  be  charged  for  him.  That  is 
for  the  Commissioner,  on  further  considera- 
tion of  the  report. 

The  Court  concurs  with  the  Chancellor  in 
refusing  to  charge  certain  distributees  whom 
the  intestate  had  permitted  to  occuty  por- 
tions of  his  land,  with  rent,  as  an  advance- 
ment. If  they  owed  him  for  the  rent  it  was 
a  debt.  If  he  charged  nothing  for  the  oc- 
cupancy, (as  was  the  fact.)  the  permission  to 
occupy  was  a  mere  accommodation,  and  no 
advancement.  An  advancement  always  em- 
braces the  idea,  that  the  parent  has  parted 
from  his  title  in  the  subject  advanced.  But 
if  the  intestate,  in  this  instance,  had  actually 
given  the  land,  the  statute  expressly  exempts 
the  donee  from  accountabilitj'  for  the  rent: 
much  more  are  the  parties  exempt,  where 
tlie  whole  matter  was  simply  permissive,  and 
the  object  was  mere  accommodation. 

It  is  ordered  that  the  decree  be  affirmed, 
and  the  appeal  dismissed. 

DUNKIN,  DARGAN  and  WARDLAW,  CC, 
concurred. 

Appeal  dismissed. 


(a)  Vide    Rouv.    L.    Die.    Advanconients,    and 
McCaw  V.  Blewit,  2  McC.  Eq.  102-3. 


5   Rich.  Eq.  *20 

*HESTER   BERDRIAT'  and  Others  t. 
HENRY   H.  WELLS  and 

Others. 

(Columbia.  Nov.  and  Dec.  Term,  1852.) 

[Wills  <©=>531.] 

Testator  bequeathed  pi-dperty  to  his  wife 
for  life,  and  directed  the  same,  after  her  death, 
to  be  divided  between  Ann  M.,  the  children  of 
his  brother  Peter,  and  the  children  of  his  sister 
Hester,  "alive  at  the  death  of  my  wife,  share 
and  share  alike,  for  and  during  their  natural 
lives,   and   after  their  death  to  their    respective 


®=^Uor  other  cases  see  same  topic  and  KE  Y'-NUAIBER  in  all  Key-lsumbered  Digests  and  Indexes 


PERDRIAU  V.  WELLS 


**22 


children  forever.  Tt  is  my  will,  tiiat  if  the 
snifi  Ann  M..  I'ithir  <.f  tht-  ciiildreii  of  my 
broth»T  rcter.  <tr  sistir  Hester,  shniild  die  in 
my  life  time,  or  th<  life  time  of  my  .said  wife, 
that  the  eliild  or  children  df  siieh  nne  or  more 
of  thi-m  as  may  so  die.  take  the  |»ni-t  nf  their 
deceased  parent."  I'eter  and  Hestir,  the  broth- 
er and  sister  of  testator,  were  hotli  dead  when 
the  will  was  exeinted:  at  that  time,  and  at  tiie 
death  of  testator,  there  were  eij;ht  children  of 
I'cter,  and  li\<'  uf  Hester,  livin;;:  testator's 
wife  also  siirvivetl  him: — Held,  that,  at  the 
termination  of  the  life  estate.  Ann  ^L  and  the 
children  of  I'eter  and  Hester  will  take  e(|ually 
and  per  capita— the  <'hildii'n  of  sncii  as  inaj'  be 
dead  takinji  their  |tarent's  share. 

|Kd.  Note.  — Cited  in  Uarksdale  v.  Macbeth.  7 
Rich.  E(i.  1:54;  Hislier  v.  Adams.  <l  Rich.  E<i. 
241>:  Dupont  V.  Hnt.hinson.  10  Rich.  E(|.  1» ; 
Tindal  v.  Neal.  ;".!»  S.  ('.  7.  .".C,  S.  E.  1004; 
Robinson  v.  Harris,  ~'.\  S.  C.  477,  5.'}  S.  E.  7"»o, 

f.  L.  R.  A.  (.\.  s.)  :::;o. 

For  other  casi-s.  see  Wills.  Cent.  Di^.  §  1150; 
Dec.  Dig.   ®=35."1.1 

Refore  Dargaii,  Ch.,  at  Clnunbors,  Deceiu- 
bor,   1S51. 

r;iiiuu'l  Perdriaii.  of  Siinitor.  the  testator, 
(!i(':l  in  the  year  1S4.'!.  His  will,  which  was 
c:c.  11*1(1  ami  dated  July  lij,  1S41.',  was  drawn 
several  years  before  its  execution,  and  while 
liis  sister  Hester  Wells  was  alive.  She,  how- 
ever, had  died  before  it  was  executed.  The 
material  clauses  are  as  follows: 

"First.  1  devise  and  beiiueatli  luito  ni.v 
brotlier  John  Perdriau's  widow,  Mrs.  Ann 
Perdriau,  for  the  term  of  her  natural  life, 
the  u.se  of  my  winter  idantation,  situate  in 
Williamsburjih  District,  whereon  she  now  re- 
sides. 

"Second.  It  is  my  will  and  desire  that  my 
nef,'roes  and  other  jtersonal  estate  be  kei)t 
tof^ether  on  my  plantation  whereon  I  now  re- 
side in  Sumter  District,  and  are  not  to  be 
removed  therefrom  dm'ini;  the  life  of  my 
beloved  wife,  Hester  I'erdriau.  to  whom  I 
give,  bequeath  and  devise  the  said  plantation, 
negroes, .and  all  other  my  real  an<l  personal 
estate,  of  whatever  nature,  descrii»tion  or 
kind,  for  and  during  the  term  of  her  natural 
life.  I  also  devise,  be(pieatli  and  give  to  my 
said  wife  one-half  of  the  .said  real  and  per- 
sonal estate  to  be  disposed  of  by  her,  by  will, 
hut  if  she  make  no  will,  then  to  be  delivennl 
to  her  representatives.  Her  said  half  is  not 
to  be  allotted  off  to  her  in  her  life  time,  but 
to  be  delivered  after  her  death  to  hi-r  execu- 

*21 
tor  or  ♦administrator.  The  other  half  of  my 
said  real  and  personal  estate,  (given  to  my 
said  wife  for  her  life  time,)  I  will  and  devise 
be  sold  Ijy  my  acting  executor,  on  such  terms 
as  he  may  think  proper.  Rut  it  is  my  wish 
and  desire  that  my  negroes  be  sold  in  fami- 
lies, that  is  to  say,  that  husband  and  wife 
and  young  children  not  to  be  parted,  but 
to  be  sold  together. 

"The  proceeds  of  said  sale  of  tlu>  said 
half  of  the  estate,  given  as  aforesaid  to  my 
wife  for  life,  to  be  divided  between  Ann  M. 
China,  wife  of  John  China,  .jr.,  the  children 
of  my  decea.sed  brotlier,  Peter  Perdriau,  and 


al.so  the  children  of  my  sister,  Hester  Wells, 
alive  at  the  death  of  my  wife,  sbau  and 
share  alike,  for  and  during  the  term  ol  their 
natural  lives,  and  after  their  death,  to  their 
respective  children  forever;  the  parts  «"f  the 
females,  my  nieces  and  Ann  >L  China,  to  be 
to  their  sole  and  separate  use.  It  is  ni>  will 
I  that  if  the  said  Ann  M.  China,  either  cf  the 
children  of  my  brother  Peter  or  sister  Hes- 
ter, should  die  in  my  life  time,  or  tliv  life 
time  of  my  said  wife,  that  the  child  or  chil- 
dren of  such  one  or  more  of  them  as  may 
so  die.  take  the  part  of  the  deceased  parent. 
It  is  further  my  will  that  the  share  that  my 
lu'idiew,  James  Perdriau,  may  have  allotted 
to  him,  be  delivered  to  Ann  L.  Clark,  as 
his  trustee,  to  be  managed  for  him,  she  giv- 
ing to  him  such  iiart  thereof  as  slu'  may 
deem  neci'ssary  from  time  to  time.  I  do 
hereby  authorize  and  emi>ower  my  acting 
executor  to  apiioint  five  persons,  (any  three 
to  act,  if  all  cannot  attend,)  to  divide  my 
estate  after  the  death  of  my  .said  wife,  and 
do  all  such  other  acts  as  may  be  ne<essar.v 
to  carry  this  my  will  into  full  effect.  a.*5 
fully  as  if  he  were  authorizt'd  by  the  Court 
of  Ordinary  or  E«|uity. " 

The  children  of  Hester  Wells  and  Peter 
I'erdriau,  who  were  living  when  the  will 
was  executed  and  at  the  death  of  the  tes- 
tator, weri'  Mary  E.  Linam,  Hester  Harvin, 
Richard  F.  Wells,  Peter  E.  Wells.  Warren 
S.  Wells.  Henry  H.  Wells.  .Martha  P.  Tin- 
dall  and  Lydia  A.  Tindall.  children  of  Hes- 
ti'r  Wells,  and  James  I'erdriau.  Hester  Ram- 
sey. Ann  J,.  Clark.  Lydia  A.  Evans  and  .Mary 
(J.  Harrett.  children  of  Peter  Perdriau.  Of 
these  thirteen  persons,  three  had  died  since 
the  testator,  each  leaving  issue,  to  wit.  Mar- 

*22 
tha    P.    Tindall.    *who    left    three    children. 
Lydia    A.    Tindall.    who    left    (Uie    child,    and 
Mary    G.    Rarrett,    who    left   eight    children. 

The  bill,  which  was  filed  by  Hester  I'er- 
driau, the  widow  of  the  testator  (Ann  M. 
China  and  all  other  persons  interested  be- 
ing i)arties)  prayed  that  the  slaves  of  testa- 
tor, some  eighty  in  number,  might  be  .sold 
by  order  of  the  Court;  and  (the  said  Hester 
Perdriau  having  consented  to  reliiKpiisb  her 
Interest  for  life  in  one-half)  that  the  pro- 
ceeds be  divided,  "by  allotting  one-half  there- 
of to  the  said  Hester  Perdriau,  as  her  own 
right  and  proi)erty:  and  the  other  half  to 
the  persons  entitled  to  receive  the  same  as 
at  h»'r  death.  In  the  proportions  [)rescrilied 
by  the  said  will." 

His  Ihmor  made  an  order  for  the  sale  of 
the  slaves  by  the  Commissioner,  on  credit — ■ 
bonds  with  good  sureties  to  lie  given  by  the 
purchasers:— and,  in  relation  to  the  division 
of  tln>  jinxeeds,  he  decreed  as  follows: 

"That  on  receiving  the  said  bonils,  the 
Commissioner  do  deliver  over  so  many  of 
the  same  as  will  equal  one-half  of  the 
amount  of  the  said  sale,  to  the  said  com- 
plainant, Hester  Perdriau,  iu  full  discharge 


*22 


5  RICHARDSON'S  EQUITY  REPORTS 


of  all  her  right  and  interest  under  the  said 
will,  to  and  in  all  the  said  negro  property 
to  be  sold ;  and  that  when  collected,  he  di- 
vide the  proceeds  of  the  l)alance  of  the  said 
bonds  into  three  equal  parts — one  part 
thereof  to  be  the  share  of  the  said  Ann  M. 
China ;  another  third  part  thereof  to  be  the 
share  of,  and  to  be  equally  divided  between 
the  children  of  the  said  Peter  I'erdriau.  liv- 
ing at  testator's  death,  and  of  the  children 
of  such  of  the  children  of  the  said  Peter 
Perdriau.  as  may  have  died  since  the  tes- 
tator— the  last  to  take,  among  them,  the 
share  the  parent  would  have  taken  if  alive; 
and  the  other  third  part  to  be  the  share  of, 
and  to  be  equally  divided  between  the  chil- 
dren of  the  said  Hester  Wells,  living  at  tes- 
tator's death,  and  of  the  children  of  such 
of  the  children  of  said  Hester  Wells  as  may 
have  died  since  the  testator,  the  last  to  take 
among  them  the  share  the  parent  would 
have  taken,  if  alive." 

From  so  much  of  the  decree  as  is  recited 
*23 
above,  Richard  F.  *Wells  and  others  appeal- 
ed, and  moved  this  Court  that  the  same 
be  so  modified,  that  Ann  M.  China,  instead 
of  taking  one-third  part  of  said  proceeds, 
shall  take  one-fourteenth  part  thereof;  that 
each  of  the  four  children,  now  living,  of 
P'eter  Perdriau,  deceased,  and  each  of  the 
six  children,  now  living  of  Plester  Wells, 
deceased,  shall  take  one  other  fourteenth 
]tart  thereof;  that  the  children  of  Mary  G. 
Barrett,  deceased,  shall  take,  among  them, 
one  other  fourteenth  part  thereof ;  that  the 
children  of  Martha  P.  Tindall,  deceased, 
shall  take,  among  them,  one  other  four- 
teenth part  thereof;  and  that  the  child  of 
Lydia  A.  Tindall,  deceased,  shall  take  the 
remaining  fourteenth  part  thereof. 

Richardson,  for  appellants.  The  only 
question  presented  by  the  api^eal  is  as  to  the 
proportion  in  which  the  parties  take ;  that 
is  to  say,  Does  Ann  M.  China  take  one-third, 
the  children  of  Peter  Perdriau  one-third, 
and  the  children  of  Hester  Wells  the  re- 
maining third,  as  the  Chancellor  has  de- 
cided; or  do  they  all  take  equally  and  per 
capita,  as  the  appellants  contend? 

It  is  proper,  perhaps,  in  the  first  place  to 
remark,  that  the  recent  decisions  in  Tem- 
pleton  V.  Walker  (3  Rich.  Eq.  543)  and  Col- 
lier V.  Collier  (Id.  55.5)  have  no  application 
whatsoever  to  this  case.  Those  cases  were 
decided  on  the  principle,  that  inasmuch  as 
the  testator  has  himself  made  it  necessary 
that  resort  should  be  had  to  the  statute  of 
distributions  for  the  purpose  of  ascertain- 
ing the  objects  of  his  bounty,  resort  must 
also  be  had  to  the  statute  for  the  purpose  of 
ascertaining  the  proportion  in  which  they 
take.  Here  the  testator  has  made  no  ref- 
erence to  the  statute  necessary.  WTio  the 
children  of  Peter  Perdriau  and  Hester  Wells 
are,  can  be  known  without  resort  to  the 
statute  of  distributions. 

10 


There  is  but  one  class  of  decisions  which 
has  direct  application  to  the  case  now  be- 
fore the  Court,  and  that  is  the  general  class, 
where  there  is  a  Ijequest  or  devi.se  to  a  des- 
ignated individual  and  to  a  class  or  classes 
of  individuals.  P>ut  this  general  class  is 
subject  to  a  sub-division,  which,  to  avoid 
circumlocution,  will  be  called  class  No.  1 
and  cla.ss  No.  2. 

Class  No.  1.  To  this  class  l)elong  the  ca.s- 
*24 
es  which  fall  wi.th*in  the  following  princi- 
ple, as  laid  down  by  Chancellor  Harper,  in 
Cole  V.  Creyon  (1  Hill,  Ch.  319.)  "If  tliere 
be  a  bequest  to  an  ascertained  individual 
and  to  a  class  of  unascertained  individuals  (to 
be  ascertained  at  some  future  time  after  the 
death  of  the  testator)  it  vests  one-half  in 
the  said  individual  and  the  other  half  in 
the  individuals  of  the  class  collectively 
when  they  are  ascertained."  To  this  cla.ss, 
in  addition  to  the  case  of  Cole  v.  Creyon, 
belongs  the  case  of  Conner  v.  Johnson,  (2 
Hill,  Eq.  41.)  Cole  v.  Creyon  furnislies  an 
illustration  of  the  rule.  There  the  bequest 
was  to  testator's  wife  for  life,  and  after 
her  death  to  Alexander  Creyon  and  the  chil- 
dren of  Elizabeth  Cole.  Eliabeth  Cole  was 
living  at  the  death  of  the  testator.  It  was 
held,  that  all  the  cliildren  of  Elial)eth  Cole 
born  after  the  death  of  the  testator  and  be- 
fore the  death  of  the  tenant  for  life,  were 
entitled  to  come  in.  and  tliat  as  the  in- 
dividuals were  unascertained  when  the  tes- 
tator died.  Alexander  Creyon  took  one-half 
of  the  property  bequeathed,  and  the  children 
of  Mrs.  Cole  the  other  half. 

Class  No.  2.  To  this  class  belong  the  cas- 
es which  fall  within  the  following  rule:  "If 
there  be  a  devise  to  an  individual  designat- 
ed by  name  and  to  other  individuals  designat- 
ed as  a  class,  as  to  A.  and  the  children  of 
B;  or  if  it  be  to  the  children  (if  A  and  the 
children  of  B,  all  the  individuals  take  equal- 
ly and  per  caitita.''  Per  Chancellor  Harper 
in  Conner  v.  Johnson,  (2  Hill.  Eq.  43.)  To 
this  class  belong  the  cases  of  Blackler  v. 
Webb,  (2  P.  Wms.  283.)  Butler  v.  Stratton, 
(3  Bro.  Ch.  Rep.  .3G7.)  and  Lady  Lincoln  v. 
Pelham,  (10  Ves.  176.)  Butler  v.  Stratton 
furnishes  an  illustration  of  the  rule.  There 
the  devise  was  to  "John  Stratton  and  Rob- 
ert Stratton  and  the  children  of  Mary  Pat- 
terson." Mary  Patterson  had  four  children 
living  at  the  death  of  the  testator.  Held, 
that  they  all  took  equally  and  per  capita. 

Tlie  only  remaining  (juestion  seems  to  be, 
to  which  of  these  classes  does  the  case  now 
before  the  Court  belong?  If  to  class  No. 
1.  then  the  decision  of  the  Chancellor,  at 
Chambers,  was  right:    if  to  class  No.  2,  then 

*25 
the  decision  was  wrong  and  the  *appellants 
are   entitled   to  have   the   decretal    order   so 
modified   that   the  parties   shall   take   equal- 
ly and  per  capita. 

It   is   so  plain   that    this   case    belongs  to 


PKRDRIAU  V.  WELLS 


*27 


class  Xo.  2,  that  It  Is  scarcely  lU'ccssary  to 
discuss  the  question.  IVter  renlriau  aiul 
Hester  Wells  haviiij;  both  died  liefore  the 
testator  (they  \v*'re  both  in  fa<t  dead  when 
the  will  was  execut«'di  could  of  course  have 
no  children  born  after  the  <leath  of  the  tes- 
tator, as  was  the  case  in  Cole  v.  Creyon.  The 
individuals  tlu'refore  of  liotli  the  elasses  (that 
is.  the  children  of  Teti-r  I'erdriau  and  Ih'ster 
Wells)  were  as  certaiidy  desij,'nated  and  as 
much  ascertained,  at  the  death  of  the  tes- 
tator, by  the  terms  of  description  used  in 
the  will,  as  was  Mrs.  Ann  M.  China  lierself. 

But  it  may  be  said,  that  the  e.\i)ression. 
"alive  at  the  death  of  my  wife,"  brinj^s  this 
ca.se  back  aj^ain  within  the  rule  of  class 
No.  1.  It  should  be  observed  that  that  ex- 
pression ai»i»lies  as  well  to  .Mrs.  China  as  to 
the  children  of  Teter  I'erdriau  and  Hester 
Wells.  To  take  under  the  will  she  also  must 
be  alive  at  the  death  of  the  tenant  for  life. 

That  expression  may  be  held  to  make  the 
remainders  continirent ;  but  the  question  is 
not,  whether  the  remainders  are  t-ontiiifient, 
but  whether  the  incMviduals  are  ascertained. 
Sir  William  Blackstune  divides  contintient  re- 
mainders into  two  classes:  1st.  Where  the 
remainder  is  "to  ti;  dubious  and  uncertain 
person."  and  I'd  where  it  is  to  take  effect  on 
"a  duI)ious  and  unctTtain  event."  2  Bl.  Com. 
1C!>.  At  paf;e  170  he  jrives  an  illustration  of 
the  2d  class,  and  it  is  the  very  case  before 
the  Court:  "Where."  says  he,  "land  is  given 
to  A  for  life,  and  in  case  B  survives  him, 
then  with  remainder  to  B  in  fee;  here  B 
is  a  certain  person,  but  the  remainder  to  him 
is  a  contin.uent  remainder,  depending'  upon  a 
dubious  event,  the  uncertainty  of  his  surviv- 
ing A." 

It  may  again  be  said,  that,  in  tlie  event  of 
the  death  of  a  child  before  the  tenant  for 
life,  umiseertained  legatees  are  substituted 
in  the  place  of  such  child  :  but  that  can  hard- 
ly make  any  diftereiice  in  the  construction 
when  the  same  objection  ajiplies  to  the  be- 
quest to  Mrs.  China  herself.     Should  she  die 

*26 
in    *life   time    of   the    tenant    for   life,    Mrs, 
Terdriau,  unascx'rtained  legatees,  to  wit,  her 
children,  take  her  place. 

Much  might  be  said  upon  the  particular 
words  of  the  will,  and  espt'cially  upon  the 
«'Xpression  "share  and  share  alike;"  but, 
upon  the  views  above  taken,  it  is  subndtted 
that  the  appellants  are  entitled  to  their 
motion. 

De  Saussuri',  for  Mrs.  China,  cited  I  .larm. 
<in  Wills,  277,  and  note,  and  contended,  that 
as  to  the  objects  of  a  testattir's  bounty  and 
the  proportion  in  which  they  shall  take,  a 
will  speaks  from  its  date,  or  the  time  it  is 
drawn.  When  the  testator  here  drew  his 
will.  Hester  Wells,  his  sister,  was  alive. 
It  could  not,  therefore,  have  l)een  known, 
then,  but  that  she  would  have  other  children 
and  survive  both  the  testator  and  his  wife, 


the  life  tenant.  The  objects  of  the  testator's 
bounty  were,  therefore,  so  far  as  the  chil- 
dren of  Hester  Wells  were  concerned,  unas- 
certained at  the  time  of  the  draft  of  the  will ; 
and,  in  this  view,  he  submitted  that  the  case 
was  within  the  principle  upon  which  the  case 
of  Cole  V.  Crey(»n  was  difided.  He  also  con- 
tended that  the  words  -alive  at  the  death  of 
my  wife"  did  not  aiiply  to  Mrs.  China.  That 
they  aiiplied  to  the  children  of  I'eter  IVrdriau 
and  Hester  Wells,  only,  and  tliey.  therefore, 
were  the  persons  who  were  to  "share  and 
.share  alike." 

Moses,  for  the  iilaiiititTs. 

The  opinion  of  the  Court  was  delivered  by 

.KUl.NSTON.  Cli.  SmmiucI  rcidriaii.  liy 
his  last  will,  gave  bis  negroes  .and  other  per- 
.sonal  proi)erty.  and  the  plantation  on  width 
he  resided,  to  his  wife  Hester,  during  lier 
natural  life.  And.  at  her  death,  he  directed 
that  one-half  thereof  be  delivered  to  her 
next  of  kin. 

The  other  half  he  directed  to  be  .sold  by 
his  executor:  and  that  "the  proceeds  of  said 
sale  (of  the  said  half  of  the  estate"'*  "be 
divided  between  Ann  M.  China,  wife  of  John 
China,  jr..  the  children  of  my  det-eased  broth- 
er I'etiM-  Terdriau,  and.  also,  the  children  of 
my  sister  Hester  Wells,  alive  at  the  death  of 
my  wife,  share  and  share  alike,  for  anil  dur- 

*27 
lug  the  term  of  their  *natural  lives,  and  alter 
their  death,  to  their  respective  children,  for- 
ever:— the  parts  of  the  fenuih's.  my  ideces 
and  Aim  .M.  China,  to  be  to  their  sole  and 
separate  use.  It  is  my  will,"  he  priiceeds, 
-if  the  said  Aim  M.  China  |or|  either  of  the 
children  t)f  my  brother  I'eter  or  sister  Hester 
I  should  die  in  my  life  time,  or  the  life  time 
i  of  my  said  wit\'.  that  the  child,  or  children,  of 
such  one  or  more  of  them  as  may  so  die,  take 
the  part  of  the  deceased  parent." 

This  bill  was  tiled  by  Hester,  the  widow 
of  the  testator,  to  obtain  the  assent  of  the 
Court  to  her  relimiuisbing  one-half  of  the 
negroes,— for  a  sale  of  that  half,  and  for  a 
present  distributiiui  of  the  proceeds  among 
the  parties  to  whom  they  were  bequeathed 
at  the  expiration  of  the  life  estate. 

A  decree  to  that  eftect  has  been  obtained, 
from  which  no  apiK'al  is  taken  except  upon 
one  single  point.  The  decree  divides  the  pro- 
ceeds of  sale  into  three  iHiual  parts,  and  di- 
rects one  of  them  to  be  allotted  to  Ann  M. 
China,  one  to  the  children  of  I'eter  I'erdriau, 
and  one  to  the  childn'U  of  Hester  Wells.  The 
appellants  contend,  that  Ann  M.  China,  in- 
stead of  taking  one-third  part  of  said  pro- 
ceeds, should  take  oidy  an  t^pial  i»art  with 
each  of  the  children  of  I'eter  I'erdriau  and 
Hester  Wells:  (the  issue  of  any  dece.ised 
party  to  reprt'sent  that  party,  a<-cording  to 
the  will.) 

In  my  opinion   tlie  apin'al   is  well  taken. 

It  is  a  njaterijil  circumstanc-e  in  this  case, 

U 


«27 


5  RICHAllDSON'S  EQUITY  REPORTS 


that  at  the  death  of  the  testator,  Teter  Per- 
driau  and  Hester  Wells,  his  brother  and  sis- 
ter, for  whose  children  his  will  was  intended 
to  provide,  were  both  dead:  and  their  chil- 
dren were  then  so  ascertained,  that  no  addi- 
tions could  be  made  to  their  nunil)er. 

If  the  testator,  under  these  circumstances, 
had  given  an  estate  directly  and  uncondition- 
ally, and  not  suspended  upon  any  prior  es- 
tate, to  Mrs.  China  and  the  children  of  his 
deceased  brother  and  sister,  it  is  clear  that 
she  and  they  would  have  taken  each  an  equal 
shaTe.     As  is  said,  in  Conner  v.  Johnson,  2 

*28 
Hill,  Eq.  43,  "if  *there  be  a  devise  to  an  in- 
dividual, designated  by  name,  and  to  other 
individuals,,  designated  as  a  class:  as  to 
A  and  the  children  of  B— or  if  it  be  to  the 
children  of  A  and  the  children  of  B — all  take 
equally  and  per  capita."  See  also  Blackler  v. 
Webb  (2  P.  Wms.  2.s:j;)  Lincoln  v.  Pelham,  (10 
Yes.  176 ;)  and  Butler  v.  Stratton,  (3  Bro.  Ch. 
R.  307.)  The  latter  case  serves  as  an  ilhistra- 
tion  of  the  rule.  The  devise  was  "to  John 
Stratton,  and  Robert  Stratton,  and  the  chil- 
dren of  Mary  Patterson."  Held,  that  they  all 
took  equally,  per  capita. 

The  combination  of  the  name  of  a  partic- 
ular individual  with  classes  of  cliildren,  under 
such  circumstances,  cannot  produce  any  effect 
other  than  would  follow,  if  the  bequest  were 
simply  to  two  or  more  classes  of  children. 
The  division  must  be  per  capita.  A  case  of 
the  latter  description  is  furnished  in  Ex  parte 
Leith,  1  Hill,  Eq.  153,  where  the  devise  was 
of  "two  shai'es  to  my  deceased  sons'  (William 
and  James's)  children."  Without  much  re- 
liance on  the  words  "equally  to  be  divided  be- 
tween them,"  which  followed ;  it  was  held, 
that  the  two  shares,  considered  as  amal- 
gamated, were  to  be  divided  among  all  the 
children  per  capita. 

If  all  the  legatees  be  ascertained  at  the 
time  of  the  gift,  and  the  gift  be  direct  and 
unconditional,  then,  taking  by  purchase,  they 
must  take,  each,  an  equal  share.  I  know 
of  no  exception  to  this  rule,  except  the  late 
cases  of  Templeton  v.  Walker.  3  Rich.  Eq.  543 
[55  Am.  Dec.  64G],  and  Collier  v.  Collier, 
3  Rich.  Eq.  555  [55  Am.  Dec.  653].  But  these 
cases  have,  in  fact,  no  application  to  the  prin- 
ciple I  am  now  considering.  Those  cases 
proceed  on  the  principle,  that,  where  a  testa- 
tor has  given  to  the  "heirs"  of  a  particular 
individual,  it  being  necessary  to  resort  to  the 
statute  to  ascertain  who  the  heirs  are,  it  may 
be  resorted  to  for  the  additional  purpose  of 
ascertaining  the  proportion  to  which  the 
statute  would  entitle  them: — upon  the  implica- 
tion, that  where  the  gift  is  to  "heirs,"  the  in- 
tention is  to  give  them  inheritable  portions: — 
that  the  beneficiaries  are  to  be  presumed 
to  stand  in  the  affections  of  the  benefactor, 
according  to  the  standard  to  which  he  himself 
has  appealed. 

*29 

*In  the  case  before  us,  the  testator  has 
12 


imposed  no  necessity  to  refer  to  the  statute. 
Who  the  children  of  his  Inother  and  sister 
are,  can  be  known  without  resorting  to  it. 
And.  indeed,  whatever  information  wc  might 
obtain  from  it,  in  relation  to  a  division 
among  the  children  of  the  brother  and  those 
of  the  sister :  it  can  furnisli  none  respecting 
the  proper  division  between  them  and  Mrs. 
China.  So  that  the  cases  I  have  mentioned 
have  no  application  to  the  subject  now  under 
consideration. 

I  have  already  stated  what,  in  my  opin- 
ion, would  be  the  proper  construction,  if  the 
bequest  in  this  case  were  direct  and  uncon- 
ditional. 

The  bequest  is,  however,  not  of  tliat  char- 
acter. It  is  limited  upon  a  prior  life  estate; 
and  it  is  conditioned  upon  the  remainder- 
men surviving  the  life  tenant.  Owing  to  tliis 
circumstance,  it  has  been  supposed  to  fall 
within  the  principle  of  Cole  v.  Creyon,  1  Hill, 
Eq.  311  [26  Am.  Dec.  208]. 

I  do  not  think  it  comes  within  the  prin- 
ciple of  that  case. 

There,  after  a  life  estate  given  to  the  wife 
of  the  testator,  the  bequest  was  to  .Vlexander 
Creyon  and  the  children  of  Elizabeth  Cole, — 
testator's  married  niece,  who  survived  him. 

There  are  words  indicating  that  tlie  di- 
vision was  to  be  made  equall.v  between  them : 
which  perhaps  were  too  little  regarded  in 
the  decision.  But  it  is  not  necessary  to  at- 
tend to  that.  It  is  the  leading  principle  ad- 
judged, which  we  are  now  to  ascertain  and 
apply. 

It  was  held  in  that  case,  that  Creyon  was 
entitled  to  one-half  of  the  estate,  and  that 
the  other  half  was  divisible  between  all  the 
children  of  Elizabeth  Cole  who  came  in  esse 
before  the  expiration  of  the  prior  life  estate. 

The  reasons  given  for  this  decision  were, 
— that  Creyon,  being  a  person  named  and 
not  described,  took  a  vested  interest  in  the 
remainder,  at  the  death  of  the  testator:  but 
that  Mrs.  Cole's  chiklren,  taking  by  descrip- 

*30 
tion  as  children,  from  the  necessity  *of  the 
case,  could  take  only  a  contingent  interest, 
their  number  being  incapable  of  being  ascer- 
tained until  the  death  of  the  life  tenant. 
This  difficulty  arose  from  the  period  of  di- 
vision being  postponed  until  that  event : 
because  the  law  is  familiar,  that  where  a 
class  of  described  persons  are  to  take  on  a 
future  event,  all  who  can  bring  themselves 
within  the  description,  at  that  time,  are 
eqimlly  entitled  to  take.  There  was  a  con- 
tingency, therefore,  as  to  the  children,  but 
not  as  to  Creyon ; — by  which  their  interests, 
and  not  his,  were  affected.  Again :  there 
was  a  diversity  between  the  parties,  in  re- 
spect to  the  time  when  their  titles  accrued. 
The  parties  could  not  take  as  joint  tenants, 
because  the  right  of  Creyon  vested  in  inter- 
est at  the  death  of  Hicklin,  the  testator, 
while  that  of  the  children  remained  contin- 
gent until  the  death  of  Ilicklin's  widow. 


RIDDLE  V.  KIDDLE 


But.  as  I  read  the  will  i)f  reiulriau,  there 
Is  no  interest  of  a  remaiiKler-man  that  is  not 
subjt'ct  to  equal  eontiii;:eney.  The  dillVreiKe 
i)t't\veen  C'reyon  and  Mrs.  t'hina  is.  that  his 
was  a  certain  and  inicontin^ent  interest  frnm 
tlie  death  of  tlie  testator;  lier's  is  subjected 
to  the  same  continjiencies  as  to  surviviu'.;  tlie 
life  tenant  as  are  ai>i»liiahle  to  the  children. 
All  the  contlitions  whicli  are  applied  h.v  I'er- 
drian  to  his  brother's  and  sister's  children, 
he  applies  also  to  Mrs.  China.  The  i>or.sons 
who  are  to  take,  are  to  taUe  life  estates  only 
with  a  linntation  to  issue,  and  the  females, 
including  Mrs.  China,  are  to  take  se  arate 
estates:  and  contemi)latin,ir  that  tliey  might 
not  l>e  alive  at  the  death  of  liis  wife,  which 
he  liad  at  first  view  imiiosed  as  a  condition, 
(and,  adding  what  occurred  to  him ; — i.  e., 
that  they  might  possibly  die  in  his  own  life, 
so  as  to  occasion  a  lapse,)  lie  provides  that, 
in  either  of  tliose  events,  tlieir  cliildren,  if 
they  left  any.  should  take  in  their  place: 
not  by  way  of  remainder  to  tlieir  life  estates, 
but  as  substitutes, — and,  in  that  case,  ab- 
solutely. 

The  reasons  of  the  decision  in  Colo  v.  Crey- 
on  (viz.  the  fact  that  tliere  was  a  fi.ved  and 
certain  interest  in  one  party  and  a  contingent 
interest  in  the  others,  rendered  it  nec?ssary 
to  distinguish  l>etween  them.)  do  not  apply 
here. 

*31 

♦When,  on  the  face  of  the  will.  T  see  not 
only  that  all  parties  are  put  u'  on  the  same 
footing,  but  are  to  "share  and  share  alike," 
I  do  not  pei'ceive  any  ground  to  doubt,  that 
the  distribution  should  be  made,  as  contend- 
ed for  in  the  ground  of  aproal. 

It  is  ordered,  that  the  decree  ap'  ealed 
from  be  modified  according  to  this  oiiinion  : 
and  that  in  all  other  respects  it  be  attirmed. 

DrXKIX  and  WARDLAW,  CC.  concurred. 
Decree  modified. 


5    Rich.  Eq.   31 

MARY  RIDKLK   v.   .lollX   UIUPI.E.   Admin- 
istrator, and  Others. 

(Columbia.   Nov.  and   Dec.   Teini,   IS.IJ.) 

{Executors  and  Ail »ii nisi rn tors   (g=>'J:21.1 

A  charge  for  board  made  by  an  administra- 
tor against  infant  distributees,  who  residod  with 
him.  he  being  their  undo,  r(>je(tod  on  the  proof. 

IKd.  Note.— Cited  in  Crosby  v.  Cn.shy,  1  S. 
C.  .•;47.  .■J4S.  ;!4!»:  Kxchangf  r.ankinu  v\i  Trust 
Co.  V.  Finley.  73  S.  C.  4li!»,  ."):',  S.  !•:.  (;4!). 

For  other  cases,  see  K.xoentors  and  Adminis- 
trators. Cent.  Dig.  §§  JX)l-<.)0:;i/,.  ISfiS.  18(51- 
ls<;:}.  1S65,  imG,  1S71-1S74,  IST-C. :    Dw.  Din. 

\lj.rrrutors    anil    Aihtiinisfrdiurs    C=.';i;{.l 

The  plaintifT,  a  distribntiT,  h.-iviicj;  been  un- 
reasonably tardy  in  tlit"  assertion  of  her  right, 
interest  not  allowed  her  (hiring  the  time  she  re- 
sided  with   the  a<inHnistrator. 

I  I'M.  Nfitr.— I""or  other  eases,  see  I'!xeiutors 
and    .\dniinistrators.    Cent.    Die.    §    ll.'71:      Dec. 

!)i-.  c=>:;i::.i 


\l\jii  iitnrs    mill    Ailiiiini'<trators   C=»470.] 

An  e.\  parte  n-turn  to  the  ordinary  in  which 
an  adnduistrator  strikes  a  balance  against  the 
estate,  is  not  such  an  act  as  will  give  currency 
to  the  statute   uf  limitations  in  his  favor. 

(Kd.  Note.— Cited  in  Crosiiy  v.  Crosl)y,  1  S. 
C.  .'UC:  Kenwiek  v.  Smith.  11  S.  C.  :!(I4 ; 
l'ri<  ks  V.  Lewis.  JC  S.  C.  S.W.  1  S.  E.  .V's4 : 
M<.nt;:onierv  v.  Cloud.  '27  .S.  C.  li»2.  3  S.  K. 
l!>t>;    Ariail  v.  Ariuil,  2J»  S.  C.  IM,  7  S.  E.  :'>7i. 

For  other  cases,  see  Executors  and  Admin 
istrators.  Cent.  Dig.  Ji  201(3;  Dec.  Dig.  (£=;• 
470.] 

liefoie  Wardlaw,  l.'h.,  at  Ivershaw,  June, 
l.Soli. 

Tlie  decree  of  Ids  Ilunor  the  Circuit  Chan- 
cellor is  as  follows: 

Wardlaw,  Ch.  .lames  Riddle  died  in  .Ma.v, 
isiitj.  leaving  a  will  by  which  he  directed  his 
whole  estate  to  be  .sold,  and  made  the  follow- 
ing disposition  of  the  jiroceeds  :  "the  moneys 
of  the  .same  to  remain  in  the  hands  of  my 
execut(us  to  accumulate  the  maintenance 
and  sui)port  of  my  two  children,  .Ttthn  Riddle, 
my  son,  and  Mary  Riddle,  my  daugh  er.  that 
is  I,  the  executor,  do  bind  my.stdf  for  the 
welfare  of  John  and  Mary  Riddle,  that  is 
to  bring  them  up  in  a  decent  manner  as  the 

*32 
abi*littes  of  the  case  will  admit,  with  com- 
mon education,  frep  from  want,  liound  or 
iMjndage,  till  they  arrive  at  the  age  of  twen- 
ty-one. The  moneys  to  be  vested  in  the 
hands  of  the  executors  for  supix)rt  without 
extravagance;  and  when  the  said  .lohii  and 
Mary  come  to  the  age  of  twenty-one.  the 
t)alance  of  said  moneys  to  be  etpially  divld.d 
between  the  said  John  and  Mary  Riddle." 
The  executors  aitpointed  by  the  testator  de- 
clined to  act :  and  John  Riddle,  brother  of 
testator,  lx»canie  administnitor  with  the  will 
annexed.  He  sold  the  whole  estate  of  the 
testator  on  September  27.  182ti,  for  .<".•'!">. 
Immediately  after  the  death  of  their  father, 
the  two  children,  John,  then  nine  or  ten 
years  old  and  Mary,  then  four  or  five  years 
of  age,  liegan  to  reside  in  the  house  of  their 
uncle.  John  Riddle,  and  remained  there  until 
the  death  of  John  on  March  2:5,  1S.'52,  and 
Mary's  departure  without  le.-ive  in  January. 
18o6.  The  children  were  poorly  maint.iined 
and  educated,  and  they  labored  according  to 
their  strength  in  the  service  of  their  uiude; 
but  both  were  young,  and  John  puny,  so  that 
their  services  were  not  very  valuable. 
Whether  the  services  of  the  children  were 
equivaltMit  to  their  board,  and  whether  the 
administrator  originally  intended  to  charge 
them  for  board,  are  the  principle  tpiestions 
in  the  case.  On  (October  2.s.  l.s:?;{,  the  ad- 
ministrator made  his  first  and  only  return  of 
expenditures,  in  which  he  sets  forth  no  pay- 
ment of  money  except  ."jiS.  but  charges  each 
of  the  children  for  board  at  the  rate  of  $47 
a  year;  and  in  this  way  exhausts  the  as.sets 
of  the  estate  and  makes  himself  a  creditor 
to  the  excess  of  .$100.42. 

On   .Vugust    12.    is:;.^,   the   defendant.   John 


^=::9Fur  other  cases  see  same  topic  aud  KEY-NUMOEH  iu  all  Key-Numbered  Digests  aud  Indexes 


L'i 


•32 


5  RICHARDSON'S  EQUITY  REPORTS 


Riddle,  conveyed  his  wliole  estate  to  James 
W.  Cantey,  in  trust  to  sell  the  same  at  his 
discretion  and  pay  all  the  debts  of  the  gran- 
tor; then  to  permit  the  children  of  grantor 
to  have  certain  specified  uses  of  the  estate 
during  the  life  of  the  grantor ;  and  upon  his 
death  to  divide  the  residue  equally  among 
the  children  of  grantor.  It  was  admitted 
that  the  trustee  had  sold  the  estate  and  de- 
livered the  securities  for  the  purchase  money 
to  the  Commissioner  of  this  Court,  under  cer- 
tain proceedings  not  distinctly  brought  to 
my  notice. 

*33 
*John  Riddle,  the  administrator,   died   in- 
solvent, before  June,  1S48. 

The  plaintiff,  Mary  Kiddle,  has  received 
the  grant  of  the  administration  of  her  broth- 
er John.  In  her  own  riglit,  and/ as  adminis- 
tratrix and  sole  distributee  of  her  brother 
John,  she  filed  the  original  bill  in  this  case, 
January  9,  1846,  against  John  Riddle  as  ad- 
ministrator (and  against  his  sureties,  who 
were  not  made  parties  regularly,)  for  an  ac- 
count of  her  father's  estate.  The  administra- 
tor answered  that  he  had  exliausted  the  es- 
tate according  to  his  return  above  mention- 
ed, and  he  relied  upon  the  statute  of  limita- 
tions. The  matters  of  account  was  referred 
to  the  Commissioner,  and  that  officer  took 
evidence,  and  at  June  term,  1847,  made  a  re- 
port, in  which,  submitting  to  the  Court 
whether  the  administrator  was  entitled  un- 
der the  circumstances  to  charge  board,  he 
expressed  the  opinion,  that,  if  the  adminis- 
trator was  entitled  to  charge  board,  the  es- 
tate of  the  testator  would  be  exhausted,  nay 
brought  in  debt  to  the  administrator. 

The  plaintiff  filed  exceptions  to  this  re- 
port, insisting  in  various  forms  that  the  ad- 
ministrator gratuitously  supported  the  chil- 
dren, that  their  services  were  equal  to  their 
maintenance,  and  that  he  was  not  authorized 
to  exceed  their  income  in  his  expenditures 
for  maintenance.  For  lack  of  time  or  some 
other  reason,  this  report  and  these  excep- 
tions were  not  considered  at  June  term, 
1847,  and  in  1848  the  administrator  died; 
and  at  June  term,  1848,  the  case  of  the  plain- 
tiff was  marked  abated.  At  June  term,  1850, 
the  plaintiff  filed  a  bill  of  revivor  and  sup- 
plement, in  which  she  charged  the  death  and 
insolvency  of  the  administrator,  and  that  his 
estate  was  unadmiuistered  unless  by  the  Or- 
dinary as  a  derelict  estate,  and  also  set 
forth  the  execution  of  the  trust  deed  afore- 
said by  John  Riddle,  and  made  the  Ordinary, 
and  the  trustee,  James  W.  Cantey,  parties 
to  the  suit.  The  Ordinary  answered  that 
John  Riddle  left  no  estate  independent  of 
that  in  the  trust  deed,  and  the  trustee  an- 
swered admitting  the  facts  above  mentioned 
as  to  the  trust  deed,  and  suggesting  that  the 
beneficiaries  of  the  trust,  the  children  of 
the  grantor,  were  necessary  parties. 
*34 
*In  this  state  the  case  was  presented  for 
14 


my  determination.  I  thinlc  there  is  nothing 
in  the  suggestion  that  the  beneficiaries  of  the 
trust  deed  should  be  made  parties.  The 
legal  estate  is  clearly  in  the  trustee  and  lie 
sufficiently  represents  the  beneficiaries. 

The  defendants  have  not  proved  a  state  of 
facts  in  whicb  the  bar  of  the  statute  of  lim- 
itations is  applicable.  It  does  not  appear 
that  the  plaintiff  had  attained  full  age  more 
than  four  years  before  she  filed  her  original 
bill,  and  although  there  was  considerable  de- 
hiy  in  filing  the  bill  of  revivor,  this  may  be 
excused  on  the  consideration  tliat  there  was 
no  representative  of  John  Riddle's  estate. 
There  is  no  irreparable  breach  of  continuity 
in  the  suit. 

The  main  controversy  between  the  itarties 
is  as  to  the  claim  of  the  administrator  to 
absorb  the  whole  estate  in  the  maintenance 
of  the  legatees.  In  general,  one  entrusted 
with  the  management  of  the  estate  of  an  in- 
fant, cannot  exceed  the  income  in  providing 
maintenance  for  the  infant,  without  the  pre- 
vious leave  of  the  Court  or  upon  some  sud- 
den emergency.  But  a  different  rule  may  be 
estal)lished  as  to  a  particular  estate  by  a  tes- 
tator or  other  person  creating  the  trust.  The 
will  in  the  present  case  is  drawn  inartificial- 
ly  and  is  obscure,  but  as  I  construe  it,  par- 
ticularly that  the  monies  shall  be  vested  in 
the  executors  for  the  support  of  the  legatees, 
and  that  the  balance  shall  be  divided,  some 
discretion  in  expending  tbe  corpus  of  the  es- 
tates in  maintenance  of  the  children  is  given 
to  the  executors;  and  I  suppose  the  admin- 
istrator on  the  will  succeeded  to  the  author- 
ity of  the  executors  in  this  respect.  The 
awkward  phrase,  to  accumulate  the  mainte- 
nance, has  the  same  bearing.  Still  the  trus- 
tee is  bound  to  show  that  he  has  exercised 
such  discretion  judiciously ;  and  a  more  lib- 
eral construction  of  his  conduct  should  be 
made  where  he  has  expended  the  corpus  of 
the  estate  in  payments  to  others,  than  where 
he  claims  to  retain  it  for  maintenance  fur- 
nished by  himself.  AVherever  a  father  or 
other  near  relative  of  the  infants  is  the 
trustee,  in  sucli  case,  he  should  show  distinct-. 

*35 
ly  his  purpose  to  charge  for  mainte*nance  "^^ 
or  maintenance  before  such  manifestation 
may  be  justly  inferred  to  be  afforded  gratui- 
tously. If  the  trustee  exact  from  the  infants 
all  such  labor  and  service  as  they  are  capa- 
ble of  rendering,  the  inference  is  especial- 
ly strong  that  he  expected  no  compensation 
for  board  beyond  their  services.  Booth  v. 
Sineath,  2  Strob.  Eq.  31.  In  the  present  case 
the  trustee  did  not  manifest  his  purpose  to 
charge  his  wards  for  board,  until  seven  years 
after  their  residence  with  him  began  and 
after  the  death  of  one  of  them,  and  he  avail- 
ed himself  of  their  labor  to  the  full  extent 
of  their  capacity.  Much  contrariety  of  evi- 
dence exists  on  the  naked  question,  whether 
their  services  on  the  whole  were  equivalent 
to  their  board— but  setting  aside  the  testi- 


JACKSOX  V.  MtALILEY 


mony    of   the  daughters   and   sons-in-law    of  i  the  inti'state  did,  it  seeuis  to  the  Court  that 
the   administrator,   who   have  an   interest  iu  |  it  was  iiroperly  overruled.     John  Riddle  was 


the  matter,  the  clear  preponderance  is  in 
the  athrmative  of  the  question.  lUit  a  eir- 
cumstanee  remains  to  be  uientioned  which 
seems  conclusive  of  the  matter.  The  admin- 
istrator repeatedly  declared  that  he  had  in- 
vested the  funds  of  his  testator  in  the  pur- 
chase of  a  nejrro  woman,  for  the  reason,  that 
the  increase  of  the  .^lave  would  afford  more 
profit  to  the  children  than  interest  on  the 
money,  and  according  to  one  witness,  said, 
the  children,  when  they  attained  full  age, 
should  have  the  negroes  or  the  money  at 
their  option. 

These  views  lead  me  to  the  conclusion  that 
the  adnnnistrator's  claim  for  loard  should 
lie  rejected.  On  the  other  hand  there  has 
been  unreasonable  tardiness  in  the  asser- 
tion of  the  plaintiff's  right :  and  as  the  al- 
lowance of  interest  is  to  some  extent  a  mat- 
ter for  judicial  discretion,  I  am  of  opinion 
no  interest  should  be  alloweil  to  plaintiff"  un- 
til after  January,  18.30,  when  she  left  her 
uncle's  house. 

It  is  ordered  and  decreed,  that  the  Com- 
nussioner  re-state  the  account  on  the  prin- 
ciples of  this  opinion.  Parties  have  leave  to 
apply  for  any  other  orders  whidi  may  be 
nece-ssary,  to  the  execution  of  the  decree. 
Costs  to  be  paid  out  of  the  estate. 

The  defendants  appealed  and  now  moved 
this  Court  to  reverse  the  decree  or  to  modify 
the  same  \ipou  the  grounds: 

1.   I'.ecause  his   Honor   should    have   allow- 
*36 
vd  compensation  to  *John  Kiddle,  the  adnnn- 
istrator,    for   board    and   maintenance,   cloth- 
ing, t&C. 

'2.  Because  the  claim  was  biured  by  the 
statute  of  linutations,  and  especially  the 
claim  of  complainant  as  adnunistratrix  of 
her  brother  John. 

The  complainant  also  aiipealed  on  the 
ground,  that  the  decree  should  have  allowed 
complauKint  interest  on  the  fund  in  the 
hands  of  the  adnunistrator,  arising  from  the 
sales  of  the  property  under  the  will,  from 
the  time  the  money  from  the  sales  became 
due,  or  the  exi)iratiou  of  twelve  niontlis  aft- 
vr   administration. 

Kershaw,  for  defendants,  cited  White  and 
Tud.   Lead.  Cas.  1U4. 

Clinton,  for  complainant,  cited  Harp.  Eq. 
'2'2-i;    McM.   Kq.  275. 

The  opinion  of  the  C\)urt  was  delivered  by 

IH'NKIX.  Ch.  In  reference  to  the  com- 
jilainant's  ground  of  appeal,  and  the  first 
ground  of  aiiiieal  on  the  part  ()f  the  defend- 
ants, this  Court  is  entirely  satisfied  with  the 
views  and  the  .conclusions  of  the  Chancellor. 

Assuming  that  the  legal  reitresentative  of 
John  Kiddle,  the  elder,  is  now  before  the 
Court,  and  relie<l  upon  the  plea  of  the  .stat- 
ute  of   liinitations,    in   the   same   manner   as 


the  adnunistrator  cum  testamento  anuexo  of 
liis  Itrother  James  Kitldle,  under  whose  will 
the  plaintiff  claims.  He  was  a  direct,  tech- 
nical trustee,  and,  as  such,  could  never  nvnil 
him.self  of  the  statute  so  long  as  that  rela- 
tion subsisted.  If  the  complainant  had  not 
tiled  a  bill  for  account  until  June.  ISoO,  nhe 
would  be  entitled  to  relief  unless  the  defenil- 
ant  could  estaldish  .some  act  on  his  iiart  pur- 
porting to  be  a  discharge  of  his  trust,  or  un- 
less such  a  length  of  time  had  elai)sed  as 
would  authorize  the  Court  to  presume  the 
demand  satisfied.  The  latter  is  not  suggest- 
ed, and  the  i)osition  would  be  obviously  un- 
tenable   from    the    condition   of    the    parties. 

*37 
Nor  could  it,  with  ♦more  reason  be  surml-s- 
ed  that  he  had  done  any  act  puri»orting  to  be 
a  discharge  of  his  trust.  It  is  true  that,  aft- 
er the  death  of  plaintiff's  brother  (a  minor.) 
and  when  the  iilaintiff  was  about  eleven 
years  of  age,  the  administrator  made  his  first 
and  only  return  to  the  Ordinary.  It  did  not 
purport  to  be,  and  could  not  be,  a  settlement 
of  the  estate,  or  a  discharg*'  of  the  duties 
which  he  had  assumed  when  he  undertook  to 
execute  the  will  of  his  bntther.  If  an  ex 
parte  return  to  the  Ordinary,  in  which  an 
executor  or  admini.strator  strikes  a  iialance 
against  the  estate,  should  be  regarded  as  a 
discharge  of  his  trust,  from  which  time  the 
statute  would  run  again.st  a  bill  to  account, 
it  would  be  an  alarming  disch>sure.  as  well  to 
creditors  as  to  legatees  and  distributees  of 
the  deceased.  But  the  defendants  have  not 
insisted  on  this:  nor  is  any  other  act  of  dis- 
chargi'  suggested.  The  complainant  was  not 
l)ound  to  file  her  bill  within  four  years  after 
she  arrived  of  age,  and  ctadd  only  be  pre- 
cluded by  such  lapse  of  time  as  would  bar 
in  any  other  case  of  direct  trust.  Whatever 
was  due  to  the  complainant  constituted  a 
debt  at  the  time  of  the  execution  of  the 
deeil  to  J.  W.  Cantey,  who.  thereby  and  by 
the  express  provisitms  thereof,  became  a 
tru.stee  for  the  creditors  of  John  Kiildle, 
and.  for  the  reasons  stated,  the  statute  could 
not  avail  him  against  the  complainant's  de- 
mand. 

It  is  ordered  and  decreed,  that  the  decree 
of  the  Circuit  Court  be  alliniied  and  the  ai>- 
peal  dismissed. 

.lollN.^roN.    I).VK(;.\N    and    WAKDLAW, 
CC.  concurred. 
Decree  attirmed. 


5    Rich.  Eq.   •38 

*M.\Uril.V    J.\<'I\.'^<t\.   |)y    Next   Friend,   v. 

SAMIKL  .M<  ALILKY  ct  al. 

(Cohnnbia.   Nov.   iiiul   Dee.  Term,   1852.) 


[Eiiuitli  <S=».".".»T.l 

The  Conunissioiu'r 
receiver,   certain    fuiid>^ 


liavinir  in    liis   hands,   as 
.   t<)  a  siiare   of  wliidi   a 


^=:3Kur  other  cases  see  same  topic  auU  KEY-NUMUEK  iu  all  Key-NumDered  Digests  aud  Indeies 


15 


*38 


5  RICHARDSON'S  EQUITY   REPORTS 


married  woman  was  entitled  as  tenant  in  com- 
mon, without  any  order  of  Court  paid  out  her 
share  to  her  husband,  Fhe  not  joining  in  the 
receipt: — Held,  that  the  payment  was  unau- 
thorized; and  that  the  Coniniissidnor  was  bound 
to  account  to  the  wife  for  lier  share.  I'er  Dar- 
gan,   Ch. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent. 
Dig.  §  861;    Dec.  Dig.  <@=:j397.J 

[Equity  <S=>o97.] 

A  Commissioner  having  a  fund  in  his  hands 
as  received,  must  keep  it  until  ordered  to  pay 
it  out;  if  he  pays  it  out  without  an  order,  he 
cannot  exonerate  himself  without  showing,  that 
he  paid  it  to  one,  who,  if  application  had  been 
made  to  the  Court,  would  have  been  entitled  to 
I'eceive  it  under  its  sanction.  Per  Dargan.  Ch. 
[Ed.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.   §  861;    Dec.   Dig.  €==>397.] 

[Hushand  and   Wife  <©=:3l().l 

A    husband's    marital    ri^lits   do    not    attach 

on  the  undivided  interest  of  his  wife  in  a  fund 

in  the  custody  of  the  Court.     Per  Dargan.  Ch. 

[Ed.  Note. — For  other  cases,  see  Husband  and 

"Wife,  Cent.  Dig.  §  38;    Dec.  Dig.  <^=^H).] 

[Equiti/  (©=)404.] 

Where  a  decree  is  made  overruling  defend- 
ant's defence  and  ordering  him  to  account,  ad- 
ditional evidence  to  slio.v  that  defendant  is  not 
liable  to  account  cannot  be  offered  at  the  refer- 
ence.    Per  Dargan,  Ch. 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.  §§  886-892 ;    Dec.  Dig.  <S=:5404.] 

[Equity  <S=»413.1 

An  order  confirming  the  annual  report  of  the 
Commissioner  upon  a  fund  in  his  hands,  does 
not  conclude  the  parties  interested  in  the  fund. 
Per  Dargan,  Ch. 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.  §§  927-930;    Dec.  Dig.  <©=>413.] 

[Equity  <©==>410.] 

Where  grounds  of  exception  to  a  Commis- 
sioner's report  state  matters  which  are  objec- 
tions, hot  to  the  report,  but  to  the  decree  order- 
ing the  reference,  the  Chancellor  should  refuse 
to  decide  them ;  nor  will  the  Court  of  Appeals 
decide  them  on  appeal  from  the  decree  on  the 
report;  the  appeal  should  be  from  the  decree  or- 
dering the  reference. 

[Ed.  Note. — For  other  cases,  see  Equitv,  Cent. 
Dig.  §§  905-919;    Dec.  Dig.  <®=5410.] 

[Equity  <©=3.396.1 

A  Commissioner  paying  out  money  during 
his  term  of  oflice  to  one  not  entitled  to  it.  held 
bound  to  pay  interest  from  twenty  days  after 
he  went  out  of  office — that  time  being  allowed 
him,  by  the  Act  of  1840,  within  which  to  turn 
over  the  fund  to  his  successor. 

[Ed.  Note. — For  other  cases,  see  Equitv,  Cent. 
Dig.  §  860;    Dec.  Dig.  <S=»396.] 

Before  Dargan,  Ch.,  at  Chester,  July,  1849. 

Dargan,  Ch.  This  bill  has  been  filed  by 
Martha  Jackson,  through  her  next  friend, 
Dr.  C.  Thorn,  against  her  husband,  William 
Jackson,  and  Samuel  McAliley,  the  late  Com- 
missioner in  Equity  of  this  Court. 

The  complainant  is  one  of  the  children  of 
Rebecca  Barber*,  to  whom  Daniel  Green,  by 
his  last  will  and  testament,  bequeathed  one- 
half  of  his  personal  estate.  The  complain- 
ant's share  of  said  personal  estate,  was  the 
one-twelfth  part.  John  M.  Barber,  the  com- 
plainant's father,  was,  by  proceeding  in  this 


Court,  aiiitoiuted  the  guardian  of  all  his  chil- 
dren, including  the  complainant.  His  chil- 
dren were  six  in  number.  John  Peay  and 
James  B.   Pickett  were  the  sureties  on  the 

*39 
gnardian*ship  bond  of  the  said  John  M.  Bar- 
ber. Peay  and  Pickett  filed  a  petition  in 
this  Court,  asking  to  be  relieved  from  tlieir 
liability  on  the  guardianship  bond,  or  that 
Barber  might  be  required  to  give  new  sure- 
ties, or  to  sui-render  his  trust,  and  to  account 
for  and  deliver  the  whole  of  his  wards'  es- 
tate to  some  other  per.son,  by  the  Court  for 
that  purpose  to  be  appointed. 

At  February  term,  1831,  an  order  was  made 
in  the  case  of  Pickett  and  Peay  v.  John  M. 
Barber,  as  follows:  "It  is  ordered  and  de- 
creed, that  the  letters  of  guardianship  grant- 
ed to  the  defendant  as  the  guardian  of  his 
minor  children,  be  revoked,  and  that  he  be 
compelled  to  account  before  the  Commis- 
sioner for  liis  guardianship,  and  deliver  over 
the  estate  of  his  children  into  the  hands  of 
the  Commissioner  of  this  Court,  unless  he 
accounts  fully  before  the  Commissioner  and 
gives  new  security,  to  be  approved  by  the 
Commissioner,  for  the  faithful  discharge  of 
his  duty,  on  or  before  the  first  day  of  Janu- 
ary next."  John  M.  Barber  failed  to  give  the 
re(iuired  security.  His  guardianship  became 
unconditionally  revoked,  and  on  the  19tb 
January.  1832,  he  surrendered  certain  ne- 
groes, the  property  of  his  wards,  to  the  Com- 
missioner in  Equity.  These  negroes  were 
hired  out  by  the  Commissioner  for  two  or 
three  years ;  and  the  negroes  themselves,  In 
proceedings  in  this  Court  for  partition  among 
the  children  of  Rebecca  Barber,  have  been 
divided,  and  the  portion  of  said  negroes  as- 
signed to  the  complainant,  has  been  settled 
by  a  decree  of  this  Court  to  her  sole  and 
separate  use,  &c. 

On  the  7th  February,  1832,  the  said  John 
M.  Barber,  surrendered  into  the  hands  of  the 
Commissioner  in  Equity,  in  obedience  to  said 
order,  choses  in  action  belonging  to  his  chil- 
dren, which  the  defendant,  Samuel  McAliley» 
says,  amounted,  with  interest  calculated  up 
to  that  time,  to  $3,390.55.  The  defendant, 
Samuel  McAliley,  in  his  answer  and  exhibit, 
sets  forth  the  amount  of  cash  which  he  has 
received  on  account  of  the  children  of  Re- 
becca Bai'ber,  the  late  wards  of  John  M.  Bar- 
ber. The  statement  is  informal,  imperfect 
and  confused.    From  the  statement  of  his  au- 

*40 
swer  and  exhibit,  I  understand  that  he  *has 
received  upwards  of  $6,000,  on  account  of 
all  the  wards.  But  whether  there  is  any 
thing  more  due  or  unpaid,  is  not  stated,  but 
I  suppose  that  there  is,  from  what  the  de- 
fendant says,  in  regard  to  the  understanding 
between  himself  and  William  Jackson,  when 
he  paid  over  certain  of  those  monies  to  him. 

There  has  been  no  order  or  decree  of  the 
Court  dividing  or  distributing  the  choses  in 


16 


<g=^For  other  cases  see  same  topic  and  KEY-NUMBER  iu  all  Key-Numbered  Digests  and  Indexes 


JACKSON  V.  McALlLEV 


*42 


fiction,  or  the  funds  arisin<;  therefrom,  among 
the  chiklren  of  KelK'cca  Barlier.  Yet  the  de- 
fendant, acting  as  Commissioner  or  receiver, 
has  undertaken  to  distribute  this  fund  on 
his  own  responsiliility.  and  to  pay  certain 
claims  and  expensi's,  with  whiih  lie  supposed 
it  to  be  chargeable,  and  has  also  made  large 
iniautliorized  payments  to  the  husband.  In 
doing  this,  he  has  assumed  the  resi)onsibllity 
of  paying  it  out  rightfully,  and  as  this  Court 
would  now  order  it  i)aid.  if  no  such  payment 
had  been  made  by  the  Conunlssioner.  The 
Connnissioner  has  no  right  to  pay  money 
which  has  come  into  his  hands  by  virtue  of 
bis  oMlce,  except  under  an  order  or  decree  of 
the  (\)urt.  If  he  pays  without  this  sanction, 
he  always  pays  on  the  peril  of  the  right  per- 
son rc'ceiving  it.  In  the  case  of  the  funds 
being  the  estate  of  a  married  w<iman,  tliere 
is  a  peculiar  impropriety  in  paying  it  to  the 
husband,  without  the  order  or  directitm  of 
the  Court.  She  has  an  eiiuity  for  a  settle- 
ment out  of  it.  and  the  fund  is  to  be  le- 
tair.ed  for  that  purpose,  until  the  wife  .shall 
have  an  opportunity  of  making  her  election, 
either  of  asserting  her  riglit  to  a  settlement, 
or  of  waiving  it.  If  she  had  joined  in  exe- 
cuting the  receipt,  it  would  have  been  a  dif- 
ferent case — that  wo\ild  have  beeii  a  waiver. 
But  the  complainant  has  never  waived  her 
equity  for  a  settlement.  It  remains  as  per- 
fect now  as  it  ever  was.  Though  the  money 
has,  for  the  most  part,  been  paid  to  the  hus- 
band, it  has  been  wrongfully  paid,  and  the 
Court  will  consider  it  .still  in  the  hands  of 
the  defendant,  the  said  Samuel  McAliloy. 
Tlie  order  under  which  he  received  the  fund, 
gave  him  no  authority  to  pay  it  out  to  any 
person.  Yehlell  v.  Quarts.  Dud.  Eq.  57; 
Wardlaw  v.  (Jray.  2  Hill.  Eq.  (-.44. 
*41 

*The  defendant,  as  the  adniinistrat«»r  of 
James  McAllley.  sets  up  a  judgment  in  favor 
of  the  estate  of  his  intestate,  against  the 
fund  or  estate  to  which  Martha  Jackson  is 
entitled  from  tlie  estate  of  Daniel  Green. 
The  judgment  is  against  the  husband.  Wil- 
liam Jackson.  The  claim  is  disallowed; 
and  it  is  so  ordered  and  decreed. 

It  is  ordered  and  decreed,  that  the  i  ay- 
ments  made  by  the  said  Samuel  McAliley  to 
William  Jackson,  out  of  the  funds  of  the 
complainant  in  his  hands,  are  null;  and  that 
the  said  Samuel  McAliley  do  account  for 
said  funds,  as  if  said  payments,  or  any  other 
payments,  had  never  iK'en  made. 

It  IS  further  ordered  and  decreed,  that  the 
Commissioner  report  all  costs  and  exjienses 
with  which  the  share  of  the  complainant,  in 
the  said  funds,  is  chargeable.  It  is  also  or- 
dered and  decree<l.  that  the  Commissioner  in- 
quire and  report  what  amount  of  estate,  be- 
longing to  the  complainant,  has  been  collect- 
ed by  the  said  Samuel  McAliley,  and  also 
what  remains  to  be  collected.  It  is  also  or- 
dered and  decreed,  that  the  whole  of  the  es- 

5  liicii.EQ.— 2 


tate  of  the  complainant.  In  the  hands  of  the 
said  Samuel  McAliley,  already  c«illeited.  and 
which  remains  to  l>e  collected,  be  settled  to 
the  sole  and  separate  use  of  the  -aid  «om- 
plainant  for  life;  remainder  to  her  issue; 
and  if  she  should  die  without  leaving  issue 
living,  for  the  use  of  tlie  said  William  Jack- 
son. In  the  distribution  among  issue,  the 
issue  of  any  deceased  cbild  to  represent  the 
parent. 

It  is  further  onlered  and  decrt'ed.  tliat  the 
estate  of  the  complainant  be  paid  over  to  her 
trustee,  Dr.  C.  Thorn.  It  is  further  ordered, 
that  the  costs  and  expenses  of  these  proceeil- 
ings.  be  paid  out  of  the  funds  of  the  trust 
estate. 

In  obedience  to  the  order  of  reference  con- 
tained in  the  foregoing  decree,  the  Commis- 
sioner submitted  his  report,  dated  .^lay  I'd. 
is.~)i;,  as  follows: 

This  bill  is  filed  by  the  complainant,  one  of 
the  legatees  of  Daniel  Green,  decea.sed.  c!;ilm- 
ing  an  account  and  jiayment  of  her  s'.iare  of 
certain  choses  in  action,  and  of  the   bire  of 

*42 

certain  *slaves,  transferred  under  an  order 
of  this  Court  by  J(»hn  M.  Barber,  her  former 
guardian,  to  the  defendant.  .Samuel  .Mc.Vlili'y. 
Escj..  at  that  time  Commissioner  in  Equity 
for  Chester  District.  The  defendant  in  bis 
answer,  sets  forth  a  .statement  of  the  various 
sums  received  by  him,  and  of  the  payments 
made  by  hinf.  for  expenses  of  the  funil.  and 
to  William  Jackson,  the  husband  of  the  com- 
plainant, in  right  of  his  said  wife.  The 
Court,  at  July  term,  1841»,  ordered  tbat  the 
payments  so  made  to  William  Jackson,  are 
null;  and  the  defendant  is  required  to  ac- 
count for  said  funds,  as  if  such  payments, 
or  any  other  payments  had  never  In  en  made. 
It  was  further  ordered,  that  the  Commission- 
er report  all  costs  and  expenses  with  wbicli 
the  share  of  the  complainant  in  .said  fund  is 
chargeable,  and  that  he  also  inquire  and  re- 
port what  amount  of  estate  belonging  to  the 
complainant  has  been  collected  by  the  said 
Samuel  McAliley,  and  also,  what  remains  to 
be  collected. 

At  the  reference  held  in  the  case,  the 
complainant's  coun.sel  offered  in  evidence  to 
charge  the  defendant,  the  exhiliit  tiled  with 
his  answer,  which  contains  a  statement  of 
the  amounts  received  by  him. 

Tlie  defendant,  McAliley.  offered  various 
payments  made  by  him.  as  follows: 

Beccipt  of  W'm.  Jaiksoii.  dated  .Tnim- 
ary  2.S.  IKVA.  for .>?100  (M) 

Beccipt  (if  Win.  .lackson,  dated  Deceai- 
b.r  12.  is:?:!,  for KX)  00 

Beceiiit  of  Win.  Jackson,  dated  Janu- 
ary 22.  1S;',4.  fof ir)0  00 

Receipt  of  Win.  Jackson,  dated  Eeitru- 
ary  .S.  1S:{4.  for l'4()  00 

Bocoipt  of  Wni.  Jackson,  dated  Julv  2. 
1S.!4.  for .-.0  Off 

Be<'eipt  of  Win.  Jackson,  dated  Janu- 
ary 13,   18:!o,  for i.'.~0  00 

17 


*42 


5  KICHARDSON'S  EQUITY  REPORTS 


Two  notes  of  Wui.  Jackson,  for  hire  of 
negroes  of  the  Barber  children: 

One  for  1S33,  due  1st  of  Jauuary,  1S34..$27  00 

"    is:j4       1835..   GO  00 

Receipt   of    Col.    .James    Gregg,    Counsel 

fee.    Sept.   7,    1837 50  00 

Receipt   of   Coni'rs.   in   Partition,   March 

18,   1835    S  00 

Receipt   of  W.    F.   DeSaussure,    Counsel 

fee,  July  2,  1833, 25  00 

*43 
*Receipt  of  Clarke  &  McDowell,  Coun- 
sel fee,   November  3.   1833 100  00 

Receipt    of    J.    McCreary,   Taxes,    May 

17,   1833    8  25 

Receipt  of  Jno.  Ferguson,  Witness,  June 

21.  1833    1  00 

Receipt    of    J.    McCreary,    Taxes,   May- 

13.  1834 13  00 

Receipt  of  J.  Ferguson,  keeping  negroes, 

and  Auctioneer  June  31,  1835 10  00 

Receipt  of  J.  Ferguson,  Dec.  29,  1832.  .       2  50 

The  defendant  also  offers  in  evidence  his 
report  made  at  July  Terru,  1834,  in  which  he 
credits  himself  with  the  payment  of  $550,  to 
William  Jackson. 

On  the  minutes  of  the  Court  at  that  term 
is  the  following  order: 

"Exparte,  ]    Report  of  money 

"The  Minor  Legatees  of   J.  received  and  paia 
Danl.  Green,  deceased      J    away. 

"The  Connuissioner  having  read  his  report 
of  monies  received  and  paid  away,  as  re- 
ceived of  funds  of  said  legatees,  and  the 
same  having  been  examined  by  Mr.  McDowell, 
solicitor  for  the  legatees,  and  no  objection 
having  been  made  to  the  same,  ordered  that 
the  same  be  contirmed. 

Henry  W.  DeSaussure." 

"duly  4,  1834." 

The  report  at  June  Term,  1835,  on  the 
same  subject,  is  also  confirmed  by  order  of 
the  Court.  The  complainant  objects  to  the 
payments  to  William  Jackson,  as  well  as  to 
his  notes,  offered  by  the  defendant,  as  hav- 
ing been  already  decided  by  the  Court. 

An  important  question  arises  here,  wheth- 
er or  not  the  defendant  is  chargeable  with 
interest  on  the  various  sums  received  by  him. 
It  is  insisted  by  his  counsel,  that  he  is  not 
so  chargeable,  or  at  least  only  from  the  filing 
of  the  bill — that  he  is  a  public  officer,  not 
liable  to  pay  interest,  or  be  sued,  until  a  de- 
mand is  made  upon  him ;  and  that  no  de- 
mand was  made,  before  the  filing  of  the  bill. 
It  is  further  said,  that  the  husband  of  Mrs. 

*44 
*Jackson  has  received  the  money,  and  had 
the  use  of  the  negroes  for  the  benefit  of  her 
and  her  family,  and  that  he  has  a  right  to 
use  the  interest  of  the  fund ;  and.  further, 
that  no  order  having  been  made  to  distribute 
the  fund,  the  Commissioner  had  no  right  to 
be  accountable  for  the  interest  iintil  such  or- 
der is  made.  The  complainant  insists,  on  the 
other  hand,  that  the  defendant  was  a  trus- 
tee for  her,  and  that  he  has  wrongfully  paid 
away  the  money  to  another,  and  that  he 
must  therefore  account  to  her  for  the  inter- 
est. Feeling  doubts  on  the  subject,  I  have 
made  the  account  in  the  alternative,  so  that 

18 


it  may  be  confirmed  in  any  view  the  Court 
may  take.  There  is  nothing  said  in  the 
Chancellor's  decree,  on  the  matter  of  inter- 
est. 

All  the  other  receipts,  (exclusive  of  Wm. 
Jackson's)  were  for  payments  made  to  coun- 
sel, witnesses,  t&c.  The  defendant  also  claim- 
ed credit  for  a  counsel  fee  to  P.  E.  Pearson, 
Esq.,  of  .?50,  for  which  he  produced  no  re- 
ceipt, but  for  which  he  liad  claimed  a  cx'edit 
in  his  reports  to  the  Court,  already  refer- 
red to. 

[The  report  here  contained  a  statement  of 
the  amount  received  by  the  defendant,  and  of 
monies  paid  out  by  him,  excluding  the  pay- 
ments to  Wm.  Jackson,  and  the  payment  to 
P.  E.  Pearson,  and  concludes  as  follows:] 

If  the  complainant  is  entitled  to  interest, 
as  she  contends,  there  is  due  to  her,  on  the 
first  day  of  July,  1852,  the  sum  of  eighteen 
hundred  and  eighty-two  dollars  and  sixteen 
cents  from  the  defendant,  Samuel  McAliley. 

The  bill  in  this  case  was  hied  May  24,  1849. 
If  the  complainant  is  entitled  to  interest 
only  from  the  filing  of  the  bill,  there  will  be 
due  to  her,  the  sum  of  nine  hundred  and 
seventy-eight  dollars  fifty-five  cents,  on  the 
first  of  July,  1852. 

By  the  decree  of  the  Court,  made  at  July 
Term,  1849,  there  was  found  due  to  the  com- 
plainant, the  sum  of  .^950.6G,  on  the  1st  day 
of  July,  1846,  from  the  estate  of  James  Bar- 
ber, and  from  the  sureties  of  John  M.  Barber. 

The  negroes  assigned  to  Mrs.  Jackson,  in 
the    partition    of   the    slaves   bequeathed   by 
Daniel  Green,  were  settled,  by  order  of  the 
Court,  on  her,  to  her  sole  and  separate  use. 
'45 

*The  Chancellor  having  directed  in  his  de- 
cree, that  the  fund  due  to  the  complainant 
from  the  defendant,  should  be  paid  to  her 
trustee,  Dr.  Chas.  Thorn,  the  Commissioner 
suggests  to  the  Court,  that  Dr.  Thorn  has 
removed  permanently  from  this  State,  and 
is  now  residing,  as  he  is  informed,  in  the 
State  of  Mississippi. 

No  application  has  been  made  for  the  ap- 
pointment of  another  trustee  in  his  stead. 

The  fund  due  in  this  case,  as  well  as  that 
due  from  James  M.  Barber's  estate,  and  the 
sureties  of  John  Barber,  is  ordered  by  the 
Chancellor  to  be  settled  on  the  complainant. 

The  defendant,  Samuel  McAliley,  except- 
ed to  the  report  of  the  Commissioner,  on 
the  following  grounds,  to  wit: 

1.  Because  the  Commissioner  erred  in  not 
allowing  a  payment  of  fifty  dollars  made 
to  I'.  E.  Pearson,  Esq.,  as  solicitor  for  com- 
plainant and  others,  in  the  cas^e  of  Peay  & 
I'ickett  against  the  same,  the  receipt  for 
which  payment  was  lost  or  mislaid,  the  said 
sum  being  paid  as  a  counsel  fee,  and  re- 
ported to  the  Court  and  approved  of,  and 
the  same  being,  also  a  moderate  fee,  consid- 
ring  the  questions  involved  and  the  amount 
recovered. 

2.  Because    the     Commissioner    erred     in 


JACKSOX  V.  McALILEY 


*48 


fharginj,'  tlie  defendant  with  the  sums  re- 
ported to  the  Court,  and  wliich  after  exam- 
ination hy  counsel  for  the  said  iomi)lahiant 
and  others,  was  approved  of  and  confirmed 
l)y  the  Court. 

3.  Because  tlie  Commissioner  erred  in 
charyiuK  tlie  flefendant  wltli  tlie  hiri'  of  ne- 
sroes,  of  whidi  the  comi)lainant  had  the 
serviee  and  labor. 

4.  Because  the  Connnlssioncr  erred  in  al- 
lowin«  any  interest  in  .said  account  awinst 
the  defendant. 

n.  Because  the  complainant  liavin;;  tlie 
whole  of  her  prop(>rty  (exc.'i.t  that  in  con- 
troversy) settled  upon  her.  no  future  settle- 
ment should  l>e  made,  and  the  payment  to 
her  hu.shand  was  riyht  and  proper. 

The  ca.se  was  heard  on  the  exceptions  be- 
fore .lohn.ston,  Cli..  at  June  sittin-s,  ]S.j2. 
who  made  the  following  decree: 


*46 
*Johuston.  Ch.     On  hearln.L.'   the  report  of 
the  Connui.ssioner  in  tlie  ahove  case,  tiled  I't It ii 
day  of  May,  iSHl*,  and  excei»tions  filed  there- 
to   by    defendant.    .Sanniel    McAlilev ;     It    is 
ordered  and  decreed,  that  the  first  "excei.tion 
he    sustained    by    the    consent    of    plaintifT's 
solicitor.      The   second    and    fifth    excel )tion.s 
are  overruled,  the  report  bein;,'  in  confornn- 
ty    with    a    previous    decree    of    this    Court. 
The     third     exception     is     overruled,     beiiif? 
founded  on  an  error  in  fact,  no  ne^ro  hire 
being    charged    in    the    report.      The    fourth 
exception  relates  to  interest.     The  Commis- 
sioner has  not  decided  the  (piestlon.  wheth- 
er interest  should   be  charged  ;    and   if  any. 
at  what  time  the  fund  should  commence  to 
bear    interest.      The    money    was    paid    into 
the   hands   of   Mr.    McAliiey,    while    he   was 
Commissioner  of  this  Court,   and   in   pursu 
ance  of  its  order.     During  the  time  he  was 
Commissioner,  he  is  not  chargeable  with  in- 
terest,   but   when    he   went    out    of   ottice    it 
was  his  duty  to  have  turned  over  the  mon- 
ey to  his  successor,  and  not  having  done  so. 
he   has    held    the    money   as   a    private    indi- 
vidual, and  no  demand  other  tiian  the  legal 
reipiisition    was    necessary    to    render    him 
liable  for  interest,  an<l  he  should  be  charg- 
ed   with    interest    from    twenty    days    alter 
he   went   out   of   ottice:     and    let    the    rejiort 
be  amended  in  conformity   with   the   princi- 
ples here  laid  down. 

It  having  been  suggested  to  the  Court,  that 
Charles  Thorn,  the  trustee  of  Martha  .Tack- 
>«m,  has  left  the  State  an<l  ab.-mdoned  his 
trust. 

It  i.s  ordered  and  decreed,  that  the  de- 
fendant pay  into  the  hands  of  the  Comnns- 
sioner  of  this  Court,  the  anxanit  which  may 
be  found  due,  in  conformity  with  the  i>rin- 
ciples  of  this  decree:  That  it  be  referr»'d  to 
the  Commissioner  of  this  Court,  to  ascertain 
and  report  whether  Charles  Thorn  has  left 
the  State,  and  if  so,  to  reimrt  uiion  the  fit- 
ness of  some  i)ersou  to  be  aiipointed  trustee, 
who  may  ajiply  for  said   ai.iM.iiitment ;    and 


when  the  said  appointment  is  regularly 
made,  the  Commissioner  is  hereby  directed 
to  pay  over  the  fund  here  referred  to,  to 
said  trustee,  and  the  .same  is  to  be  vested 
in  him  for  the  .separate  use  of  the  .said  Mar- 
tha .Jackson,  during  her  life,  and  at  her 
death,     to     be    divided     amongst     her    issue. 

♦47 
agreeably  to  the  statute  of  di.stribu*tions ; 
and  If  thi-  .said  Martha  .shotd.l  h-ave  no  is- 
sue living  at  her  death,  then  to  Win.  .Ia<k- 
aon,  her  hu.shand,  freed  from  all  further 
trusts. 

It  is  further  ordered,  that  it  be  referred 
to  the  Connni.<sioner  of  this  Court,  to  ascer- 
tain and  report  what  woidd  l»e  a  reasonable 
coun.sel  fee  f<»r  coinidainanfs  solicitor  in 
this  ca.se. 

The  defendant.  Sinuiel  McAliiey.  moved 
this  Court  to  modify  the  decree  of  Chan- 
cellor .Tobnston.  on  the  following'  -'rounds, 
to  wit  : 

1.  Because  the  Chancellor  erred  in  not 
susfaiinng  the  second  exceiiti(»n  to  the  Com- 
missioner's report,  which  is:  "Becau.se  the 
Commissioner  erred  in  not  allowing  the  de- 
fenilant  credits  for  monies  paid  by  him  tn 
William  Jack.son,  the  husbjiml  of  the  com- 
plainant, and  which  payments  nre  reported 
specially  to  the  Court,  and  which  paynu-nts 
after  the  examination  of  .solicitors  of  com- 
plainant and  others,  were  confirmed  hy  the 
express  order  of  the  Chancellor.' 

2.  Becau.se.  the  Chancellor  erred,  in  not 
sustaining  the  fourth  exception  of  the  de- 
fendant, which  is:  "That  the  Conmiissioner 
should  not  have  allowed  any  interest  on  the 
money  in  his  hands,  which  had  been  paid  to 
the  husbaml  of  comiilainant." 

3.  Because  the  Chancellor  erred  in  not 
sustaining  the  fifth  exception  of  defen.lant. 
which  is.  -Because  the  complainant  having 
had  her  whole  property,  excepting  the 
amount  in  controversy,  .settled  upon  her.  no 
additional  settlement  should  have  been 
made,  an<l  especially  so.  in  ms  much  as  her 
husband  had  received  the  same,  and  she  had 
had  to  a  certain  extent  the  beiietit  thereof." 

4.  Becau.se  the  Chancellor  erred  in  direct- 
ing a  settlement,  without  first  having  or- 
dered a  reference  to  iiiiinire  into  the  pro- 
priety of  the  settlement. 

M.   Williams,  for  appellant. 
Kiitland,  contra. 

*48 
♦The   opinion    ol    the    Court    was    (jcilver- 
ed  by 


DAUGAX.  Ch.  I  think  it  will  sc.-irc.'ly  be 
doubted  that  a  Commissioner  in  I^piity  has 
no  authority  to  pay  over  monies  that  have 
come  into  his  hands  as  a  receiver  without 
the  order  of  the  Court.  His  whole  duty,  un- 
less otherwise  ordered  and  directed,  is  sim- 
ply to  receive  and  safely  to  keep  the  fund. 
Such  fund  is  in  fact  in  the  safe  keeping  of 
the  Court  itself,  wlilch  is  obliged  to  use  the 

lU 


*48 


5  RICHARDSON'S  EQUITY  REPORTS 


personal  instrumentality  of  its  officers  in 
the  performance  of  this  duty.  What  right 
has  the  Commissioner  to  apply  or  distribute 
funds  that  are  in  the  charge  of  the  Court, 
and  v/hich  are  in  his  hands  only  as  a  de- 
positary? 

If  a  Commissioner,  under  these  circum- 
stances, undertakes  to  pay  out  monies,  he 
assumes  the  responsibility  of  paying  it  out 
to  the  right  person, — to  the  person  who 
would  be  entitled  to  receive  it,  if  it  was 
done  in  a  formal  manner  under  the  sanc- 
tion of  the  Court.  His  unauthorized  pay- 
ments would  not  be  permitted  to  have  the 
effect  of  defeating  the  rights  of  the  parties, 
or  varying  or  modifying  them  in  any  way. 
These  are  propositions  that  will  hardly  ad- 
mit of  dispute. 

The  fund  in  question  was  the  estate  of  the 
complainant  Martha  Jackson,  the  wife  of 
the  defendant,  William  Jackson.  It  was  a 
fund  derived  from  her  equital^le  choses, 
placed  in  the  hands  of  the  defendant  Mc- 
Aliley  for  collection  and  safe  keeping. 

I  refer  to  the  circuit  decree  for  the  man- 
ner in  which  the  estate  of  the  complainant 
in  this  fund  originated,  and  in  which  it 
came  into  the  possession  of  the  said  Samuel 
McAliley.  It  was  her  unascertained,  un- 
divided interest  or  share  in  certain  choses 
in  action  derived  from  the  estate  of  Daniel 
(ireen,  to  which  she  was  entitled  as  tenant 
in  common  with  her  five  brothers  and  sis- 
ters. There  was  not,  and  never  has  been 
any  decree  making  a  partition  of  the  fund, 
or  severing  the  rights  of  the  parties.  In 
Yerdier  v.  Hyrne,  4  Strob.  463.  it  was  decid- 
ed by  the  Court  of  Errors,  that,  where  a 
married  woman  was  possessed  of  a  slave 
as  tenant  in  common  with  one  or  more  oth- 
er  persons,   the   marital    rights    did    not    at- 

*49 
tach,  there  being  no  partition.  And  *this, 
though  the  tenants  had  a  vested  legal  es- 
tate in  common,  and  though  there  liad  been 
a  decree  for  partition  in  the  wife's  life, 
which  had  not  been  made  before  her  death. 

It  is  not  disputed,  that  the  complainant, 
Mrs.  Jackson,  had  a  right  to  a  decree  for  a 
settlement  when  this  fund  first  came  into 
the  hands  of  the  defendant  as  the  receiver, 
under  the  order  of  the  Court.  Nor  could  it 
be  disputed,  that,  if  the  fund  still  remain- 
ed in  the  hands  of  the  defendant,  she  would, 
at  this  day,  be  entitled  to  the  same  decree. 

It  is  said,  however,  that  the  share  of  the 
fund  to  which  the  complainant  is  entitled, 
has  for  the  most  part,  if  not  altogether,  been 
paid  over  to  the  complainant's  husband  by 
the  defendant:  and  that,  although  this  has 
been  done  without  the  order  of  the  Court,  or 
any  waiver  by  the  wife  of  her  e<piity,  the 
marital  rights  have  thereby  attached. 

But  the  Commissioner,  as  I  have  before 
stated,  has  no  right  to  pay  out  monies  in 
his  hands  without  the  order  of  the  Court. 
If  he  does,  it  is  at  his  own  peril;    and  upon 

20 


the  responsibility  of  paying  It  out  to  the 
right  parties,  and  in  such  maimer  and  on 
such  conditions  as  the  Court  would  have 
ordered  it  paid.  The  rights  of  the  parties 
are  not  to  be  defeated,  varied,  or  modified, 
by  such  unauthorized  and  illegal  payments. 

Upon  this,  and  similar  reasoning,  the  Cir- 
cuit Court,  at  July  term,  1851,  decreed  that 
the  payments  by  McAliley  to  William  Jack- 
son were  null,  and  that  the  complainant 
was  entitled  to  a  settlement  of  the  fi.«d ; 
and  that  McAliley  pay  over  to  her  trustee, 
her  share  of  the  said  fund,  as  if  the  pay- 
ments to  Jackson  had  never  been  made.  The 
decree  also  referred  it  to  the  Commissioner 
to  report  upon  tlae  accounts. 

At  a  subsequent  stage  of  the  proceedings, 
(when  the  case  was  before  the  Commission- 
er on  reference,)  the  defendant  offered  some 
further  evidence  in  opposition  to  the  right 
of  the  complainant  for  a  settlement.  The 
Commissioner  has  reported  this  evidence.  It 
consi.sts  of  extracts  from  the  minutes  of  the 
Court  for  July  term,  18.34,  and  other  docu- 
ments which  are  of  record. 

The  Commissioner  in  his  annual  report  at 
*50 
that  term,  on  the  *estate  of  the  infant  lega- 
tees of  Daniel  Green,  states  an  account,  in 
which  he  credits  himself  with  .$550  as  p;-ud 
to  William  Jackson.  On  the  minutes  of  tt<> 
Court  is  an  order  in  words  as  follows: 
"Ex  parte 

The  minor  Legatees  ofl  Report  of  u>na- 
Daniel  Green,  de-  i-  ey  received  and 
ceased.  J  paid  away. 

The  Commissioner  having  read  his  re;-,  rt 
of  monies  received  and  paid  away,  as  re- 
ceived of  the  funds  of  the  said  legatees,  iind 
the  same  having  been  examined  by  Mr.  ^Jc- 
Dowell  as  solicitor  for  the  legatees,  ano  jio 
objection  having  been  made  to  the  same,  or- 
dered tliat  the  same  be  confirmed. 

(Signed)  Henry   W.   DeSaussurc. 

July  4,  1834." 

A  similar  report  at  June  term,  1835,  was 
also   submitted  and  confirmed. 

It  is  contended,  that  the  rights  of  tlie  com- 
plainant are  tlius  concluded  (as  to  the  extent 
of  the  charges  made  for  payments  to  Jack- 
son iu  these  reports,)  by  the  judgment  of 
the  Court. 

The  first  objection  to  the  evidence  is,  tbcit 
it  was  not  submitted  at  the  proper  time. 
The  bill  and  answer  made  the  question  di- 
rectly, as  to  the  right  of  the  complainant  to 
a  settlement.  The  Court  heard  and  decided 
this  question.  The  Commissioner  was  order- 
ed to  "report  all  costs  and  expenses  witli 
which  the  share  of  the  complainant  in  said 
funds  is  chargeable."  He  was  also  ord'n-ed 
to  "report  what  amount  of  estate  belonghig 
to  the  complainant  has  been  collected  by  the 
said  Samuel  McAlile.v,  and  also  what  n- 
mains  to  be  collected."  The  evidence  w>ii:li 
has  been  cited,  was  foreign  to  the  --Vjniry 
with  which  the  Commissioner  was  charged: 


JACKSOX  V.  McALILEY 


•53 


and  boiv  upon  a  question  whidi  had  already 
been  ad.juilicated. 

But  the  ("vid(MK-(',  if  it  had  iteeii  brought 
forward  at  tlu'  iinipcr  time,  would,  if  admis- 
sible at  all,  havt>  been  lu-rfeetly  Inconclusive. 
It  was  an  ex  parte  proceeding',  in  whbh  rne 
Commissioner  alone  was  a  party.     The  com- 

♦51 
plainant  wasnot  a  party,  *nor  was  she  repre- 
sented by  any  one.  It  is  recited  in  the  or- 
der, that  the  report  had  been  examined  by 
Mr.  McDowell,  ".solicitor  for  tlie  legatees." 
It  does  not  say  that  .Mr.  McDowell  assent- 
ed; but  that  no  objection  having  been  made, 
the  report  was  conllrnu'd.  It  does  not  ap- 
Itear.  that  .Mr.  McDowell  was  the  solicitor 
t)f  the  complainant,  or  of  the  infant  lega- 
tees, in  reft-reiice  to  their  matters  of  account 
with  the  Commissioner;  or  that  it  was  nec- 
es.sary  for  them  to  have  a  solicitor,  after 
their  funds  had  come  into  the  .safe  keeping 
of  the   Court. 

It  is  as  well  for  me  to  state  here,  broadly, 
(for  there  .seems  to  be  some  nnsapprehension 
upon  the  subject.)  Hint  these  annual  reports 
and  accounts  which  the  Connni.s.sioner  is  re- 
quired to  make,  conclude  nothing,  as  to  the 
riglits  of  the  i)arties  whose  estates  or  funds 
they  purport  to  give  an  account  of.  Tliey 
are  the  ex  parte  reports  of  the  Conunission- 
er,  and  commit  no  body  but  himself.  Tlieir 
object  is  to  comnnniicate  information  from 
the  Commissioner  to  the  Court,  and  to  any 
party  who  may  be  desirous  of  looking  into 
his  administration.  It  is  intended  as  a 
check  upon  the  Commissioner.  Uut  after  all 
that  a  Chancellor  can  do  in  supervising  the 
annual  returns  of  the  Connnissioner.  it  af- 
ft>rds  but  a  very  imperfect  check,  and  a  very 
inadequate  securit.v.  I  might  say  much  more 
upon  this  subject,  but   I  forI»ear. 

All  that  I  have  said,  in  vindication  of  the 
decree  of  July  term,  ISol,  has  but  little 
pertinency  to  tlie  is.sues  now  before  this 
Court.  No  appeal  has  been  taken  from  that 
decree.  In  pursuance  of  the  decree  the  Com- 
missioner has  held  his  reference,  and  at 
July  term,  18r>2,  he  submitted  his  report. 
The  cause  came  before  the  Court  at  that 
term,  on  this  report  and  the  exceptions. 

The  defendant  nnule  the  same  opposition 
to  the  complainant's  claim  for  a  .settlement, 
in  the  form  of  exceptions  to  the  report,  that 
he  had  jtreviously  made  on  the  circuit  trial, 
and  which  had  been  decided  against  liim. 
In  addition  to  these,  he  excepted,  that  $50 
paid  as  a  fee  to  P.  E.  I'earson,  Inid  not  been 
allowed   as  a   credit   on   his  accounts.     The 

♦52 
<omplainanl's    soli^citor    withdrew,    on    the 
last   circuit  trial,  his  oltjection   to  this  item 
as  a  credit;    and  it  was  allowed.     Thus  that 
question    was  disposed   of. 

The  defendant  also  excepted  to  the  re- 
port, becau.se  the  Commissioiu-r.  in  striding 
the  accounts,  had  charginl  interest  against 
him.     This  question  as  to  interest,  was  the 


ordy  new  issue  in  the  case,— the  only  point 
that   had  not  been  previou.sly  adjudged. 

The  Clnincellor  who  last  heard  the  i-ause 
(on  the  report  and  exceptions.)  very  proper- 
ly declined  to  review,  and  decide  any  of  the 
matters  that  had  been  adjudged  by  the  pre- 
ceding decree.  To  have  done  so,  would  have 
been  to  entertain  ai.pdlate  juri.sdictiim.  And 
in  the  same  way.  his  successor  might  have 
inHMi  called  upon  to  consider  and  reverse  ins 
decision.  It  is  needless  to  pause  here,  for 
the  purpo.se  of  shewing  the  utter  absurdity 
of  any  otlier  rule  tlian  that  by  which  the 
Chancellor   was   governed. 

The  Comnussioner,  in  his  report,  stated 
the  interest  account  in  two  ways.  lie  stat- 
ed it  first,  on  the  supposition  tliat  the  com- 
plainant was  entitled  to  rec-over  intere.st 
from  the  time  the  defendant  luul  received 
the  fund;  which  was  the  7th  February,  18.1:i. 
Stating  the  account  in  this  way,  he  found 
a  balance  due  the  complainant  on  the  1st 
July,  isr,2,  of  $l.ssL'.io.  f)n  the  supposition 
that  tlie  complainant  might  not  be  entitled 
to  interest,  except  from  the  tiling  of  the 
bill,  which  was  the  liOth  May,  1S4!),  the  Com- 
missioner has  stated  the  intere.st  account 
in  that  way.  Stating  the  account  on  this 
principle  he  finds  a  balance  due  to  complain- 
ant, 1st  Jul.v,  1S52,  of  ."i;n7.s.5,j.  The  defend- 
ant excepted  to  the  report  for  allowing  in- 
terest at  all. 

Thus  the  case  was  presented  to  the  CTian- 
cellor;  who,  adopting  neither  of  the  al- 
ternatives presented  by  the  ("onunissioner's 
report,  decreed  that  the  defendant  was  liable 
for  interest  from  the  time  he  went  out  of 
ottice. 

This  is  an  appeal  from  that  decree.  The 
grounds  of  ajipeal  are  as  follows:  1.  "Be- 
cau.se  the  Chancellor  erred  in  not  sustaining 
the  second  exception  to  the  Commissioner's 
report,  which  is:  because  the  Commissioner 
♦53 


erred  in  not  allowing  the  defend^ant  credits 
for  iiK.nies  j.aid  by  him  to  William  Jacks<.ii. 
the  husband  of  the  conH)iaiiiant.  and  which 
payments  are  reported  speci;illy  to  the 
Court,  and  which  payments  after  the  'ex- 
amination of  the  solicitor  for  comiilainant 
and  others  was  conlirmed  by  an  express  or- 
der of  the  Court." 

The  third  ground  of  appeal  is.  'because 
the  Chancellor  erred  in  not  su.staining  the 
sixth  excei)tion  of  the  complainant,  which 
is,  because  the  complainant  having  had  her 
whole  property,  except  the  amount  in  contro- 
versy, settled  uiion  her.  no  additional  settle- 
ment should  have  been  made;  and  esjiecially 
so,  inasmuch  as  lier  liusband  had  received 
the  same,  and  she  had,  to  a  certain  extent 
the  benefit  of  it." 

It  is  perfectly  obvious  that  the  errors 
charged  in  the.se  two  grounds,  of  appeal  are 
ernu-s  (if  they  be  sucli)  which  are  imjuitable 
only  to  the  first  decree;  and  from  whicii.  as 
to  these  grounds  no  aiii»eal  has  been  taken. 

21 


*53 


5  RICHARDSON'S  EQUITY  REPORTS 


The  Chancellor  who  presided  at  the  last  trial, 
and  heard  the  cause  on  the  report  and  ex- 
ceptions, did  not  affect  to  decide  the  ques- 
tions involved  in  these  two  grounds  of  appeal. 
He  neither  affirmed,  nor  denied  tne  proposi- 
tions of  the  appellant.  He  only  sought  to 
carry  out  and  to  enforce  a  previous  decree 
in  the  cause;  which  he  found  upon  the  record, 
which,  as  a  judicial  order,  was  binding 
upon  him,  and  which  was  irreversible,  except 
by  way  of  appeal.  If  the  decree  had  in  his 
judgment  been  erroneous,  (which  I  feel  au- 
thorized to  say  was  not  the  case,)  he  would 
not,  and  could  not,  have  reversed  or  modified 
it.  No  error  is  imputable  to  his  decree  on 
this  account.  But  the  appeal  should  have 
been  from  the  first  decree,  of  which  the  appel- 
lant in  this  respect  makes  no  complaint. 

The  second  ground  of  appeal  is,  "because 
the  Chancellor  has  erred  in  not  sustaining 
the  fourth  exception  of  the  defendant  to  the 
Commissioner's  report ;  which  is,  that  the 
Commissioner  should  not  have  allowed  any 
interest  on  the  money  in  his  hands  which  had 
been  paid  to  the  husband  of  the  complain- 
ant." 

This  Court  concurs   in   the   decree   of  the 

*54 

Chancellor  as  to  the  *interest.  Foi",  assuming 
the  first  decree  to  be  correct  in  ordering  a 
settlement  of  the  fund,  (and  for  the  purposes 
of  this  appeal  trial,  and  until  said  circuit 
decree  is  reversed,  this  must  be  assumed,) 
the  first  default  which  the  defendant  com- 
mitted In  respect  to  this  fund,  was  when  he 
failed  to  pay  it  over  to  his  successor,  on  his 
retirement  from  ofhce,  as  by  law  he  was  re- 
quired to  do. 

A  Commissioner  in  Equity  is  not  liable 
to  pay  interest  on  money  which  has  come 
into  his  hands  as  a  receiver  or  simple  de- 
positary. He  is  required  to  receive,  and  for- 
bidden to  pay  out,  or  to  invest,  on  his  own 
mere  motion.  In  such  cases  it  would  be  lui- 
just  to  charge  him  with  interest — which,  if 
it  were  allowed,  would  consume  all  his  profits. 
But  if  he  is  ordered  to  pay  out,  and  a  de- 
mand is  made  by  one  authorized  to  receive; 
if  he  is  ordered  to  invest  a  fund,  or  to  make 
any  appropriation  or  disposition  of  it,  either 
by  the  law,  or  by  a  special  order  of  the  Court, 
and  omits  to  perform  his  duty,  he  is,  and 
should  be,  liable  for  interest.  There  is  an 
express  provision  in  the  Act  of  1840,  which 
requires  all  Masters  and  Commissioners  in 
Equity  to  pay  over  the  monies  in  their  hands 
to  their  successors  in  office.  P'or  the  pur- 
poses of  this  case,  the  fund  must  be  consider- 
ed as  in  the  hands  of  the  defendant,  when  he 
retired  from  ofHce ;  and  his  omission  to  pay 
it  over  to  his  successor,  as  by  law  required, 
subjects  him  to  liability  for  interest  from 
that  time. 

It  would  not  be  wise  to  hold,  that  the  hon- 
est errors  of  public  officers  should  shield  them 


from  liability  for  the  losses  which  fall  upon 
others,  as  the  consequences  of  those  errors. 
In  the  first  place  it  would  be  imi)Ossible  to 
determine,  whether  the  error  was  uninten- 
tional or  otherwise.  And  an  imperative  pub- 
lic policy  would  forbid  the  existence  of  such 
a  principle.  High  official  functionaries,  who 
.set  themselves  up  as  qualified  fb  perform  the 
duties,  and  to  administer  the  affairs  of  their 
offices,  for  which  they  are  supposed  to  re- 
ceive an  adequate  remuneration,  must  be 
held  to  a  .strict  accountability.  Their  correct 
deportment,  and  the  manner  in  which  they 
discharge  their  duties,  vitally  affect  the  in- 

*55 
terest  and  well-being  of  the  whole  *communi- 
ty.  To  them,  of  all  others,  must  the  legal 
maxim  apply,  that  they  must  be  presumed 
to  know  the  law.  Honest  errors,  more  or 
les.s,  are  incident  to  and  inevitable  in  all  of- 
ficers. But  the  stipends  are  supposed  to  be 
sufficient  to  afford  a  just  remuneration  for 
the  labors,  and  a  reimbursement  for  their 
losses  and  risks.  If  this  is  not  the  case,  it  is 
the  folly  of  the  incumbent  to  have  taken  the 
office. 

It  is  ordered  and  decreed,  that  the  appeal 
be  dismissed,  and  that  the  circuit  decree  be 
affirmed. 

JOHNSTON  and  WARDLAW,  CC,  concur- 
red. 
Decree  affirmed. 


5    Rich.  Eq.   55 
•lOIIN   McKINNE,    .TAMES   JONES   and   JO- 
SEPH  J.   KENNEDY   v.  THE   CITY 

COUNCIL  OF  AUGUSTA. 
(Columbia.  Nov.  aud   Dec.  Term,  1832.) 

[Coiporuiions  <S==>0G5;    Courts  <©==>ll'.] 

Bill  by  plaintiffs,  owners  of  a  clinrter,  from 
South-*. "arulina,  of  the  Augusta  biidgf  over  the 
Savannah  river,  against  the  City  Council  of 
Augusta,  iu  Georgia,  owners  of  a  charter  of  the 
same  bridge  from  the  State  of  (ieorgia,  for  an 
account  of  tolLs  (-ollected  by  the  (h't'eudants,  and 
for  an  injunction  to  restrain  them  from  col- 
lecting more  than  one  moiety  of  tolls,  aud  also 
from  collecting  any  tolls  whatever  at  a  new 
bridge  which  they  had  built  in  violation  of 
plaintiffs'  charter:  it  was  averred  in  the  bill, 
that  of  so  much  of  the  Augusta  bridge  as  lay 
within  the  territorial  limits  of  South-Carolina, 
the  plaintiffs  were  the  owners,  and  it  was  in- 
cidentally stated  that  the  defendants  owned 
some  lots  in  Hamburg,  in  this  State: — Plea  to 
tlie  jurisdiction,  because  the  defendants  were 
non-residents  of  South-Carolina,  sustained. 

[Ed.  Note.— Cited  in  Hurt  v.  Hurt,  6  Rich. 
Eq.  118:  Howard  v.  Cannon,  11  Rich.  Eq.  25, 
75  Am.  Dec.  736. 

For  other  cases,  see  Corporations,  Cent.  Dig. 
§  2(>00;  Dec.  Dig.  <g=^665;  Courts,  Cent.  Dig. 
S  36;    Dec.  Dig.  €==llM 

Before  Dunkin,  Ch.,  at  Edgefield.  June,. 
1852. 

The  bill  stated,  that  the  river  Savannah 
is  the  boundary  between  the  States  of  South- 
Carolina  and  Georgia;    that  the  sovereignty 


^z;^Far  othei'  cases  see  same  tonic  ."iid  KKY  NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


McKINNE  V.  CITY  COUNCIL  OF  AUGUSTA 


*58 


and  territorial  jurisdiction  of  each  State  ex- 
tend,  usquo  :ul  fllum   mediiiiu   aqua?,   to  the 

*56 
(•(Mitral  line  of  tlio  rivt-r.  as  your  'orators 
arc  advised,  and  that  tlu*  said  States  have  no 
convention  to  regulate  the  exercise  of  their 
n^spective  juris<lictions  over  tlie  waters  of  tlie 
said  river,  in  resjiect  to  l)ridj^es,  ferries,  and 
such  otlier  privileges,  but,  as  your  orators 
are  advised,  the  snuits  or  charters  for  bridg- 
es or  ferries  from  eitlier  of  tlie  said  States, 
liave  effect  over  so  much  of  the  said  river  as 
lies  witliin  the  territorial  jurisdiction  and  no 
liirtlier. 

Tliat  by  an  Act  passed  on  Ilie  ITtii  day  of 
l>eceml)er,  181.'?,  the  State  of  Soutli-Canilina 
;:raiit«'d  to  Henry  Shnltz  and  Lewis  ('(niper, 
their  heirs  and  assij^ns,  for  the  siiace  of 
twenty-one  years,  tlie  exclusive  privilejie  of 
Iiuilding  a  toll-bridije  over  so  much  of  the 
Savannah  river  within  the  State  of  South- 
Carolina  as  lies  between  Cani]»belltowii  Ferry 
aitove,  and  the  Sand-bar  Ferry  below  Au- 
j,'usta.  and  of  receiving  at  the  same,  certain  le- 
ual  tolls,  and  prohibited,  under  the  penalty  of 
five  thousand  dollars,  tlie  building  of  any 
otiier  bridge,  and  tlie  keeping  of  any  ferry 
or  other  convenience  for  crossing  the  said 
river,  except  for  private  use,  within  those 
limits,  as  in  and  by  the  said  Act,  reference 
l>eing  thereunto  had,  will  more  fully,  and  at 
large,  appear — that  soon  after  the  passing 
of  said  Act,  the  said  I^ewis  Cooper  assigned 
bis  interest  in  the  said  charter  to  your  orator, 
Jolm  ^IcKinne,  and  the  State  of  (Jeorgia.  by 
an  Act  passed  on  the  9tli  of  November.  1814, 
granted  a  like  charter  to  the  said  Henry 
Sliultz  and  your  orator,  John  McKinne.  their 
heirs  and  assigns  for  twenty  yi-ars,  as  in  and 
l»y  the  said  last  mentioned  Act.  i)ublished 
and  printed  under  the  autliority  of  tlie  State 
<»f  Georgia,  will  more  fully  appear;  and  that 
in  pursuance  of  the  privileges  and  powers 
thus  vested  in  them,  the  said  Henry  Shnltz 
and  John  McKinne,  with  much  skill  and  cost, 
built  the  bridge  ovt-r  the  Savannali  river, 
iietween  the  said  Campbelltown  and  Sand-bar 
Ferries,  known  afti-rwards  as  the  Augusta 
bridge,  having  fully  complied  with  all  tlie 
terms  and  conditions  of  the  said  cliarters,  as 
your  orators  believe,  and  tliat  during  tlie 
ctiiitinuance  of  the  said  charters.  The  I'ank 
of  the  State  of  (Jeorgia.  a  i>ody  pelitic  and 
corporate  under  tlie  law  of  (Jeorgia.  with  ca- 
pacity  to   take   and    hold    real   estate,    under 

♦57 
*certain  restrictions,  came  into  the  possession 
•of  tlie  said  bridge  and  tlu*  receipt  of  profits 
;ind  tolls  tliereof. 

That  your  orators  are  informed  ami  believe 
tliat  at  the  erection  of  tlie  said  i)ridge,  tlie 
soil  upon  whicli  rested  its  abutment  and 
landing  on  the  South-Carolina  side  of  the 
said  river;  as  also  the  land  lying  on  the 
river  for  some  distance,  l)otli  aitove  and  below 
the  abutment  of  tlie  said  Itridge,  was  jiarcel 
Of  a  tract  of  laud  that  belonged  to  the  heirs 


of  one  Isaac  Fair,  who  had  died  intestate 
seized  thereof  in  fee,  and  leaving  him  surviv- 
ing, a  widow,  Lucllla,  who  afterwards  inter- 
married with  John  15.  Covington,  and  two 
cliildreii.  John  II.  Fair  and  Jane  Caroline 
Fair,  wlio  afterwards  intermarried  with 
(Jeorge  Anderson;  rliat  the  said  Henry 
Sliultz  afterwards  purchased  the  one  undi- 
vided fourth-part  of  the  said  tract  of  land 
in  fee,  and  liaving  olitained  from  tlie  State  of 
South-Carolina  tlie  loan  of  .$.")0.(K>0.  for  wliich 
the  said  J.  B.  Covington  l)eiame  ijound  as 
one  of  his  sureties,  tlie  said  Shnltz  and  Cov- 
ington for  the  securing  tlie  payment  of  the 
said  money,  each  executed  a  mortgage  of  liis 
respective  portion  of  the  .said  land — tliat  tJie 
said  debt  remaining  unpaid,  certain  proceed- 
ings were  afterwards  instituted  in  tlie  Court 
of  Equity  for  tlie  District  of  Edgefield,  to 
which  all  the  persons  in  interest  were  made 
parties,  to  procure  partition  of  the  said  tract 
of  land,  as  well  as  foreclose  the  said  mort- 
gages— that,  at  the  June  term,  18;>0.  of  tlie 
said  Court,  a  decree  in  the  said  caus»>  was 
pronounced  foreclosing  the  .said  mortgages 
and  providing  for  tlie  partition  of  the  said 
land,  and  for  that  purpose  directing  that  it 
should  be  sold— that  in  pursuance  of  said  de- 
cree, the  said  tract  of  land  was  divided  by 
the  Commissioner,  into  six  lots  or  portiiuis, 
and  .sold  l>y  him  on  the  first  Monday  in  Au- 
gust, 18.">0,  in  .separate  lots — that  at  that  sale 
the  Hon.  IJaylis  J.  Earle,  l)eing  duly  author- 
ized tliereunto,  purchased,  for  the  State  of 
South-Carolina  the  four  lots  on  the  said  riv- 
er, according  to  the  Commissioner's  divisii>n 
of  the  said  land,  which  included  as  well  the 
spot  upon  which  rested  the  abutment  and 
landing  of  said  bridge  on  tlie  South-(^aroliiia 
side  of  tile  said  river,  as  also  the  land   im- 

*58 
mediately  ♦adjoining,  and  lying  upon  tlie 
said  river.  Imtli  above  and  lielow  tin*  said 
itridge.  and  tliat  tliereupon  a  deed  of  am- 
veyance  of  the  said  four  lots  or  pitrtions  of 
the  said  land  was  duly  executtnl  by  the  Com- 
missioner to  the  said  H.  J.  Earle.  for  ami  on 
behalf  of  the  State  of  South-Carolina  ;  that 
the  said  15.  J.  Earle  afterwards,  to  wit,  on 
the  LMth  of  Decemlier,  ls.".0,  on  behalf,  and  as 
the  duly  autliorized  agent  of  the  State  of 
Soiitli-Carolina.  exeiuted  a  deed  conveying 
in  fee  tct  Samuel  Hale,  then  the  I'resident  of 
the  Branch  Hank  of  the  State  of  (JtM»rgia  in 
Augusta,  certain  "lots  and  ground,  near  tlio 
end  of  the  said  bridge."  lying  in  tlie  town  of 
Hamburg.  Iteing  parcel  of  the  four  lots  pur- 
chased by  the  said  H.  J.  Earle  as  aforesaid, 
and  descrilted  in  his  deed  to  the  .said  Samuel 
Hale,  as  follows: — That  is  to  say,  "one  lot  or 
parcel  Iteginning  on  the  l>aiik  of  Savannali 
river,  at  low  water  mark,  (tn  the  South-Caro- 
lina side,  at  the  termination  of  Covington- 
street.  thence  north  along  the  eastern  line 
of  Covington-street  to  lot  No.  .*]L'(>.  thence 
.•ilong  tlie  southern  Itoundary  of  the  said  lot 
to  John  Fox's  line,  thence  along  the  said  line 


*58 


5  RICHARDSON'S  EQUITY  REPORTS 


to  the  river,  thence  along  the  margin  of  the 
river  to  the  beginning,  embracing  the  lots 
No.  327,  No;  328,  No.  329,  and  No.  330,  as  laid 
down  in  the  original  plan  of  Hamburg;  also, 
lot  number  flftj-four,  as  laid  down  in  the 
said  original  plan,  bounded  by  Market-street 
on  the  north,  Covington-street  on  the  east, 
Bay-street  on  the  south,  and  by  lot  53  on 
the  west ;  also,  so  much  ground  as  lies  im- 
mediately south  of  the  last  mentioned  lot, 
between  Bay-street  and  the  river,  and  having 
the  same  east  and  west  boundaries:  and  also 
a  piece  or  parcel  of  ground  situated  within 
Covington-street,  as  laid  down  on  the  original 
plan,  of  the  following  dimensions,  to  wit,  ex- 
tending from  the  margin  of  the  river  at  low 
water  mark  to  the  southern  line  of  Market- 
street,  and  bounded  by  east  and  west  lines  of 
the  width  of  the  Augusta  bridge,  running  the 
course  of  Covington-street  to  the  said  south- 
ern line  of  Market-street,  it  being  understood 
that  the  last  piece  or  parcel  is  to  be  used, 
held  and  enjoyed  solely  and  exclusively  for 
the  purpose  of  the  bridge  abutment   and  a 

*59 
highway;"  and  that  the  *said  Samuel  Hale 
afterwards,  to  wit:  on  the  27th  December, 
1830,  by  deed  duly  executed,  conveyed  to  the 
said  The  Bank  of  the  State  of  Georgia  in 
fee  all  and  singular  the  "lots  and  ground" 
purchased  by  him  as  aforesaid,  describing 
the  same  in  the  identical  words  of  the  de- 
scription tliereof  contained  in  the  deed  of 
conveyance  executed  to  him  by  the  said  B. 
J.  Earle  as  aforesaid. 

That  tlie  State  of  South-Carolina  by  an 
Act  passed  on  the  18th  Decemlier.  18'!0, 
granted  to  the  said  The  Bank  of  the  State  of 
Georgia,  by  the  style  and  addition  of  the 
President  and  Directors  of  The  Bank  of  the 
State  of  Georgia,  their  successors  and  as- 
signs, a  renewal  of  the  said  charter  of  the 
said  bridge  for  the  further  space  of  fourteen 
years  from  the  17th  of  December,  1834,  with 
all  the  exclusive  rights,  privileges  and  im- 
munities extended  and  allowed  to  the  former 
proprietors  of  the  said  bridge,  under  the 
charter  of  1813,  as  in  by  the  said  Act,  ref- 
erence being  thereto  had,  will  more  fully 
appear:  And  that  the  State  of  Georgia,  by 
Act  passed  on  the  23d  December,  1833, 
granted  to  the  said  The  Bank  of  the  State  of 
Georgia  an  extension  of  the  said  charter  of 
1814  for  the  further  space  of  ten  years  from 
9th  November,  1834,  with  a  reservation  of 
the  right  of  chartering  any  other  bridge  at 
or  near  Augusta,  and  for  greater  particu- 
larity and  exactness,  your  orators  crave  leave 
to  refer  to  the  said  Act,  printed  and  publish- 
ed under  the  authority  of  the  State  of 
Georgia. 

That  all  and  singular  the  "lots  and  ground" 
conveyed  by  B.  J.  lOarle  on  behalf  of  the 
State  of  South-Carolina  to  Samuel  Hale,  and 
by  him  to  the  said  The  Bank  of  the  State  of 
Georgia  as  aforesaid,  were,  on  the  4th  May, 
1838,  by  deed  duly  executed,  conveyed  in  fee 

24 


by  the  said  The  Bank  of  the  State  of  Georgia 
to  Gazaway  B.  Lamar,  and  that  the  said 
G.  B.  Lamar,  at  or  about  the  same  time,  ob- 
tained from  the  said  The  Bank  of  the  State 
of  Georgia  a  conveyance  and  transfer  of  all 
its  interests  and  estate  in  the  said  bridge, 
and  the  franchises  and  privileges  in  respect 
thei-eto,  derived  from  the  said  charters  from 
the  States  of  Georgia  and  South-Carolina, 
and  that  on  the  21st  of  January,  1840,  the 

*60 
said  *Gazaway  B.  Lamar,  by  deed  duly  exe- 
cuted, sold  and  conveyed  to  The  City  Council 
of  Augusta,  a  body  politic  and  corporate  un- 
der the  law  of  Georgia,  all  and  singular  the 
said  "lots  and  ground"  in  the  town  of  Ham- 
burg, purchased  by  him  from  The  Bank  of 
the  State  of  Georgia  as  aforesaid,  and  all 
his  interest  and  estate,  however  derived,  iu 
the  said  bridge  and  in  the  franchises  and 
privileges  belonging  to  him  in  respect  there- 
to; that  the  "lots  and  ground"  in  the  town 
of  Hamburg  conveyed  by  the  deed  from  The 
Bank  of  the  State  of  Georgia  to  the  said 
Gazaway  B.  Lamar,  are  therein  also  describ- 
ed in  terms  identical  with  those  em[tloyeil  iu 
the  deed  from  B.  J.  Earle  to  Samuel  Hale 
as  aforesaid,  and  that  almost  literally  the 
same  description  of  them  is  adopted  in  the 
said  deed  from  G.  B.  Lamar  to  the  said  The 
City  Council  of  Augusta,  by  whom  the  same 
are  still  held  and  owned;  and  that  by  an 
Act  passed  on  the  23d  r)ecember,  1840,  the 
Legislature  of  Georgia  contirmed  the  pur- 
chase of  the  said  bridge  made  l)y  the  said 
The  City  Council  of  Augusta  as  aforesaid, 
and  granted  them  thenceforth  the  exclusive 
privilege  of  building  and  keeping  up  bridges 
across  the  Savannah  river  at  Augusta,  within 
the  corporate  limits  of  the  said  city,  (which 
were  by  the  said  Act  extended  on  the  north 
over  the  said  river  to  the  boundary  line  be- 
tween that  State  and  the  State  of  South- 
Carolina.)  with  power  to  collect  the  toll  then 
authorized  by  law  in  relation  to  the  said 
bridge,  but  with  the  proviso  that  nothing  in 
the  said  Act  conta'ined  should  be  so  construed 
as  to  impair  the  right,  title,  claim  or  interest 
of  any  person  or  persons  in  and  to  the  said 
bridge,  as  in  and  by  the  said  Act,  printed  and 
published  by  the  authority  of  the  said  State, 
reference  being  thereto  had,  will  more  fully 
appear. 

That  by  an  Act  of  the  Legislature  of  South- 
Carolina,  passed  the  19th  December,  1848, 
the  said  bridge  across  the  Savannah  river 
was  rechartered  and  vested  in  the  said  Hen- 
ry Shultz  and  your  orator,  John  McKinne, 
their  heirs  and  assigns,  for  the  term  of  four- 
teen years,  with  certain  rates  of  toll  therein 
prescribed,  with  the  proviso,  however,  that 
the  South-Carolina  Railroad  Company  should 
be   authorized   to   construct  a   bridge   across 

*61 
the  *Savannah  river  at  any  point  at  or  near 
Hamburg   for   the   transi)ortation  of  freight 
and  passengers  on  the  said  road,   and  that 


McKINNK  V.  CITY  COUNCIL  OF  AUGUSTA 


*C3 


the  said  grantees,  Shultz  and  your  orator, 
McKinne.  should  not  be  allowed  to  charjj;e 
and  «-ollect  toll  as  aforesaid  at  the  South- 
Carolina  end  of  the  said  lirid;,".*.  until  the 
liti;;ation  then  iiending  in  the  Supreuje  Court 
of  the  United  States  in  relation  to  the  said 
brid^'e  and  the  proceeds  of  its  sale,  should 
be  determined  aj:ainst  the  said  The  City 
Council  of  Augusta,  and  that  afterwards 
by  an  Act  of  the  Legislature  of  South-Caro- 
lina, passed  the  llUh  day  of  Decenilx-r.  1S49, 
the  restrictions  imposed  by  the  Act  of  1^48. 
as  to  the  collection  of  tolls  at  the  said  bridge, 
was  repealed,  and  the  said  Henry  Shultz  and 
your  orator,  John  McKinne,  were  thereby 
authorized  to  collect  the  rates  of  toll  estab- 
lished by  the  Act  of  ls4s.  at  the  South-Caro- 
lina end  of  the  said  bridge,  from  all  person.s 
going  from  the  South-Carolina  end.  but  not 
from  persons  coming  from  the  Ceorgia  end 
of  the  said  bridge:  and  it  was  thereliy  also 
enacted  that  the  collecting  of  said  tttll  should 
not  subject  the  liailroad  Company,  or  the 
community,  to  the  ]tMynient  of  double  toll; 
all  of  which  will  more  fully  and  at  large  ap- 
pear by  reference  to  the  said  Acts  of  1848 
and  1849. 

Yoiu-  ctrators  further  show  unto  your  Hon- 
ors, that  on  the  Ulst  March.  18,">L  articles  of 
agreement  in  writing,  between  the  said  Hen- 
ry Shultz  and  your  orator,  John  McKinne. 
were  duly  executed  by  the  parties  thereto, 
under  their  hands  and  seals,  whereby,  among 
other  matters  not  material  in  this  behalf, 
your  orator.  John  McKinne.  bound  himsell, 
upon  payment  to  him  by  the  said  Henry 
Shultz  of  the  sum  of  fifteen  hundred  and 
twenty  dollars,  with  the  CJeorgia  lawful  in- 
terest, on  or  before  the  first  day  of  May, 
1852,  to  execute  to  him,  the  said  Shultz.  or 
such  person  or  persons  as  he,  in  writing, 
might  direct  to  receive  the  same,  a  Muit  claim 
<oi}veyance  and  release  of  all  your  orator's. 
McKinne's.  right,  title,  <lrtim  and  interest  in 
and  to  the  said  bridge,  and  the  franchises, 
privileges,  monies  and  profits  iielonging 
thereto,  of  every  description,  and  from  what- 
ever source  derived;  that  the  said  agreement 

*62 
Is  not  yet.  *liut  soon  will  be  consuniniated  liy 
the  payment  of  the  purchase  money  on  the 
one  side,  and  the  execution  of  the  quit  claim 
deed  on  the  other  side. 

That  on  the  12th  of  Sejiti  ml  er,  18.')!,  the 
said  Henry  Shultz,  by  deed  duly  executed, 
conveyed,  among  other  things,  to  your  ora- 
tors, James  Jones  and  Joseph  J.  Kennedy, 
all  his,  the  said  Shullz's.  title,  inten-st.  and 
estate,  In  and  to  the  said  bridge,  and  the 
charters  thereof  granted  by  the  Act  of  the 
I>>gislature  of  South-Carolina  of  the  I'.tth  of 
December,  1S48.  amended  by  the  Act  of  the 
10th  of  December.  ls4r»,  as  aforesaid,  with  all 
the  rights,  hereditaments  and  ap|ir.vtenaiices 
thereto  aiipertaining.  to  be  had  and  lu>ld  by 
them  in  fee  for  the  persons  and  purposes  there- 
in mentioned,  with  the  reservation  of  the  use 


and  enjoyment  of  the  same  during  rhe  tt^m  of 
his  natural  life. 

That  the  said  Henry  Shultz  dejiarted  this 
life  intestate,  on  the  l.'Jth  day  of  ( Utober.  A. 
D.  1.s.-jL  being  a  resident  of  the  District  of 
l-]dgefield  at  the  time  of  his  death,  and  that 
your  orators.  James  Jones  and  Joseph  J. 
Kennedy,  b«'ing  cre«litors  of  the  .said  Heiu"y 
Shultz,  afterwards  obtained  from  the  Ordi- 
nary of  the  said  district  the  grant  of  the 
administration  of  his  estate. 

That  the  charters  of  the  .said  bridge  con- 
ferred by  the  State  of  tJeorgia  in  1S14.  tip- 
on  the  said  Shultz  and  your  orator,  McKin- 
ne, ami  in  is;;;}  upon  The  Hank  of  the  State 
of  (Jeorgia,  were  not  granted  until  like  char- 
ters, and  with  identically  the  same  rates  of 
toll,  had  been  obtained  i>y  the  same  grantees 
respectively  from  the  State  of  South-Caro- 
lina ;  and  it  is  respectfully  submitted  that 
the  tolls  authorized  by  the  charters  from  the 
States  of  South-Carolina  and  (Jeorgia  to  the 
.said  Shultz  and  McKinne,  and  The  Hank  of 
the  State  of  CJeorgia,  res|)ectively,  were  un- 
doubtedly designed  to  be  tolls  for  passage 
over  not  one-half  merely,  but  the  whole 
length  of  the  .said  bridge:  that  the  said  char- 
ters from  the  State  of  (Jeorgia  did  not  con- 
fer upon  the  grantees  thereof  the  right  to 
collect  the  tolls  therein  speciti»'d.  in  addition 
to  the  tolls  prescribed  in  the  charters  from 
the  State  of  South-Carolina  to  the  same  gran- 
tees, but,  on  the  contrary,  were  intended  to 

*63 
confirm  and  give  full  *i'ffect  to  the  grant  of 
tolls  contained  in  the  charters  from  the  State 
of  South-Carolina  :  that  such  has  been  the 
uniform  construction  of  the  said  charters  by 
the  respective  grantees  thereof,  and  those 
claiming  under  them,  for  at  no  time  did  they 
ever  a.ssnme  to  .sever  or  apportion  the  tolls 
thereby  authorized,  by  charging,  claiming,  or 
taking  one  part  thereof  for  passage  over  one- 
half,  and  the  other  part  tliere<»f  for  iias.sage 
over  the  (»ther  half  of  the  .said  bridge;  but 
always  and  invaiiably  exacted  bur  one  toll 
for  tlu'  jrivilege  of  pa.ssing  over  the  enrire 
lengtn  of  the  said  bridire.  and  '.hat  the  Act 
of  1N4()  of  the  State  of  Georgia,  which  iter- 
mits  the  City  Council  of  Aiigu>.ra  to  collect 
the  toils  flu  n  authorized  by  law.  should  le 
held  to  have  empowered  them  t<i  exact  the 
whole  of  such  tolls  only  so  long  as  they 
>h(aild  contiiuie  invested  with  the  franchise 
of  taking  toll  in  resi  ect  to  the  whole  bridge. 

That  since  the  expiration  of  the  charter 
granted  by  the  Slate  of  South-Carolina  to 
The  Hank  of  the  State  of  (Jeomia  as  afore- 
said, the  sai<l  The  City  Council  of  Augusta 
have  continued  and  still  continue  to  exact 
and  collect  substantially  the  same  rates  of 
tolls  as  before,  without  any  abatement ;  and 
that  since  the  10th  December.  1.S4S.  as  your 
orators  are  inftuined,  large  sums  have  been 
received  by  tlu'in  feu*  suih  tolls,  amounting 
in  the  aggregate  to  the  sum  of  one  hundred 
thousand   dollars  or  more,   and  your  orators 

25 


*63 


5  RICHARDSON'S  EQUITY  REPORTS 


respectfully  submit  that  by  the  Act  of  the 
Legislature  oi  South-Carolina  of  1S4S,  the 
said  Shultz  and  your  orator,  McKinne.  be- 
came invested  not  merely  with  the  franchise 
conferred  thereby  in  respect  to  so  much  of 
the  said  bridge  as  is  within  the  territorial 
limits  of  that  State,  but  also  with  the  full 
title,  property  and  ownersliip  in  and  to  the 
material  structure  of  that  portion  of  the  said 
bridge,  for  and  during  the  term  of  fourteen 
years  then  next  ensuing;  that  although  the 
grantees  under  the  last  mentioned  charter 
were  restricted  temitorarily  from  collecting 
tolls  at  the  South-Carolina  end  of  the  said 
bridge,  such  restriction  did  not  avoid  or  take 
away  their  title  and  property  in  said  bridge 
and  in  the  franchise  in  respect  thereto  graut- 

*64 
ed  to  them  by  the  said  charter.  Nor  *yet 
did  it  abridge  or  impair  their  legal  remedies 
(by  suit  at  law  or  in  Eijuity.)  to  recover  their 
fair  and  just  proportion  of  such  tolls,  against 
any  person  or  persons  who  had  actually  col- 
lected and  received  the  same ;  nor,  least  of 
all,  did  it  amount  to  a  release  or  assignment 
of  their  interest  in  the  same  to  the  said  The 
City  Council  of  Augusta ;  that  since  the  10th 
of  December,  1848,  the  said  The  City  Council 
of  Augusta  have  been  practically  in  the  pos- 
session and  enjoyment  of  all  and  singular 
the  property  and  interest  in  the  said  bridge 
and  the  franchise  in  respect  thereto  granted 
by  the  Act  of  the  Legislature  of  South-Caro- 
lina of  that  date,  to  the  said  Shultz  and  your 
orator,  McKinne ;  that  the  effect  of  the  said 
charter  of  1S4S  was  to  constitute  the  said 
Shultz  and  McKinne  substantially  co-tenants 
with  the  said  The  City  Council  of  Augusta, 
in  respect  to  the  tolls  of  the  said  bridge,  col- 
lected and  received  by  them  since  the  19ch 
of  December,  1848,  and  that  your  orators 
are  entitled  to  have  an  account  of  the  said 
tolls,  and  to  be  paid  their  fair  and  equitable 
proportion  thereof. 

That  on  the  3d  day  of  February,  1852,  your 
orators,  Jones  and  Kennedy,  claiming  under 
the  said  Henry  Shultz,  as  aforesaid,  erected 
a  toll  gate,  and  proceeded  to  collect  at  the 
South-Carolina  end  of  the  said  bridge  the 
tolls  established  and  allowed  by  the  said 
Act  of  10th  December,  1848,  as  amended  by 
the  said  Act  of  19th  December,  1840,  and 
that  thereupon  the  said  The  City  Council  of 
Augusta,  as  your  orators  are  informed, 
raised  the  rates  of  toll  exacted  by  them  at 
the  Georgia  end  of  the  said  bridge,  to  the 
maximum  limited  by  the  said  charter  from 
the  State  of  Georgia  to  the  said  The  Bank 
of  the  State  of  Georgia,  with  purpose  to  an- 
noy, hinder  and  disturb  your  orators  in  the 
collection  and  enjoyment  of  their  said  legal 
tolls  as  your  orators  believe,  and  by  a  formal 
resolution  published  and  announced  that 
their  said  high  rates  would  be  discontinued 
when  and  as  soon  as  your  orators  should 
forbear  to  collect  their  said  tolls  at  the 
South-Carolina  end  of  the  said  bridge ;  that 

26 


for  some  sixteen  days,  during  which  your 
orators  collected  the  tolls  authorized  by  their 
said  charter,   the  said   The  City   Council  of 

*65 
*Augusta  persisted  in  exacting  the  increased 
rates  of  toll  above  mentioned  at  the  Georgia 
end  of  the  said  bridge,  thereby  driving  off 
the  custom  of  passengers  and  produce,  and 
greatly  reducing  the  profits  which  your  ora- 
tors would  therefrom  have  received  had  the 
said  rates  been  reduced  one-half  as  they 
should  have  been,  or  been  permitted  to  re- 
main even  at  their  former  standard ;  and  al- 
though by  an  arrangement  between  your  ora- 
tors and  the  South-Carolina  Railroad  Com- 
pany, yovir  orators  are,  at  present,  forbear- 
ing to  exact  tolls  at  the  said  bridge — the 
said  South-Carolina  Railroad  Company  un- 
dertaking to  be  responsible  therefor  to  your 
orators,  if  their  right  to  collect  such  tolls 
should  be  adjudged  valid — yet  this  arrange- 
ment is  but  temporary,  being  limited  to  the 
1st  day  of  June  next,  and  your  orators  ap- 
prehend and  verily  fear,  that  when  and  as 
soon  as  they  shall  again  begin  to  collect  their 
tolls  at  the  said  bridge,  the  said  The  City 
Council  of  Augusta  will  again  resort  to  their 
device  of  exacting  and  collecting  the  said  ex- 
cessive rates  of  toll  at  the  Georgia  end  of 
the  said  bridge,  with  the  same  view  of  an- 
noying, hindering  and  disturbing  your  ora- 
tors in  the  exercise  and  enjoyment  of  their 
just  rights  in  this  behalf. 

That  by  the  said  Act  of  10th  December, 
1848,  your  orators  are  advised,  the  former 
charter  for  the  said  bridge  granted  by  the 
State  of  South-Carolina  to  the  said  The  Bank 
of  the  State  of  Georgia,  was  renewed  and  ex- 
tended in  favor  of  the  said  Shultz  and  Mc- 
Kinne for  the  term  of  fourteen  years,  with 
all  the  exclusive  privileges  conferred  by  that 
Act  and  by  the  original  charter  of  1813  there- 
in referred  to ;  that  the  Act  of  the  State  of 
Georgia,  granting  as  hereinbefore  mentioned 
to  the  said  The  City  Council  of  Augusta  the 
exclusive  privilege  of  building  and  erecting 
and  keeping  up  bridges  across  the  Savannah 
river,  cannot  impair  the  grant  from  the 
State  of  South-Carolina  to  the  said  Shultz 
and  jNIcKinne,  nor  confer  any  authority  to 
build  in  or  over  that  part  of  the  Savannah 
river  between  Campbelltown  and  Sand-bar 
Ferries,  which  lies  within  the  sovereignty 
and  territorial  jurisdiction  of  South-Carolina, 
in  derogation  of  the  Acts  of  that  State  of 
1813  and  1830,  and  1848,  hereinbefore  men- 

*66 
tion*ed.  But  the  said  The  City  Council  of 
Augusta,  imder  color  of  the  last  mentioned 
Act  of  the  State  of  Georgia,  have  undertaken 
to  build,  and  have  recently  actually  built,  a 
bridge  from  the  Georgia  shore,  at  or  near  the 
foot  of  Mill-street  in  iVugusta,  not  to  any 
island  in  the  Savannah  river,  but  over  the 
whole  stream  of  the  said  river,  to  a  point 
on  the  opposite  bank  of  the  said  river;  with- 


McKINNE  V.  CITY  COUNCIL  OF  AUGUSTA 


•68 


in  tlip  territorial  limits  of  South-Carolina,  lie- 
twcen  the  CaniiiiK'lltown  and  San(l-i>ar  FtT- 
ries,  ami  within  two  miles  of  tlie  itridue  of 
your  orators;  that  tlie  said  now  lirid;:e  is  not 
meant  nor  desiirned  as  a  private  l)ridire  for 
the  use  of  the  individuals  now  comixisinf;  the 
said  'Hie  City  Council  of  Aujiusta,  iiut  it  is 
in  operation  distinctly  and  avowedly  as  a 
public  toll  bridge;  that  by  the  direction  of 
the  said  The  City  Council  of  Au;custa,  the 
same  rates  of  toll  have  been  demamled  and 
taken  for  passajie  over  the  same  as  at  the 
Cieorjiia  end  of  the  other  and  lower  bridj^e  be- 
fore mentioned,  and  as  if  for  the  purp<ise  of 
evadius  the  jurisdiction  of  the  law  of  the 
State  of  South-Carolina,  the  said  tolls  are 
demanded  and  taken  exclusively  at  the 
Georgia  end  of  the  said  i)rid^e ;  that  inile- 
rendent  of  the  express  iirohibiiion  in  the 
charter  of  your  orators  against  such  a  bridj^e, 
its  erection  is  unlawful,  because  the  said 
new  bridge  is  so  near  the  established  and 
chartered  bridge  of  your  orators,  as  inevi- 
tably to  reduce  greatly  the  profits,  and  per- 
haps even  destroy  the  value  of  the  latter 
bridge,  by  drawing  off  and  diverting  the 
custom  of  passengers  and  produce,  and  yet 
no  permission  has  been  granted  by  the  Legis- 
lature of  South-Carolina,  expressed  by  Act 
or  otherwise,  for  the  erection  of  any  such 
new  bridge;  and  that  the  penalty  of  live 
thoasand  dollars  would  lie  a  very  inadeijuate 
satisfaction  for  the  in.juiy  which  your  or- 
ators will,  in  all  probability,  sustain  from  the 
violation  of  their  said  charter,  which  ,the 
said  The  City  Council  of  Augusta  have  per- 
petrated as  aforesaid. 

That  during  the  life  time  of  the  said  Henry 
Siiultz,  before  the  building  of  the  new  bridge 
was  begun,  and  whilst  the  said  The  City 
Council  of  Augusta  were  advertising  the 
pulilic    that    proposals    for    the    const  i-uction 

*67 
of  the  said  new  bridge  were  in*vit('(l.  .md 
would  be  received  by  them —  that  is  to  say. 
in  the  month  of  August,  A.  D.,  1850,  the  said 
Henry  Shultz,  by  public  adverti-sement,  over 
his  own  signature,  inserted  in  two  of  the 
daily  paiiers  published  in  the  city  of  Augusta, 
gave  to  the  said  Tlie  City  Council  of  Augusta 
formal  notice  of  his  rights  under  tlie  said 
charter,  granted  iiy  the  State  of  South-Car- 
olina to  himself  and  your  orator,  McKinne, 
and  forewarned  them  against  carrying  into 
execution  their  said  contemplated  enterprise; 
but  the  remonstrances  and  warnings  of  tlie 
said  Shultz  were  utterly  disregarded.  And 
your  orators  furtlier  show  unto  your  Honors, 
that  your  orators,  .Jones  and  Kennedy,  before 
they  proceeded  to  a.ssert  their  rights,  under 
their  .said  cliarter,  by  the  collection  of  tolls  at 
the  South-Carolina  end  of  tlie  said  bridge, 
opened  a  communication  with  the  said  The 
City  Council  of  Augusta,  in  the  hope  that  by 
a  sale  and  transfer  to  them  of  your  orators' 
interest  in  the  said  bridge,  or  by  some  other 


Iiroper  arrangement,  all  disputes  between 
tiiem  and  your  orattu-s  might  l>e  avoided,  but 
the  said  The  City  Council  of  Augusta  did  not. 
nor  would  recognize  your  orators  as  having 
any  property  or  intt-rest  whatever  in  the 
said  itridge — all  which  actings  and  doings 
of  the  said  The  City  Council  of  Augusta  art^ 
contrary  to  equity  and  good  conscience,  and 
tend  to  the  manifest  injury  of  your  orators. 
In  tender  consideration  whereof,  and  foras- 
much as  your  orators  are  without  adiniuate 
remedy  in  the  premises,  save  in  this  Jlon- 
orai>le  ("ourt,  where  alone  such  matters  are 
properly  cognizable  and  relievable.  To  the 
end,  thert'fore,  tliat  the  said  The  City  Coun- 
cil of  Augusta  may,  upon  oatli,  true,  direct 
and  perfect  answer  make  to  all  and  singular 
the  matters  and  things  hereinbefore  set  forth 
and  alleged,  and  that  as  fully  as  though  the 
same  were  here  repeated,  and  they  thereunto 
particularly  interrogated,  and  in  especial 
that  the  .said  The  City  Council  of  Augusta 
may  .set  forth  and  exhibit  the  deeds  of  con- 
veyance hereinbefore  referred  to  from  the 
said  B.  J.  Earle  to  Samuel  Hale,  from 
Samuel  Hale  to  The  Bank  ot  the  State  of 
Georgia,  from  the  Bank  of  the  State  of 
Georgia  to  (Jazaway  B.  Lamar,  and  from 
the  .said  (J.  B.  Lamar  to  the  said  The  City 

*68 
CouiKJl  of  .Vugusta.  and  that  the  *rights  of 
your  orators  under  their  charter  from  the 
State  of  South-Carolina  may  be  set  up  and 
asserted  in  respect  to  the  tolls  of  the  Augusta 
bridge,  received  by  the  said  The  City  Coun- 
cil of  Augusta  since  the  10th  December.  1848, 
and  that  they  may  be  n^iuired  to  discover 
and  set  forth  the  aggregate  amount  of  such 
tolls  received  by  them  since  the  date  la.st 
mentioned,  and  what  proportion  thereof  has 
been  received  from  per.sons  passing  from  the 
South-Carolina  to  the  Georgia  end  of  the  said 
bridge,  and  that  they  may  be  required  to  set 
forth  and  discover  what  was  the  amount  of 
said  tolls  received  by  them  from  the  10th 
I)ec(«mber,  184S,  to  the  lOtli  December,  1840. 
and  what  the  amount  thereof  received  from 
the  date  last  mentioned  to  the  l.">tli  October, 
18r>l,  !ind  \  lat  the  amount  thereof  received 
from  the  date  last  nientioned  to  the  .'Jd  Feb- 
ruary, 18r>2,  and  what  the  amount  thereof 
received  from  the  date  last  mentioned  to  the 
coming  in  of  their  answer.  And  that  au 
ai'count  may  be  taken  of  all  and  singular  the 
said  tolls  so  received  by  them  since  the 
lOtli  December,  1848,  and  that  they  may  be 
ordered  and  decreed  to  jiay  to  your  orators 
such  fair  and  ecpiitable  proportion  thereof  as 
your  orators  may  apiH'ar  to  be  justly  en- 
tith'd  to,  under  their  said  charter,  and  that 
they  may  be  adjudged  to  be  entitled  to  re- 
ceive and  collect  for  passage  over  the  Augus- 
ta bridge,  from  the  South-Carolina  to  the 
(Jeorgia  bank,  no  more  than  one  moiety  of 
the  tolls  prescribed  in  the  charter  granted 
by  the  State  of  Georgia  to  The  Bank  of  the 

27 


*68 


5  RICHARDSON'S  EQUITY  REPORTS 


State  of  Georgia  in  18.33.  and  tliat  they  may 
be  restrained  and  enjoined  from  exacting 
and  receiving,  in  futnre,  any  larger  or  great- 
er proportion  of  such  tolls;  and  that  they 
may  also  be  restrained  and  enjoined  from 
collecting  and  receiving  tolls  for  passage 
over  the  said  new  bridge  across  the  Savannah 
river,  and  that  they  may  be  constrained  whol- 
ly to  discontinue  and  abandon  the  use  of  the 
said  new  bridge  and  that  the  same  may  be 
ordered  to  be  closed  and  shut  up,  and  from 
allowing  any  person  or  persons  to  use  the 
same  for  passing  or  going  to  or  from  one 
bank  of  the  said  river  to  or  towards  the  other 
side  within  the  jurisdiction  of  the  State  of 
South-Carolina,    and    that    such    other    and 

*69 
further  relief  may  *be  extended  to  your  or- 
ators as  their  case,  upon  the  whole,  may  seem 
to  require,  and  to  e<^iuity  may  belong. 

May  it  please  your  Honors  to  grant  to  your 
orators  not  only  your  writ  of  injunction  to 
restrain  and  prevent  in  future  the  said  The 
City  Council  of  Augusta,  their  servants, 
agents,  bailiffs  and  attorneys,  from  exacting 
and  receiving  for  passage  over  the  Augusta 
bridge,  from  the  South-Carolina  to  the 
Georgia  end  thereof,  any  larger  or  greater 
proportion  than  one  moiety  of  the  tolls  pre- 
scribed by  the  charter  granted  by  the  State 
of  Georgia  to  The  Bank  of  the  State  of 
Georgia,  as  aforesaid,  and  from  collecting  or 
receiving  any  tolls  whatever  for  passage  over 
their  said  new  bridge,  and  from  using  or 
allowing  the  same  to  be  used  by  any  person 
or  persons  whatever  for  passing  from  one 
bank  or  side  of  the  said  river  to  or  towards 
the  other  and  opposite  bank  or  side  thereof, 
within  the  jurisdiction  of  the  State  of  South- 
Carolina,  so  that  the  same  may  be  entirely 
and  effectually  closed  and  shut  up,  but  also 
your  writ  of  subpteua,  &c. 

Notice  having  been  published,  in  pursuance 
of  an  order  made  by  the  Commissioner,  that 
the  defendants  demur,  plead  or  answer  to  the 
bill  within  three  months,  the  following  plea 
was  filed  by  the  defendants: 

This  defendant  by  protestation  not  con- 
fessing or  acknowledging  all  or  any  of  the 
matters  and  things  in  said  complainants'  said 
bill  mentioned,  to  be  true,  in  such  manner 
and  form  as  the  same  are  therein  and  there- 
by set  forth  and  alleged,  doth  plead  to  the 
jurisdiction  of  this  Honorable  Court,  and 
.says:  That  the  defendant  ought  not  to  be 
required  to  plead  unto  the  matters  and  things 
charged  in  said  bill,  and  that  this  Court  has 
no  authority  to  decree  thereon  against  this 
defendant ;  because  this  defendant,  says, 
that  this  defendant  is  a  Municipal  Corpora- 
tion, created  by  and  existing  in  the  State  of 
Georgia,  and  is  not  and  never  has  been  with- 
in or  resident  of  the  State  of  South-Carolina. 
All  which  this  defendant  avers  to  be  true, 
and  pleads  the  same  to  the  jurisdiction  of  this 

*70 
Honorable  Court,  and  humbly  demands  *the 
2S 


judgment  of  this  Court,  whether  the  defeiicl- 
ant  ought  to  be  compelled  to  make  any  an- 
swer to  the  said  bill  of  complaint,  and  hum- 
bly prays  to  be  hence  dismissed,  &c. 

(Signed)     The  City  Council  of  Augusta, 

By  Wm.  E.  Dearing,  Mayor. 

Dunkin,  Ch.  This  cause  was  heard  on  the 
bill,  and  plea  to  the  jurisdiction  submitted 
on  behalf  of  the  defendants.  The  counsel  for 
the  complainants  declined  to  argue  the  que.«- 
tion,  and  the  Court  is  therefore  unprepared 
to  anticipate  the  views  which  they  may  have 
entertained. 

Tlie  general  rule  of  this,  as  well  as  every 
other  well  regulated  tribunal,  is,  that  only 
parties  resident  are  amenable  to  the  jurisdic- 
tion of  the  Court.  The  exception  to  the  rule, 
both  at  Law  and  Equity,  is,  that  absent  per- 
sons, interested  in  property  within  the  juiis- 
diction,  may  be  sul)jected  to  the  cognizance 
and  decree  of  the  Court  in  reference  to  such 
property.  It  seems  at  one  time  to  have  been 
supposed,  that  the  Act  of  17S4,  may  have  ex- 
tended the  jurisdiction  of  this  Court  in  refer- 
ence to  persons  residing  beyond  the  limits  of 
the  State.  Pint  more  than  a  quarter  of  a  cen- 
tury ago.  this  Act  was  construed  and  ex- 
plained in  Winstanley  v.  Savage,  2  McC.  Eq. 
4.35.  It  was  there  held,  that  the  Act  of  17S4, 
"was  not  meant  to  introduce  .so  new  and 
dangerous  a  principle  as  the  one  contended 
for.  It  merely  meant  to  regulate  the  pro- 
ceedings in  cases  where  non-residents  could 
be  made  amenable  to  the  jurisdiction  of  the 
Court  by  holding  property  within  it."  It  is 
believed  that  this  construction  has  not  since 
been  called  in  question,  and  the  decision 
was  fully  recognized,  and  the  rule  re-athrm- 
ed  in  Garden  v.  Hunt,  Chev.  Eq.  42. 

It  is  admitted  that  the  defendants  are 
non-residents,  and  the  averment  of  the  bill 
is,  that  they  have  no  title  to  any  part  of 
the  property  in  controversy  within  the  State 
of  South-Carolina.  The  principal  relief 
sought  by  the  bill  is  to  have  the  defendants 
restrained  and  regulated  in  the  collection  of 
tolls,  as  they   are  now  in  the  habit  of  col- 

*71 
lecting  them  on  the  Georgia  side  of  the  *riv- 
er.  It  was  once  said  by  a  Lord  Chancellor, 
'•I  shall  never  make  an  order  merely  in  ter- 
rorem  which  is  to  be  effective  only  against 
the  ignorant,  or  those  who  do  not  inciuire 
into  the  extent  of  my  jurisdiction.  I  shall 
make  no  order  but  such  as  every  man  is 
bound  to  obey  on  pain  of  contempt."  12 
Eng.  C.  C.  R.  44.  Now  suppose  this  Court 
should  enjoin  Wm.  E.  Dearing,  the  defend- 
ant, from  collecting  toll,  or  restrain  him 
from  demanding  more  than  a  certain  amount, 
in  what  manner  could  the  order  be  enforced, 
or  how  could  the  defendant  be  subjected  to 
the  penalties  of  contempt?  The  most  strin- 
gent attachment  would  be  mere  brntum  ful- 
men  to  a  party  beyond  the  reach  of  the  arm 
of  the  Court. 

The  bill  prays  an  account  of  tolls  hereto- 


McKlWK  V.  CITY  COUNCIL  OF  AUGTSTA 


fore  collected  on  the  (;eor;;ia  side  of  the  riv- 
er; ajul,  siiiijiose  a  decree  to  lie  rendered 
against  the  defendant  for  an  ascertained  snni, 
what  could  it  avail  the  iilaintitTs  in  this 
State,  ajrainst  a  defendant,  who  has  neither 
person  to  lie  attached,  nor  property  out  of 
which  it  niiiilit  be  levied  under  the  process 
of  this  Court V  And  if  suit  were  instituted 
In  Georj;ia,  founded  upon  the  decree,, 
although  the  judgment  would  lie  conclusive 
upon  every  other  matter,  the  <pu'stion  of 
jurisdiction  is  always  open  to  imiuiry,  and 
this  imiuiry  woidd  lie  fatal  to  the  etticacy  of 
the  whole  proceeding,  against  a  citizen  of 
Georgia.  Assuming  then  the  averments  of 
the  hill  to  be  true,  the  Court  is  of  the  opin- 
ion that  the  defendants  are  not  amenable  to 
the  jurisdiction  of  this  Court,  and  that  the 
plea  nuist  be  sustained,  and  the  bill  dis- 
missed. 

It  is  so  ordered  an<l  di-creed. 

The  plaintiffs  appealed  from  the  decree, 
and  moved  for  its  reversal  uiion  the  grounds: 

1.  The  decree  is  erroneous  in  assuming 
that  the  defendants  have  no  property  within 
the  jurisdiction  of  the  Court,  as  the  bill  con- 
tains a  distinct  averment  of  their  being  the 
owners  of  four  lots  or  parcels  of  land  in  the 
Town  of  Hamburg,  with  a  full  description 
of  the  boundaries  thereof,  and  a  precise  re- 
cital of  the  derivati<iu  of  their  title  thereto. 

2.  The  "principal  relief"  sought  by  the  bill 

*72 
was  to  have  an  *account  of  the  tolls  receiv- 
ed by  the  defehdants  at  the  Augusta  bridge 
since  10th  December.  1S4S.  and  an  injunc- 
tion against  their  collecting  tolls  at  their  new 
or  upper  bridge,  or  using  or  allowing  to  be 
u.sed  the  latter  bridge  for  passage  across  the 
river;  and  the  decree  errs  in  supposing  the 
bill  to  be  otherwise. 

3.  The  objection  to  the  jurisdiction  of  the 
Court  rests  upon  no  suthcient  grounds ;  and 
the  defendants'  plea,  it  is  respectfully  sul> 
mitted,   ought  to  have   been  overruled. 

Bauskett,  Carroll,  for  appellants,  cited  7 
Stat.  210:  Kinloch  A:  riiilliiis  v.  Meyer,  Sp. 
E(|.  427;  Rowden  v.  Scliatzell,  Hail.  Kq.  300; 
Story  Contl.  Laws.  §  541). 

Miller,  I'etigru,  contra,  cited  .MIIIit  v. 
Miller,  1  Bail.  242;  .^  Geo.  11.  83;  Mitf.  PI. 
33;  1  Bl.  Com.  (U);  2  Thom.  Coke,  18;  2  Bl. 
Com.  !H. 

The  uijinion  of  flie  Court  was  delivered  by 

DUNKIN,  Ch.  It  is  true  that  the  bill 
prays  an  account  of  tolls  collected,  since  De- 
cember. 184S,  by  the  defendants,  iiut  this  is 
conse(|uent  oidy  upon  the  adj\idication  which 
the  Court  is  prayed  to  make,  that  the  defend- 
ants are  entitled  to  re<-eive  and  collect,  for 
passage  ovt'r  the  Augusta  bridge,  no  more 
than  one  moiety  of  the  tolls  prescribed  by 
the  Georgia  charter  of  18;{;5 ;  jmd  to  this  in- 
tent the  complainants  pray  a  writ  of  injunc- 
tion,  to   restrain   and    iirevent    in    future   tlie 


defendants  from  exacting  and  reci'iving.  for 
passage  over  the  Augusta  bridge,  from  the 
South-Carolina  to  the  Geiu-gia  end  thereof, 
nuMV  than  one  nioiet.v  of  tlie  tolls  prescrib- 
eil  by  the  charter  of  183.3,  and  from  collect- 
ing any  tolls  whatever  on  the  new  bridge, 
which  tlu-y  are  charg»'d  to  have  erected  at 
.Mill-street,  or  from  allowing  the  same  to  lie 
used,  '"so  that  the  same  may  be  entirely 
and  effectually  closed  and  shut  up." 

At  the  hearing,  the  counsel  f<ir  the  com- 
[ilainants  declined  to  argue  the  (piestion  aris- 
ing on  the  plea  to  the  jurisiliction.  and  the 
Court  could  only  infer  that  the  positions 
assumed  were  those  which  the  counsel  for 
the  defendants  had  discu.s.sed,  and  upon  these 
the  judgment  of  the  Court  was  iimnonnced. 
•73 

♦It  is  now  said,  that  it  appears  from  the 
bill  itself,  tnat  the  defendants  held  property 
in  the  State  of  South-Carolina,  and  that  it 
was  intended  to  maintain  the  jurisdiction 
on  that  ground.  It  is  by  no  means  «ertain 
that  any  such  averment  is  made  in  the  bill. 
It  is  very  certain  it  is  not  set  I'orth  as  a 
ground  upon  which  tins  Court  should  assume 
jurisdiction  against  the  defendants,  nor  did 
the  Court  receive  any  intimation  to  that 
effect.  The  subject  matter  in  controversy 
is  the  Augusta  bridge,  properly  so  called, 
and  the  newly  erectwl  bridge  at  Mill-street. 
The  complainants  rely  on  the  Act  of  1848, 
as  vesting  in  them  the  bridge,  and  the 
exclusive  right  from  Campiielltown  Ferry 
above,  to  the  Sand-bar  Ferry  below.  Au- 
gusta,— by  which  Act  (aver  the  complain- 
ants) they  "became  invested,  not  merely  with 
the  franchise  conferred  thereby  in  respect 
to  so  much  of  the  said  bridge  as  is  within 
the  territorial  limits  of  tue  State,  but  also 
with  the  full  title,  property  and  ownership 
in  and  to  the  material  structure  of  tlmt  por- 
tion of  the  bridge."  In  the  narrative  [lart 
of  the  bill  it  had  Ikhmi  stated,  that  the  abut- 
ment and  landing  of  the  bridge  on  tiie  South- 
Carolina  side  of  the  river  were  upon  i>arts 
of  four  lots  of  land  in  the  town  of  Hamburg — 
that  (Jazaway  B.  Lamar,  having  a  charter 
of  the  bridge  from  the  State  of  South-Caro- 
lina, until  1848,  and  being  also  owner  of  these 
lots,  on  the  21st  .Taiuniry,  I84(t,  <onveyed  the 
charter  and  the  lots  to  the  defendants.  The 
complainants  then  aver  the  re-charter  to 
themselves  in  1848,  and  then<-e  insi.st  on  their 
exclusive  right  to  restrain  the  defendants 
from  interfering  with  their  property  or 
privileges.  It  may  answer  the  jiurpose  of  an 
argument  to  say,  that  tiie  deft-ndants  are 
averred  to  have  projierty  in  South-Carolina; 
but  it  has  been,  tin  another  occasion,  strenu- 
ously contended,  that  not  oidy  the  franchise, 
but  the  structure  of  the  bridge,  including 
the  abutments  and  landin.:.  jiass  with  the 
ciiarter,  and  the  proviso  in  the  <leed  from 
Judge  Farle.  under  whom  defendiints  are 
alb'ged  to  derive  title,  was  urged  in  support 
of  the  argument.    What  is  then  averred  to  be 

29 


73 


5  RICHARDSON'S  EQUITY  REPORTS 


the  property  of  the  defeiulants  within  the 
State  of  Soutli-Carolina,  which  is  to  give 
the  Court  cognizance  of  tliis  cause V     Upon  a 

*74 
strict  examination,  it  may  he  they  *liave  a 
title  to  so  much  of  tlie  four  lots  as  is  not 
occupied  by  the  abutment  of  the  bridge  and 
the  landing.  Of  course,  that  is  not  the  sub- 
ject matter  of  controA'ersy,  but  must  be 
admitted  to  be  the  undisputed  property  of 
the  defendants.  Can  this  give  the  Court  ju- 
risdiction so  as  to  authorize  the  impleading 
of  the  absent  defendants,  and  the  adjudica- 
tion of  their  rights  upon  the  matters  present- 
ed? It  is  in  accordance  with  the  first  prin- 
ciple of  justice  that  no  person  shall  be  con- 
demned until  he  has  been  heard.  And,  as  a 
general  rule,  no  Court  should  pass  on  the 
rights  of  those  not  within  their  jurisdiction. 
To  this  rule  there  are  exceptions,  or  rather 
qualifications,  equally  well  recognized;  some 
arising  from  the  provisions  of  the  statute 
law,  and  others  from  the  practice  of  Courts. 
Among  the  latter  are  proceedings  in  Admiral- 
ty, whifh  act  in  rem,  and  whose  proceedings 
are  conclusive  upon  the  subject  matter  within 
their  jurisdiction.  Courts  of  Common  Law 
entertain  jurisdiction  against  an  absent  de- 
fendant by  proceedings  in  attachment,  under 
the  custom  of  London  or  by  statute.  But 
it  is  well  settled  that  the  judgment  in  attach- 
ment has  no  effect  beyond  the  property  at- 
tached. "If  those  goods,  credits  and  effects 
are  insutficient  to  satisfy  the  judgment,  and 
the  creditor  should  sue  an  action  on  that 
judgment,  in  the  State  where  defendant  re- 
sides, to  obtain  satisfaction,  he  must  fail ; 
because  the  defendant  was  not  personally 
amenable  to  the  jurisdiction  of  the  Court 
rendering  the  judgment."  Such  is  the  lan- 
guage of  Chief  Justice  Parsons,  in  Bissell 
V.  Briggs,  (9  Mass.  R.  46S.)  See  also  Story 
Confl.  Laws,  §  549.  We  have  also  an  Act  of 
Assembly  which  authorizes  proceedings 
where  one  of  several  executors  is  absent 
from  the  State ;  and  the  Act  of  1823  gives 
a  remedy  in  case  of  the  absence  of  one  of 
several  parties  to  a  joint  contract.  But  both 
Acts  provide,  that  the  interests  of  the  absent 
party  shall  not  be  affected.  The  attachment 
Acts  do  not  extend  to  Courts  of  Equity.  But 
it  has  been  the  practice,  both  in  England  and 
in  this  country,  to  entertain  suits  in  relation 
to  property  within  the  jurisdiction,  although 
some  of  the  parties  interested  in  the  subject 
matter  reside  beyond  the  jurisdiction  of  the 

*75 
Court.  Mr  Mitford  says:  "A  *suit  may 
affect  the  rights  of  persons  out  of  the  juris- 
diction of  the  Court,  and  consequently  not 
compellable  to  appear  in  it.  If  they  cannot 
be  prevailed  upon  to  make  defence  to  the 
30 


bill,  yet,  if  there  are  other  parties,  the  Court 
will,  in  some  cases,  proceed  against  those 
parties."  "But  if  the  absent  parties  are  to 
be  active  in  tiie  performance  of  a  decree,  if 
they  have  rights  wholly  distinct  from  those 
of  the  other  parties,  the  Court  cannot  pro- 
ceed to  a  determination  against  them."  Mitf. 
PI.  33.  This  Court  is  in  the  familiar  habit  of 
entertaining  proceedings  in  partition  where 
a  portion  of  the  defendants  are  beyond  the 
limits  of  the  State.  It  has  also,  in  some  in- 
stances, taken  cognizance  where  the  complain- 
ant has  a  plain  legal  demand  against  an  ab- 
sent defendant  who  has  property  in  this  State, 
but  which,  from  its  peculiar  position,  is  not 
subject  to  the  ordinary  process  of  attachment. 
Such  is  the  case  of  Kinloch  &  I'hillips  v.  Mey- 
er, administrator,  Speers'  Eq.  42S,  which  was 
a  proceeding  against  the  administrator  of  an 
intestate  and  an  absent  distributee,  to  sub- 
ject the  interest  of  the  latter  to  the  payment 
of  a  debt;  and  so  of  the  case  of  Bowden  v. 
Schatzell,  Bail.  Eq.  .369  [23  Am.  Dec.  170]. 
It  cannot  be  supposed  that  in  this  case  the 
complainants  have  a  plain  legal  demand 
against  the  defendants,  or  any  demand  at 
law ;  mucii  less  is  it  averred  that  tlie  prop- 
erty of  the  defendants  in  this  State,  what- 
ever it  may  be,  is  not  subject  to  a  writ  of 
attachment. 

The  complainants  do  not  ask  the  aid  of 
this  Court  to  subject  the  defendants'  proper- 
ty in  this  State  to  the  satisfaction  of  a  claim, 
much  less  is  it  averred  that  such  property 
is  the  subject  matter  of  controversy.  They 
claim  certain  exclusive  rights  to  toll,  &c. 
under  the  charter  of  1S4S,  and  they  ask  the 
assistance  of  this  Court  in  enforcing  them 
against  the  absent  defendants.  As  well  might 
a  bill  be  filed  in  Georgia  for  a  divorce  against 
f),  defendant  resident  in  Charleston,  who 
happened  to  own  a  water  lot  in  Augusta  ;  or 
a  Tennessean  be  impleaded  in  the  Court  of 
Equity  of  South-Carolina,  for  the  specific 
performance  of  an  agreement  in  relation  to 
real  estate  in  Chattanooga,  because  the  com- 
plainant had  been  fortunate  enough  to  find 
a  bale  of  the  defendant's  cotton  in  Its  transit 

*76 
through  this  State.  There  is  *avowedly  no 
precedent  for  the  proceedings  of  the  com- 
plainants in  this  case,  and  they  are  equally 
without  authority  from  the  general  principles 
usually  recognized  in  well  regulated  tribu- 
nals. 

It  is  ordered  and  decreed  that  the  appeal  be 
dismissed. 

JOHNSTON,    DARGAN  and   WAKDLAW, 
CC,  concurred. 
Appeal  dismissed. 


SIIANDS  V.  TIUPLET 


*7S 


5    Rich.  Eq.    76 

A.  SHAXDS.  ,.t  al.  v.  \V.  TUll'LET.  et  al. 

(Columbia.    Ntiv.   ami    Dfc.   Term,   LSTJ.) 

[Judicial  SalcH  <J=Drc* :     \(iiiiiiihlf    W'ntcrs  C=> 
4ti.J 
At  a  C«imiiiis.^ii>m'i"s  saU-  of  '       '.   tlic   plat 
exiiibitcd  rcini'Sfiitcd  a  livor  as  ru  tlirouy;h 

tiic   tract  and   covcriiii;   a    portion   <  •    laud: 

till-  laud  was  sold  liy  the  acif:  tlif  n.iT,  at  a 
place  where  it  laii  tliiou^h  the  tract,  contained 
olistructinns  to  the  na\  i^;:iti<in,  but  was  uavif,'a- 
ble  for  I)iiats  above  and  bilnw  that  place:  — //rW, 
that  the  purchaser  was  not  entitled  to  a  credit 
on  his  bond  for  the  i)urchase  money,  for  that 
portion  of  the  land  forming  tlie  bed  of  the  river. 

[Kd.  Note.— Cited  in  State  v.  Tacilic  Cuano 
Co..  'S2  S.  C.  T.">:  State  v.  I'inrkney.  Id.  "lOS: 
State  ex  rel.  Columi)ia  I{ri(li;e  Co.  v.  <'ity  of 
Columbia,  27  S.  C.  Hlj,  8  S.  K.  5"):  Southern 
Tower  Co.  v.  Cassels,  !»5  S.  C.  47U.  7!>  S.  K. 
453. 

For  other  cases,  see  J\idiclal  Sales,  Cent.  Dig. 
§  100:  Deo.  Disr.  <®=»5U:  Navi}:al)le  Waters, 
Cent.  Dig.  §§  2S7.  2SS ;    Dec.  Dig.  <©=»4U.] 

Before  Wardlaw.  Ch.,  at  riiion.  June,  1S52. 

The  circuit  decree  is  as  follows: 

Wardlaw,  Ch.  In  this  case  objeition  is 
made  to  the  confirmation  of  the  Connnission- 
er's  report  on  sales,  in  behalf  of  James  Koj;- 
ers,  a  purchaser  of  land,  on  the  j^round  that 
he  had  been  recjuired  to  jiive  bond  for  forty- 
three  acres  covered  by  Tiixer  river.  It  ap- 
pears that  the  Conmiissioner  sold  this  tract 
of  land  by  the  acre,  according  to  a  plat  made 
by  John  (iibbs,  dei)Uty  surveyor,  which  repre- 
sented the  tract  to  lie  on  both  sides  of  Tij-'er 
river,  at  a  place  called  Glenn's  Shoals,  and 
to  contain  74.''.  acres,  and  that  James  Rogers 
was  the  last  biddt-r,  at  the  price  of  ."fl4,41>."t.J);'., 
and  paid  one-third  of  the  purchase  money  in 
cash,  and  executed  his  bond  with  approved 
sureties  for  tin-  balance,  but  declined  to  re- 

•77 
ceive  a  conveyance,  antl  insisted  that  *his 
bond  shoidd  be  credited  lor  that  portion  of  the 
land  forming  the  bed  of  the  river:  that  since 
the  sale,  the  surveyor  had  again  surveyed 
the  tract,  and  ascertained  that  4.'?  of  the  748 
acres  were  covered  by  the  stream  of  Tiger 
river.  That  this  tract  is  composinl  of  five 
or  six  grants,  the  corners  of  whicli  are  repre- 
sented on  the  banks  of  the  river;  that  Tiger 
river  has  been  navigable  for  boats  for  twenty- 
five  years,  from  (Jleim's  Shoals  to  its  mouth 
in  Broad  river,  and  above  the  shoals  for  eight 
or  ten  miles  to  Cook's  bridge :  but  that  ob- 
structions to  the  navigation  have  innneniori- 
ally  existed  at  Glenn's  Shoals,  and  the  prac- 
tice has  been  to  haul  tiie  cotton  and  otlier 
freight  of  the  boats  around  the  shoals.  That 
the  water  power  at  the  shoals  is  excellent  for 
nulls  and  other  factories,  and  adds  much  to 
the  value  of  tiie  estate. 

I  am  of  opinion  that  the  purchaser  is  not 
entitled  to  the  deduction  lie  seeks.  He  pur- 
chased according  to  the  plat  representing 
the  43  acres  to  be  covered  by  water.  Bt'sides, 
this  portion  covered  by  the  stream  of  a  river 
not  there  navigable,  may  be  well  conveyed  to 


him.  Witter  v.  Harvey,  1  McC.  G7  [10  Am. 
I>ec.  (J."j0l ;  Cates  v.  Wadlington.  1  McC.  580 
110  Am.  Dec.  (ilHi] :  Noble  v.  Cuniungham, 
Mc.Mul.  Fxi.  I'M);  McCnllough  v.  Wall,  (4 
Rich.  OS  [;■>;!  Am,  Dec,  71ol,)  It  is  ordered 
and  decreed,  that  tlie  Commissioners  report 
on  sales  be  confirmed.  It  is  also  ordered,  that 
the  Coinnnssioner  proceed  in  the  collection  of 
the  funds,  and  after  |»aying  the  costs  and 
the  amount  rei>orted  for  the  maintenance  of 
the  two  old  slaves,  that  he  make  dr>tributioM 
of  the  same  according  to  the  rights  nf  the 
parties. 

Jauies    Rogers    appealetl.    on    the    gro\uid: 

Becau.se    Tiger    river    iieing    a    navigabh> 

.stream,  he  siiould  have  l»een  allowed  a  credit, 

or  deduction  on  his  bond,  for  the  tp'antity  of 

land  covered  by  the  bed  of  said  river. 

Dav.kins,  Thomson,  for  apitellants. 

Bobo.  contra. 

The  i>pinion  of  the  Court  was  dellven-d  by 

WAKDL.VW.  Ch.  It  is  assumed  in  the 
ground  of  appeal,  that  the  soil  c<)vered  by  the 
waters  of  a  navigable  river  belongs  to  the 
State,  and  not  to  the  riparian  proiirietors.  The 

*78 
ter)n  navi*gable  is  equivocal.  By  the  com- 
mon law.  rivers  are  regarded  as  navigable 
only  to  such  extent  as  the  tide  fiows  and 
ebbs;  and  the  property  in  the  betls  of  rivers 
navigaide  in  this  sense,  is  undoubtedly  in  the 
State.  But  in  our  statutes,  and  in  popular 
speech,  navigaide  rivers  mean  those  which 
may  be  navigated  by  shii»s  or  boats:  and  as 
to  rivers  of  this  class  above  tide  water,  it  is 
not  to  be  conceded  that  the  State  remains 
owner  of  the  soil  of  the  beds  after  granting 
the  lands  on  both  sides.  Sir  John  l.^-ach 
says,  in  Wright  v.  Howard,  1  Con.  Eng.  Ch. 
R.  102,  '•prima  facie,  the  proprietor  of  each 
bank  of  a  stream  is  the  proprieter  of  half 
the  land  covered  by  the  stream ;"'  and  Sir 
Matthew  Hale  remarks,  in  his  treatise  de  jure 
maris.  &c..  c,  1,  "if  a  man  be  owner  of  the 
land  of  both  sides  of  a  fresh  river,  in  com- 
mon presumption  he  is  owner  of  the  whole 
river."  In  chapter  3  of  this  celebrated  trea- 
tise, it  is  said:  '"there  be  some  streams  or 
rivers  that  are  private  not  only  in  propriety 
or  ownership,  but  al.so  in  use  as  little  streams 
or  rivers  that  are  not  a  common  passage  for 
the  King's  people.  Again,  there  be  other  riv- 
ers, as  well  fresh  as  salt,  that  are  of  common 
or  public  use  for  carriage  of  boats  and  light- 
ers: and  these,  whether  they  are  fresh  or 
salt,  whether  they  fiow  or  refiow,  (tr  not,  are, 
prima  facie,  publici  juris,  connnon  highways 
for  man  or  goods,  or  both,  as  well  where  they 
are  become  to  be  of  private  jiroperty,  as  in 
what  parts  they  are  of  the  Kings  pro|iriety," 

Tiger  river,  concerning  the  bed  of  which 
is  the  present  controvers.v,  is  a  small  stream 
never  Hoatable  at  (ilenn's  Shoals:  and  it  is 
a  tributary  of  Broad  river,  whi<  h  disem- 
bogues into  the  Congaree;    and  we  are  now 

:]1 


*78 


5  RICHARDSON'S  EQUITY  REPORTS 


sitting  within  hearing  of  the  roar  of  waters 
over  the  falls  of  the  Congaree.  The  case 
does  not  require  us  to  determine  whether  the 
doctrine  of  the  common  law  concerning  navi- 
gable rivers  in  reference  to  riparian  rights, 
should  not  receive  some  modification  as  to 
some  of  the  great  livers  of  the  United  States  ; 
and  we  reserve  this  question,  following  the 
example  of  the  Court  of  Law  in  the  recent 
and  Avell  considered  case  of  McCullough  v. 
Wall,  4  Rich.  68  [53  Am.  Dec.   715].     It  is 

*79 
truly  suggest*ed  in  that  case,  "that  no  au- 
thoritative decision  has  yet  lieen  made  in  this 
State  which  has  changed  the  common  law  on 
the  subject."  And  further,  to  borrow  the 
language  of  that  decision:  "The  rivers  of  our 
own  State  are  not  of  remarkable  magnitude, 
and  whether  we  adhere  to  the  common  law 
delinitlon,  or  consider  as  navigable  all  riv- 
ers that  may  be  navigated  by  sea  vessels, 
or  all  that  are  by  nature  floatable,  we  hesi- 
tate not  to  declare,  that  this  Court,  if  it 
should  feel  itself  at  liberty,  from  considera- 
tions of  public  convenience,  to  assume  legis- 
lative discretion  in  the  matter,  is  not  likely 
by  any  decision  to  extend  the  rules  which 
by  the  common  law  are  applicable  to  navi- 
galDle  rivers,  to  any  stream  above  those  falls, 
which  by  nature  obstructed  the  serviceable 
use  of  its  water  for  transportation.  Above 
those  falls  as  below,  the  right  of  tlie  public 
to  improve  a  river,  and  to  use  it  as  a  high- 
way, subsists:  to  that  the  proprietary  right 
in  the  soil  is  subject:  but  so  subject,  the 
proprietary  right  exists  in  the  owners  to 
whom  it  has  been  granted — above  the  falls, 
at  any  rate,  as  we  may  now  safely  say." 
We  entirely  concur  in  this  doctrine  as  to 
rivers  altogether  within  the  State,  reserv- 
ing our  opinions  as  to  rivers  which  may  be 
coterminous  between  this  and  other  States. 
Without  discussing  the  authority  of  the 
Court  to  alter  the  common  law  as  to  navi- 
gable rivers,  I  venturs  the  remark  that  it 
would  be  inexpedient  even  for  tlie  Legisla- 
ture to  divest  the  proprietors  of  lands,  bound- 
ing on  rivers  above  tide-water,  of  their 
rights  to  tlie  soil  covered  by  the  waters  of 
the  rivers.  If  tlie  rivers  be  needed  as  liigh- 
ways,  the  proprietary  rights  are  properly  sub- 
ject to  a  servitude  for  the  public  use,  as  in 
the  case  of  highways  upon  land ;  but  beyond 
this,  there  should  be  no  restrictions  upon  the 
ownership  of  the  rivers.  It  would  not  be 
safe  to  adjudge  that  the  mill  at  Glenn's 
Shoals  belongs  to  the  State. 

The  Act  of  1784,  2  Brev.  Dig.  4,  provides, 
that  deputy  surveyors,  on  creeks  (arms  of 
the  sea)  and  rivers,  navigable  for  ships 
or  boats,  shall  lay  off  their  surveys  by  meas- 
uring four  chains  back  from  such  creek  or 
river  for  one  chain  fronting  and  bounding 
on  the  same,  and  that  surveys  contravening 

*80 
this    regu*lation    shall    be    void.      It    seems 


that  the  Surveyor  General,  in  pursuance  of 
this  regulation,  has  instructed  his  deputies, 
for  a  long  time  past,  not  to  cross  navigable 
creeks  or  rivers  in  their  surveys.  It  is  ar- 
gued, that  this  enactment  makes  void  any 
grant  for  land  covered  by  a  stream  naviga- 
l)le  for  ships  or  boats.  But  it  is  obvious,  that 
the  legislature  merely  intended  to  prevent 
particular  grantees  from  engrossing  river 
lands,  and  has  determined  nothing  as  to  the 
extent  of  the  rights  of  grantees  of  lands 
bounded  by  rivers.  The  instructions  of  the 
Surveyor  General  to  his  deputies  could  not 
alter  the  law,  if  they  were  so  intended ;  but 
I  do  not  understand  them  as  aiming  at  more 
tlian  to  secure  to  the  separate  proprietors 
of  opposite  banks  tlie  ownership  of  the  rivers, 
usque  ad  filum  aqua?. 

If  the  foregoing  views  should  be  utterly 
unsound,  still  the  appellant  is  not  entitled 
to  his  motion.  He  bought  the  land  in  ques- 
tion according  to  a  plat  which  represented 
the  forty-three  acres,  for  which  he  declines 
to  pay,  as  covered  by  the  stream  of  Tiger 
vi\ev ;  and  he  gave  his  bond  for  the  pur- 
chase money.  The  general  presumption  is, 
that  every  person  knows  the  law ;  and  in  this 
instance  it  is  no  false  presumption,  for  the 
purchaser  is  an  expert  lawyer.  He  knew 
what  interest  he  was  acquiring  in  the  bed  of 
the  river.  One  may  readily  conceive  cir- 
cumstances under  which  land  covered  by 
water  would  be  made  more  valuable  than 
any  e(iual  portion  of  dry  land.  Such  I  sup- 
pose to  be  the  fact  in  the  present  case.  At 
least,  there  is  no  evidence  that  the  purchas- 
er is  required  to  pay  for  more  acres  than  he 
expected  to  pay  for  at  the  time  of  his  pur- 
chase. 

The  proceednre  in  the  present  case  seems 
to  be  supported  by  the  case  of  Noble  v.  Cun- 
ningham [Mc^Iul.  Eq.  289],  cited  in  the  cir- 
cuit decree ;  but  it  is  not  clear,  that  a  Chan- 
cellor can  afford  relief  to  a  complaining 
purchaser,  except  by  opening  the  biddings. 
In  general  the  Court  mu.st  either  confirm 
the  sale,  or  order  a  resale.  It  is  doubtful 
whether,  in  any  case,  deduction  from  the 
amount  of  the  bid  should  be  allowed. 
*81 
*It  is  ordered  and  decreed,  that  the  appeal 
be  dismissed,  and  the  Circuit  decree  be  af- 
firmed. 

JOHNSTON,  DUNKIN  and  DARGAN,  CC, 
concurred. 

Decree  affirmed. 


5    Rich.  Eq.  81 

WILLIAM  WRIGHT  v.  N.  R.  EAYES. 

(Columbia.  Nov.  and  Dec.  Term,  1S.j2.) 

[Limitdiion    of  Aciions  <g=:5l0.] 

To  a  bill  for  foreol  )3ure  of  a  mortgage  of 
land,  agaiust  cue  who  holds,  through  iutermedi- 
ate  conveyances,  under  the  mortgagor,  the  stat- 


<©=3For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


KETC'HIN'  V.  BEATY 


•83 


ute  of  limitations  is  inapplicable — altliDiiKb  the 
defendant  and  those  under  whom  he  claims  have 
been  in  possession  more  than  ten  years. 

[Ed.  Note.— Cited  in  llaii)er  v.  liarsh,  10 
Rich.  E(i.  151.';  Norton  v.  Lewis,  3  S.  C.  :V2; 
Clark  V.  Smith,  13  S.  C.  (J(XJ ;  Lyn<h  v.  Han- 
cock. 14  S.  C.  88;    Pegues  v.  Warley,  Id.   INS. 

For  other  cases,  see  Limitation  of  Actions, 
Cent.  Di?.  S  34;    Dec.  Di^'.  <©=9U).l 

The  doctrine  of  Thayer  v.  Cramer,  1  McC. 
Eq.  395,  re-alHrmed  in  Smith  &  Ciittino  v.  Os- 
borne, 1  Hill,  E(i.  34U,  may  be  re;;arded  as  the 
settled  law. 

[This  case  is  also  cited  in  Norton  v.  Lewis, 
3  S.  C.  25,  and  the  doctrine  thereof  re- 
affirmed.] 

Before  Johnston,  Ch.,  at  Chester,  July, 
ISoli. 

On  November  L'6,  ISliO,  Robert  Kennedy 
mortgaged  to  Painela  Ciunning,  a  lot  of  land 
in  the  village  of  Chester,  to  .secure  the  pay- 
ment of  a  money  bond ;  which  mortgage  wa.s 
duly  recorded  on  the  second  day  after  its 
execution. 

Robert  Kennedy  remained  in  possession  of 
the  mortgaged  premises  until  July  13,  1831, 
when  lie  conveyed  the  same  to  John  Kennedy. 
John  Kennedy  conveyed  to  G.  W.  Coleman 
and  wife,  with  warranty,  on  November  30, 
1836 ;  and  they  conveyed  to  the  defendant, 
N.  R.  Eaves,  on  January  26,  1846. 

At  Fall  Term,  1841,  I'amela  Gunning  re- 
covered judgment,  in  tlie  Court  of  Common 
Pleas  for  Chester,  against  William  Woods, 
administrator  of  I\obert  Kennedy,  for  $1920, 
balance  due  on  the  bond.  I'ayments  were 
made  by  the  administrator  which  left  .$785 
due  on  the  judgment  May  7,  1847,  on  which 
day  Pamela  (Running  assigned  the  securities 
for  the  debt  to  the  plaintiff,  William  Wright. 
*82 

*The  administrator,  William  Woods,  was 
dead ;  and  this  bill  was  filed  against  N.  R. 
Eaves,  who  was  in  possession  of  the  mort- 
gaged premises,  for  sale  and  foreclosure. 

The  defendant  pleaded  the  statute  of  limi- 
tations ;    and  his  Honor  sustained  the  plea. 

The  plaintiff  appealed. 

G.  W.  Williams,  for  appellant,  cited  and 
relied  upon  Thayer  v.  Cramer,  1  Mc<'.  Ch. 
3L»o ;  Nixon  v.  Bynum,  1  Bail.  148 ;  Act  1791, 
5  Stat.  170;  Thayer  v.  Davidson,  Bail.  Eq. 
412;  Smith  &  Cuttino  v.  Osliorne,  1  Hill,  Ch. 
342 ;   Drayton  v.  Marshall,  Rice  Eq.  374. 

Dawkins,  contra  cited  McRaa  v.  Smith, 
2  Bay,  .339;   Cholett  v.  Hart,  2  Bay,  1.50. 

The  opinion  of  the  Court  was  delivered  by 

DUNK  IN,  Ch.  The  liill  in  this  case  was 
for  foreclosure  of  a  mortg;ige  of  a  lot  of  land 
In  the  village  of  Chester.  The  defendant  is 
a  purchaser  from  one  who  held,  through  in- 
termediate conveyances,  from  the  mortgagor, 
and  the  defendant  and  those  under  whom  he 
claims  have  been  in  possession  of  the  land 
for  more  than  ten  years  prior  to  the  institu- 
tion of  these  proc-eedings.     He  relied  on  the 


plea  of  the  statute  of  limitations.  At  the 
circuit  the  cause  was  not  argued,  nor  the 
authorities  cited.     The  plea  was  sustained. 

The  mortgage  of  the  complainant  was  duly 
recorded  prior  to  the  conveyance  in  fee  on 
the  part  of  the  mortgagor.  Under  tlie.se  cir- 
cumstances it  was  Hrst  held,  in  Thayer  v. 
Cramer,  1  McC.  Eq.  .•'.95.  that  the  plea  of  the 
statute  was  inajiplicable.  Afterwards  in 
Sniitli  &  Cuttino  v.  Osborne.  1  Hill.  Eq.  342. 
tliat  decision  was  reviewed  and  the  doctrine 
re-athrmed.  Since  that  timo  the  authority  of 
Thayer  v.  Cramer  has  been  rcpeatodly  recog- 
nized, as  in  Drayton  v.  .Marshall,  Rice  E(i. 
374  |.33  Am.  Dec.  84]  and  may  be  regarded 
as  the  settled  law. 

As  the  cause  was  heard  only  on  the  plea. 
It  Is  proper  that  the  defendant  should  have 
the  opportunity  of  availing  himself  of  any 
other  defence  to  which  he  may  consider  him- 
self entitled. 

♦83 

*It  is  ordered  and  decreed,  that  the  decree 
of  tlie  Circuit  Court,  sustaining  the  plea  of 
the  statute  of  limitations  and  dismissing  the 
complainant's  bill,  be  reformed — ^tliat  the 
defendant's  plea  be  overruled,  and  that  he 
have  leave  to  answer  within  thirty  days  after 
notice  hereof. 

JOHNSTON.    DARGAN    and    WARDLAW. 
CC.  concurred. 
Motion  granted. 


5    Rich.  Eq.   83 
THOMAS  KETCHIN  and  Wife  v.  ARCHI- 
BALD  BEATi'   and   Others. 
(Columbia.     Nov.  and   Dec.  Term,  1852.) 

[WiUs  <©=»547.] 

Testator  bequeathed  certain  slaves  to  hia 
daughters  M.  and  P:  the  residue  of  his  estate 
he  gave  to  his  wife  for  life— the  personalty  to 
be  divided,  after  her  death,  among  his  three 
dauj,'hters  M.,  P..  and  J.,  and  the  lands  among 
all  his  children  (not  naminj;  them:)  he  then  de- 
clared, "slioiild  any  of  my  daughters  above  men- 
tioned, iiereafter  marry  and  die.  leaving  no  issue 
living  at  the  time  of  their  death,  their  respt^^- 
tivc  shares  shall  go  to  the  survivor  or  sur- 
vivors, free  from  any  claim  or  control  of  their 
husbands;"  and,  lastly,  he  proceeded  to  say.  '"as 
my  daughter  N.  and  son  A.  are  already  |)rovid- 
ed  for,  1  leave  them  $1W  to  be  eiiuallv  divided 
between  them:"— //rW,  (1)  that  M..  P"..  and  J. 
took,  in  their  legacies,  transmissible  interests, 
defeasible  u))on  the  conditions  mentioned  in  tlie 
will;  and  (2l  that  the  words  "survivor  or  sur- 
vivors," referred  to  the  three  daughters  M.,  P., 
and  J.  only,  and  not  to  all  the  children. 

[Ed.   Note.— For  other  cases,  see  Wills,   Cent. 
Dig.  S  UNO;    Dec.  Dig.  ©=.547.1 

[Tri7/.y  <©=3.594.1 

Be(lUi'st  of  slaves  to  one  absolutel.v,  anfi 
"should  she  hereafter  marry  and  die,  leaving  no 
issue  living  at  the  time  of  her  death,"  then 
over,  is  defeasible  only  upon  the  double  contin- 
gency of  her  marrying,  and  dying  leaving  no 
issue. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.   §  1:514;    Dec.  Dig.  <g=>.594.] 


^=3For  other  cases  see  same  topic  and  KEY-NUMBER  la  all  Key-Numbered  Digests  and  Indexes 
5  Rich. Eq.— 3 


33 


*83 


5  RICHARDSON'S  EQUITY  REPORTS 


Before  Johnston,  Ch.,  at  Fairfield,  July, 
1852. 

The  questions  decided  in  this  case,  in  the 
Court  of  Appeals,  will  be  sufficiently  under- 
stood from  the  opinion  delivered  in  that 
Court. 

Buchanan,  for  appellants. 
Boylston,  contra. 

*The  opinion  of  the  Court  was  delivered  by 

DARGAN,  Ch.  The  testator  James  Beaty, 
by  his  last  will  and  testament,  in  the  second 
clause,  gave  to  his  daughter  Mary,  two  ne- 
groes, Charles  and  Maria,  and  to  his  daughter 
Peggy,  (who  is  one  of  the  complainants,)  he 
gave  a  negro  named  Louisa:  the  difference 
between  the  negroes  given  to  Mary  and  Peggy, 
to  be  paid  to  Peggy  in  money ;  so  as  to 
equalize  their*  legacies ;  and  the  difference 
was  to  be  ascertained  by  appraisers  chosen 
by  the  executors. 

The  residue  of  his  estate,  after  the  payment 
of  debts,  he  gave  to  his  wife  for  life ;  and 
after  her  death,  he  gave  the  personal  estate 
to  be  equally  divided  between  his  daughters 
Mary,  Peggy,  and  Jenny ;  and  his  lands  after 
his  wife's  death,  he  gave  to  be  equally  divid- 
ed among  all  his  children. 

Then  after*  authorizing  his  executors  to 
sell  the  house  and  lot  before  disposed  of,  he 
declares  as  follows:  "Should  any  of  my 
daughters  above  mentioned,  hereafter  marry 
and  die,  leaving  no  issue  living  at  the  time  of 
their  death,  their  respective  shares  shall  go  to 
the  survivor  or  survivors,  free  from  any  claim 
or  control  of  their  husbands." 

In  the  concluding  clause  the  testator  pro- 
ceeds to  say:  "As  my  daughter  Nancy  and 
son  Archibald  are  already  provided  for,  I 
leave  them  one  hundred  dollars  to  be  equally 
divided  between  them."  It  is  important  to 
remark,  that  Nancy  and  Archibald  are  then 
first  mentioned  by  name.  They  were  then 
married,  and  were  living  apart  from  the  tes- 
tator. His  daughters  Mary,  Peggy  and  Jenny 
were  single,  and  were  living  with  him  at  the 
date  of  his  will,  and  of  his  death. 

The  first  question  that  arises  is,  what  es- 
tate did  the  testator's  daughters,  Mary, 
Peggy  and  Jenny,  take  in  the  legacies  given 
to  them?  The  Chancellor  who  tried  the  cause 
was  of  the  opinion,  that  each  of  them  took 
an  absolute  estate ;  which  was  defeasible 
only  upon  the  condition  that  she  should  die 
without  leaving  issue  living  at  the  time  of  her 
death.  Nothing  is  given  to  the  issue.  No 
mention  is  made  of  the  issue,  except  as  form- 
ing a  part  of  the  condition  upon  which  the 

*85 
previous,  direct  and  abso  *lute  gift  was  to  be 
defeated.  The  estate  given  to  them  in  the 
second  clause  was  not  cut  down  to  a  life  es- 
tate by  any  subsequent  provisions ;  and  was 
to  go  over  to  the  survivors  only  upon  the 
contingency  which  was  provided  for  in  the 
will. 

34 


The  next  question  is,  who  are  the  parties, 
that,  under  the  description  and  character  of 
"survivors,"  are  entitled  to  take,  in  the  event 
that  any  of  the  testator's  before-mentioned 
daughters  should  marry  and  die  leaving  no 
issue  alive  at  the  time  of  their  death?  Were 
the  benefits  of  the  survivorship,  (which  were 
to  accrue  upon  the  contingency  expressed), 
intended  to  embrace  all  the  testator's  chil- 
dren, or  to  be  restricted  to  his  three  daugh- 
ters Marj%  Peggy  and  Jenny?  It  is  perfectly 
clear,  that  it  was  not  intended  to  embrace 
his  son  Archibald  Beaty ;  because  the  shares 
which  were  to  go  over  in  the  event  express- 
ed, "were  to  be  free  from  any  claim  or  con- 
trol of  their  husbands ;"  a  form  of  expression 
which  would  be  inapplicable  in  the  case  of 
a  bequest  to  a  son. 

Was  Nancy  Cathcart,  the  testator's  married 
daughter,  intended  to  be  provided  for  by 
this  limitation  in  favor  of  survivoins?  The 
words  of  the  will  upon  which  this  question 
mainly  turns  are  as  follows:  "Should  any 
of  my  daughters  above  mentioned,  hereafter 
marry  and  die  leaving  no  issue  alive  at  the 
time  of  their  death,  their  respective  shares 
shall  go  to  the  survivor  or  survivors,  free 
from  any  claim  or  control  of  their  husband^;." 
The  testator  was  not  limiting  the  share 
which  he  had  given  to  Nancy  in  the  division 
of  the  real  estate.  For  the  expression 
"should  any  of  my  daughters  above  mention- 
ed hereafter  marry  and  die,"  &c.,  excludes 
Nancy,  who  was  at  that  time  married.  It 
was  only  the  shares  of  his  single  daughtei-s, 
upon  which  he  was  imposing  this  conditional 
limitation.  This  construction  derives  much 
additional  strength  from  the  fact,  that  it  was 
the  shares  of  his  "daughters  above  mention- 
ed," that  he  waj?  affecting  to  restrict  by  a  con- 
dition, which  might  at  some  day  defeat  the 
estates  that  he  had  given  them.  Up  to  that 
clause  in  the  will,  he  had  only  mentioned  by 
name,  his  three  daughters  INIary,  Peggy  and 
Jenny.    Though  he  had  in  a  previous  clause, 

*86 
di*rected  that  his  real  estate  after  the  death 
of  his  wife,  should  be  equally  divided  among 
all  his  children ;  which  would  include  Arch- 
ibald and  Nancy;  yet  it  is  only  in  a  subse- 
quent part  of  the  will,  that  he  alludes  to 
them  by  name.  An  it  was  only  the  shares 
of  his  daughters  Mary,  Peggy  and  Jenny  that 
he  subjected  to  the  condition,  the  most  nat- 
ural, and,  it  seems  to  me,  the  only  proper 
construction  is,  that  when  he  spoke  of  sur- 
vivors, he  meant  the  survivor  or  survivors  of 
those  three  whom  he  had  previously  named 
in  the  same  sentence. 

It  IS  apparent  that  he  put  Archibald  and 
Nancy  on  the  same  footing.  "As  my  daugh- 
ter Nancy,  and  my  son  Archibald,  are  al- 
ready provided  for,"  says  he,  "I  leave  them 
one  hunured  dollars  to  be  equally  divided  be- 
tween them."  He  had  also  given  to  each  of 
them  an  equal  share  of  the  land  with  the  oth- 
ers, on  the  death  of  his  wife.     There  is  no 


KETCHIX  V.  BEATY 


*89 


construction,  short  of  that  which  would 
amount  to  a  most  perfect  distortion  of  the 
testator's  nieaninj?.  which  would  let  in  Archi- 
bald to  tile  henelits  intended  to  Ite  conferred 
on  survivt>rs,  in  the  clause  that  I  am  con- 
siderin;;.  And  as  he  and  Nancy  throujihout, 
seem  to  have  been  put  in  the  same  category, 
it  is  a  stronj:  argument  ai:ainst  her  claim. 

This  construction  is  in  harmony  with  what 
ajtpears  to  be  the  scheme  of  the  testator's 
will.  Archibald  and  Nancy  were  married, 
and  were  living  apart  from  the  testator.  He 
bad,  before  the  date  of  his  will,  provided  for 
them  by  advancements.  He  so  declares.  His 
object  was  to  provide  for  his  wife  and  his 
three  sinjrle  daufihters,  who  were  then  liv- 
ing with  him:  and  who  were  not  likely  to 
marry.  Accordingly,  the  principal  provisions 
of  the  will  are  in  their  favor.  And  again,  at 
the  death  of  his  wife,  he  gave  them  all  the 
personal  estate,  which  he  had  giv(Mi  to  her 
for  life.  Except  the  legacy  of  ^7)0  to  each 
of  them,  and  a  share  of  the  land,  which  was 
of  no  great  value,  and  in  which  the  widow 
had  a  life  estate,  Nancy  and  Archibald  take 
nothing  under  the  will.  They  had  been  pro- 
vitled  for  before.  The  property  which  they 
had  received  from  their  fatlu'r,  and  to  which 
they  had  a  perfect  title  in  his  life,  could  not 

*87 
be  subjected  to  the  *conditions  of  his  will  In 
favor  of  survivors ;  which  he  had  imposed 
on  that  which  he  had  given  to  his  three  un- 
married daughters.  This  want  of  reciprocity 
was  the  reason  probably,  why  the  testator 
left  them  out  in  the  provisions,  in  favor  of 
survivors.  This  construction  makes  the 
whole  will  consistent  and  harmonious. 

The  conclusion  is,  that  the  defendant  Arch- 
ibald Beaty,  and  the  defendants  John  S. 
Cathcart  and  Nancy  J.  Cathcart  the  children 
of  testator's  daughter  Nancy,  (Mrs.  Cathcart,) 
have  no  estate  or  interest,  vested  or  con- 
tingent, in  the  slave  Louisa  and  her  children ; 
which  said  slave  Louisa  was  given  to  the 
complainant,  Mrs.  Margaret  Ketchiu,  under 
the  name  of  Peggy,  by  her  father's  will.  And 
as  Jenny  died  in  1842,  and  Mary  Treaty  died 
in  ISol.  Mrs.  Ketchin  still  surviving,  her  es- 
tate which  she  derived  under  her  father's 
will  has  become  indefeasible.  For,  as  the 
Chancellor  has  well  (observed  in  the  Circuit 
decree,  "an  estate  to  a  survivor  is  upon  the 
condition  of  survivorship."  This  disposes  of 
tlie  Hrst  and  second  grounds  of  appeal. 

The  third  ground  of  uiipcal  has  been  aban- 
doned. 

The  fourth  ground  of  appeal  is  "that  >hiry 
Beaty  took  an  ab.solute  estate  in  the  negroes 
Maria  and  Charles,  defeasil)le  only  on  her 
lioth  marrying  and  dying  without  issue,  and 
that  having  failed  to  marry  and  leave  issue, 
she  had  a  perfect  right  to  dispu.se  of  her 
proi»erty  by  will  or  otherwise." 

Mary  Beaty  died  in  August  is.")!,  without 
issue  and  unmarried,  having  disi>osed  by  her 
will  of  the  slaves  Maria  and  Charles,  which 


she  derived  under  the  will  of  her  father 
James  Beaty,  in  the  maimer  which  has  al- 
ready been  stated.  The  complainants,  Thom- 
as Ketchin  and  his  wife  Margaret  Ketchin. 
.set  uj)  in  this  bill  a  claim  in  behalf  of  tlie  lat- 
ter, to  the  negroes  Maria  and  Charles  under 
the  lindtations  of  James  Beaty's  will.  The 
claim  is,  that  Mary  I5eaty  having  died  leav- 
ing no  issue  alive  at  the  time  of  her  death, 
(though  she  never  marri«'d.)  the  complainant. 
Mrs.  Ketchin.  is  entitled  to  the  negroes,  as 
the  last  survivor  of  the  three  sisters.  Tlie 
Chancellor  in  his  Circuit  decree,  gave  a  con- 
struction   to    the    will,    which    sustains   this 

*88 
*claim.  ordered  that  the  slaves  Maria  and 
Charles  be  delivered  up  to  Mrs.  Ketchin  or 
her  trustee,  l)y  Archibald  Beaty  the  executor 
of  Mary  I?eaty,  and  that  the  latter  do  ac- 
count for  their  hire,  &c. 

In  the  consideration  of  this  (piestiou,  it 
wiil  be  necessary  once  more  to  advert  to  the 
clause  of  James  Beaty's  will,  under  which 
it  arises.  The  words  are,  ".should  any  of  my 
daughters  above  mentioned,  hereafter  marry 
and  die  leaving  no  issue  alive  at  the  time  of 
their  death,  their  respective  shares  shall  go 
to  the  survivor  (U-  survivors,"  &c.  This  clause 
has  been  held  by  the  Circuit  Court,  and  by 
this  Court,  to  have  such  an  operation  upon 
the  previous  absolute  gift  of  the  slaves  in 
(luestion,  as  to  make  the  estate  in  .said  slaves 
a  fee  simple  interest,  defeasible  upon  a  con- 
dition which  was  contingent.  And  the  only 
question  liere  is,  whether  the  estate  was  to 
go  over  to  the  survivor  upon  the  simple  con- 
tingency of  the  lirst  taker's  dying  and  leaving 
no  i.ssue  at  her  death ;  or  ui»on  the  double 
contingency  of  the  first  taker's  marrying  and 
dying  without  leaving  such  issue  alive  at  her 
death.  The  Chancellor  did  not  think,  that 
marriage  was  in  the  testator's  mind,  as  a 
part  of  the  condition  upon  which  the  estate 
was  to  go  over.  He  understood  the  testator 
"to  refer  to  marriage  as  preliminary  and 
mere  inducement  to  siieaking  of  their  issue.'' 
"I  cannot,"  he  says,  "construe  the  will  as  im- 
posing marriage  as  a  condition  to  defeat  the 
survivorship,  which  appears  to  be  his  main 
object.  The  words  relating  to  the  marriage 
of  his  daughters,  are  to  have  an  effect  only 
so  far  as  they  promote  some  intention  on  the 
part  of  the  testator.  Now,  what  purpose  of 
the  testator  would  have  been  accomplished, 
by  the  marriage  of  any  one  of  the  three 
daughters  named'.'  None,  it  appears  to  me, 
excei»t  so  far  as  the  marriage  might  lead  to 
their  having  issue.  If  they  had  no  issue;  or 
died  without  issue,  (whether  they  married, 
or  did  not  marry.)  then,  and  then  only,  was 
his  intention  etfectuated,  of  limiting  the  prop- 
erty over." 

Thus  the  Chancellor  reasoned;  and  he  ac- 
cordingly decreed,  that  on  the  death  of  Mary 

*89 
Beaty,    without    issue,    although    she    *never 
married,  the  estate  in  the  negroes  Maria  and 

35 


*89 


5  RICHARDSON'S  EQUITY  REPORTS 


Charles,  went  over  to  Mrs.  Ketchin  under 
the  limitation  of  the  will  in  favor  of  the  sur- 
vivor. 

This  construction  is  precisely  the  same,  as 
would  have  been  given  to  the  will,  if  the 
testator  had  simply  said:  "Should  any  of 
my  before-mentioned  daughters  die  without 
issue  alive  at  the  time  of  their  death,"  the 
property  should  go  over.  In  other  words,  it 
is  the  same  as  would  have  been  given,  if  the 
testator  had  omitted  to  impose  marriage  as 
a  part  of  the  condition.  This  is  rejecting, 
as  without  meaning,  a  portion  of  the  will; 
not  for  being  unintelligible,  or  repugnant, 
but  because  we  are  at  a  loss  to  understand 
his  purpose.  It  is  expunging  from  the  will 
the  words  "hereafter  marry,"  and  reading 
it,  as  if  no  such  words  were  in  it.  I  do  not 
think  we  are  authorized  to  do  this.  We  are 
to  take  the  will  as  we  find  it ;  to  give  every 
part  some  meaning, — and  such  a  meaning 
as  it  is  fairly  capable  of  receiving,  construed 
by  itself,  or  in  connexion  with  the  other 
parts.  If  any  part  be  unintelligible  or  re- 
pugnant, it  may  be  rejected.  But  it  cannot 
be  said  of  the  words  stricken  out  by  the 
Chancellor's  construction,  that  they  are  ob- 
noxious to  either  of  those  objections.  On 
the  contrary,  they  have  a  plain  signification, 
and  no  repugnancy ;  and  consequently  are 
entitled  to  their  proper  influence  in  the  in- 
teiiu-etation.  The  testator  may  have  been 
capricious,  or  unreasonable ;  but  that  is  not 
an  objection  to  the  effectuation  of  his  in- 
tentions  clearly   expressed. 

Where,  therefore,  the  testator  has,  as  in 
this  case,  plainly  said,  in  relation  to  an  es- 
tate which  he  had  previously  given  to  three 
of  his  daughters,  if  any  of  them  should 
hereafter  marry  and  die  leaving  no  issue 
alive  at  their  death,  their  shares  respective- 
ly should  go  over  to  the  survivors:  where 
he  has  annexed  the  double  contingency  of 
their  marrying  and  dying  without  issue,  as 
the  condition  on  which  their  otherwise  ab- 
solute estates  were  to  be  defeated,  we  are 
not  authorized  by  any  rule  of  construction, 
to  throw  out  of  view  one  of  the  contingen- 
cies, and  t,o  make  the  estate  go  over  to  the 
survivor  on  the  happening  of  only  a  part  of 
the  condition. 

*90 

*I  cannot  undertake  to  say  with  any  cer- 
tainty, what  was  the  object  of  the  testator 
in  ordaining  that  the  estate  should  not  go 
over,  if  his  daughters  died  unmarried,  and 
without  issue;  and  in  causing  it  to  go  over, 
in  case  they  married  and  died  without  is- 
sue. As  his  meaning  is  plain,  it  would  per- 
haps be  useless  to  speculate.  But  I  think  I 
can  perceive  a  motive  that  may  have  gov- 
erned him,  which  does  not  appear  unreason- 
able. If  his  daughters  died  unmarried,  and 
without  issue,  he  was  willing  for  them  to 
have  the  absolute  estate.  For  without  hus- 
band, or  issue,  by  the  force  of  the  natural 


affections,  they  would  bestow  it  at  their 
death,  upon  their  brothers,  and  sisters,  who 
were  his  own  children.  They  would  have 
no  nearer  objects  of  affection.  If  they  mar- 
ried, and  had  issue,  he  was  willing  for  them 
to  take  the  absolute  estate  on  account  of 
their  children ;  who  ought  to  be  provided 
for,  and  who,  in  the  natural  course  of  things, 
would  take  it  from  them  in  succession.  But 
if  they  married,  and  died  without  issue,  he 
was  not  willing  for  the  husband,  (who  was 
a  stranger  to  his  blood,  and  not,  in  that  case, 
united  to  his  house  by  any  but  a  severed 
tie,)  to  have  the  estate;  but  desired  it  to  go 
back  to  his  own  children.  Some  such  views 
as  these,  the  testator  may  have  had. 

The  Court  is  of  the  opinion,  that  the  es- 
tate given  by  James  Beaty  to  liis  three  daugh- 
ters Mary,  Peggy  and  Jenny  was  not  to  be 
defeated,  and  to  go  over  to  the  survivors, 
except  upon  the  double  contingency  of  their 
marriage  and  death  without  leaving  issue 
alive. 

So  much  of  the  Circuit  decree  as  orders 
and  directs  the  defendant,  Archibald  Beaty, 
to  deliver  up  the  slaves  Maria  and  Charles 
to  the  complainants;  and  to  account  for 
their  hire  is  reversed.  In  all  other  respects 
the  said  Circuit  decree  is  afllrmed,  and  the 
appeal  dismissed. 

JOHNSTON,    DUNKIN  and   WARDLAW, 
CC,  concurred. 
Decree   modified. 


5    Rich.  Eq.   *9l 

*WILLIAM  WILIE  and  AMANDA,  His  Wife 
v.  HENRY  R.  PRICE. 

(Columbia.     Nov.  and  Dec.  Term,  1852.) 

[Contracts  <®=>18.] 

Defendant  wrote  to  the  agent  of  plaintiff. 
Miss  J.,  as  follows:  "We  have  had  a  meeting 
of  all  the  citizens  of  the  place  that  are  interest- 
ed in  a  female  school,  and  all  are  satisfied  with 
Miss  J.  and  are  anxious  to  employ  her,  and  are 
resolved  to  make  her  this  proposition.  We  will 
guarantee  to  her  the  sum  of  .$400  for  one  year," 
&c.,  "and  if  the  school  should  become  too  great, 
an  assistant  will  be  employed  at  the  expense  of 
the  trustees:"  plaintiff  accepted  the  invitation 
and  taught  the  school  three  months  and  ten 
days,  when  the  parties  separated  by  consent: 
the  petition  was  tiled  for  discovery  of  the  names 
of  the  trustees  and  of  the  persons  represented 
in  the  phrase  "we  will  guarantee,"  &c.,  and  for 
payment  for  the  time  plaintiff  had  taught  the 
school: — Held,  that  defendant  was  not  liable, 
because  (1)  there  was  no  contract  shewn  ;  and 
(2)  if  there  was,  plaintiff's  remedy  was  at  law. 
[Ed.  Note. — For  other  cases,  see  Contracts, 
Cent.  Dig.  §  49 ;    Dec.  Dig.  <©=»18.] 

Before  Johnston,  Ch.,  at  Lancaster,  June, 
1852. 

This  case  w'ill  be  sufficiently  understood 
from  the  opinion  delivered  in  the  Court  of 
Appeals. 


36 


©=>For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


WILIE  V.  PRICE 


*94 


Clinton,  for  appellants. 
Dawkius,  contra. 

The  oiiiuion  of  the  Court  was  dolivered  by 

WAKDLAW,  Ch.  The  plaintiff  Amanda, 
then  Miss  Johnson,  was  residiii;;  in  Cam- 
den with  lier  l>rother-in-law  Alden.  wlien 
through  a  letter  written  i>.v  the  defendant 
to  Alden,  and  bearing;  date  May  15,  1S45,  she 
was  invited  to  take  charge  of  a  female  school 
in  the  villajie  of  Lancaster,  in  tiie  follow- 
ing terms:  "We  have  had  a  meeting  of  all 
the  citizens  of  the  place  that  are  interested 
in  a  female  school,  and  all  are  perfectly  sat- 
isfied with  Miss  .Tohiison,  as  recommended, 
and  are  very  anxious  to  employ  her  as  our 
teacher,  and  are  resolved  to  make  her  this 
proposition.  We  will  guarantee  to  her  the 
sum  of  !?400  for  one  year,  and  we  will  pay 
ber  board.  She  to  take  charjie  of  the  school, 
and  if  the  school  should  become  too  great  in 
number,  an  assistant  will  be  employed  at 
the  expense  of  the  trustees."  Acceptinji  this 
invitation,  she  went  to  Lancaster  in  .June, 
lS4o,  and  taught  a  female  school  there  for 
one   quarter  and  ten   days.     Becoming  sick, 

*92 
she  retuni*ed  to  Camden,  with  the  inten- 
tion of  resuming  her  school  on  the  restora- 
tion of  her  health ;  but  while  at  Camden 
she  received  a  letter  from  defendant,  sug- 
gesting that  for  various  reasons  the  school 
could  not  be  revived ;  and  she  did  not  re- 
sume, nor  offer  to  resume,  her  employment  as 
a  teacher  in  Lancaster.  The  parties  sep- 
arated by  consent,  and  neither  now  insists 
upon  the  entirety  of  any  contract  between 
them  for  a  year.  At  the  rate  of  ^400  a  year, 
Miss  Johnson  would  be  entitled  to  $110  for 
the  time  she  taught  the  school ;  and  she  has 
received  only  $;?o. 

By  this  petition,  the  plaintiff  seek  discov- 
ery from  the  defendant  of  the  names  of  the 
trustees  of  the  school,  and  of  the  persons 
represented  in  the  phrase  of  the  defendant's 
letter,  "we  will  guarantee  &c. ;"  alleging 
that  defendant  had  declined  to  disclose  these 
names  on  their  previous  application  to  him ; 
and  they  pray  that  he  alone,  if  he  wrote  the 
letter  without  authority  from  others,  or  that 
he,  and  others,  who  may  be  jointly  liable 
with  him,  when  made  parties,  may  be  de- 
creed to  make  payment  for  the  time  the 
plaintiff  Amanda  taught  school,  at  the  rate 
of  .$400   a   year,   with   interest. 

The  defendant,  in  his  answer,  insists  that 
this  Court  has  no  jurisdiction  of  the  cause; 
and  he  makes  no  discovery  beyond  the  fact 
that  George  W.  Gill  was  one  of  the  patrons  of 
the  school. 

It  appears  by  the  proof,  that  trustees  for 
the  school  were  never  apix)inted. 

The  petition  was  referred  to  the  Commis- 
sioner of  the  Court,  with  reservation  of  the 
equities  of  the  parties:  and  his  report  as- 
certains the  foregoing  facts,  and  other  facts, 
which  are  not  regarded  as  material. 


At  the  last  sitting  of  the  Court  for  Lan- 
caster, on  hearing  the  report  of  the  Ct>nnnis- 
sioiH-r,  and  argument  of  counsel  upon  the 
eipiitii's  reserved.  Chancellor  Johnston  or- 
dered, that  the  petition  be  dismissed,  and 
that  each  party  pay  his  own  costs. 

Trom  this  order  of  disndssal,  an  appeal 
Is  taken  by  the  plaintiffs  to  this  Court,  on 

♦93 
various  grounds,  which  are  included  in  'the 
(piestious.  whether  there  was  any  contract 
between  the  parties;  and  if  tliere  were  a 
contract,  whether  this  Court  has  jurisdic- 
tion of  the  cause. 

Does  the  letter  of  the  defendant  to  a  friend 
and  agent  of  the  plaintiff  jiropose  a  delinite 
contract,  which  her  acceptance  consummated 
into  an  agrei-nient,  by  exhibiting  the  concur- 
rence of  minds  of  the  i)arties  of  opposite  in- 
terests in  the  subject.  If  an  individual 
l)erson  were  to  write  a  letter  to  one  wishing 
employuient  as  a  teacher,  nearly  in  the  words 
of  the  letter  in  (luestion,  saying,  I  will  guar- 
anty to  you  $400  a  year  and  board  you,  if 
you  will  teach  my  daughters:  it  would  not 
be  (piestioned,  tliat  if  the  person  addressed 
accepted  the  offer  an<l  entered  upon  the  em- 
ployment, a  valid  contract  was  made.  So  if 
one  were  to  make  a  similar  offer  in  behalf  of 
himself  and  A.  and  B.,  which  was  accepted, 
when  he  had  no  authority  from  A.  and  B. 
to  make  the  offer,  he  would  be  singly  bound. 
Fant  V.  Gadberry.  "»  Rich.  10.  But  in  ascer- 
taining the  intentions"^  of  parties  from  the 
language  they  have  employed.  Ct)urts  should 
interpret  and  apply  their  words  in  the  light 
of  surrounding  circumstances,  and  n<»t  insist 
upon  any  nice  philological  construction  of 
their  phrases.  Qui  h(eret  in  litera.  lueret  in 
cortice.  The  letter  of  the  defendant  to  Al- 
den, agent  of  the  plaintiff  Amanda,  when 
fairly  interpreted,  simply  narrates  the  pro- 
ceedings of  a  public  meeting,  and  proposes  a 
basis  upon  which  the  plaintiff  may  treat  for 
a  contract  with  the  citizens  of  Lancaster  in- 
terested in  a  female  school.  It  is  not  the 
offer  of  a  contract  in  behalf  of  particular 
persons,  to  be  comi)leted  by  acceptance  on 
the  other  side;  it  is  the  suggestion  of  what 
an  irresponsible  conununity  had  resolved  to 
do,  as  the  beginning  of  a  correspondence  for 
a  contract.  "We  will  guarantee,"  &c.,  by 
necessary  inference,  and  by  grammatical  coft- 
struction,  refers  to  the  wrlti-r  of  the  letter 
and  to  others  in  conuutm  with  him,  "interest- 
ed in  a  fennile  school"  at  Lancaster:  and  im- 
plies that  a  detinite  contract  was  to  be  there- 
after made.  We  may  regret  that  Miss  John- 
son, from  youth  and  inexi)erience,  as  suggest- 
ed in  the  earnest  argument  of  lier  counsel,  or 
from  any  other  cause,  was  incautious  in  se- 

•94 
curing  fit  ♦compensation  for  her  services,  by 
some  contract  binding  her  employers,  before 
she  entered  upon  her  duties:  and  we  may 
even  regard  the  defence  as  ungracious:  but 
we  cannot  venture  to  decide  cases  upon  no- 

87 


*94 


5  RICHARDSON'S  EQUITY  REPORTS 


tious  of  gallantry  and  taste.  We  are  of  opin- 
ion, that  the  letter  of  defendant  suggested 
terms  upon  which  a  future  contract  might  be 
made,  but  did  not  offer  a  definite  contract, 
to  be  completed  by  acceptance. 

If  ;we  are  mistaken  in  this  view,  the 
question  recurs  as  to  the  jurisdiction  of 
this  Court.  If  the  letter  of  the  defendant 
amounts  to  a  guaranty  on  the  part  of  him- 
self, or  of  himself  with  others  as  to  whom 
he  had  no  authority  to  contract,  to  pay  the 
idaintiff  Amanda  a  specific  sum  of  money  for 
cei'tain  services  to  be  performed  by  her,  this 
is  a  plain  legal  demand,  to  be  enforced  by 
the  action  of  assumpsit.  The  plaintiffs  do 
not  seek  discovery  in  aid  of  a  suit  at  law ; 
and  they  have  obtained  no  discovery  from 
the  defendant.  If  the  petition  be  regarded 
as  a  suit  for  discovery  merely,  the  plaintiffs 
cannot  contravene  the  answer;  and  as  a 
suit  for  discovery  and  relief,  the  plaintiff's 
nuist  fail,  as  they  have  not  shewn  by  the 
disclosures  of  the  defendant,  nor  by  other 
proof,  any  claim  to  relief  peculiar  to  this 
jurisdiction.  The  plaintiffs  pray,  not  for 
account  of  complicated,  mutual  demands,  but 
for  payment  of  a  specific  sum  due  to  them; 
and  all  matters  approaching  account  are 
raised  by  the  answer  and  proof  by  defendant 
of  partial  payments  on  the  plaintiffs'  claim. 
Their  remedy,  if  they  have  any,  is  as  plain 
and  adequate  in  the  Court  of  law  as  in  this 
Court. 

It  is  ordered  and  decreed,  that  the  appeal 
be  dismissed,  and  the  decree  be  affirmed. 

JOHNSTON  and  DUNKIN,  CC,  concurred. 

DARGAN,  Ch.  I  dissent.  The  petition  is 
in  the  nature  of  a  bill  for  discovery  and  ac- 
count. The  plea  to  the  jurisdiction  is  un- 
founded. And  the  plaintiff's  have  made  out 
a  case  which  entitles  them  to  recover. 

Decree  aflirmed. 


5   Rich.  Eq.  *95. 

*WILLIAM   A.  ROSBJROUGH  and  Wife  v. 

JAMES  and  ROBERT  N.  HEMPHILL, 

Ex'rs,  et  al. 

(Columbia.     Nov.  and   Dec.  Term,   1852.) 

[Wills  (®=S65.] 

Testator  having  a  wife  and  six  children, 
three  of  whom,  to  wit:  J.  M.,  E.  B.,  and  J.  H. 
were  minors,  and  intending  to  '.so  order  and 
dispose  of  his  estate,  in  such  manner,  as  appear- 
ed to  him  just  and  equitable,'  devised  and  be- 
(luoathed,  by  the  second  clause  of  his  will,  to  his 
wife  .$20,000,  seven  slaves  by  name,  and  other 
personalty,  absolutely,  and  a  tract  of  land  for 
life,  with  remainder  to  his  two  sons,  T.  H.  and 
J.  H.:  by  the  third  clause  he  gave  the  'sixth 
part'  of  his  'estate  not  heretofore  devised  or 
willed'  to  his  daughter  M.  R.,  with  limitations: 
he  made  no  further  disposition  of  his  estate, 
except  that  he  bequeathed  .$1000  to  a  nephew  ; 
and  he  directed,  that  his  'unwilled  slaves'  should 
be   divided   among   his   'minor  heirs,'   the   value 


'to  be  deducted  out  of  their  respective  dividends' 
of  his  estate ;  that  three  of  Ins  'legatees,'  nam- 
ing his  tliree  chihlren  B.  G.,  M.  R.,  and  T.  H., 
who  had  received  specified  amounts  out  of  his 
estate,  should  'discount,'  those  sums  'out  of 
their  respective  shares ;'  and  that  his  just  debts 
be  paid  'previous  to  a  division'  of  his  estate: — 
Held,  that  after  the  widow  had  received  her 
legacy  of  ,$20,000,  and  the  slaves  and  other 
property  devised  and  bequeathed  to  her,  M.  R. 
was  entitled  to  one-sixth  of  the  residue,  and  the 
remaining  five-sixths,  after  payment  of  the  leg- 
acy of  $1000  to  the  nephew,  and  the  debts  of 
testator,  \\ere  distributable,  as  intestate  prop- 
erty, among  tlie  widow  and  six  children,  includ- 
ing M.  R.: — the  minor  children  taking  the  'un- 
willed slaves'  as  part  of  tlieir  shares,  and  the 
three  children,  named  as  having  been  advanced, 
accounting  for  their  adv^ancements. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  S  21'J4;    Dec.  Dig.  <©=»S65.] 

[Wills  <®==>487.] 

In  a  Court  of  construction,  evidence  aliunde 
is  inadmissible  to  show,  that  the  testator  in- 
tended to  have  a  certahi  provision  inserted  in 
the  will,  and  so  instrueted  the  draftsnuin  ;  that 
through  haste  and  inadvertence  it  was  omitted, 
and  the  testator  executed  the  will  supposing  the 
provision  to  be  in  it. 

[Ed.  Note.— Cited  in  Whitlock  v.  Wardlaw,  7 
Rich.  45S ;  Laurens  v.  Read,  14  Rich.  Eq.  209; 
Rouudtree  v.  Roundtree,  20  S.  C.  405,  2  S. 
E.  474;  Clarke  v.  Clarke,  40  S.  C.  240,  24 
S.  E.  202,  57  Am.  St.  Rep.  675. 

For  other  cases,  see  Wills,  Cent.  Dig.  §  102S; 
Dec.  Dig.   (®=3487.J 

Before  Johnston,  Ch.,  at  Chester,  July, 
1852. 

Johnston,  Ch.  The  bill  is  filed  by  Mrs. 
Rosborough  and  her  husband,  for  the  con- 
struction of  the  will  of  her  father,  the  late 
William  IMoffatt,  and  for  an  account  of  her 
interests  in  his  estate. 

The  testator,  a  man  of  large  property,  con- 
sisting mostly  of  stocks,  money  at  interest 
and  other  choses,  died  the  15th  day  of  April, 
1851,  leaving  a  wife,  Margaret,  and  six  chil- 
dren— Thomas  II.,  Josiah,  Elizabeth  B., 
(sometimes  called  Bethia  Elizabeth),  Isabella 
H.,  Barbara  B.,  wife  of  Robert  C.  Grier,  and 
Martha  M.,  wife  of  Wm.  A.  Rosborough,  all 
of  whom  still  survive.  Of  these,  Josiah, 
Elizabeth  and  Isabella,  were,  at  the  date  of 
his  will,  hereafter  to  be  noticed,  and  still 
are,  minors. 

On  the  14th  of  March,  1851,  the  testator 
*96 
duly  executed  his  *last  will  and  testament, 
by  the  introductory  words  of  which  he  an- 
nounced his  intention  to  "so  order  and  dis- 
pose of  my  estate,  in  such  manner  as,  at 
present,  appears  to  myself  just  and  equi- 
table." 

By  the  first  clause,  he  appoints  James  and 
Robert  N.  Hemphill,  his  executors. 

By  the  second  clause  he  gives  his  wife 
$20,000,  seven  slaves  by  name,  with  their 
future  increase,  his  live  stock,  farming  uten- 
sils, wagons,  carriages,  &c.;  his  household 
and  kitchen  furniture,  crop  on  hand  and  li- 
brary. And  he  also  devises  to  her  for  life, 
the  plantation  of  over  700  acres  where  he 


38 


^=5>For  other  cases  see  same  topic  and  KE i-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


ROSBOKOUGII  V.  HKMIMIILL 


*98 


resided,  with  rciiiaiiidcr  in  fee,  to  his  two 
soi;s,  Tlu)iuas  II.,  and  Josiali. 

He  tlien  proceeds: 

"Tliirdly,  the  sixth  part  of  uiy  estate  not 
heretofore  devised  or  willed,  I  leave  in  trust 
with  my  executors,  for  the  benefit  of  my 
diiu^rhter.  Martha  Mary  Koshorouj;!!,  to  lie 
kept  out  on  loan,  or  judiciously  laid  out  in 
bank  stock,  either  in  tiiis  State  or  North 
rarolina.  The  interest  thereof  after  defray- 
iufj  expenses,  to  he  paid  over,  annually,  to 
her,  f(U"  her  benefit  and  support.  And  at  lier 
death,  should  she  leave  any  issue,  children 
born  of  her  body,  tliat  should  arrive  at  the 
aj;e  of  twenty-one  years,  then  the  aforesaid 
estate,  so  willed  and  devised  for  her  l>enelit, 
shall  be  le;;ally  claimed  by  them,  and  paid 
over  to  them,  by  my  executors,  or  their  suc- 
cessors, accordingly.  Hut  should  it  be  other- 
wise, and  that  she  die  childless,  leaving  no 
natural  issue,  then,  the  aforesaid  estate,  so 
willed  and  devised  for  her  benefit,  .shall  re- 
vert back  to  my  other  lejial  heirs,  to  l)e  ecjual- 
ly  divided  among  them." 

The  material  provisions  of  the  fourth 
clause  are  as  follows: 

"Fourth.  The  unwilled  slaves  belonging  to 
my  estate,  shall  be,  as  equally  as  possible 
divided  among  my  minor  heirs,"  (meaning 
Josiah.  Elizabeth,  and  Isabella.)  "when  they 
become  of  age."  *  *  *  "x  fair  value  to 
be  put  on  what  each  receives  of  said  prop- 
erty, and  to  Ik?  deducted  out  of  their  respec- 
tive dividends  of  my  estate.'"  *  *  *  "The 
unwilled  negroes  to  be  kt'pt  by  mj-  widow, 
*97 

during  the  minority  of  my  *children.  without 
any  accountability,  on  her  part,  for  their 
services." 

In  the  fifth  clause,  he  enjoins  it  upon  his 
executors  to  be  "careful  and  judicious  about 
the  loaning  of  the  money  of  my  minor  chil- 
dren, to  guard  as  uuich  as  possible  against 
doubtful   loans." 

The  material  parts  of  the  sixth  clause  read 
thus: 

"Sixth.  I  have  further  to  observe,  that 
three  of  my  legatees  have  received  certain 
amounts  of  my  estate,  viz:  Barbara  H.  (Jrier, 
property  and  cash  to  the  amount  of  $.">000; 
Martha  M.  Rosborough.  in  property,  $1L'00; 
and  Thomas  Henry  Moffatt,  in  cash,  ^.3000: 
which  sums  ♦  *  *  are  to  be  discounted 
without  interest,  out  of  their  respective 
shares  of  my  estate." 

The  seventh  clause  gives  a  pecuniary  leg- 
acy of  .$1000,  to  a  nephew  in  Indiana. 

The  eighth  clause  directs,  that  testator's 
just  debts  be  paid  "iirevious  to  the  division 
of  my  estate:"  and  after  declaring,  that 
liowever  defective,  "in  form  and  U-gality," 
the  instrument  might  he,  "it  is  my  will," 
Itroceeds  to  declare  that,  "should  any  of 
my  legatees,  attempt  to  defeat  its  plain 
meaning  and  design,  by  throwing  legal  dith- 
culties    iu   the    way    of    its    execution,    then, 


I   leave  it   in  the  power  of  my  executors  to 
entirely  disinherit  them. 

The  will  closes  with  the  following  clause, 
which  it  will  be  important  to  remember  in 
relation  to  a  i>rior  will  executed  the  l.'ith  of 
February.  1S."»0.  which  is  set  forth  in  the 
answer  of  some  of  the  defendants. 

"N'inth.  I  do  hercl»y  revoke  all  former 
wills,  and  acknowledge  in  the  presence  of 
th«'  suliscriliing  witnesses,  this  to  be  my  last 
will  and  testament,  written  on  one  sheet 
of  paper." 

This  will  (of  the  Hth  of  March.  Iv'.l.t  was 
produ'ed  by  the  executors,  in  the  Ordinary's 
Court  f(»r  Chester  District,  admitted  to  pro- 
bate, and  letters  testamentary  granted  them 
for  its  execution. 

The  delits.  which  were  inconsiderable,  and 

*98 

the  pecuniary   *legacy   of  SlfKX).   have  been 

paid  as  provided  for:    and  the  estate  is  now 

subject  to  the  interests  of  testator's  family. 

A  claim,  on  behalf  of  Mrs.  Rosborough.  is 
advanced  under  the  third  clause,  and  stated 
in  the  bill,  to  the  effect,  that  of  the  prop- 
erty covered  by  that  clau.se,  and  therein 
denominated  "my  estate  not  hen-tofore  de- 
vised and  willed,"  "one-sixth  part  is  betpieath- 
e<l  to  the  executors  in  trust  for  the  benefit 
of  your  oratrix ;  an«l,  after  said  one-sixth 
part  is  set  apart,  Margaret  Moffatt,  the  wid- 
ow, is  entitled  to  one-third  part  of  the  re- 
maining five-.sixths,  and  your  oratrix,  and 
each  of  the  -other  children  of  the  testator, 
to  an  etpial  share  of  the  remainder." 

It  is  very  clear,  that  the  property  intend- 
ed in  the  third  clause,  by  the  phrase,  "my 
estate  not  heretofore  devised,  or  willed," 
was  so  much  of  his  estate  of  every  descrip- 
tion, as  had  not  been  betiueathed  and  tlevi.sed 
in  the  preceding,  or  second  clause.  Hy  tlie 
word  heretofore,  was  meant  heretofore  in 
that  will — equivalent  to  hereinbefore.  The 
testator  could  not  have  referred  to  devi.ses 
or  bequests  made  iu  any  prior  will  or  wills, 
nor  have  intended  to  make  the  residue 
spoken  of  iu  this  third  clause,  a  residue 
dependent  upon  what  he  had  disposed  of  in 
such  fiuMiier  wills,  and  only  to  result  after 
those  dispositions  were  effectuated ;  because 
in  this  will  he  expressly  revokes  all  former 
wills.  It  would  be  absurd  to  attribute  to 
him  an  intention  to  allow  devises  and  be- 
(juests  wiru'h  he  intentionaly  al>rogates,  to 
so  operate  still  on  part  of  his  projuMly.  as  to 
determine  and  define  the  residue  upon  which 
the  lu'ovisions  of  this  clause  of  this  will  are 
to  attach. 

Then,  taking  up  the  third  clause  for  con- 
struction, the  question  is,  what  is  the  ex- 
tent of  its  dispositions'^ 

I  presume,  that  the  first  inqu'ession  of  any 
(Uie  who  had  read  that  clause  alone,  without 
looking  into  the  subsetpitMit  clauses — and 
who  had  never  heard  of  any  prior  will — 
would  ite.  that  the  testator  had  given  one- 
sixth    of    the    property    referred    to    in    the 

39 


*98 


5  RICHARDSON'S  EQUITY  REPORTS 


clause  to  his  daughter,  Mrs.  Rosborough,  in 
trust,  with  limitations;  and  that  the  other 
five-sixths  were  left  undisposed  of. 

I  conceive  that,  apart  from  any  idea  of 
mistake  on  the  part  of  the  testator,  and 
assuming  that   the  language  of  this   clause 

*99 
*gives  a  true  expression  to  his  meaning,  it 
would  be  impossible  to  give  any  other  in- 
terpretation to  the  clause,  standing  by  it- 
self, than  that  he  had  given  a  sixth  of  this 
property  to  Mrs.  Rosboi-ough,  and  had  not 
given  the  remainder  of  it  to  any  body. 

Then,  let  us  resort  to  the  succeeding  claus- 
es, as  a  context,  and  see  if  they  furnish  any- 
thing from  which  a  judicial  judgment  to  the 
contrary  of  this  can  be  drawn,  conformably 
to  sound  principles  of  interpretation. 

In  I'esorting  to  the  subsequent  clauses 
as  a  context,  it  should  not  be  forgotten 
that  they  are  the  context  of  tliis  will.  The 
same  clauses  situated  in  another  will,  and 
connected  with  another  text,  which  does  not 
contain  all  the  words  of  the  text  now  under 
construction,  may  have  a  very  different 
meaning  and  application,  as  was  said  in  the 
late  case  of  McCall  v.  McCall,  from  Darling- 
ton, 4  Rich.  Eq.  447  [57  Am.  Dec.  733]— for  as 
the  context  acts  upon  the  text,  so  necessarily 
must  text  upon  the  context. 

The  4th  clause  of  this  will  is  not  repug- 
nant to  tlie  idea  that  there  is  a  partial  in- 
testacy under  the  3rd.  The  "unwilled  ne- 
groes" are  to  be  allotted  to  the  "minor 
heirs,"  by  way  of  satisfying  their  "divi- 
dends" of  the  estate,  and  their  value  de- 
ducted out  of  said  "dividends."  Some  ob- 
servations were  made  respecting  the  time 
at  which  this  was  to  be  done.  It  was  said 
it  was  to  be  done  at  the  majority  of  the 
minors.  But,  I  do  not  perceive  how  that  dif- 
ficulty, if  it  really  exists  in  the  will,  proper- 
ly administered,  affects  the  question  now 
under  discussion — which  is,  whether  the 
shares  or  "dividends"  of  the  estate  to  be 
taken  by  the  minors  under  the  3rd  clause, 
accrues  to  them  by  testacy  or  intestacy.  The 
difliculty  referred  to,  would  be  equal,  and 
indeed,  precisely  the  same,  whether  they 
take  their  shares  or  "dividends"  by  testa- 
mentary disposition,  or  by  operation  of  law 
— by  the  will  or  by  intestacy.  The  objec- 
tion therefore,  determines  nothing  on  the 
question  of  testacy  or  intestacy.  I  suppose, 
however,  that  in  the  administration  of  the 
will — which  is  not  a  matter  strictly  involv- 
ing   doctrine — the    aggregate    value    of    the 

*100 
negroes,  at  the  testator's  death,  should  *be 
deducted  from  the  aggregate  to  which  all 
the  minors  would  be  entitled  under  the  3rd 
clause,  (whether  testate  or  intestate)  and 
set  apart  for  the  minors,  for  subdivision 
among  them,  with  fair  compensations,  at 
their  majority.  This,  however,  by  the  way. 
What  I  intended  to  observe  is,  that  the 
terms  "unwilled  negroes,"  "minor  heirs,"  and 

40 


"dividends"  are,  at  least,  not  repugnant  to 
the  notion  of  an  intestacy  under  the  3rd 
clause  of  the  will,  and  unless  they  are  suHi- 
ciently  repugnant,  to  raise  by  necessary  im- 
plication a  construction  of  that  clause  dif- 
ferent from  that  which  its  own  terms  im- 
port, they  leave  it  as  it  was  before.  It  might 
be  contended,  indeed,  (though  I  imagine  that 
would  be  allowing  too  nmch  influence  to 
mere  terms,)  that  the  words,  to  which  I 
have  referred,  rather  serve  to  fortify  than 
to  rebut  the  idea  of  intestacy  under  the  3rd 
clause:  that  they  import  that,  notwith- 
standing all  that  is  contained  in  the  2nd 
and  3rd,  (which  are  the  only  disposing 
clauses  which  precede  the  4th,  where  the 
\Yords  occur),  there  still  remained  "unwilled" 
property,  to  "dividends"  of  which  the  minors 
were  entitled  as  "heirs." 

It  was  said,  however,  that  the  will  intend- 
ed that  the  minors  should  receive  an  equal 
share  of  the  whole  property  covered  by  the 
third  clause;  that  this  was  evidenced  by  the 
direction  for  equal  partition  of  the  negroes, 
and  for  the  deduction  of  their  value  out  of 
the  dividends.  If  this  is  so,  it  necessarily 
excludes  Mrs.  Rosborough's  claim  for  more 
than  the  one-sixth  of  that  property  given  to 
her.  But  is  it  so?  It  is  a  mistaken  as- 
sumption that  the  testator  (who  has  merely 
declared  that  he  wished  to  dispose  according 
to  his  notions  of  justice  and  equity,  not 
equally,)  intended  that  each  child  should  re- 
ceive equal  benefits  under  his  will.  That 
idea  is  rebutted  by  the  remainder  devised  to 
his  two  sons,  in  the  second  clause,  beyond 
what  the  other  children  were  to  get.  And, 
if  their  devise  is  not  to  be  derogated  from, 
in  order  to  bring  up  the  minors  to  a  posi- 
tion of  equality ;  if  the  two  sons  (one  of 
whom  is  among  the  minors,  on  whose  behalf 
this  argument  of  equality  is  used,)  are  en- 
titled to  hold  their  devises,  and  still  come 
in  for  their  shares  or  "dividends"  (whatever 
this  may  be,)  under  the  third  clause — upon 

*101 
what  *principle  is  it,  that  Mrs.  Rosborough's 
bequest  of  one-sixth,  expressly  given  to  her 
in  that  clause,  is  to  exclude  her  from  par- 
ticipation in  the  five-sixths  which  are  not 
disposed  of?  The  trutn  is,  there  is  nothing 
in  the  4th  clause,  whose  provisions  we  are 
now  examining,  which  intimates  that  the 
minor  children  are  to  receive  an  equal  divi- 
dend of  the  whole  property  covered  by  the 
3rd  clause,  (the  residuary  property  as  it  has 
been  denominated,)  but  only  an  equal  divi- 
dend of  so  much  of  it  as  that  clause  does  not 
dispose  of. 

There  is  nothing,  that  I  can  perceive,  in 
the  fifth  clause,  to  affect  the  construction  of 
the  third.    We  proceed  to  the  sixth. 

What  is  there  in  this  to  change  the  nat- 
ural interpretation  of  the  third? 

In  cases  of  partial  testacy,  children  who 
have  been  advanced  are  not  bound,  in  the 
division  of  the  intestate  portions  of  the  es- 


ROSBOROUGH  v.  HEMPHILL 


403 


tate,  to  account  for  their  advanconK'uts,  un- 
less expressly  retiuired  to  do  so  by  the 
will.(aj  The  testator  lii  this  will  direits  that 
three  of  his  children,  (loosely  calling  them 
legatees,  whkh  i>nly  two  of  tliein  are,)  shall 
account  ;  and  that  their  advancements  shall 
be  discounted  out  of  their  "shares"  of  his 
estate.  Does  this  prove  that-  the  shares  are 
testate  or  intestate?  It  is  a  tritlinj,'  evidence 
that  they  were  repirded  as  intestate,  that 
the  account  is  to  be  "without  interest," 
which  exactly  squares  with  the  law  of  dis- 
tributions. 

It  renaiins  to  ctmsider  the  introductory 
words  of  the  will,  by  which  the  testator  an- 
nounces an  intention  to  dispose  of  his  es- 
tate. Such  phrases  are  a  raake-weiKht  in 
doubtful  cases.  They  may  remove  the  im- 
pression of  intestacy,  when  that  is  slight, 
and  give  an  extent  to  dispositions  that  are 
equivocal,  so  as  to  carry  the  whole  estate. 
But  I  conceive,  that  there  is  no  word  or  sen- 
tence in  the  third  clause,  professing  to  dis- 
pose of  the  five-sixths. 

In  opposition  to  all  that  has  been  urged 
from  the  subsequent  clauses,  which  I  have 
examined,  and  from  the  preamble,  as  a  con- 
text,  there  is   a  clause,   (the   7th)   affording 

♦102 

very  strong  grounds  *for  holding  a  partial 
intestacy.  That  clause  contains  a  i)ecuniarj' 
legacy.  If  the  third  clause  disposed  of  the 
residue  of  property  left  from  the  second,  it 
ab.sorbed  the  whole  estate,  and  gave  inter- 
ests in  it  superior  in  degree  to  this  legacy. 
How,  then,  did  the  testator  contenqdate  that 
this  legacy  should  be  paid?  It  must,  on  the 
defendants'  construction,  have  been  intended 
as  an  enq)ty  comi)linient.  It  was  not  so, 
however,  if  there  was  a  partial  intestacy,  fur- 
nishing a  fund  for  its  payment. 

I  have  thus  come  to  the  conclusion,  upon 
the  construction  of  this  will,  apart  from  all 
extrinsic  circumstances,  that  the  third  clause 
disposes  of  only  one-sixth  of  the  property 
left  untouched  by  tho  second  clause,  by  giv- 
ing that  sixth  to  Mrs.  Koslwrough,  ui)on  the 
terms  expressed  by  the  testator.  The  other 
five-sixths  are  not  disposed  of,  and  she  is 
entitled  to  participate  in  them.  Nothing  but 
an  operative  disposition  of  that  part  can  ex- 
clude her  from  her  right,  as  a  distributee,  to 
take  a  share  of  it.  Even  if  the  testator  had 
given  her  the  sixth,  "and  no  more,"  unless  he 
disposed  of  the  residuary  tive-sixths.  the  law 
gave  her  an  interest  in  them.(/() 

I  have  preferred  to  consider  the  will,  in  the 
first  place,  apart  from  extrinsic  circum- 
stances, because  I  conceived  that  in  that 
way,  the  meaning  InhenMit  in  its  terms  and 
language  would  be  more  clearly  perceived. 

My  construction  of  it  I  have  stated  ;  and 
under  that  construction  the  tive-sixths  are  to 
be  considered  as  Intestate.    Of  cour.se,  as  in- 


(o)   Snelgrovc  v.   .Sneifirovc,  4  Des.  liT4. 
(6)   Snelgrove  v.  Suelgrove,  4  Des.  J74. 


testate,  these  five-sixths  are  the  primary  fund 
for  the  payment  i>f  debts  and  exiK-nses.  and 
the  pecuniary  legacy  of  ^1,000.  The  pe-  uni- 
ary  legacy  of  .$:iO.()01),  given  to  the  widow  by 
the  second  clause,  stands  upon  a  different 
footing.  It  is  first  to  l>e  allowed,  according 
to  the  terms  of  the  will,  in  order  to  ascer- 
tain what  is  the  residuary  property,  upon 
which  the  third  clause  operates.  The  in- 
testate portion,  therefore,  «if  that  property  is 
not  the  fund  for  Its  payment,  as  In  the  case 
of  the  legacy  of  $l.(MK),  given  by  the  7th 
clause.  In  the  distribution  of  the  residue 
thus    left,    the    widow's    third    would    be    set 

*103 
apart.  ♦It  is  stated  that  she  has  released  it. 
The  release  has  not  been  furnished  me,  and 
I  cannot  know  whether  it  is  a  general  re- 
lease, or  a  release  operating  as  an  assign- 
ment to  particular  children.  If  the  latter, 
tlieri  these  particular  assignees  are  to  stand 
in  her  shoes  and  take  her  third.  If  the  re- 
lease is  merely  general,  then  all  the  chiltlren 
will  take  that  third ;  but  as  widows  have  no 
concern  In  advancements,  this  third  must  be 
distributed  by  itself.  As  to  the  other  two- 
thirds,  the  advancements  charged  in  the  will 
against  Mrs.  (Jrier,  Mrs.  Kosborough.  and 
Thomas  II.  Moffatt,  must  first  be  brought  into 
the  conqnitation.  without  interest,  and  then 
a  division  made  among  all  the  children. 

Such  Is  the  decree  of  the  Court,  unless  up- 
on an  examination  of  the  extrinsic  circum- 
stances, to  which  I  now  proceed,  it  shall  be 
found  that  there  is  any  thing  calculated  to 
change  the  InqRirt  of  the  will,  as  I  have  con- 
strued It. 

It  appears,  that  the  testator  was  dissalis- 
ried  with  the  marriage  of  .Mrs.  Kosbonmgh. 
<.)n  the  IHth  of  February.  isr»u.  he  had  drawn 
up  and  executed  another  will,  which  was  in 
full  force  when  the  present  will  was  execut- 
ed. It  was  sealed  up  and  deposited  by  him 
in  his  desk. 

In  its  general  features  it  resembled  this 
will  by  which  It  was  revoked.  It  differed, 
however,  from  the  latter  in  the  disposition 
of  the  remainder,  engrafted  on  the  devise  to 
the  wife.  That  remainder  was  given  by  the 
former  will  to  Josiah  alone,  instead  of  Jo- 
siah  and  Thomas  II.,  as  it  is  in  the  latter ; 
antl  it  contained  a  conditional  power  to  the 
widow  to  alienate  the  land  in  her  life-time, 
which  is  omitted  in  the  latter. 

It  devised  lands  In  Indiana  and  York  to 
Thomas  II.  These  were  sold  by  him  after 
its  execution.  The  omi.ssion  of  these  lands 
in  tlu'  new  will  necessarily  followed  from 
the  sale.  Hut  the  sale  did  not  render  a  new 
will  necessary,  because  the  old  will  contained 
a  provision  to  meet  the  case ;  in  which  It  was 
declared  that.  In  case  of  such  after  aliena- 
tion, the  devisee  should  take  the  proceeds  in 
place  of  the  land  sold. 

There  are  some  other  minor  differences  be- 
tween the  old  and  the  new  will,  which  1  deem 
it  unnecessary  to  notice. 

41 


*104 


5  RICHARDSON'S  EQUITY  REPORTS 


*104 

*There  was,  however,  oue  capital  provi- 
sion contained  in  the  third  clause  of  the  old 
will,  which  is  omitted  in  the  third  (and  cor- 
responding) clause  of  the  new. 

The  third  clause  of  the  former  begins  thus: 

"Third.  All  the  residue  of  my  estate,  I 
leave  to  be  equally  divided  among  my  six 
children,  viz:  Barbara  B.  Grier,  (&c.,  nam- 
ing them)  subject  to  such  regulations  as  I 
shall  hereafter  distinctly  lay  down  and  de- 
fine, viz:  that  the  distributive  share  of  my 
estate  that  would  fall  to  Martha  Mary  Ros- 
borough,  I  leave  in  trust  to  my  executors,  to 
be  kept  out  on  loan,"  &c.,  and  then  proceeds 
throughout  the  clause,  as  in  the  present  will. 

It  appears  from  the  testimony  of  the  Rev- 
erend Laughlin  McDonald,  a  very  intelligent 
witness,  that  the  testator  was  suddenly  taken 
ill  on  the  night  of  the  13th  of  March,  1851, 
(the  night  preceding  the  execution  of  the  last 
will,)  and  was  obliged  to  call  in  his  physi- 
cian. Either  that  night  or  the  next  morn- 
ing, Mr.  McDonald  was  sent  for.  When  he 
arrived,  the  testator  informed  him,  that  in 
consequence  of  some  alterations  in  his  prop- 
erty, he  wished  him  to  draw  up  a  new  will 
for  him,  corresponding  to  the  existing  will, 
with  some  alterations.  Mr.  McDonald  dis- 
trusting his  skill  in  such  matters,  wished  for 
time,  and  desired  that  some  legal  gentleman 
should  be  sent  for.  But  the  doctor,  taking 
him  aside,  told  him  there  was  no  time  to  be 
lost;  and  he  yielded.  Upon  his  signifying 
his  assent,  the  testator  caused  the  existing 
will  to  be  brought  from  his  desk,  and  un- 
sealed. The  room  was  then  cleared,  and  he 
proceeded  to  his  task,  taking  directions  from 
the  testator. 

After  he  had  completed  the  draft,  he  read 
it  clause  by  clause  to  the  testator,  and  then 
the  whole  consecutively,  and  he  assented  to 
it,  and  executed  it  before  the  requisite  num- 
ber of  witnesses,  of  whom  Mr.  McDonald 
was  one.  It  was  then  enveloped  and  sealed 
up  with  the  prior  will,  and  put  back  in  the 
desk. 

Some  time  the  same  day,  and  after  the 
will  had  been  put  away,  the  testator  ex- 
pressed dissatisfaction  at  part  of  its  con- 
tents, and  caused  it  to  be  brought  out  again. 
Mr.   McDonald  and  the  other  attesting  wit- 

*105 
nesses  were  still  present.  The  will  *was  again 
either  read  to  the  testator,  or  was  read  by 
him ;  and  he  with  his  own  hand,  made  cer- 
tain erasures  in  its  first  page,  leaving  its 
language  as  it  now  reads.  It  was  then,  as 
thus  altered,  subjected  anew  to  the  formali- 
ties of  execution  and  attestation,  and  was 
put  back  with  the  prior  will,  as  before. 

Testator  lingered  until  the  15th  of  April, 
when  he  died,  as  before  stated.  After  his 
death  the  two  wills  were  found,  sealed  up 
together  in  his  desk. 

I  allowed  testimony  as  to  any  thing  re- 
lating to  the  posture  and  condition  of  the 

42 


estate  of  the  testator,  and  to  the  s^ate  of 
his  family.  I  am,  and  always  have  been  sat- 
isfied, that  such  testimony  is  admissible.  The 
Court  which  is  to  interpret  a  will,  is  aided  in 
the  application  of  its  provisions,  and  some- 
times in  the  interpretation  of  its  language,  if 
it  is  enabled,  by  testimony,  to  place  itself  in 
the  same  circle  of  cinumstances,  and  to  sur- 
round itself  by  the  same  field  of  subjects, 
which  were  known  t(»  the  testator,  and  by 
which  he  was  surrounded  when  he  uttered 
hi.s  will.  All  wills  have  a  tacit  reference  to 
the  circumstances  in  which  their  authors 
stand  when  they  make  them.  "In  consider- 
ing questions  of  this  nature,"  says  Mr.  Wig- 
ram,  (c)  "it  must  always  be  remembered,  that 
the  words  of  a  testator,  like  those  of  any 
other  person,  tacitly  refer  to  the  circum- 
stances by  which,  at  the  time  of  expressing 
himself,  he  is  surrounded.  If,  therefore, 
(when  the  circumstances  under  which  the 
testator  made  his  will  are  known)  the  words 
of  the  will  do  sulHciently  express  the  in- 
tention ascribed  to  him,  the  strict  limits  of 
exposition  cannot  be  transgressed,  because 
the  Court,  in  aid  of  the  construction  of  the 
will,  refers  to  those  extrinsic  collateral  cir- 
cumstances, to  which  it  is  certain  the  lan- 
guage of  the  will  refers.  It  may  be  true, 
that,  without  such  evidence,  the  precise 
meaning  of  the  words  could  not  be  deter- 
mined ;  but  it  is  still  the  will  which  ex- 
presses and  ascertains  the  intention  ascrib- 
ed to  the  testator.  A  page  of  history,  (to 
use  a  familiar  illustration)  may  not  be  intel- 
ligible till  some  collateral  extrinsic  circum- 
stances are  known  to  the  reader.     No  one, 

*106 

however,  would  imagine  that  he  was  *ac- 
quiring  a  knowledge  of  the  writer's  mean- 
ing from  any  other  source  than  the  page 
he  was  reading,  because,  in  order  to  make 
that  page  intelligible,  he  required  to  be  in- 
formed to  what  country  the  writer  belong- 
ed, or  to  be  furnished  with  a  map  of  the 
country  about  which  he  was  reading."  As 
a  further  illustration  of  the  clearness  which 
the  simple  presentation  of  facts  imparts  to 
terms  previously  obscure,  I  would  refer  to 
the  Sacred  Prophecies.  Here  Divine  Wis- 
dom, actually  looking  at  the  future  facts 
and  events,  has  frequently,  for  the  wisest 
purposes,  foretold  and  described  them  in 
language,  uninrelligible  until  they  ai'ise,  but 
which,  after  they  have  arisen,  become  at 
once  clear  and  uumistakeable ;  so  that  the 
exact  applicability  of  the  terms,  themselves, 
is  rendered  apparent. 

I  therefore,  allowed  evidence  of  the  de- 
scription I  have  stated. 

But,  then,  it  was  proposed  to  prove,  that 
the  intention  of  the  testator  was,  to  put  a 
provision,  for  the  equal  division  of  the  re- 
siduary   property    among    all    the    children, 


(c)  Wigram  on  Wills,  Prop.  V.  PL  76.     3d 
Lend.  Ed. 


ROSBOROUGn  V.  HEMPHILL 


*108 


into  tho  third  clause  of  this  will,  as  it  was  , 
in  the  prior  will;  that  he  so  instructed  the 
draftsman ;  that  it  was  omitted  through 
liaste  and  inadvertence:  and  that  the  will 
was  executed  imder  a  mistai<en  su|>|>usition 
that  the  provision  was  inserted.  This  proof 
heing  ohjected  to,  I  excluded  it.  It  is  possi- 
ble the  witness  might  have  proved  these 
fact.s,  if  allowed  to  proceed  ;  hut  i»eing  clear- 
ly of  opinion  that  the  evidence  was  incom- 
petent, and  the  press  of  business  requiring 
the  Court  to  save  every  moment  of  its  time, 
I  did  not  take  the  testimony  subject  to  ex- 
ception, as  is  my  general  practice,  but  sus- 
tained the  objection  to  it  at  the  hearing. 

I  am  .still  satistied  with  n\y  decision  on 
this  point.  If  the  lu-oof  exists,  it  is  incom- 
petent. 

We  have  a  circuit  decision,  (in  the  case 
of  Geer  v.  Winds,  4  Des.  .sr>,  I  Iielieve.) 
that  parol  evidence  may  be  heard  in  this 
Court,  for  the  purpose  of  enai)ling  the  Court 
to  insert  the  name  of  a  legatee  intended  to 
have  been  inserted  in  the  will,  but  omitted 
by  mistake.  This  is  to  the  very  point;  and 
if  I  had  confidence  in  the  decision,  or  If  it 
were    authority,    I    must    yield    to    it.      The 

*107 


*point,  however,  was  but  slightly  consider- 
ed in  that  case;  the  Court  manifestly  acted 
under  a  strong  inclination  to  oi)viate  the 
peculiar  hardships  presented ;  and  the  de- 
cision was,  probably,  not  repugnant  to  the 
wishes  of  all  parties,  and  was.  therefore, 
n(»t  appealed  from.  I  do  not  believe  it  has 
ever  i)een  relied  on,  or  followed  in  subse- 
quent cases.  It  appears  to  be  contrary  to 
safe  principle,  and  to  authority. 

When  parol  testimony  is  offered  in  the 
case  of  a  will,  its  competency  must  depend 
upon  the  purpose  to  which  it  is  directed. 
•'Any  evidence  is  admissible,"  says  the  ele- 
mentarj-  writer  before  referred  to  by  me,(rf) 
•which,  in  its  nature  and  effect,  simply  ex- 
plains what  the  testator  has  written;  but 
no  evidence  can  be  admissible,  which,  in  its 
nature  and  effect,  is  apitlicable  to  the  pur- 
liose  of  showing  merely  what  ho  intended  to 
liave  written."  "The  distinction  between  evi- 
dence which  is  ancillary  only  to  a  right  un- 
derstanding of  the  words  to  which  it  is  ap- 
I>lled.  and  which  is,  therefore,  simply  ex- 
jilanatory  of  the  words  themselves,  and  evi- 
dence which  is  api)lied  to  prove  intention 
itself,  as  an  independent  fact,  is  broad  and 
palpal)le."  "Wliere  the  inciuiry  is,  what 
the  words  of  a  will  express,  as  distinguished 
from  what  the  testator  meant  by  the  words, 
evidence  of  declarations  of  intention,  of  in- 
structions given  by  tlie  testator  for  prepar- 
ing  his  will,  or  any  evidence  of  a  sindlar 
nature,  is  obviously  inapplicable  to  the  point 
of   inquiry."(c)      "The  judgment   of  a   Court 


((/)  Wigram    on    Wills,    PI.    9,   10.      See   also 
Prop.  V.  PI.  70. 
(e)  Wigram,  I'l.  104. 


in  expounding  a  win  must  be  simply  declara- 
tory of  what  is  in  the  will.'(/) 

It  is  conceived,  that  if  the  effect  or  pur- 
pose of  parol  evidence  is  to  introduce  into  a 
will,  matter  which  it  does  not  i-ontain,  so 
as  to  ctmstitute  it  part  of  tlie  will ;  to  give 
to  the  will,  in  itself  considered,  oi»erative 
elements,  language  or  provisions,  which 
were  not  in  it  before,  then  such  evitlenc*'  is 
incompetent  in  a  Court  whose  .^ole  function 
is  t<i  expound  wills,  whether  it  be  comi)etent 
or  not.  in  Courts  entrusted  with  the  pro- 
bate and   establishment   of  testamentary   jia- 

♦108 
pers.  Such  evidence  is  very  •different  from 
that  which  is  off.'red  for  the  purpo.se  of 
affording  a  light,  by  which  wlmt  is  in  the 
will  may  be  read,  understood,  and  applied; 
which  Is  always  proi)er. 

Mr.     Wigram,    in    enumerating    thirty-six 
cases,  in  which  it  is  not  competent  to  Intro 
duce    extrinsic    evldence.(f/»    includes    among 
them,  those,   "of  tilling  up  a  total  blank  in 
a   will  ;•'    "of  in.serting  a  devise  omitted  by 
mistake;"    "of  reconciling   conflicting  claus- 
es in  a  will;"  "of  construing  the  will   with 
reference  to  the  Instructions  given   for  iire- 
parliig  it:"    "of  controlling  a  technical  rule 
of    verbal    construction;"     "of    increasing    a 
legacy;"'    "of  adding   a    legacy   to   a    will:" 
"of  adding  to.  detracting  from,  or  altering  the 
will."  "or  (generally)    of  proving  intention.* 
It  appears  to  me,  that  the  tendency  of  or- 
dinary  nnnds  is  to  overlook   or   undervalue 
the  danger  of  allowing  parol  to  add  to.  to 
contradict,  or   to  vary   written    instruments. 
Even    when    there    is    no    statute    requiring 
writing,  it  leads  to  endless  litigation,  to  un- 
certainty, to  danger  of  mistake,  and  to  false- 
hood;    and,    therefore,    is    so    subversive    of 
ju.stice  in  general,  that  experience  has  com- 
pelled Courts  to  di.sallow  it.     But   when  we 
consider  that  we  have  statutes  relating  not 
only  to  wills  of  realty,  but  to  those  of  per- 
sonalty   also;     statutes,    (which    conceptions 
of   sound    policy,    founded    on    profound    ob- 
servation  and  experience,  have  induced   the 
legislature  to  enact,)    re<piiring  them   to  be, 
not   only    reduced    to   writing,   but    executed 
with    solenm    formalities,    attested    by    wit- 
nesses;   how  can  we  fail  to  see  that  the  in- 
troduction  of  i>arol   evidence,  to  add   to.  or 
detract  from  wills  thus  executed,  prostrates 
the   policy   of   the    country,    and    repeals    its 
enactments?     How  easy  to  destroy  the  true 
will  of  a  party,  in  his  grave,  and  no  long- 
er able  to  speak  for  himself.— a  will,  which 
he    has    deliberately    and    publicly    executed 
and  acknowledged  as  required   by   statute — 
if  it   be   left   to   witnesses   to   say.    (perhaps 
laboring    under    mistake    or    misconception, 
themselves.)  that  his  intention  was  different 
from   his  words;     that  a  clau.se  which   Is   In 
his    will     is    improperly    there,    or    ih.-u     a 


(/)  Wisram,  PI.  120. 
(J7)  Wigram,  PI.  llil. 


43 


*109 


5  RICHARDSON'S  EQUITY  REPORTS 


♦  109 

clause  or  part  of  a  clause,  which  *is  not 
there,  was  omitted  by  mistake,  and  should 
be  inserted.  Tlie  witness,  in  many  cases, 
may  speak  the  truth ;  and  I  am  sure,  the 
witness,  in  this  instance,  would  have  done 
so.  But  the  danger  is,  that  other  witnesses 
may  not  speak  the  truth.  To  cut  up  fraud 
and  perjury  by  the  roots,  the  legislature 
has  said,  no  witness  shall  speak  on  such  a 
point.  The  testator  alone  shall  speak,  and 
speak  in  his  will. 

"It  is  said,  (and  correctly)"  says  the  judi- 
cious writer,  whose  work  I  have  so  often 
quoted,  "that  the  statute,  by  requiring  a  will 
to. be  in  writing,  precludes  a  Court  of  Law 
from  ascribing  to  a  testator,  any  intention 
which  his  written  will  does  not  express ;  and, 
in  effect,  makes  the  writing  the  only  legiti- 
mate evidence  of  the  testator's  intention.  No 
will  is  within  the  statute  but  that  which  is 
in  writing;  which  is  as  much  as  to  say,  that 
all  that  is  effectual  and  to  the  purpose,  must 
be  in  writing,  without  the  aid  of  words  not 
written."(7t)  "How,"  he  asks  in  another 
place,(i)  "can  it  be  said,  that  the  will  is  in 
writing,  when  it  is  admitted  that  the  will 
must  be  inoperative  unless  the  intention  of 
the  testator  be  proved  aliunde?"' 

I  might  rest  the  argument  here.  But  there 
is  still  another  objection  to  the  evidence  pro- 
posed. Its  object  is  two-fold ;— tirst,  to  show 
that  provisions  were  omitted  which  wei-e  in- 
tended to  have  been  inserted  in  the  will — and 
so  have  these  provisions  allowed  and  estab- 
lished as  part  of  the  will, — and,  (second),  to 
show  that  the  testator  executed  his  will,  la- 
boring under  a  mistake  as  to  its  contents. 

The  objection  to  all  this,  i;^,  that  this  is  not 
a  Court  for  the  establishment  of  wills  or 
clauses  of  Avills. 

If  the  clause  which  it  is  proposed  to  add, 
can  be  added,  since  the  statute  of  1824,  the 
evidence  should  have  been  produced  in  the 
probate  Court,  and  the  will  should  have  been 
established  with  that  addition.  If,  since  the 
statute,  written  instructions  can  be  estab- 
lished as  testamentary,  in  the  ecclesiastical 
Court,  the  instructions  should  have  been  in- 
troduced and  proved  there. 
*110 

*If,  on  the  other  hand,  the  testator  labored 
under  the  mistake  imputed  to  him,  the  will 
of  1851,  was  no  will.  The  evidence  of  mis- 
take would  have  tended  to  defeat  its  pro- 
bate ;  and  should  have  been  offered  to  ('.  eat 
it.  If  defeated,  the  prior  will  was  not  re- 
voked by  it,  and  should  have  been  establish- 
ed in  its  place. 

But  the  will  of  1851,  has  been  admitted 
to  probate  by  the  competent  Court;  and  its 
judgment,  until  rescinded,  or  reversed,  is  a 
judgment  that  the  will,  in  the  form  in  which 


(h)  Wigram,  PI.  9,  citing  B'rett  v.  Rii^deu, 
Plow.  340;  2  Vern,  625 ;  Hobait,  32;  Hiscocks 
V.  Hiscocks,  infra,  PI.  183. 

(i)  Wigram,  PI.  153. 
44 


it  has  been  allowed,  is  the  true  and  only  will 
of  the  testator.(/")  My  province  is  only  to 
expound  and  execute  the  provisions  of  that 
will. 

I  have  now  closed  my  judgment  in  this 
case.  It  has  been  to  me  a  painful  duty ; 
because  in  upholding  what  I  conceive  to  be 
sound  and  necessary  principles,  I  have  con- 
stantly felt  that  the  justice  of  this  particu- 
lar case  has  not  been  attained.  While  a 
sense  of  official  duty,  and  of  the  obligations 
I  was  under  to  sustain  those  principles  upon 
which  the  general  interests  of  the  community 
depend,  compelled  me  to  the  results  announc- 
ed in  this  judgment — since  to  have  sacrificed 
those  principles,  would  have  been  to  sacrifice 
the  law, — and,  in  it,  the  great  body  of  jus- 
tice which  it,  and  it  only,  can  afford — I  could 
never  for  a  moment,  divest  myself  of  the  im- 
pression, that  in  performing  this  duty,  I  was 
sustaining  a  claim,  which,  however  legal, 
was  ungracious.  It  is  not,  however,  as  a 
man  that  I  sit  in  this  Court.  I  have  no  right 
to  act  upon  my  impressions,  or  affections,  as 
a  man.  What  I  am  to  do,  I  am  to  do  as  a 
Judge — governed  not  by  "inCividual  belief,  but 
by  judicial  persuasion." 

On  the  whole.  I  adhere  to  the  decree, 
which  I  announced  conditionally,  in  the 
course  of  this  opinion ;  and  it  is  hereby  de- 
creed accordingly. 

Other  questions  not  included  in  the  judg- 
ment are  reserved ;  and  among  them  the 
costs  of  this  suit ;  and  the  question,  whether 
the  funds  and  property  to  be  taken  by  Mrs. 
Rosborough  should  not  be  also  settled,  and 
the  terms  of  the  settlement. 

*Perhaps  the  parties  may  agree.  If  not, 
let  it  be  considered  on  reference. 

As  one  of  the  executors  is  the  Commis- 
sioner of  the  Court,  the  parties  may  propose 
an  order  of  reference  of  the  accounts,  if  de- 
sired, with  other  matters  proper  for  inquiry, 
to  some  other  person  as  referee. 

The  defendants  appealed,  and  now  moved 
this  Court  to  reverse  the  decree,  on  the 
grounds : 

1.  Because  the  Chancellor  erred,  in  refus- 
ing to  receive  in  evidence  a  former  will  of 
testator,  by  which  the  will  in  controversy 
was  drawn,  and  the  evidence  of  the  scrivener 
who  drew  the  will,  to  sbow  an  omission  or 
mistake  in  said  will. 

2.  Because,  according  to  the  true  construc- 
tion of  said  will,  the  testator  died  intestate 
as  to  no  part  of  his  estate,  and  the  complain- 
ant, Martha  M.  Rosborough,  is  entitled  to  no 
part  of  said  estate,  excepting  tlie  one-sixth 
part  directed  by  said  will  to  remain  in  the 
hands  of  the  executors  as  her  trustees. 

McAliley,  Herndon,  for  api>ellants. 
Dawkins,  Williams,  contra. 

The  opinion  of  the  Court  was  announced  by 


(;■)  See  also  the  Statute  of  1823  (G  Stat.  209,) 
as  to  the  effect  of  probate  as  it  respects  real 
estate. 


FORTUNE  V.  HAYES 


414 


JOHNSTON,  Ch.  We  have  attentively  con- 
sidered this  appeal :  and  it  appears  to  us  im- 
possible, upon  any  safe  principle,  to  conie 
to  any  other  conclusion  than  that  attained 
by  the  Chancellor. 

It  is  therefore,  ordered,  that  the  decree  be 
affirmed  for  the  reasons  given  therein :  and 
that  the  appeal  be  dismissed. 

DINKIN  AND  WAUDLAW,  CC,  concur- 
red. 

Appeal  dismissed. 


5  Rich.  Eq.  *II2 

•W.  FOKTrNK,  ct  ill..  Adin'is  It.  MoCRARY 
v.  JOHN  A.  HAYES  and  Others. 

(Columbia.     Nov.   and   I)t*r.  Term,   1S52.) 

[Limitation  of  Actions  ®=>l."»r).] 

I'romissorv  note  drawn  bv  II.  iV:  C  dated 
Mav,  18L;0,  and  pavahlo  .Tanuarv  1.  IS'Jl  ;  .7. 
H.  &  (i.  C.  comp.i.sed  the  firm:  In  1S20.  C,.  C.. 
beinj;  insolvent,  a.ssiKnfd  his  interest  in  the  firm 
for  the  benefit  of  his  creditors— the  assets?  re- 
maining in  the  hands  of  J.  II.:  in  December, 
lS'2'.i,  ami  January,  1824,  payments  made  by 
J.  H.  were  endorsed  on  the  note  as  made  by  H. 
&  Co.:  in  October,  182.").  J.  H.  died,  and  in 
February,  1829,  and  March  1830,  his  adminis- 
tratrix made  payments  on  the  note:  On  ref- 
erence before  the  Commissioner,  February,  18:{4, 
on  bill  for  settlement  of  tlie  partnersiiip  ac- 
counts, the  administratrix  of  J.  H.  produced  a 
copy  of  the  note  with  the  cretlits  endorsed:  the 
Commissioner  disallowed  the  balance  due  on  the 
note  as  a  charfie  against  the  firm,  and  the  ad- 
ministratrix excepted  to  the  report,  claiming 
that  it  should  be  allowed:  a  dry  balance  of  over 
^1,000  was  found  to  be  due,  on  the  partnership 
accounts,  to  the  assign^-es  of  G.  ('.,  which  was 
paid  by  the  administratrix  of  .T.  H.:  (J.  C.  died 
in  August,  1830,  and  'his  bill,  filed  October, 
1830,  was  for  payment  of  the  l)alance  of  the 
note  out  of  the  partnership  efTects,  or  out  of 
the  individual  estate  of  either  of  the  partners: — 
Held,  that  the  note  was  barred  by  the  statute 
of  limitations. 

[Ed.  Note.— For  other  cases,  see  Limitation 
of  Actions,  Cent.  Dig.  §  020;  Dec.  Dig.  <3=3 
155.] 

Before  Dargan,  Ch.  at  Barnwell  February, 
1852. 

The  circuit  decree  is  as  follows : 

Dargan,  Ch.  James  Harley  and  (Jeorge  W. 
Collins  were  partners  in  trade  in  Barnwell 
District,  under  the  name  and  style  of  James 
Harley  and  Company.  The  business  was  con- 
ducted by  Harley,  at  his  own  residt'uce,  and 
Collins  also  carried  on  business  as  a  mer- 
chant on  his  separate  account,  in  Savanimh, 
(•eorgia.  It  does  not  appear  when  the  part- 
nership commenced,  but  -it  was  in  existence 
during  the  year  ISL'O,  when  Harley,  in  behalf 
of  the  firm,  executed  a  iimmissory  note,  of 
which  the  fnllnwing  is  a  copy,  to  the  com- 
jdainant.  Ann  McCrary.  ailministriitrix  of 
Uobert  McCrary  : 

"On  or  before  the  tirst  day  of  January 
next,  I  promise  to  pay  .Vnn  McCrary,  repre- 
.sentative  of  the  estate  of  Rnl»ert  McCrary, 
deceased,  or  order,  the  sum  of  four  hniulred 


and  sixteen  dollars  and  .io-lOO,  for  value  re- 
ceived.    This  28th  day  of  May.  1820. 

Signed,  James  Harley  &  Co." 

Since  the  date  of  this  note  the  cumidain- 
ants  have  intermarried.     James  Harley  died 

•113 
2;id  of  Octolx-r,  1S25.  Administration  'of  his 
estate  was  granted  to  Jane  A.  Harley  and 
John  A.  Hayes,  who  took  pos.session  and  ad- 
ministered jointly  ft>r  a  time.  Subsequently, 
Jaiu-  \.  Harley  died,  leaving  the  defendant, 
John  .\.  Hayes,  sole  surviving  administrator 
of  James  Harley. 

George  W.  Collins  died  August,  1.8;{G,  and 
the  defendant.  John  F.  I'eyton,  is  his  admin- 
istrator. On  the  7th  May,  1S.3G,  the  complain- 
ants brought  an  action  of  assumpsit  at  law 
ui)on  the  .said  note,  against  George  W.  Col- 
lins, as  surviving  partner  of  James  Harley 
&  Co..  which  abated  by  the  death  of  Collins. 
This  occurred  at  the  time  already  stated. 
.*^oon  after  the  complainants  commenced  their 
suit  in  this  Court.  Their  original  bill  was 
tiled  24th  Octttber,  1830.  against  the  represen- 
tative of  Harley  and  against  the  representa- 
tive of  Collins.  The  amended  bill  was  tiled 
28th  of  September.  1S:18.  The  complainants 
alleging  that  the  note  was  a  debt  of  the  firm 
of  James  Harley  &  Co.,  and  that  a  balance  Is 
still  uniiaid,  claim  to  have  it  .satisfied  and 
paid  out  of  the  partnership  effects,  if  there  be 
any,  or  out  of  the  individual  estate  of  either 
of  the  said  partners.  There  are  no  assets  of 
the  partneriship,  and  the  estate  of  Collins  Is 
insolvent.  It  is  not  denied  that  the  note  was 
given  by  Harley.  and  that  it  was  binding  up- 
on the  firm,  and  If  not  upon  the  firm,  it  is  of 
course  upon  Harley  individually.  The  only 
question  in  the  case  is,  whether  the  claim  up- 
on the  note  is  barred  by  the  statute  of  limi- 
tations, which  has  been  pleaded  by  tho 
defendants.  A  statement  of  some  other  facts 
will  here  be  necessary.  In  the  year  l.s20.  Col- 
lins i)ecanie  insolvent,  iieing  indebted  to  the 
I'lanters'  Bank  i>f  the  State  of  (Jeorgia,  the 
Bank  of  tne  State  of  Georgia,  and  to  Alexan- 
der Smets.  He  assigned  all  his  interest  in 
the  partnership  eftects  of  James  IlarU'v  «.Nc 
Co.,  to  his  aforesaid  creditors.  Hurley  him- 
self coiuurring  ami  joining  in  the  execution 
of  the  ileed  of  assignment.  The  assignees 
afterwards  filed  a  bill  against  Jane  A.  Har- 
ley and  John  A.  Hayes,  the  representatives  of 
James  Harley,  for  an  account  of  the  imrt- 
nership  effects  of  James  Harley  &  Co.  The 
cause  came  to  a  hearing.  The  partnership 
assets,  on  the  accounts  being  taken,  were 
found  to  consist  entirely  of  Harley's  indebt- 
edness to  it.     A  balance  was  found  against 

♦114 
him  'of  .$2.(!!ll.(>s.  The  firm  owed  Collins  as 
a  creditor  $.")!H>.8S.  and  as  partner  .$1.().'>().4(): 
in  the  aggregate,  .$1,041.28,  for  which  a  decree 
went  against  Harley's  estate,  and  whicli  has 
since  been  paid  by  the  administrators  of 
Harley    to   the  assignees   of   Collins.      While 


®=3For  other  cases  see  s>aaie  topic  and  KEY-NL  MDEH  ia  all  Key-Numbered  Di^eats  and  ladexts 


45 


*114 


5  RICHARDSON'S  EQUITY  REPORTS 


this  case  was  in  progress,  and  the  accounts  r 
were  before  the  Commissioner  on  a  reference,  j 
with  a  view  to  a  final  settlement  between  the  j 
representatives  of  the  two  parties,  on  the 
14th  of  January,  1834,  the  administrators  of 
Harley  presented  before  the  Commissioner  a 
copy  of  the  note  to  Ann  McCrary,  alleging 
that  this  was  an  outstanding  debt  of  the  firm, 
and  claiming  to  have  provision  made  for  its 
payment,  out  of  the  assets  of  the  firm,  before 
a  partition  thereof.  There  was  some  evi- 
dence that  the  debt  was  contracted  for  Bar- 
ley's individual  benefit.  The  Commissioner 
disallowed  the  claim  thus  set  up  by  the  ad- 
ministrators of  Harley,  and  reported  against 
it.  This  report  is  dated  the  16th  of  January, 
1837.  The  administrators  of  Harley  took  ex- 
ceptions to  the  report,  which  were  argued 
19th  of  January,  1837. 

Among  other  exceptions,  they  excepted  that 
the  Commissioner  had  not  allowed  the  note 
to  the  estate  of  McCrary  as  a  charge  upon  the 
firm  in  the  settlement.  These  facts  were 
proved  by  the  testimony  of  Mr.  Angus  Pat- 
ter.son,  who  spoke  for  the  most  part  from  the 
records  of  the  Court  then  before  him,  which 
were  also  in  evidence.  This  evidence  has 
an  important  bearing  upon  the  issue  of  the 
statute  of  limitations,  in  this  way:  They 
establish  a  most  unequivocal  acknowledg- 
ment on  the  part  of  the  administrators  of 
Harley,  as  late  as  the  19th  of  January,  1837, 
that  the  note  in  question  was  on  an  outstand- 
ing debtj  and  that  the  balance  was  still  due. 
It  does  more  than  this.  It  establishes  the 
authenticity  of  the  credits  endorsed  upon  the 
original  note ;  for  the  copy  presented  by  the 
administrators  of  Harley  to  the  Commission- 
er, in  the  manner  before  stated,  was  a  tran- 
script of  the  note  with  all  the  credits  endors- 
ed. This  was  an  admission  that  those  credits 
were  rightfully  upon  the  note,  and  removed 
all  grounds  for  suspicion,  if  any  existed, 
that  those  credits  were  inscribed  on  th%  note 

*115 
(as  has  sometimes  been  done)  *for  the  pur- 
pose of  manufacturing  testimony  to  take  the 
case  out  of  the  statute.  The  evidence  relieves 
the  Court  of  all  difliculties  on  that  head. 
There  can  be  no  more  emphatic  admission  of 
the  obligations  of  a  debt  than  a  payment  upon 
it,  and  causing  a  credit  for  the  payment  to  be 
endorsed  as  evidence  upon  the  iusti-ument, 
by  which  the  debt  is  secured.  The  payment, 
if  proved,  without  the  endorsement  of  the 
receipt,  would  be  sufficient.  The  endorse- 
ment of  the  credit  only  makes  the  evidence 
more  explicit,  and  the  facts  more  unmistake- 
able.  A  partial  payment  of  a  debt  has  al- 
ways been  considered  as  equivalent  to  a  new 
promise  to  pay  the  balance.  The  evidence  in 
this  case  to  relieve  the  debt  from  the  bar 
of  the  statute,  is  as  follows:  The  note  was 
due  on  the  1st  of  January,  1821.  On  the  ISth 
of  December,  1823,  payment  by  Harley  &  Co., 
and  endorsed  upon  the  note,  $27.50;  on  the 
1st  of  January,  1824,  payment  by  James  Har- 

46 


ley  &  Co..  $50;  the  16th  of  February,  1829, 
payment  by  Jane  Ann  Harley,  $100 :  the  17th 
of  March,  1830,  payment  by  Jane  Ann  Harley 
of  $15 ;  the  14th  of  January,  1834,  the  admin- 
istrators of  Harley,  presented  the  claim  as  a 
subsisting  debt  against  the  firm  of  James 
Harley  &  Co.,  as  has  already  been  stated.  On 
the  16tL  of  January,  1837,  the  administrators 
took  exceptions  to  the  Commissioner's  report 
in  the  case  of  the  assignees  of  Collins  v.  the 
administrators  of  Harley,  becau.se  this  debt 
was  not  allowed  as  a  subsisting  debt  of  James 
Harley  &  Co. 

On  the  24th  of  October,  1836,  the  original 
bill  in  this  case  was  filed.  On  tue  12th  of 
September,  1838,  the  amended  bill  was  filed, 
which  has  been  pending  ever  since.  It  will 
thus  be  perceived,  that  there  has  been  a 
series  of  acknowledgments  of  the  existence  of 
this  debt  from  an  early  period  after  it  was 
due,  until,  and  even  after,  the  suit  was  in- 
stituted. Each  admission  following  the  one 
which  had  preceded  it,  before  the  statutory 
period  had  run  out,  with  the  exception  of  a 
single  instance.  From  the  second  payment 
by  Harley,  on  the  1st  of  January,  1824,  to  the 
first  by  his  administratrix,  on  the  16th  of 
February,   1829,   more   than  four  years  had 

*116 
expired,  even  adding  the  nine  months  *dur- 
ing  which  there  was  a  disability  to  sue  on  the 
part  of  the  complainants.  The  debt  was  bar- 
red, if  the  administrators  of  Harley  had 
chosen  to  avail  themselves  of  that  ground 
for  refusing  to  pay  the  debt.  The  law  is  well 
settled,  that  if  a  debt  be  barred  in  the  life 
time  of  the  intestate,  the  administrator  can- 
not revive  it  by  a  promise  to  pay.  Such  a 
promise  will  be  binding  neither  upon  himself 
nor  the  estate;  and  if  he  pays  a  debt  that 
is  barred,  it  will  be  a  devastavit  to  that  ex- 
tent: and  he  will  be  personally  liable,  or 
in  other  words,  he  would  not  be  allowed  cred- 
it, for  the  payment.  But  it  was  decided  in 
the  case  of  Reigne  v.  Desportes,  Dud.  118, 
that  where  a  debt  was  not  barred  in  the  life 
time  of  the  testator,  but  the  statutory  period 
had  run  out  after  his  death,  a  promise  by 
the  executor  constituted  a  good  cause  of  ac- 
tion, upon  which  the  plaintiff  might  recover. 
Though  it  was  necessary,  where  the  promise 
was  made  by  one  who  was  not  a  party  to  the 
original  contract,  that  the  plaintiff  should 
declare  upon  the  promise  as  a  new  contract. 
An  administrator  may  keep  a  debt  of  his  in- 
testate's, not  barred  in  his  life  time,  beyond 
the  reach  of  the  statute,  by  promises  from 
time  to  time ;  and  a  debt  may  thus  continue 
in  active  force,  unaffected  by  the  statute,  for 
an  indefinite  time.  If  the  statutory  period 
expires  after  the  commencement  of  his  ad- 
ministration, he  may  avail  himself  of  the  plea 
of  the  statute,  or  he  may  waive  it  at  his  own 
discretion. 

He  may  pay  the  debt,  and  he  will  be  allow- 
ed credit  for  it  in  his  accounts,  or  he  may 
bind  the  estate  by  a  promise  to  pay,  or  what 


FORTUNE  V.  HAYES 


*119 


is  equivalent,  an  Implied  promise.  It  cer- 
tainly reiiuiies  a  uiori'  explicit  promise  to 
pay,  or  clear  recognition  of  a  debt,  to  revive 
it  after  it  has  been  barred,  than  before;  but 
it  would  be  a  mistake  to  su|>i)ose,  that  when 
a  debt  is  barred,  that  it  would  require  an 
express  promise  to  i)ay.  There  may  be  impli- 
cations as  strong  ami  emphatic  as  verbal 
declarations  to  that  effect.  In  Young  v.  Mon- 
poey,  2  Bail.  IISO,  it  is  sai<l,  that  when  the 
statute  has  not  run  out.  and  there  is  a  still 
subsisting  debt,  very  slight  aiknowledgments 
will  be  suHicient  to  arrest  the  oiieration  of 
the  statute.     But  to   revive  a  debt   already 

*117 
i)arred,  there  must  be  a  *promise  to  pay  ex- 
press or  implied.  "I  do  not  mean,''  said  the 
Judge  who  delivered  the  opinion  of  the  Court, 
•'to  be  understood  as  laying  down  the  rule 
broadly,  that  nothing  short  of  a  direct,  ex- 
press promise  will  revive  a  debt  already  bar- 
red; if  there  be  an  une(iuivocal  admission 
that  it  is  still  due  and  unpaid,  unaccompa- 
nied by  any  expression,  declaration,  or  <iualifi- 
cation,  indicative  of  an  intention  not  to  pay, 
the  state  of  facts  on  which  the  law  implies 
a  promise  is  then  present,  and  the  party  is 
hound  by  it."  It  would  be  utter  nonsense  to 
.say,  that  a  payment,  on  a  note  or  other  de- 
mand, was  not  an  admission  that  so  much 
was  due.  and  did  not  create  the  presumption 
of  a  promise  to  pay  the  balance,  when  unac- 
companied by  any  declaration  to  the  con- 
trury. 

When  Jane  Ann  Ilarley.  administratrix  of 
James  Ilarley,  on  the  10th  of  February,  1S129, 
paid  on  the  note  $100,  the  note  Inking  then 
barred,  but  having  l>ecome  so  during  her  ad- 
ministration, and  she  having  the  power  to 
revive  it  by  a  new  promise,  I  construe  the 
act  as  an  unequivocal  admission  that  the 
«lebt  was  still  due  and  unpaid,  and  the 
strongest  implication  of  a  promise  to  pay 
the  balance,  the  payment  bi>ing  accompanied 
by  no  protest  or  qualification. 

It  is  ordered  that  the  plea  of  the  statute 
of  limitations  be  overruled,  and  that  the 
complainants  do  recover  the  amount  of  the 
iialance  due  upon  their  debt.  It  is  further 
ordered,  that  it  be  referred  to  the  Commis- 
sioner to  inquire  and  report  as  to  the  amount 
due  upon  the  said  note. 

The  defendant,  John  A.  Hayes,  apiiealed 
and  moved  this  Court,  to  reverse  the  decree, 
on  the  grounds: 

1.  Because  the  said  note,  set  fortli  and 
mentioned  in  the  bill,  was  barred  by  the 
statute  of  lindtation.s,  at  the  time  of  the  fil- 
ing of  the  said  bill. 

2.  Because  on  the  case  math'  by  the  plead- 
ing and  eviih-nce.  the  defendant.  John  A. 
Hayes,  is  not  liable  at  all. 

.3.  Because    the    said    complainant    had    a 
lilain  and  adecpnite  remedy  at  law. 
*118 

*4.  Because  the  said  decree  is.  in  other  re- 
spects, contrary  to  evidence,  law  and  equity. 


Bellinger,  for  appellant 
Bauskett,  contra. 

The  opinion  of  the  Court  was  delivered  by 

JOHNSTON,  Ch.  That  a  common  note  of 
hand,  given  in  1.S20,  should  be  a  subsisting 
and  valid  demand  in  1!S."j1.',  thirty-two  years 
after  it  became  due,  would  be  (juite  surpris- 
ing, even  if  there  were  no  statute  to  bar  it. 
But  tliat  a  statute,  which  expressly  liars  such 
a  demand  in  four  years,  has  failed  to  ac- 
comi)lish  its  puriwise,  in  all  the  time  which 
has  elapsed  in  this  case,  cannot  be  credited, 
without  very  plenary  proof  of  the  fact.  Such 
a  thing  is  a  bare  legal  possibility ;  but  we 
have  never  known  an  instance  of  its  actual 
existence. 

The  note,  in  this  instance,  was  given  and 
accepted  as  the  partnei-ship  note  of  Ilarley 
&  Co..  and  no  circumst;ince  is  suggested,  which 
renders  it  prolial>le,  that  the  consideration  of 
it  was  otlier  than  the  debt  of  the  firm.  The 
rule  is,  that  partnership  debts  are  payable 
out  of  the  partnershii)  a.ssets;  and  the  par- 
ties are  liable,  individually,  only  after  these 
are  exhausted. 

The  payments  made  on  the  note  in  the  life 
time  of  Ilarley,  were  made  and  credited  as 
partnersliip  payments,  and  if  the.se  are  de- 
ducted, it  appears,  that  there  were  joint  as- 
sets left,  as  late  as  18.30,  more  than  sutlicieut 
to  discharge  the  balance,  without  resorting 
to  Harky's  particular  estate.  \Vhen  I  say 
this,  I  refer  to  the  fact  stated  by  the  Chan- 
cellor, that  a  balance  was  found  due  to  Col- 
lins, as  partner,  of  .$1,0."»0.40.  This  means,  a 
balance  due  him  after  deducting  the  partner- 
ship debt.  This  dry  balance  could  not  be 
allowed  him.  until  all  the  joint  debts  were 
paid  :  and,  if  this  debt  had  Ix'en  taken  with 
the  account,  as  it  should  have  been,  if  then 
subsisting,  the  $l,0r>0.40  would  have  been 
more  than  suHicient  to  satisfy  it.  The  only 
effect  would  have  been  to  diminish  the  dry 
balance  due  to  Collins. 

What  I  wish  to  observe,  here,  in  relation 
to  the  statute  of  limit.itions,  is  this: — Upon 

♦119 
the  death  of  Ilarley,  in  1825,  the  legal  ♦obli- 
gation to  pay  the  note  in  que.>«tion  devolved 
on  Ci>llins,  the  surviving  partner ;  and  it 
was  certainly  barred  before  August,  18.30, 
when  Collins  died.  The  remedy  against  the 
estate  of  Harley,  in  conse(|uence  of  the  in- 
solvency of  Collins,  (which,  however,  was  no 
ground  in  this  case — because  this  demand 
could  have  been  satisfied,  as  I  have  stated, 
out  of  the  supposed  dr>-  balance  of  Collins.) 
was  not  a  legal,  but  an  equitable,  remedy. 
But,  I  think,  equity  will  never  enforce  an 
equitable  demand,  arising  from  and  purely 
dependent  upon,  and  In  aid  of,  a  legal  de- 
mand, when  that  legal  demand  is  barred  and 
extinguished. 

This  single  consideration  is  suHicient  to 
dispose  of  the  case. 

But  the  paj'meuts  made  by  Harley  and  his 

47 


*119 


5  RICHARDSON'S  EQUITY  REPORTS 


administratrix,  Jane  Harley,  are  relied  on 
as  acknowledgments  of  the  debt  as  the  debt 
of  Harley  and  bis  estate. 

Every  payment  made  by  Harley,  in  his 
life  time,  was  credited  expressly  as  a  pay- 
ment by  the  firm.  In  no  way  can  these  pay- 
ments be  regarded  as  admissions  of  the  debt 
as  Harley's  private  debt;  and  the  utmost 
effect  they  could  legitimately  have  produced, 
was  to  revive  the  debt,  as  against  the  firm, 
(and,  consequentially  only,  as  against  the 
partners,)  from  their  dates  respectively.  The 
last  of  these  payments  made  by  Harley,  was 
in  January,  1S24.  The  bar,  counting  from 
that  date,  was  complete  in  January,  1S28. 

The  payment  of  $100  made  by  Jane  Har- 
ley, administratrix,  the  16th  of  February, 
1829,  is  we  think  no  clear  admission  of  the 
balance  then  remaining  due  on  the  note,  as 
a  balance  legally  due  by  her  intestate.  In 
the  first  place,  she  was  in  possession  of  the 
partnership  assets,  which  it  appears  were, 
on  the  assignment  of  Collins,  left  in  her  in- 
testate's hands.  The  note  presented  to  her, 
and  on  which  she  made  the  payment,  was  not 
the  individual  note  of  her  intestate,  but  the 
note  of  the  firm,  whose  assets  she  held,  and 
on  which  she  acted.  The  payment  made  by 
her,  upon  such  a  note,  if  it  admitted  a  bal- 
ance due,  is  most  naturally  construed  as  an 
admission  that  that  balance  was  due  by  the 
firm — and  not  by  her  intestate.  She  might 
very  safely  admit  such  a  balance  due  by  the 

*120 
firm,  knowing  the  sufficiency  *of  its  assets, 
without  admitting,  in  the  slightest  degree, 
that  there  either  was,  or  e\er  would  arise, 
any  obligation,  on  the  part  of  her  intestate's 
estate,  to  pay  dt.  The  bar,  dating  from  this 
payment,  accrued  to  the  firm  (and,  if  neces- 
sary, to  the  estate  of  Harley,)  in  1834. 

But  we  very  much  question,  upon  the  au- 
thority of  a  current  of  decisions  made  by  the 
law  Courts,  and  binding  upon  us,(a)  wheth- 
er the  payment  was,  under  the  circumstanc- 
es, a  clear  admission  of  a  balance  due ;  or 
whether  it  was  competent  for  the  adminis- 
tratrix, after  the  demand  was  barred  before 
the  estate  came  to  her  hands,  to  bind  the  es- 
tate by  any  admissions  upon  the  subject. 
If  she  became  bound  by  the  supposed  admis- 
sion— it  must  be  by  its  being  construed  into 
a  jirouiise, — which  under  the  circumstances 
stated,  would  be  binding  only  on  herself, 
personally,  and  not  on  the  estate,  or  her  suc- 
cessor, now  before  the  Court.  The  presenta- 
tion of  the  demand  in  18.36,  on  the  reference 
of  the  accounts  of  the  firm,  is  no  clear  ad- 
mission that  the  debt  was  still  due,  much 
less  that  it  was  due  by  Harley's  estate.  It 
was  not  presented  by  the  holder  of  the  note. 
We  may  infer  that  the  note  was  not  in  the 


hands  of  Mrs.  Harley,  but  was  in  the  hands 
of  Fortune :  a  copy  of  it,  only,  being  pre- 
sented. 

It  is  most  natural  to  supi>ose,  that  the 
copy,  with  the  credits  endorsed,  was  submit- 
ted with  the  \  lew  of  getting  credit,  for  the 
payments  made  on  it,  in  the  copartnership 
accounts:  and  so  far  as  credit  was  claimed 
for  the  balance  due  on  the  note,  such  a  claim 
might  well  be  made,  either  with  the  pure 
intention  of  aiding  Fortune,  or  from  a  cau- 
tious respect  to  any  danger  the  estate  of 
Harley  might  be  in  from  his  demand — with- 
out admitting  that  his  estate  was  at  all  lia- 
ble. The  circumstances  are  too  equivocal  to 
infer  from  them  an  explicit  admission  of 
indebtedness,  or  a  promise  to  pay. 

The  rejection  of  the  note,  on  that  occasion, 
was  a  clear  decision  that  no  demand   then 

*121 
existed  against  the  firm :    and  *consequently 
discharged  Harley's  estate  from  all  equitable 
liability  for  such  demand. 

On  the  whole,  we  are  of  opinion,  that  the 
statute  of  limitations  should  have  been  sus- 
tained, and  the  bill  dismissed ;  and  it  is  so 
ordered. 

DUNK  IN  and  WARDLAW,  CO.,  concur- 
red. 

Bill  dismissed. 


(a)  See  Reigne  v.  Desportes,  Dud.  118 ; 
Young  V.  Monpoey,  2  Bail.  278;  Lomax  v.  Spier- 
in,  Dud.  36.5;  Horlbeck  v.  Hunt,  1  McM.  197; 
Lawton  v.  Bowman,  2  Strob.  190;  Gowdy  v. 
Smith  &  Gillam,  6  Rich.  28. 


5   Rich.  Eq.    121 

THOMAS  G.  DUKE  v.  JOHN  A.  FULMER 

and  Others,  Adm'rs. 

(Columbia.     Nov.  and  Dec.  Term,  1852.) 

[Limitnlion  of  Actions  <©=>28.] 

One  with  whom  plaintiff's  wife  lived  in  con- 
oubinaso,  received  considerable  sums  of  money 
belonging  to  the  wife,  and  purchased  property 
in  his  own  name:— //cW,  that  plaintiff's  claim 
to  the  money  or  the  property  was  barred  by  the 
statute  of  limitations — his  bill  having  been  filed 
more  than  eight  years  after  the  payment  of 
the  money. 

[Ed.  Note.— For  other  cases,  see  Limitation  of 
Actions,  Cent.  Dig.  §  134;    Dec.  Dig.  <©=>28.] 

[Divorce  <©=>327 ;    Marriage  <®=>57.] 

A  marriage  contracted  in  South-Carolina  1^ 
indissoluble,  either  by  the  consent  of  the  parties, 
or  by  the  judgment  or  statute  of  any  foreign 
tribunal  or  legislature.     Per  Wardlaw,  Ch. 

[Ed.  Note.— Cited  in  Davis  v.  Whitlock,  90 
S.  C.  244,  73  S.  E.  171,  Ann.  Cas.  1913D,  538. 

For  other  cases,  see  Divorce,  Cent.  Dig.  § 
831;  Dec.  Dig.  <S=>327;  Marriage,  Cent.  Dig. 
§  111;    Dec.  Dig.  <©=>57.] 

[This   case   is  also  cited   in   SoUee  v.   Croft,   7 
Rich.   Eq.  40,  without  specific  application.] 

Before  Wardlaw%  Ch.,  at  Lexington,  June, 
1852. 
The  Circuit  decree  is  as  follows: 
Wardlaw,  Ch.  In  this  suit  the  plaintiff,  as 
husband  of  the  late  Louisa  Duke,  calls  upon 
the  defendants  to  account  for  certain  moneys 
received  by  their  intestate  in  behalf  of  said 
Louisa,  with  whom  the  intestate  long  lived 
in  concubinage. 


48 


C=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Inde.xes 


DUKE  V.  FULMER 


►1-24 


About  Juno  23,  ISliO,  the  plaintiff  married, 
in  Fairfield  District,  in  this  State,  I.oui.'^a 
Webb,  ille!,'itiniate  dau;.'liti'r  of  Murnin;,'  Kick- 
son.  After  a  short  residence  in  Lane-aster,  tlie 
pair  removed,  in  February,  1S21,  to  Jones 
county,  in  the  State  of  (ieor^ia.  In  March, 
1S22,  the  wife  eloped  with  one  Samuel  (JckI- 
by,  and   the  husband   never  saw   her  after- 

*122 
wards;  nor,  so  far  'as  appears  in  testimony, 
made  any  impiries  about  her.  On  Au>;ust  12, 
1822,  he  instituted  proceedings  for  divorce, 
in  the  Superi<u-  Court  of  Jones  etainty,  on 
account  of  the  adultery  of  his  wife.  And, 
after  a  delay  coiise(Hient,  partly,  on  the  ne- 
cessity of  making  her  a  party  by  publica- 
tion, at  October  term,  1S24.  obtained  a  ver- 
dict from  a  special  jiiry,  sustaining  his  al- 
legations. Afterwards,  at  his  instance,  the 
Legislature  of  Georgia,  by  an  Act,  as.sented 
to  by  Governor  Troup,  November  21»,  lS2.j, 
enacted:  "That  the  matriuionial  contract,  or 
civil  contract  of  nuirriage,  made  between 
Thomas  G.  Duke  and  Louisa,  his  wife,  late 
L<.iuisa  Webb,  shall  be  completely  annulkHl, 
set  aside,  and  dissolved,  as  fully  and  effec- 
tually as  if  no  such  contract  had  ever  here- 
tofore been  made  and  entered  into  between 
them;  and  that  the  .said  Thomas  G.  Duke 
and  Louisa  Duke,  late  Louisa  Webb,  shall  in 
future  be  held  as  separate  and  distinct  per- 
sons, altogether  unconnected  by  any  mystical 
union  or  civil  contract  whatever,  at  any  time 
heretofore  made  or  entered  into  between 
them."  Soon  after  this  divorce  the  plaintiff 
removed  to  Alal)ama;  and  he  is  now  living 
in  Chambers  county,  of  that  State,  where  he 
is  the  repured  husband  of  another  woman, 
and  the  father  of  three  children ;  the  eldest 
a  daughter  of  about  fourteen  years  of  age. 
He  made  a  visit  to  South-Carolimi,  in  1S40, 
and  tiled  this  bill.  June  !>,  l.S4!»,  within  eight 
months  after  the  death  of  his  wife  Louisa. 

Louisa  Duke  within  a  few  years  after  her 
elopement  is  found  to  be  again  residing  with 
her  mother.  Before  1S.'>0  she  and  the  intes- 
tate W^illiam  Fulmer,  lived  together  in  a 
state  of  concubinage ;  and  in  1835,  the  form 
of  marriage  passed  between  them.  Slie  died 
in  October,  1S4S,  and  he  died  in  December, 
1848,  both  intestate,  and  without  children,  le- 
gitimate or  natural.  Under  an  Act  of  1826 
(6  Stat.,  284,)  lier  liusband  was  her  sole 
distributee.  At  the  time  of  the  filing  of  this 
bill,  A.  G.  Summer  had  applied  for  letters  of 
administration  on  her  estate,  and  having  sub- 
sequently obtained  a  grant  of  them,  he  has 
tiled  an  answer  denying  the  possession  of  as- 
sets, and  taking  part,  not  imjiroperly,  with 
the  plaintiff.    William  Fulmer  left  as  his  dis- 

*123 
*tributees    two    brothers    and    a    sister,    viz: 
Abram,  John  A.,  and  Irllizabeth,  wife  of  Jos- 
eph Counts ;  and  John  A.  Fulmer  au<l  Joseph 
Counts  have  administered  upon  his  estate. 

The  circumstances  from  which  this  claim 
of  the  plaintiff  arises  must  he  further  stated. 
5  Rich. Eq.— 4 


James  Webb,  of  Fairfield,  who  died  in  Janu- 
ary, 1S2(I,  made  his  will  Deceml>er  10,  ism. 
containing  the  following  Innpiest:  "I  give 
and  bequeath  to  my  tlaughter.  Morning  Dick- 
son, and  the  heirs  of  her  body,  the  profits 
and  earnings  of  the  following  property,  viz: 
'seven  negroes."  I  also  will  that  the  whole 
of  the  projierty  mentioned,  to  my  said  daugh- 
ter Morning,  lie,  or  remain,  in  the  hands  of 
my  executors,  for  the  seiiarate  and  .sole  use 
of  my  said  daughter  Morning  and  her  chil- 
dren, during  her  natural  life;  and  her  pres- 
ent husband,  John  Dickson,  is  forever  ex- 
cluded from  any  claim  or  interest  in  the 
same;  and,  after  the  decease  of  my  said 
daughter  Morning,  I  will  the  said  negroes 
and  tlieir  increase  to  be  npially  divided  be- 
tween her  four  children,  viz:  'Louisa  Webi>. 
l^azzil  McKnight  and  William  W.  .McKnight. 
and  Henry  Dickson.'"  Aimer  I'ant  and  .lon- 
athan  Davis  were  the  executors  of  this  will, 
the  former  managing  the  estate. 

In  18'20,  under  proceedings  instituted  in 
this  Court  by  r>uke  and  wife,  a  decree  was 
made,  that  one-fifth  of  the  hire  of  said  slaves 
be  paid  to  said  Louisa.  In  1S2!>.  William  W. 
McKnight  died   an   infant   and   intestate. 

On  February  22.  IS-'JO.  an  agreement,  under 
seal,  was  made  by  Morning  Dickson.  Louisa 
Duke,  Bazzil  McKnight  and  Henry  Dickson, 
that  the  first  should  surrender  to  the  other 
three  her  life  estate,  under  said  luvpiest.  and 
that  they  shpuhl  secure  to  her  by  bomls.  with 
sureties,  the  payment  of  .^oHO,  annually,  dur- 
ing her  life.  On  March  1,  I8.".(j,  the  said 
Morning  Dickson,  by  deed  reciting  that  she 
held  the  bonds  of  William  Fulmer.  David 
Aiken,  and  Bazzil  McKnight.  to  si>cure  the 
payment  of  said  annuity,  surrendered  her 
life  estate  in  said  slaves  to  said  Louisa.  Baz- 
zil and  Henry. 

On  April  8,  IS-'in,  Bazzil  McKnight  and 
Henry  Dickson  filed  tht>lr  bill  in  the  Court  of 

♦124 
Equity  for  Fairfield,  against  the  execu*tors 
of  James  Webb,  for  shares  of  the  income 
from  said  slaves  ;  and  afterwards,  on  June  23, 
18.'>ti,  said  plaintiffs  tiled  an  amendtnl  bill, 
suggestiug  the  surrender  by  Morning  Dickson 
of  her  life  estate  in  said  slaves,  and  praying 
partition  of  the  slaves  between  themselves 
and  Louisa  Duke,  and  process  to  answer,  In 
addition  to  the  executors,  against  Duke  and 
wife  and  Morning  DU'kson.  That  Duke  was 
made  a  party,  according  to  the  procedure  of 
the  Court,  tloes  not  appear,  unless  It  may  be 
Inferred  from  the  dei)osltion  of  Conunlssloner 
McCants.  that  he  was  made  a  party:  which, 
I  suppose,  means  (»nly  that  he  was  named  as 
a  party  on  the  record.  At  July  sitting.  1836, 
the  Court  decreed  the  partition  prayed  for, 
and  for  that  purpose  ordered  a  sale  of  the 
negroes  by  the  Commissioner.  The  negroes 
were  accordingly  sold  on  January  2.  1S37, 
for  the  aggregate  sum  of  $11.4ir».  At  July 
sitting,  1837,  the  Court  further  ordered,  by 
consent,    on    motion   of   plaintiff's'    Solicitor, 

49 


*124 


5  RICHARDSON'S  EQUITY  REPORTS 


"that  David  Aiken  be  appointed  trustee  for 
Louisa  Dulie,  a  party  interested  in  the  funds 
arising  from  the  sale  of  personal  estate  in 
this  case,  and  that  the  Commissioner  of  this 
Court  pay  over  to  him  her  distributee  share 
of  the  funds  as  they  come  into  his  hands." 

Under  this  last  order,  David  Aiken  receiv- 
ed at  various  times  considerable  sums  of 
money  from  the  Commissioner;  and  paid  over 
to  Louisa  Duke,  sometimes  on  her  own  re- 
ceipts, generally  on  the  receipts  of  William 
Fulmer  and  herself,  and  sometimes  on  the 
receipts  of  Fulmer  alone,  the  aggregate  sum 
of  $3,588.17;  if  some  of  these  receipts  be  not 
re-duplicated,  which  Is  not  meant  to  be  de- 
termined, the  dates  of  these  receipts  range 
from  July  12,  1837,  to  April  30,  1841.  Aiken, 
who  is  not  pursued  by  the  plaintiff  as  a 
party,  and  is  made  a  witness  by  him,  deposed 
that  all  the  payments  were  made  to  Louisa, 
personally,  or  to  her  written  order,  and  that 
she  approved  of  the  payments  to  Fulmer, 
and  of  every  payment. 

I  conclude  from  the  evidence  that  William 
Fulmer  did  employ  some  of  the  money  paid 
by  Aiken  in  the  purchase  of  property — after- 
wards sold  as  Fulmer's  estate  by  his  heirs 

*125 
and  representa*tives — the  Counts  tract  of 
land,  the  slaves  Jerry,  Isaac,  Anny,  Amy, 
(of  whom  Isaac  and  Amy  are  dead.  Amy  be- 
ing offspring,)  a  barouche  and  a  horse.  Ful- 
mer was  a  tailor,  and  industrious  and  frugal: 
and  by  his  trade  and  by  farming  made  prof- 
its— partly  expended  in  the  maintenance  of 
Louisa,  especially  for  the  last  three  years  of 
her  life,  during  which  she  suffered  much 
from  disease,  and  was  expensively  attended 
by  physicians.  Louisa  herself  was  generally 
industrious  and  frugal,  but,  in  certain  moods, 
was  extravagant  and  wasteful,  even  destruc- 
tive of  property.  Morning  Dickson  died  in 
February,  1848. 

In  this  state  of  facts,  the  plaintiff  insists 
that  he  is  entitled  to  recover  from  the  admin- 
istrators of  William  Fulmer,  all  the  moneys 
received  from  David  Aiken,  with  interest 
from  the  times  of  the  receipt;  and  to  follow 
up  the  property  in  which  the  moneys  were 
invested.  The  defendants  deny  his  rights  as 
husband,  but  mainly  rely  upon  the  statute  of 
limitations. 

The  first  point  in  the  case  is,  whether 
plaintiff  remained  the  husband  of  Louisa 
(women  have  no  surnames)  until  her  death 
in  1848,  notwithstanding  he  and  she  were 
professedly  divorced  by  the  Act  of  the  State 
of  Georgia,  and  both  afterwards  in  form  as- 
sumed conjvigal  relations  to  new  consorts. 
In  my  judgment,  a  marriage  contracted  in 
South-Carolina  is  indissoluble,  either  by  the 
consent  of  the  parties,  or  by  the  judgment  or 
statute  of  any  foreign  tribunal  or  legislature. 
I  am  not  aware  that  there  has  ever  been  in 
this  State  an  authoritative  decision,  that  a 
foreign  divorce,  regularly  obtained,  will  not 
dissolve  a  marriage  contract  here;  but  the 
50 


negative  dicta  and  indications  are  numerous. 
In  Boyce  v.  Owens,  1  Hill,  10,  it  was  said: 
"The  marriage  contract  in  this  State  is  re- 
garded as  indissoluble  by  any  human  means. 
Nothing  short  of  the  actual  or  presumed 
death  of  one  of  the  parties,  can  have  the 
effect  of  discharging  its  obligations  and  legal 
effect."  The  intimation  in  this  dictum,  that 
the  presumption  of  the  death  of  one  of  the 
consorts,  from  absence  for  seven  years,  dur- 
ing which  he  is  not  heard  from,  will  excuse 
the  other  consort  from  the  obligations  of  the 
marriage    contract,    must     be    confined,    as 

*126 

doubtless  it  was  intended  to  be  *confined,  to 
exemption  from  charges  of  bigamy,  or  other 
crime,  and  unintentional  violations  of  the 
marriage  vows.  If  the  absent  consort  return, 
or  be  proved  otherwise  to  be  living  at  the 
time  of  the  second  marriage,  the  second  mar- 
riage is  void,  and  the  issue  spurious.  1  Hag. 
Cons.  R.  135  n.;  3  Man.  &  Ry.,  329  n.;  Mc- 
Carty  v.  McCarty,  2  Strob.  6  [47  Am.  Dec. 
585].  In  the  last  case  it  was  held,  that  pre- 
sumption of  divorce  could  not  arise  from  any 
lapse  of  time.  See  1  Des.  R.,  Intro.  54 ;  2 
Des.  646,  n.:  Caro.  L.  J.  377.  The  common 
law,  as  declared  by  the  Judges  of  England, 
is  clear  against  the  recognition  of  foreign  di- 
vorces as  dissolving  marriages  contracted  in 
England.  Lolley's  case,  1  Russ.  &  Ry.  Cases, 
236;  Warrender  v.  Warrender,  9  Bligh,  89; 
Tovey  v.  Lindsay,  1  Dow,  117;  Story  Confl, 
L.  §  205.  In  my  judgment,  Thomas  G.  Duke 
was  the  lawful  husband  of  Louisa  during  her 
whole  life. 

I  am  of  opinion,  even  more  stongly  than 
on  the  latter  point,  that  the  plaintiff  is  bar- 
red from  his  claim  by  the  statute  of  limita- 
tions. His  claim,  in  all  its  substance  and 
effect  is,  that  the  intestate,  William  Fulmer, 
received  from  the  plaintiff's  wife  money  for 
the  plaintiff's  use.  It  is  a  mere  legal  demand 
for  money  had  and  received — would  be  bar- 
red in  the  Court  of  Law  if  demanded  in  as- 
sumpsit, by  the  statute  of  limitations;  and 
is  barred  in  this  Court,  in  obedience  or  an- 
alogy to  the  statute,  by  the  lapse  of  more 
than  eight  years  after  the  receipt  of  the 
money  before  bill  filed.  Suppose  plaintiff 
had  been  living  with  his  wife,  and  she  had 
given  away  his  money  to  her  leman — and 
surely  the  case  he  makes  is  not  so  strong 
as  the  one  supposed — he  would  still  be  liable 
to  the  operation  of  the  statute,  for  no  excep- 
tion in  favor  of  an  injured  husband  in  such 
case  is  made  by  the  legislature.  The  notion 
that  the  leman  is  a  trustee  for  the  husband, 
in  such  circumstances,  and  not  entitled  in 
Equity  to  the  protection  of  the  statute,  is 
more  sublimated  morality  than  has  ever  been 
recognized  by  human  tribunals.  It  makes 
no  difference  in  what  estate  the  adulterer  in- 
vests his  unhallowed  gains.  He  is  at  most 
an  implied  trustee,  within  the  protection  of 
the  statute,  and  not  an  express  and  technical 


HEAD  V.  IIALFORD 


»i:j 


•127 

trustee,  who  is  ♦inhibited  by  the  principles 
and  practice  of  this  Court  from  availinj?  him- 
self of  the  bar  of  the  statute. 

The  argument  for  the  plaintiff,  that  the 
statute  does  not  begin  to  run  against  him  be- 
fore the  death  of  the  life  tenant,  Moruiug 
Dickson,  in  1S48,  does  not  impress  me.  The 
plaintiff  seeks  to  recover  money  received  in 
virtue  of  the  surrender  of  the  life  estate  ;  and 
Ills  right  and  the  conse<|Ui'nt  bar  proceed 
from  tlie  date  of  the  surrender. 

It  is  ordered  and  decreed,  that  the  bill  be 
dismissed. 

The  plaintiff  appealed,  and  moved  this 
Court  to  reverse  the  decree,  upon  the 
grounds: 

1.  Because  his  Honor  erred,  in  decreeing 
that  the  claim  of  the  plaintiff  was  barred  by 
the  statute  of  limitations,  more  than  seven 
years  having  elapsed  from  the  time  that  Wil- 
liam Fulmer  received  the  proceeds  of  prop- 
erty sold  for  partition,  though  the  plaintiff 
was  not  made  a  party,  according  to  the  prac- 
tice of  this  Court,  in  the  proceedings  under 
which  the  life  estate  of  Morniiig  Dickson  was 
sold. 

2.  Because,  according  to  the  decree  of  his 
Honor,  the  plaintiff  was  the  legal  husband  of 
Louisa;  and  William  Fulmer  had  no  right, 
legal  or  equitable,  to  receive  the  proj)erty  of 
the  life  estate — the  same  being  the  property 
of  the  plaintiff — and,  by  receiving  it,  he  be- 
came a  trustee  for  the  plaintiff. 

3.  Because  the  property  bequeathed  to 
Morning  Dickson  did  not  vest,  acconling  to 
the  terms  of  James  Webb's  will,  in  the  chil- 
dren of  Morning  until  her  death,  and  was  not 
subject  to  division  until  after  the  death  of 
the  tenant  for  life. 

4.  Because  the  plaintiff  had  a  right  to  pur- 
sue the  property,  or  the  proceeds  of  the  sale 
thereof,  into  the  hands  of  those  in  who.se 
possession  he  could  trace  the  same. 

5.  Because  the  decree  is  contrary  to  the 
principles  of  Eciuity  and  the  facts  of  the  case. 

H.  Summer,  for  appellant. 

Boozer,  contra. 

*128 

*PER  CURIAM.  We  concur  in  the  decree 
of  the  Chancellor ;  and  it  is  ordered  that  the 
same  be  affirmed,  and  the  appeal  dismissed. 

JOHNSTON,  DUNKIN,  and  DARGAN,  CC, 
concurring. 

Decree  atlirmed. 


5    Rich.  Eq.    128 

MARGARET  IIKAD  and  Others  v.  WM.  R, 
HALFUKD  and  Others. 

(Columbia.     Nov.  and  Dec.  Term,  1S52.) 

[Husband  and  Wife  <5=3;>0.1 

Where  a  jilaiiitifr  in  a  judgment,  confosscdf 
without  cousitli'iiition,   takes  a  colorable  bill  of 


sale  of  the  defendant's  propertv,  on  a  serret 
trust  to  h(jld  it  for  the  benefit  "uf  ilefenchint's 
wife  and  children,  and  afterwards  carrits  the 
trust  into  effect  b.v  making  a  dt-ed  of  the  prop- 
erty to  trustei-s  for  the  use  of  the  wife  and 
children— such  deed  is  a  |»ost-nuptinl  settlement, 
and  void,  as  against  subsequent  creditors,  if 
not  duly   registered. 

[Ed.  Note.— Cited  in  Wade  v.  Fisher,  9  Rich. 
E<i.  nc'j. 

For  other  cases,  see  Husband  and  Wife,  Cent. 
Dig.  §  17<i;    Deo.  Dig.  ©=>.■><».] 

[Evidence  <S=>2.'50.1 

Wiiere  one  maiies  a  conveyance  of  prnperty 
to  trustees  for  the  use  of  others,  iiis  decjjirations 
made  before  the  conveyance  was  executed,  and 
while  lie  held  the  title,  are  admissilile,  as  against 
the  cestui  (lue  trusts,  to  show  that  the  transac- 
tion was  fraudulent. 

[Ed.  Note.— Cited  in  Means  v.  Fea.ster.  4  S. 
C.  25({. 

For  other  cases,  see  Evidence,  Cent  Dig.  S 
S3G;    Dec.  Dig.  <©=2.{0.] 

Before  Dargan,  Ch.,  at  Barnwell.  Febru- 
ary, 1.S52. 

Dargan,  Ch.  The  complainants  (who  are 
the  wife  and  children  of  one  New[)ort  Head) 
charge  in  their  bill,  that  on  the  2Sth  of  Jan- 
uary, 1.S.'}.3,  Henry  Hartzog  (who  was  the 
brother-indaw  of  Newport  Head's  wife.)  exe- 
cuted and  delivered  to  .^anuiel  Reed.  Jr..  and 
David  Hair,  a  certain  deed,  by  which  the 
said  Hartzog  conveyed  to  the  said  Reed  and 
Hair,  two  negro  slaves,  Albert  and  Fanny, 
in  trust,  for  the  exclusive  use  of  Margaret 
Head,  (wife  of  Newinn't  Head.)  during  lu-r  life, 
and  after  her  death,  to  the  use  of  such  child  or 
children,  grandchild  or  grandchildren,  as  she 
might  leave  alive  at  the  time  of  her  death. 
This   deed   was   proved   2sth   January,   ISJo, 

♦129 
and  recorded  in  the  ollice  ♦of  the  Register  of 
Mesne  Conveyances  for  Barnwell  District,  on 
the  4th  February,  1S33.  The  complainants 
further  allege,  that  .some  time  after  the  exe- 
cution of  the  deed,  the  slave,  Albert,  was 
alxlucted  from  their  possession  by  some  per- 
son or  persons  to  them  uidcnown.  That  the 
increase  of  Fanny  is  as  folU)ws:  Jesse.  Rose, 
Lewis  and  Silvy.  Tluit  the  said  Sanmel 
Reed  and  David  Hair,  named  as  trustees, 
duly  signed  the  deed,  and  accepted  the  trusr. 
That  immediately  after  the  execution  there- 
of, the  negroes  went  into  the  possession  of 
of  the  complainant,  Margaret  Head,  ^vife  of 
Newport  Head,)  wlio  had  a  life  estate  in  the 
said  negroes.  That  the  said  Samuel  Reed 
and  David  Hair  are  lx)th  dead,  and  that  no 
other  person  has  been  ai)pointed  as  trustee 
in  their  stead. 

The  complainants  further  charge,  that  one 
John  D.  Baxley,  having  obtained  a  judgment, 
and  issued  an  execution  tlien'on.  against  the 
said  Newi)ort  Head,  has  lately  directed  Wil- 
liam R.  Halford,  the  SherilT  of  Barnwell 
District,  to  levy  on  the  said  slave,  Jesse,  and 
that  the  said  William  R.  Halford  has  accord- 
ingly levied  upon,  and  threatened  to  sell 
the  said  slave,  under  and  by   virtue  of  the 


>For  other  cases  see  same  topic  and  K£Y-NUMUEK  Ln  aU  Kuy-Numbered  Digests  and  Indexes 


61 


^129 


5  RICHARDSON'S  EQUITY  REPORTS 


aforesaid  execution.  Tliey  pray  an  injunc- 
tion, subpoena,  &c.  Newport  Head  is  a  de- 
fendant, charged  as  a  confederate  of  Baxley 
and  Halford.  Tlie  defendants,  Baxley  and 
Halford,  in  tlieir  joint  answer,  admit  the 
levy  upon  the  slave,  Jesse,  under  the  execu- 
tion. They  rest  their  defence  principally 
upon  the  alleged  fact,  that  if  the  deed  of 
trust  set  forth  in  the  complainants"  bill  was 
ever  executed,  the  negroes  therein  conveyed, 
were  not  the  property  of  Henry  Hartzog,  but 
of  the  said  Newport  Head.  Tliat  the  said 
Newport  Head  being  deeply  indebted  at  the 
time,  in  fraud  of  his  creditors  settled  the 
said  negroes  upon  his  wife  and  children, 
through  the  instrumentality  of  Henry  Hart- 
zog, who  never  had  a  title,  and  if  he  had, 
the  title  was  given  to  him  for  this  fraudulent 
purpose,  and  that  the  said  deed  was,  there- 
fore, null  and  void.  They  further  contend, 
that  if  they  should  fail  to  show  that  the 
said  deed  was  fraudulent  and  void — the  ne- 
groes being  the  property  of  Newport  Head — 

*130 
the  deed  of  Hartzog — executed  for  the  *same, 
with  the  concurrence  of  Newport  Head,  was 
nothing  but  a  deed  of  post-nuptial  settlement 
by  Head,  for  his  wife  and  children,  and  is 
void,  for  the  want  of  registry  in  the  proper 
office.  The  foregoing  are  the  positions  which 
the  parties  respectively  occupy  on  the  record. 
The  negroes  were,  indisputably,  at  one  time, 
the  property  of  Newport  Head.  On  the  1st 
October,  1832,  Head  executed  and  delivered 
to  Hartzog,  a  bill  of  sale  for  the  negroes, 
Albert,  about  four  years  of  age,  and  Fanny, 
about  fourteen  years  of  age  and  some  other 
property  of  inconsiderable  value.  The  con- 
sideration expressed  is  $700.  The  bill  of 
sale  also  conveys,  for  the  same  consideration, 
a  sorrel  mare,  and  household  and  kitchen 
furniture.  On  the  same  day,  there  was  a  re- 
ceipt from  Head  to  Hartzog  for  $1S7.43,  be- 
ing the  balance  in  full  for  two  negroes,  Al- 
bert and  Fanny,  household  and  kitchen  fur- 
niture, and  the  sorrel  mare.  Hartzog  had 
a  judgment  and  execution  against  Head  in 
the  Court  of  Common  Pleas  for  Barnwell 
District.  Judgment  was  confessed  on  6th 
February,  1832,  for  !f524.63,  with  interest  on 
$500,  from  7th  February,  1832:  fi.  fa.  for 
this  sum,  together  with  costs,  was  entei-ed 
8th  February.  1832 ;  the  cause  of  action  was 
a  note  from  Head  to  Hartzog,  dated  1st  Feb- 
ruary, 1832,  for  $500.  with  interest  on  $300, 
from  1st  January,  1831,  to  1st  January.  1832, 
and  interest  on  $500,  until  paid.  On  1st  Oc- 
tober, 1832,  (the  date  of  the  l)ill  of  sale  for 
the  negroes)  Hartzog  executed  on  Sheriff 
Harley's  execution  book,  a  receipt  '"for  the 
debt  and  interest  in  full  of  this  case."  On 
the  same  day,  he  paid  to  Harley  $6.50,  as 
sheriff's  fees,  and  on  the  18th  May.  1833, 
he  paid  the  clerk's  fees,  $5.50.  Whether  it 
was  done  bona  fide  or  mala  fide,  the  amount 
due  on  the  execution,  was,  doubtless,  applied 
in  r)art  payment  of  the  purchase  money  of 

52 


the  negroes,  and  after  deducting  the  amount 
of  the  execution  from  tlie  $700,  is  left  to  be 
paid  otherwise,  about  the  sum  covered  by 
the  receipt  of  the  .same  date,  ($187.43.)  There 
is  some  difference,  though  not  much.  There 
was  a  judgment  of  John  T.  Willis  against 
Newport  Head,  for  $280.43,  with  interest  and 
costs,  entered  12th  November,  1839 — cause  of 

*131 
action,  a  note  for  *$98.45,  due  21st  January, 
18^57,  and  another  note  for  .$87,  due  1st  Jan- 
uary, 1836.  Both  notes  were  from  Head,  to 
J.  T.  Willis,  and  contracted  several  years 
after  the  deed  of  trust  was  executed.  The 
judgment  of  the  defendant,  Baxley,  again.st 
Head,  is  for  $50.79,  besides,  subseiiuently  ac- 
cruing interest  and  costs.  The  execution  was 
entered  8th  of  Augu.st,  1838.  The  cause  of 
action  was  two  notes  of  Head,  one  to  P.  P. 
Noling  for  $30.50,  dated  1st  January,  1838 — 
the  other  to  Jackson  and  Baxley,  for  $27.10, 
dated  2d  January,  1838.  The  style  of  the 
case  is  Jackson  and  Baxley  v.  Newport  Head. 
There  was  another  execution  spoken  of  by 
the  witness,  ^Mathews,  as  due  to  himself  by 
Head.  The  cause  of  action  was  after  the 
date  of  the  trust  deed.  The  date  and  other 
particulars  were  not  furnished  me.  There 
does  not  appear  to  have  been  any  other  exe- 
cution ever  entered  in  the  Sheriffs  office 
against  Head,  besides  those  above  described. 
Thei-e  was  no  existing  debt  proved  against 
Head,  but  a  note  for  $56.50,  which  was  sold 
by  the  witness,  Richmond  Watson,  to  the 
defendant,  Baxley,  for  $6.50.  It  is  shown 
that  James  T.  Willis,  (who  married  Head's 
sister,)  liad  notice  of  the  trust  deed  before 
Head's  debt  to  him  was  contracted.  Head 
was  considerably  indebted  to  him.  It  came 
out  in  tlie  evidence,  that  Head  sold  Albert 
to  Willis,  who  ran  oft'  the  negro.  I  suppose, 
that  the  proceeds  of  Albert  were  applied  in 
part  payment  of  Head's  indebtedness  to  him, 
and,  that  the  judgment  of  Willis,  against 
Head,  was  for  the  balance. 

On  the  foregoing  state  of  facts,  the  neces- 
sarj'  inference  would  be,  that  Hartzog  did 
bona  tide  purchase  the  negroes  from  Head, 
for  a  valuable  consideration,  and  that  he 
afterwards  made  a  voluntary  conveyance  of 
the  said  negroes  to  Head's  wife  and  children. 
This  is  tne  import  of  the  transaction  between 
Hartzog  and  Head,  which  I  have  above  stat- 
ed, and  if  this  be  the  conclaslon,  the  case  is 
divested  of  all  difficulty,  and  the  rights  of 
the  complainants  are  unquestionable.  There 
are,  however,  other  facts  to  be  considered, 
which  are  stated  in  the  Commissioner's  re- 
port of  the  evidence.     This  evidence  was  tak- 

*132 
en  sub*ject  to  all  legal  objections.  The  de- 
fence which  the  defendants  have  attempted 
to  establish  is,  that  the  negroes  were  not  pur- 
chased by  ir±artzog.  That  the  bill  of  sale  and 
receipt  acknowledging  the  payment  of  money, 
were  pretensive — that  the  whole  arrangement 
was  intended  to  enable  Head  to  settle  his 


HEAD  V.  HALFORD 


*134 


proi<o-ty  on  his  wife  and  children,  in  fraud 
of  his  creditors.  If  this  position  has  been 
sustained  by  the  evidence,  then  the  deed  of 
trust  was  void  in  its  inception. 

If  a  conveyance,  whether  voluntary,  or  for 
a  valuable  consideration,  be  executed  with 
the  actual  intent  to  commit  a  fraud,  it  is 
void  from  the  beginninj;  and  so  continues.  It 
is  so  vitiated  by  the  fraud,  that  it  is  void  not 
only  against  existing,  but  subsequent  credi- 
tors. The  payment  of  the  del  its  which  were 
intended  to  be  defeated  by  other  means,  than 
the  property  conveyed,  cannot  wash  away  the 
original  taint.  A  title  thus  derived,  can  only 
become  valid  by  becoming,  as  it  were,  a  new 
title,  under  the  operation  of  the  statute  of 
linmations.  I  am  speaking  of  coui-se,  of  the 
rights  of  third  persons,  and  not  of  those  of 
the  parties  to  the  fraud;  between  whom  a 
fraudulent  arrangement  is  binding.  If  a  per- 
son, who  is  indebted,  bona  tide  makes  a  vol- 
untary conveyance  of  his  property,  and  with 
no  intent  to  commit  a  fraud,  it  is  .still  a  fraud 
by  presumption  of  law,  as  against  his  exi.st- 
ing  creditors.  Reade  v.  Livingston,  3  John. 
Ch.  481.  It  is  a  fraud  in  law,  because  the 
rights  of  creditors  are  paramount  to  those 
claiming  by  gift,  and  no  man  has  a  right  to 
bestow  his  estate  gratuitously,  to  the  disap- 
pointment of  his  existing  creditors,  even 
though  such  disappointment  was  not  intended 
at  the  time. 

The  doctrine  reduced  to  its  simple  essence 
is,  that  the  estate  of  a  debtor  quoad  his  debts, 
is  the  property  of  his  creditors  in  Etiuity,  and 
is  not  his  to  give.  If  a  voluntary  conveyance 
be  fraudulent,  merely  by  presumption  of  law, 
on  account  of  existing  debts  which  remain 
unsatisfied,  the  payment  of  such  existing 
debts  purges  the  fraud,  and  makes  the  title 
valid.  There  is  no  actual  fraud  to  fasten 
upon  it  an  ineradicable  defect.  Where  the 
defect  had  been  removed,  subsequent  credi- 

*133 
tors  cannot  come  *in  and  claim  to  have  the 
property    made    subject    as    assets    to    their 
claims. 

There  is  but  one  combination  of  circum- 
stances under  which  they  would  be  let  in. 
If  the  prior  debts  remain  uni)aid,  and  the 
Court  vacates  the  voluntary  conveyance  on 
their  application,  and  for  their  benefit,  sub- 
sequent creditors  will  also  be  allowed  to  pre- 
sent their  demands,  and  to  participate  in  the 
distribution.  They  would  even  be  allowed  to 
tak."  the  initiative,  though,  upon  this  last 
point,  there  is  much  contradiction  in  the  au- 
thorities. 

Having  premised  fbus  much  as  to  the  prin- 
ciples of  law  that  may  be  applicable  to  the 
case,  I  proceed  to  consider  facts  tliat  have 
not  yet  been  brought  forward.  Several  wit- 
nesses were  called  by  the  defendants  to 
prove  declarations  of  Head. 

They  testified  to  conversations  with  him, 
in  which  he  unequivocally  pronounced  th<^ 
trust  deed  fraudulent.    According  to  him,  it 


was  a  .scheme  to  defeat  his  creditors.  If 
Head's  declarations  were  to  be  received  as 
evidence,  and  full  credit  given  to  him.  there 
could  remain  no  doubt  but  that  the  deed  of 
trust  was  contaminated  by  an  actual  fraud. 
J'.ut  I  rule  out  the  whole  (»f  the  testimony  as 
to  Head's  declarations  as  incompetent,  (Foot- 
man V.  Pendergrass  (.•?  Rich.  Kq.  .'«].)  A  hu.s- 
l)and  cannot,  even  when  he  has  no  interest, 
be  a  witness  for  or  against  his  wife.  If  he 
cannot  be  a  witness,  a  fortiori  his  declara- 
tions are  inadmissible.  The  other  nuxst  ma- 
terial evidence  taken  in  the  case,  which  tends 
to  invalidate  the  deed  of  trust  as  a  fraudu- 
lent arrangement  again.st  Head's  creditors, 
is  that  of  Dr.  James  W.  Tarrant.  His  tes- 
timcmy,  .so  far  as  it  bears  on  this  issue,  con- 
sists of  a  statement  of  certain  declarations 
made  by  Hartzog  just  before  the  execution  of 
the  trust  deed,  and  while  it  was  in  coutem- 
plathHi.  He  said  that  Hartzog  came  to  his 
hou.se  and  asked  him  to  draw  a  deed,  making 
Samuel  Reed  and  David  Hair  trustees  for 
Mrs.  Head  and  her  children.  He  told  the  wit- 
ness that  he  had  been  a  trustee  (by  a  deed 
from  Head,)  for  Head's  family.  That  he  did 
not  wish  to  hold  the  property  any  longer,  and 
wished  to  convey  it  over  to  Re«^d  and  Hair. 

*134 
The  witness  de*clined,  and  excused  himself, 
by  alleging  his  incompetency  to  draw  such  a 
deed,  and  advi.sed  him  to  go  to  a  lawyer. 
Hartzog  said.-  that  what  he  was  doing,  was 
for  the  benefit  of  Head's  family.  That  he 
iiad  had  the  property  in  his  hands  long 
enough;  that  he  wished  to  turn  it  over  to 
Reed  and  Hair;-  and  that  this  would  "make 
a  stronger  link  in  the  chain."  He  said  that 
Head  did  not  owe  him  anything  when  he  made 
the  deed  to  him,  and  that  it  was  merely  done 
to  secure  the  property  to  Head's  family.  The 
witness  repeats,  that  he  understood  Hartzog 
to  say.  that  Head  had  transferred  the  ne- 
groes to  him,  for  the  benefit  of  Heads  wife 
and  children,  and  that  Head  owed  him  noth- 
ing at  the  time  of  the  transfer.  Hartzog 
said,  that  he  was  at  liberty  to  do  as  he  pleas- 
ed with  the  negroes,  for  the  benefit  of  Head's 
family.  So  far,  the  evidence  of  the  witness 
relates  to  the  declarations  of  Hartzog. 

The  witness  says  further,  that  a  short 
time  after  the  date  of  this  conversation,  the 
deed  of  trust  was  proved  before  him  as  a 
Magistrate— tliat  Head  got  the  negrm^s  from 
his  father's  estate— that  they  were  never  In 
pos.se.ssion  of  Hartzog,  but  have  always  been 
in  the  possession  of  Head  and  his  family— 
that  the  deed  embraced  all  the  property  that 
Head  had  in  pos.session— that  Hartzog  was 
the  brother-in-law  of  .Mrs.  Head— that  he 
was  a  "tight-fisted  man" — was  not  likely  to 
have  bought  the  nogroes  and  made  them  over 
to  his  sister-in-law,  without  consideration. 
The  witness  further  .said,  that  Hartzog,  Reed 
and  Hair  were  all  of  them  honest  men— that 
Head  became  considerably  indebted  to  James 
T.  Willis,  who  had  married  his  sister,  and 


*134 


5  RICHARDSON'S  EQUITY  REPORTS 


who  was  aware  of  the  deed  of  trust  at  the 
time  tliat  the  debt  to  him  was  contracted. 
That  Head  sold  Albert  to  Willis,  who  ran 
him  off  on  account  of  the  deed,  and  that 
Hair  and  Reed  never  sued  for  Albert.  He 
also  proved  that  Hartzog  is  dead.  That 
Head,  seven  or  eight  years  since,  brought 
suit  for  the  negroes,  which  he  afterwards 
dropped,  and  that  he  was  "very  angry  at  the 
time  with  the  whole  concern,"  alleging  that 
they  would  not  let  him  have  any  control 
over  the  property,  and  that  he  did  not  like 
it.    The  other  statements  of  this  witness  re- 

*135 

late  *to  the  declarations  of  Head,  impeach- 
ing the  fairness  of  the  deed  of  trust,  which 
have  been  already  ruled  out  as  inadmissible. 

It  will  not  fail  to  be  observed,  that  the 
most  material  part  of  this  witness's  testi- 
mony, bearing  upon  the  issue  of  fraud,  is  a 
statement  of  the  declarations  of  Hartzog, 
made  at  the  time  when  he  was  about  to  di- 
vest himself  of  his  title  to  the  negroes,  and 
when  neither  Hair  nor  Keed,  the  trustees, 
nor  Head's  wife  or  children,  were  present. 
It  seems  strange  that  he  should  have  made 
such  declarations,  which  if  they  were  true, 
would  be  so  much  opposed  to  his  previous 
caution,  and  all  that  machinery  of  forms 
which  he  had  employed  to  carry  out  his 
views.  But  the  question  occurs,  are  these 
declarations  admissible  to  Impeach  the  deed 
of  trust  that  he  executed? 

The  admissions  of  a  party  to  the  record, 
against  himself,  are  generally  considered 
competent  evidence.  Such  admissions  are 
received  partly  from  iwcessity,  because  in 
many  cases  no  other  evidence  exists,  and 
partly  on  the  principle  that  the  cautious 
selfishness  of  man's  nature  would  generally 
be  a  sufficient  safe-guard  against  the  admis- 
sion of  facts  that  have  no  existence.  They 
emanate  also  from  a  person,  who,  from  his 
interest  in  the  subject  matter,  may  be  pre- 
sumed to  possess  the  most  accurate  informa- 
tion. Though  the  admissions  of  parties  to 
the  record  are  accepted  by  Courts  as  evi- 
dence, on  what  seems  to  be  sound  legal  phi- 
losophy, yet  they  are  very  far  from  being, 
as  is  sometimes  said,  the  highest  and  most 
satisfactory  species  of  evidence.  I  am  speak- 
ing here  of  parol  admissions  by  parties,  af- 
fecting their  rights  or  titles,  in  conversations 
ante  litem  motam,  and  when  no  controvei'y 
is  anticipated. 

It  is  seldom  that  such  a  conversation  em- 
braces a  full  statement  of  the  case,  and  when 
it  does,  portions  are  liable  to  be  forgotten  by 
the  witness,  and  thus  the  party  making  the 
admission  loses  oftentimes  the  benefit)  of 
important  qualifications.  To  guard  against 
this  mischief,  Courts  of  Equity,  without  re- 
pudiating in  any  degree  the  principles  upon 
which  the  admissions  of  a  party  are  received 
in  evidence,  have  adopted  rules  for  his  se- 
curity and  protection,  by  which  it  is  required 

54 


*136 
that  the  confes*sions  or  admissions  of  a 
party,  when  intended  to  be  brought  forward 
in  evidence,  must  be  mentioned  in  the  i-lead- 
ings.  Daniel,  (2  vol.  p.  90G,)  says:  "It  is  a 
rule,  if  a  letter  or  writing  amounts  to  an  ad- 
mission or  confession,  it  must  be  put  in  issue, 
in  order  that  the  party  against  whom  it  is 
to  be  read,  may  have  an  opportunity  to  meet 
it  by  explanations  or  evidence." 

"The  rule,"  he  says,  "is  not  confined  to 
writings,  but  applies  to  every  case  where 
the  admission  or  confession  of  a  party  is  to 
be  made  use  of  against  him.  Thus  it  has 
Ijeen  held,  that  evidence  of  a  confession  by  a 
party,  that  he  was  guilty  of  a  fraud,  could 
not  be  read,  because  it  was  not  distinctly 
put  in  issue.  So,  also,  evidence  of  alleged 
conversations  between  a  witness  and  a  party 
to  a  suit,  in  which  such  party  admitted  that 
he  had  defrauded  the  other,  was  rejected, 
because  such  alleged  conversations  had  not 
been  noticed  in  the  pleadings.  '"Xo  man.' 
says  Sir  Anthony  Hart,  'would  be  safe,  if  he 
could  be  affected  by  such  evidence.  Lord 
Talbot  said,  long  ago,  that  if  you  were  to 
oust  a  defendant  for  fraud  alleged  against 
him,  and  the  fraud  is  proved  by  the  acknowl- 
edgment of  the  defendant,  that  he  had  no 
right  to  the  matter  in  litigation,  the  plaintiff 
must  charge  that  on  the  record,  to  give  him 
an  opportunity  to  deny  or  explain  and  avoid 
it.'  "     (See  Story's  Eq.  PI.  §  2G5.) 

The  admissions  here  sought  to  be  read,  are 
not  the  admissions  of  any  party  to  the  rec- 
ord, but  they  are  the  admissions  of  Hartzog, 
through  whom  the  plaintiff's  derived  their  ti- 
tle, and  through  whose  admissions  alone, 
their  title  stands  affected  with  a  suspicion  of 
fraud. 

Hartzog  has  paid  the  debt  of  nature  an<l 
no  explanation  can  be  given  by  him.  It  is 
true  that  the  authorities  quoted  speak  of  the 
admissions  of  pai'ties  to  a  suit.  It  seems  to 
me  that  the  principle  is  the  same  and  that  it 
is  even  more  dangerous  to  admit  the  parol 
declarations  of  a  deceased  grantor  against 
the  validity  of  a  title  he  was  about  to  exe- 
cute without  making  the  truth  of  such  decla- 
rations an  issue  in  the  pleadings.  And  this 
the  defendants  in  their  answer  have  not 
done.  There  are  difficulties  which  present 
themselves    from    another    point     of    view. 

*137 
*The  admissions  of  an  owner  against  his 
own  title  are  sometimes,  and  under  proper 
restrictions,  competent  testimony  against  his 
grantee,  provided  they  were  made  when  the 
grantor  was  the  owner,  and  when  he  alone 
was  interested.  It  is  equally  clear,  that  tne 
admissions  of  the  grantor,  made  after  he 
had  conveyed  his  estate,  are  not  competent 
against  the  party  to  whom  it  was  conveyed. 
The  distinction  lies  upon  the  ground,  that  in 
the  latter  case,  it  is  the  admission  of  a  party 
who  has  no  interest  in  the  subject  matter. 
Can  the  title  of  the  grantee  be  affected  by 


HEAD  V.  HALFORD 


*ir>9 


an  imputation  of  fraud  or  f)tlier  defects  cast 
upou  it  l>y  the  jrrautor,  when  iu  pursuance 
of  a  precedent  aj,'roenuMit  he  is  just  about  to 
execute  his  deed  of  conveyance,  when  these 
dechirations  are  made,  not  to,  or  iu  the  pres- 
ence of  tht'  grantee,  but  to  a  stranger?  In 
an  issue  between  the  grantee  and  another 
party,  would  those  admissions  be  competent 
evidence?  For  the  purpose  of  illustration, 
suppose  the  case  of  a  party  who  has  sold  his 
liroperty,  and  pending  the  preparation  of  con- 
veyances, he  whispers  to  a  third  person,  (not 
in  the  presence  of  the  vendee,)  that  the  title 
he  is  about  to  execute  is  contaminated  with 
fraud,  or  defective  in  some  other  particular. 
In  an  action  between  the  vendee  and  another 
party,  could  the  admissions  of  the  vendor, 
made  under  these  circumstances,  be  received 
as  competent  evidence?  It  seems  to  me  they 
must  be  rejected,  as  the  admissions  of  the  per- 
son who  has  virtually  ceased  to  be  interested. 
Again:  according  to  Dr.  Tarrant's  statement, 
Hartzog  said  that  he  was  the  trustee;  that 
he  had  held  the  pi-operty  long  enough,  and 
that  he  wished  to  convey  it  to  other  trustees, 
(Hair  and  Reed;)  then  it  is  the  admission  of 
a  trustee  against  the  rights  of  the  benefici- 
aries of  the  trust: — is  the  proof  of  such  ad- 
missions competent  against  the  cestui  que 
trust?  I  think  not.  The  whole  of  this  doc- 
trine of  the  competency  of  admissions  by  par- 
ties, is  founded  upon  the  principle,  that  such 
admissions  are  made  by  the  parties  in  inter- 
est, and  against  their  own  interest.  The 
law  presumes  that  admissions  against  one's 
own  interest  are  true,  and  no  admissions  are 
ever  received  as  evidence  except  under  these 
circumstances,  and  on  this  principle.     But  a 

*138 
trustee  is  not  *in  reality  a  party  in  interest — 
his  legal  title  is  a  barren  estate — his  admis- 
sions against  the  rights  of  the  cestui  que 
trust  do  not  affect  his  interest.  They  take  no 
money  out  of  bis  pocket.  He  may  admit  away 
the  rights  of  those  for  whom  he  holds,  and  it 
costs  him  nothing.  Such  admissions  do  not 
come  within  the  principle  upon  which  the 
competency  of  such  evidence  rests.  The  safe- 
guard for  their  truth  and  reliableness  is 
wanting.  These  views  would  apply  if  Hart- 
zog was  still  the  trustee  and  a  party  to  the 
record. 

But  to  make  the  case  stronger,  Hartzog 
is  dead,  and  long  before  his  death  ceased  to 
l)e  the  trustee,  if  he  ever  was.  If  he  were 
alive,  he  might  be  examined  as  a  witness. 
By  his  death  before  this  trial,  the  defend- 
ants have  the  misfortune,  not  uncommon,  of 
losing  a  witness,  whose  declarations  cannot 
be  received  as  evidence.  But,  suppose  the 
whole  statement  of  Hartzog  to  Dr.  Tarrant 
to  be  admissible,  and  to  be  received  as  evi- 
dence, it  would  be  ditticult  to  say  that  the 
defendants  had  made  out  more  than  a  sus- 
picion of  fraud.  If  these  declarations  of 
Hartzog  be  considered,  the  case  made  out  by 
the   evidence  amounts  to  this:  That  Hart- 


zog did  not  himself  buy  and  give  the  proi)- 
erty  to  Head's  wife  and  children,  but  that 
the  property  was  conveyed  by  Head  to  him. 
in  trust  for  his  family.  If  this  be  true,  the 
confession  of  judgment,  when  nothing  was 
due;  the  bill  of  sale,  purporting  to  be  for 
full  and  valuable  consideration;  the  receipt 
for  tlu'  purchase  money,  when  no  money  was 
paid — all  these  circum.stances  were  in  a  high 
degree  suspicious.  But  Hartzog  did  not  say 
to  Tarrant,  that  a  fraud  against  Head's  cred- 
itors was  contemplated,  nor  did  he  explain 
why  he  thought  his  deed  to  Reed  and  Hair, 
"would  make  a  stronger  link  in  the  chain." 

They  may  have  suppo.sed  that  a  voluntary 
deed  from  Head  would  not  prevail  against 
his  future  creditors,  and  the  finessing,  if  it 
existed,  may  have  had  reference  to  that  state 
of  things.  It  is  an  important  fact  that  no 
debt  of  Head's  cotemporary  with  the  date  of 
the  deed  of  trust,  and  for  several  years  after- 
wai'ds,  has  been  proved,  nor  is  there  any  gen- 

*139 
eral  *proof  of  his  pecuniary  embarrassment 
or  insolvency  at  that  time. 

One  witness,  (Jacob  C.  Kitching.)  says,  that 
in  1833  or  1834,  Hartzog  came  to  his  mill 
and  put  up  an  advertisement,  calling  upou 
"all  persons  indebted  to  Head  to  make  pay- 
ment to  him,  and  that  all  persons  whom 
Head  owed  should  render  their  demands  to 
him  for  payment."  This  does  have  the  ap- 
pearance of  an  arrangement  to  defeat  cred- 
itors, and,  as  has  been  said,  it  has  not  been 
shown  that  there  were  any  creditors  at  that 
time  to  be  defeated.  There  is  no  priK)f  of  a 
solitary  debt  at  the  date  of  the  deed,  except 
the  inference  that  may  ari.se  from  the  fact 
of  this  advertisement  having  been  put  up  by 
Hartzog  before  the  world.  Therefore,  admit- 
ting all  of  Tarrant's  evidence  to  be  compe- 
tent, I  do  not  think  that  the  defendants  have 
made  out  a  case  which  could  authorize  me 
to  say,  that  the  deed  of  trust  \Vas  void  for 
fraud.  If  Hartzog  did,  in  fact,  pay  no  con- 
sideration for  the  negroes,  and  they  were 
conveyed  by  Head  to  him,  to  be  held  in  trust, 
for  the  benefit  of  the  wife  and  children  of 
the  latter,  or  to  be  conveyed  by  Hartzog  to 
j^ome  other  person,  for  the  same  pur[)ose, 
this,  I  think,  would  make  it  a  post-nuptial 
marriage  settlement.  As  such,  it  would  come 
under  the  provisions  of  the  statute  law,  re- 
quiring marriage  contracts  and  settlements 
to  be  recorded.  It  would  be  easy  to  evade 
tiie  registry  laws,  if  a  man  were  permitted 
to  convey  his  property  to  another,  with  the 
understanding  that  it  should  by  him  be  con- 
veyed to  a  third  party,  iu  trust  for  Jiis  wife 
and  children,  and  say  this  is  not  a  marriage 
settlement;  thus  accomplisliing  by  indirec- 
tion, what  could  not  bo  directly  done.  Equity 
will  look  at  the  transaction  as  it  is,  will  re- 
gard it  in  its  true  ciiaracter,  stripped  of  all 
the  disguises  with  which  it  may  be  invested. 
And  if  the  arrangement  be  intended  as  a  pro- 
vision out  of  the  husband's  estate  for  his 

65 


*1C9 


5  RICHARDSON'S  EQUITY  REPORTS 


wife  and  children,  made  after  marriage,  it 
is  a  post-nuptial  marriage  settlement,  what- 
ever may  be  the  forms  which  the  conveyance 
assumes.  It  would,  therefore,  be  void  against 
creditors,  without  notice  express  or  implied. 
If  the  deed  of  trust  in  this  case  be  a  mar- 
riage settlement,  it   would   be  void   against 

*140 
the  debts  of  the  defendant,  *Baxley,  for  he 
had  no  express  notice,  and  no  implication  of 
notice  could  be  raised  against  him  from  the 
registry  of  the  deed  in  the  office  of  the  Reg- 
ister of  Mesne  Conveyances.  But  having 
ruled  out  the  declarations  of  Head  and  Hart- 
zog  as  incompetent,  there  are  not  suthcient 
grounds  for  deciding,  that  the  transaction 
was  different  from  what  it  purported  to  be — 
a  gift  from  Hartzog.  The  decree  must  be 
for  the  complainants. 

It  is  ordered  and  decreed,  that  the  levy 
upon  the  negro  Jesse  be  discharged,  and  that 
the  defendants  be  perpetually  enjoined  from 
levying  upon  and  selling  any  of  the  property 
conveyed  in  the  said  deed  of  Henry  Hartzog 
to  the  said  Reed  and  Hair,  in  trust  for  the 
complainants. 

It  is  further  ordered  and  decreed,  that  the 
defendants  pay  the  costs  of  suit. 

The  defendants  appealed  on  the  grounds: 

1.  Because  the  decree  rejects  as  inadmis- 
sible, the  declarations  of  Hartzog,  made  pri- 
or to  his  alleged  conveyance  to  Hair  and 
Reed — whereas  said  declarations  are  admis- 
sible as  evidence  against  the  assignees  of 
Hartzog,  claiming  under  him,  immediately 
or  remotely. 

2.  Because  said  declarations  abundantly 
establish  that  the  transaction  in  question 
was  a  post-nuptial  marriage  settlement  by 
Head,  and  as  such,  it  is  void,  for  want  of 
recording,  against  such  of  Head's  creditors 
as  had  no  actual  notice  of  it. 

3.  Because  the  decree  is  contrary  to  equi- 
ty and  the  evidence. 

J  T.   Aldrich,   for  appellants. 
Bellinger,  Hutson,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DUNKIN,  Ch.  The  Chancellor  was  of 
opinion,  that  if  the  bill  of  sale  from  Sheriff 
Harley,  to  Henry  Hartzog,  (the  brother-in 
law  of  the  complainant,)  dated  1st  October, 
1832,  was  merely  colorable,  and  that  he  held 
the  slaves  on  a  secret  trust,  for  Newport 
Head's  wife  and  children,  which  was  car- 
ried into  effect  by  the  deed  of  28th  Janu- 
ary, 1833,   to  the  trustees   Reed   and  Hair, 

*141 
*this  must  be  regarded  as  a  post-nuptial  set- 
tlement, and  would  be  void  for  want  of 
proper  registry.  In  this  view,  this  Court 
unanimously  concur,  and  it  is  unnecessary  to 
add  materially  to  the  reasoning  of  the  Chan- 
cellor on  this  subject.  If  the  deed  of  Janu- 
ary, 1833,  was,  bona  fide,  a  settlement  by 
Hartzog  on  the  family  of  Head,  it  would  not 
be  sustained  by  the  consideration  of  mar- 

56 


riage,  and  woiUd  be,  in  no  respect,  a  marriage 
settlement.  But,  if  the  property  belonged 
to  the  husband,  who  confessed  a  voluntary 
judgment  to  a  third  person,  and  then  had 
the  property  sold  at  Sheritt''s  sale,  to  the 
plaintiff'  under  such  judgment,  who,  there- 
upon, settled  the  property  on  the  family  of 
the  apparent  debtor,  this  flimsy  contrivance 
cannot  defeat  the  beneficial  provisions  of  the 
statute.  It  is  void  as  to  creditors,  if  not 
recorded  in  the  proper  offices,  within  the 
time  prescriTjed  by  law.     • 

The  character  of  the  transaction,  was  prov- 
ed by  evidence  of  the  declarations  of  Henry 
Hartzog,  (who  is  since  dead)  made  while  he 
held  the  Sherift''s  deed  for  the  slaves,  and  be- 
fore his  transfer  to  Reed  and  Hair  as  trus- 
tees. The  Chancellor  received  the  evidence 
as  reported  to  him  by  the  Commissioner,  sub- 
ject to  objection,  and  it  is  set  forth  in  the 
decree.  If  admissible,  it  establishes,  very 
clearly,  the  declarations  of  Hartzog,  that 
Head  owed  him  nothing  at  the  time  of  the 
purchase  from  the  Sheriff,  and  that  Head 
had  transferred  the  negroes  to  him  for  the 
benefit  of  his  (Head's)  wife  and  children. 
Upon  consideration,  the  Chancellor  reject- 
ed the  testimony  and  decreed  for  the  com- 
plainants ;  and  the  rejection  of  this  evidence 
constitutes  the  defendants'  first  ground  of 
appeal. 

There  are  several  classes  of  cases,  in  which 
the  admissions  of  tnird  pei-sons,  not  parties 
to  the  suit,  are  admissible  in  evidence.  It 
is  done,  for  instance,  says  Mr.  Greenleaf, 
(Vol.  1,  §  181,)  "when  the  issue  is,  substan- 
tially, upon  the  mutual  rights  of  such  per- 
sons at  a  particular  time;  in  this  case,  it  is 
the  practice  to  let  in  such  evidence  in  gen- 
eral as  would  be  legally  admissible  in  an  ac- ' 
tiou  between  the  parties  themselves."  Can 
there  be  any  doubt  that,  in  an  action  be- 
tween the  complainants  and  Henry  Hartzog, 
or  between  these  defendants  and  Henry  Hart- 

*142 

zog,  *his  admissions  as  to  the  character  of 
his  title  at  that  time,  would  be  receivable  in 
evidence?  If,  prior  to  the  deed  of  January, 
1833,  the  complainants  had  sought  to  en- 
force the  trust,  or  the  creditors  of  Head  had 
attempted  to  set  aside  the  Sheriff's  deed  of 
October,  1832,  would  not  the  admissions  of 
Henry  Hartzog  be  evidence  of  the  most  direct 
and  satisfactory  character? 

The  admissions  of  a  person  not  a  party 
are  also  admissible,  in  respect  of  his  privity 
with  a  party.  Id.  §  189.  The  trustees  under 
the  deed  of  January,  1833,  are  privies  in  es- 
tate with  Henry  Hartzog,  and  any  admis- 
sions by  him  qualifying  his  right,  and  made 
while  he  held  the  legal  title,  are  receivable 
in  evidence  against  his  successors,  in  the 
same  manner  as  they  would  have  been 
against  himself.  See  also  §  190.  The  Chan- 
cellor remarks,  that  "Hartzog,  if  alive,  might 
be  examined  as  a  witness.  By  his  death,  the 
defendants  have  the  misfortune,  not  uncom- 


RAWLS  V.  WALL 


*144 


]i)oii,  of  losing  a  witness  whose  declarations 
cannot  be  received  in  evidence."  It  does 
not  appear  to  us^liat  the  defendants  wonld 
have  been  obliged  to  njake  a  witness  of  Ilart- 
zog,  if  alive:  or  that  they  have  lost  anything 
by  his  death.  His  admissions,  made  in  lS.'i2, 
wonld  be  equally  receivable  in  evidence,  al- 
though he  were  now  to  testify  that  those 
declarations,  thus  made  by  him,  were  not 
true,  or  that  he  never  made  them.  "These 
admissions  by  third  persons"  .says  the  ele- 
mentary writer,  already  cited,  §  191,  "as 
they  derive  their  value  and  legal  force  from 
the  relation  of  the  party  making  them  to  the 
Iiroperty  in  question,  and  are  taken  as  parts 
of  the  res  gestio,  may  be  proved  by  any  com- 
petent witness  who  heard  them,  without  call- 
ing the  party  by  whom  they  were  made.  The 
question  is.  whether  he  made  the  admi.ssion, 
and  not  merely,  whether  the  fact  is  as  he 
admitted  it  to  be.  Its  truth,  where  the  ad- 
mission is  not  conclusive,  (and  it  seldom 
is  so,)  may  be  controverted  by  other  testi- 
mony; even  by  calling  the  party  himself 
"When  competent;  but  it  is  not  necessary  to 
produce  him ;  his  declarations,  when  admis- 
sible at  all,  being  admissible  as  original  evi- 
dence,  and   not  as   hearsay." 

A  majority  of  this  Court  is  of  opinion,  that 
*143 
the  admissions  of  *Henry  Hartzog,  as  proved, 
were  properly  receivable  in  evidence,  and  that, 
corroborated  and  confirmed  as  they  are  by 
his  deed  to  the  trustees,  of  January,  1833, 
it  established  this  latter  to  be  a  post-nui>- 
tial  settlement,  within  the  provisions  of  the 
Acts  of  Assembly.  Not  having  been  duly 
recorded,  it  should  have  been  declared  void 
as  to  the  rights  of  creditors.  It  is  ordered 
and  decreed,  that  the  decree  of  the  Circuit 
Court  be  reformed — that  the  injunction  be 
dissolved,  and  that  the  bill  be  dismis.sed,  but 
without  costs. 

JOHNSTON,    DARGAN   and    WAKDLAW. 
CC.  concurred. 
Decree  reversed. 


5   Rich.  Eq.    143 

ZACHARIAH  RAWLS  v.  WILLIAM  WALL 
and  Another. 

(Columbia.     Nov.  and  Dec.  Term,  1852.) 

[Principal  and  Agent  <g=»71).] 

Bill  t()  sot  aside  a  piiifliasc  made  by  au 
agent  of  his  principal's  property  at  sheriff's  sale: 
the  Circuit  Chancellor  refused  to  set  aside  the 
piucliase,  but  ordered  defendant  to  aecouut  for 
"the  true  value"  of  the  property:— //cW.  that 
this  meant  "the  true  value"  at  the  time  <.f  tlie 
sale;  and  plaintiff  having  acquiesced  in  the  de- 
cree and  acted  under  it,  his  appeal,  after  an  ad- 
verse report  from  the  Commissioner  on  the  ques- 
tion of  value,  was  refused. 

[Kd.    Note.— Cited   in   Verdier  v.    Verdier,    12 
Rich.  Eq.  143. 

For    (ither    cases,    see    Principal    and     Vgent. 
Cent.  Dig.  S  IKS:    Dec.  DIr.  <s=>7{).1 


Before  Wardlaw,  Ch.,  at  rairtield,  Julv, 
18ol. 

Wardlaw.  Ch.  This  is  a  bill  by  the  princi- 
pal against  his  agent,  to  enjoin  the  execution 
of  a  judgment  of  the  agent  against  the  prin- 
ciital,  and  to  .st»t  aside  certain  purchases  of 
the  princiiial's  estate  by  the  agent,  and  for  a 
general  account  of  the  agent's  transactions 
in  the  affairs  of  bis  principal.  On  November 
13,  1S44,  Z.  Hawls  confessed  a  judgment  to 
Wm.  Wall  for  ?l.;iOO.  with  Interest  thereon 
from  Nnvember  10,  1.S44.  and  on  the  same 
day  Wall  gave  Rawls  a  written  acknowledg- 

•144 
ment,   that   the  judgement  was   intended   as 
security  to  Wall  for  .several  bail  bonds  he  had 
signed  as  surety  for  Rawls,  and  for  various 
notes  held  by  him  on  Kawls.  and  for  several 
notes  of  Rawls  to  other  i>er.sons.  in  which  he 
was  surety.    On  the  same  day,  Kawls  executed 
a  deed,  constituting  Wall  his  attorney,  to  de- 
mand and  receive  all  money  due  or  to  become 
due  to  him  in  this  State — to  pay  all  his  just 
debts,   and   to   take   charge  of  his   property, 
both   real   and   personal,   during  his  ab.senc-e 
from  the  State,  and  to  act  for  him  generally 
in  relation  to  his  business  here.     The  judg- 
ment and  power  of  attorney  were  given  by  the 
plaintiff  in  contemplation  of  his  absence  for  a 
time   from   the   State;     and  the  general  ar- 
rangement   between    the    parties    was,    that 
plaintiff"  was  to  furnish  the  defendant  with 
.i;300.  for  the  satisfaction  of  plaintiff's  credi- 
tors having -older  liens,  and  to  deliver  to  him 
plaintiff's    property    and    claims    here:     and 
that  defendant  was  to  protect  plaintiff's  proiv 
erty,   until  plaintiff's  return   from  the  West 
with  means.     The  plaintiff  soon  afterwards 
left  the  State.    Before  his  departure,  he  hired 
his  land  and  three  negroes,  and  .some  chat- 
tels, for  1845,  to  one  Carter,  for  five-sixths 
of  the  crop  whic-h  should  l)e  made. — he  de- 
livered to  the  defendant  chattels  and  (  re<lits 
to  a  considerable  amount  in  value,  but,  so  far 
as  appears,  did  not  pay  to  him  the  ^.'UK).  ac- 
cording to  stipulation.     Carter,  who  is  since 
dead,    did    not    remain    the    whole    year    at 
Rawls's  i)lace.  having  been  informed  by  the 
sheriff  that  the  property  must  come  to  sale 
under  the   executions,   in   the  course  of  the 
year;     and    defendant   rented    out   the   place 
to  one  Thomas  Barber,  for  ^7r».  and  hired  out 
some  of  the  negrt>es.    The  defendant  also  dis- 
posed of  nine  bags  of  cotti>n,  two  horses,  a 
a  mule,  a  cow  and  calf,  a  wagon  and  harness, 
some  hogs,  two  axes,  some  corn  and  fodder 
and   small    notes,   belonging  to  the  plaintiff, 
for  sums  sulHcient,  if  so  a]tpropriated.  to  sat- 
isfy the  elder  liens  uptm  plaintiff's  jiroperty; 
but,   as   defendant   alleges,   these   sums   were 
applied  to  the  discharge  of  other  liabilities  of 
the    plaintiff.      On    November    5,    184."),    the 
Sheriff',  not  acting,  so  far  as  appears,  at  the 
instance  of  defendant,  sold  the  land  and  two 
negroes   belonging  to   plaintiff,   under  execu- 
tions,   to    the    defendant,    for    the    aggregate 


<£=>For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


67 


*Ub 


5  RICHARDSON'S  EQUITY  REPORTS 


*145 
price  *of  $450,  which,  in  the  opinion  of  the 
witnesses,  was  not  more  than  half  the  value. 
Most  of  the  bid  of  defendant  was  applied 
to  the  satisfaction  of  older  executions.  Be- 
fore and  after  the  sale,  the  defendant  de- 
clared that  he  would  allow  the  plaintiff  to 
redeem  the  property,  upon  the  plaintiff's  re- 
paying his  advances;  and  all  that  was  owing 
to  him  by  plaintiff.  At  the  time  of  the  sale, 
the  impression  prevailed  that  Wall  was  pur- 
chasing for  the  plaintiff,  and  one  witness, 
Harrison,  forebore  to  bid  on  that  account ; 
but  there  was  no  proof  that  Wall  declared 
that  he  was  so  purchasing  at  the  time  of  sale. 
After  Rawls's  return  to  this  State  in  1846, 
he  and  defendant  attempted  some  settlement, 
but  disagreeing,  defendant  gave  notice  that 
he  should  hold  the  property  as  his  own,  if 
his  claims  were  not  promptly  settled,  and 
afterwards  sued  out  a  ca.  sa.  against  plain- 
tiff. This  bill  was  tiled  November  112,  1S47, 
to  enjoin  the  execution  of  the  plaintiff,  and 
for  a  general  settlement. 

The  case  of  the  plaintiff  is  not  very  strong. 
He  failed  in  his  promise,  in  the  first  instance, 
to  furnish  money  to  discharge  the  elder  liens  ; 
and  since  his  return  to  the  State,  he  has 
not  used  proper  diligence  in  his  efforts  to  re- 
deem. But  time  is  not  usually  regarded  in 
this  Court  as  of  the  essence  of  contracts ; 
and  purchases  by  agents,  from  the  principal, 
should  be  scrutinized  with  vigilant  suspicion. 
Story  Eq.  §  315,  316.  The  defendant  is  liable 
to  account  generally  for  his  agency  in  the  af- 
fairs of  the  plaintiff,  and  he  is  not  entitled 
to  make  protit  of  a  bargain,  to  which  be  was 
helped  by  the  fiduciary  relation  he  sustained 
to  an  absent  principal,  and  by  his  equivocal 
declarations  as  to  the  character  in  which  he 
purchased,  discouraging  competition. 

It  is  ordered  and  decreed,  that  it  be  re- 
ferred to  the  Commissioner  to  inquire  and 
report  as  to  the  accounts  between  the  parties, 
in  which  accounting  the  defendant  must  be 
charged  with  the  true  value  of  the  land  and 
slaves  bought  at  sheriff"'s  sale,  and  of  all  the 
property  and  choses  of  the  plaintiff  received 
by  him,  and  be  discharged  for  all  expendi- 
tures, debts  and  liabilities  on  account  of  the 
plaintiff.  Costs  to  await  the  accounting. 
*146 

*In  obedience  to  the  above  decree,  the  Com- 
missioner submitted  his  report,  dated  July 
1,  1852,  as  follows: 

"To  use  the  words  of  the  Chancellor  in 
his  decree  in  this  case,  this  is  a  bill  'filed  by 
a  principal,  against  his  agent,  to  enjoin  the 
execution  of  a  judgment  of  the  agent  against 
the  principal,  and  to  set  aside  certain  pur- 
chases of  the  principal's  estate  by  the  agent, 
and  for  a  general  account  of  the  agent's 
transactions  in  the  affairs  of  his  principal.' 

"The  Chancellor's  decree  settles  all  the 
questions  of  law  made  by  the  pleadings,  sets 
up  the  purchases  made  by  the  defendant  at 
a  sale  of  the  plaintiff's  property,  made  by  the 

58 


Sheriff"  of  Ohesfer  District,  on  the  4th  No- 
vember, 1845,  under  sundry  judgments  in 
force  against  plaintiff  at  that  time,  and  clos- 
es by  a  reference  to  the  Commissioner  in  the 
following  language: — 'It  is  ordered  and  de- 
creed, that  it  be  referred  to  the  Coumussion- 
er  to  inquire  and  report  as  to  the  accounts 
between  the  parties ;  in  which  accounting, 
the  defendant  must  be  charged  with  the  true 
value  of  the  land  and  slaves,  bought  at  sher- 
iff"'s  sale,  and  of  all  the  property  and  choses 
of  the  plaintiff",  received  by  him,  and  be  dis- 
charged for  all  expenditures,  debts  and  lia- 
bilities, on  account  of  the  plaintiff".' 

"On  the  13th  November,  1844,  the  plaintiff 
confessed  a  judgment  to  the  defendant  in  'che 
sum  of  one  thousand  three  hundred  dollars. 
The  defendant  admits  in  writing  at  the  time 
of  the  confession — 'That  the  consideration  of 
the  said  judgment  is  my  liability  for  him, 
as  security  on  several  bail  bonds,  together 
with  various  notes,  which  I  hold  on  said 
Zachariah  Rawls,  and  several  notes  given 
by  him  to  various  persons  on  which  I  am 
his  surety' — In  other  words,  the  confession 
was  given  in  part  as  indemnity.  Therefore, 
in  order  to  state  the  accounts  between  ihe 
parties,  as  directed  by  the  decree,  it  must 
be  determined  what  amount,  if  any,  was  due 
to  defendant  on  this  judgnuMit,  at  some  con- 
venient period  for  the  accounting.  Plaintiff 
and  defendant,  in  the  bill  and  answer,  ditt'er 
so  widely  in  their  statements  as  to  this 
amount,  and  their  accounts  were  so  badly 
kept  on  both  sides,  as  appears  from  the  ex- 

*147 
hibits  filed,  that  *the  Commissioner  would 
feel  at  very  great  loss  to  fix  this  amount,  but 
for  tlie  testimony  of  the  witness,  Martin 
Reynolds,  examined  on  reference,  before  the 
hearing.  He  testified,  that  he,  soon  after 
Rawls  returned  from  the  West,  presented  a 
statement  or  ac-count  to  Rawls,  in  which  Wall 
had  charged  him  (Rawls,)  with  a  statement  of 
claims  he  held  against  him  to  the  aggregate 
amount  of  !1>773.41  and  in  which  he  had  given 
Rawls  credit,  the  items  stated,  to  the  amount 
of  .1^261.34 ;  thus  leaving  a  balance  due  to 
Wall,  at  that  time,  of  $512.07.  The  witness 
testified,  that  when  he  presented  this  account 
to  Rawls,  he  said  the  debts  were  correct,, 
but  that  he  thought  that  he  was  entitled  to 
more  credits  than  were  allowed  him  therein, 
but  could  not  recollect  but  a  very  few  small 
items. 

"This  statement  of  accounts  was  off"ered  in 
evidence  and  proved  by  the  witness.  To 
this  evidence  Rawls  made  no  reply.  The 
Commissioner's  judgment  is,  that  at  the 
time  of  the  sale  of  Rawls's  property,  by  the 
Sheriff,  4tli  November,  1845,  there  was  just- 
ly due  the  defendant,  on  this  confession  of 
judgment,  about  .$500. 

"At  the  hearing,  some  evidence  was  offei*- 
ed  to  shew  that  the  property  purchased  at 
sheriff's  sale  was  bid  off  for  less  than  its 
true    value.      This    property    was    a    small- 


RAWLS  V.  WALL 


^15) 


tract  of  land,  and  two  negroes,  one  old  woin- 1 
an.  and  a  boy  proliably  about  two  or  three 
years  old.  This  property  was  purchased  by 
the  defendant,  and  under  the  <.ir(\inistanees 
of  the  case,  the  Chancellor  thou^lit  projier 
to  refer  it  to  the  Counnissioner  to  imiuire 
whether  it  was  sold  for  its  true  value  or  not. 
The  wliole  jiroperty  was  bid  off  at  $445,  of 
which  amount,  only  about  ."plL'O  was  applied 
to  the  confession,  there  beint;  othi-r  older 
judgments  in  the  ofhce  against  this  plaintiff 
at  that  time.  Allegations  of  unfair 
conduct  on  the  part  of  defendant,  touch- 
ing this  sale  and  purchase,  wtTe  made  in  the 
l»ill,  but  were  denied  in  the  answer, 
and  stand  wholly  unsupported  by  evi- 
dence. The  defendant,  therefore,  .seems 
entitled  to  the  presumption  that  the  sale  was 
a  fair  one,  having  been  made  by  the  prop»'r 
officer,  under  executions  unsatisfied  against 
the   defendant   at   law,   and   stands   free   to 

*148 
insist,  that  the  be.st  evidence  *of  the  true  val- 
ue of  the  property,  is  the  price  at  which  it 
sold  at  a  fair  sale.  Several  witnesses  were 
examined  on  reference  before  me,  who  testi- 
fied that  this  property  was  bid  off  by  de- 
fendant, at  less  than  its  true  value,  and  about 
an  equal  numl)er  testified  on  the  other  side, 
that  Wall  gave  the  full  value  of  the  property 
at  that  time. 

"The  judgment  of  the  Conunissioner  is, 
that  the  land  and  two  negroes  were  sold  for 
their  full  and  true  value  at  that  time. 

'"On  the  reference,  plaintiff  offered  to  prove 
the  present  value  of  the  property,  to  which 
defendant  objected.  The  Commissioner 
held  that  the  inquiry  must  be  confined  to 
tlie  time  of  the  sale.  Tliat  such  was  his 
construction  of  the  decree. 

"T'pon  the  conclusions  arrived  at  in  this 
report,  I  find  the  balance  due  to  the  defend- 
ant, William  Wall,  upon  his  said  judgment 
against  complainant,  to  be  three  hundred 
and  eighty  dollars,  and  Interest  thereon  from 
the  4th  day  of  November,  1845." 

The  complainant   excepted   to   the   report. 

Because  the  Commissioner  has  erred  in 
not  charging  the  defendant  with  the  present 
value  of  the  land  and  slaves,  the  subject 
of  suit. 

The  cause  was  heard  on  the  report  and  ex- 
ception, at  June  Sittings.  1S52,  before  his 
Honor.  Chancellor  Johnston,  who  made  the 
following  order: 

Johnston,  Ch.  On  hearing  the  report  of 
the  Commissioner  in  this  case,  and  argument 
on  the  exception,  it  is  ordered,  on  motion  of 
Hoyce,  complainant's  solicitor,  that  tiie  com- 
plainant's exception  be  sustained,  and  that 
the  report  be  re-conuuitted  to  the  Conunis- 
sioner with  directions  to  re-state  the  ac- 
count uj)on  the  principles  of  this  order. 

The  defendant  appealed,  on  the  ground, 
that  his  Honor,  the  Chancellor,  erred,  in  sus- 
taining the  exception  to  the  report  of  the 
■Commissioner. 


The  complainant  also  moved  to  moflify  the 
decree  of   his    Honor.    Chancellor    Wardlaw, 
so  as  to  declare  the  purchases  of  complain- 
ant's   propt'rty,    by    defendant,    void : 
*149 

♦Because  the  defendant  >t;mdiiig  in  a  lidu- 
ciary  relation  to  the  coniplainant.  his  pur- 
chases, under  the  circumstances,  were  fraud- 
ulent and    vtad. 

Hanunond,  McCants.  for  defendant. 
Boyce,  for  plaintltT. 

The  opinion  of  the  Court  was  delivered  by 

I>rXKIN.  Ch.  The  oitject  of  this  bill  was 
to  enjoiji  an  execution  which  the  defendant 
held  against  the  C(»mplaiiiant,  and  to  set 
aside  a  purchase  which  the  defendant  had 
made  of  the  complainant's  property  at  sher- 
iff's sales.  The  charge  was,  that  the  defend- 
ant was.  at  the  time,  the  agent  of  the  com- 
plainant, and  that  the  proi»erty  wa.s  sacri- 
ficed for  half  its  value.  The  cause  was  first 
lieard  at  July  Term.  1K51.  The  Chancellor, 
after  reviewing  all  the  facts,  remarks,  that 
"the  case  of  the  plaintiff  was  not  very  strong." 
but  that  i)urcha.ses  of  this  character  should 
be  scrutinized  strictly ;  and  concludes, 
by  directing  an  account,  in  which  the  defend- 
ant should  be  charged,  among  other  things, 
"with  the  true  value  of  the  land  ami  slaves 
bought  at  sheriff's  sale."  T'nder  this  de- 
cree, the  parties  proceeded  with  their  refer- 
ences, and,  4it  July  Term.  l>vi"J.  the  Conunis- 
sioner sulimitted  his  report,  stating,  among 
other  things,  that  the  property  purchased 
at  sheriff's  sale  was  a  small  tract  of  land 
and  two  negroes,  one  an  old  woman,  and  the 
other  a  boy,  probaidy  about  two  or  three 
years  of  age,  and  that,  after  hearing  the 
testimony,  his  judgment  was,  "that  the  land 
and  two  negroes  were  sold  for  their  full 
and  true  value  at  the  time."  And  that,  on 
the  accounting,  the  complaimmt  was  indebt- 
ed to  the  defendant  in  the  sum  of  three  hun- 
dred and  eighty  dollars,  with  interest  from 
4th  Xoveml  er,  1845.  To  this  report  the 
coniplainant  excepted,  because  the  Commis- 
sioner had  erred  in  not  charging  the  defend- 
ant with  the  present  value  of  the  land  and 
slaves ;     ami    the    exception    was    sustained. 

It  ai)pears  to  this  Court,  that  the  Commis- 
sioner acted  in  strict  conformity  with  the 
terms  of  the  decree  of  July.  is.-)l.  If  the 
coniplaliKint   had   been   dissatistied    with    the 

♦ISO 
measure  of  justice  ♦then  awarded  to  him, 
he  was  at  liberty  to  have  had  that  decree 
revised.  But  he  acted  under  the  decree,  and 
witnesses  were  examined  before  the  Commi.s- 
sioner,  to  prove  that  the  property  was  sold, 
at  sheriff's  sales,  at  less  than  its  true  value. 
On  the  pn'ponderance  of  testimony,  the  Com- 
missioner v'ame  to  a  different  conclusion; 
and,  on  that  issue,  the  coniplainant  having 
failed,  he  seeks  now  to  reform  the  decree 
of  isr>l.  in  which  he  had  ac<piiesced,  and  un- 
der which  he  had  acted,  and  thereby  create 

68 


*150 


5  RICHARDSON'S  EQUITY  REPORTS 


a  new  issue  for  another  inquiry  before  tlie 
Commissioner.  This  Court  is  of  opinion 
that  the  exception  should  have  been  over- 
ruled, and  the  report  of  the  Commissioner 
confirmed ;  and  it  is  now  so  ordered  and 
decreed. 

JOHNSTON,  DARGAN  and   WARDLAW, 
CC,    concurred. 
Appeal  sustained. 


5   Rich.  Eq.   150 

D.  REEVES  and  Others  v.   GEORGE  H. 
TUCKER  and  Others. 

(Columbia.     Nov.   and  Dee.  Term,  1852.) 

[Equity  <g=3840;  Executors  and  Administrators 
<g=>506.] 
When  a  testator  or  intestate  has  dieci  in  the 
possession  of  personal  property,  ond  that  fact 
is  alleged,  after  the  usual  form,  in  a  bill  for  par- 
tition or  account  against  the  executor  or  admin- 
istrator, the  answer  of  the  latter  cannot  be 
received  as  evidence  in  support  of  a  title  ad- 
verse to  that  of  the  testator  or  intestate: — the 
executor  or  administrator,  asserting  such  claim, 
must  proceed  to  support  it  by  the  same  evidence 
as  if  he  were  the  actor  in  the  proceedings. 

[Ed.  Note.— Cited  in  Barr  v.  Haseldon,  10 
Rich.  Eq.  62;    Cloud  v.  Calhoun,  Id.  366. 

For  other  cases,  see  Equity.  Cent.  Dig.  §  700 ; 
Dec.  Dig.  <®=>340 ;  Executors  and  Administra- 
tors, Cent.  Dig.  §  2176;    Dec.  Dig.  (©=506.] 

Before  Dargan,  Ch.,  at  Barnwell,  February, 
1852. 

Dargan,  Ch.  This  is  a  bill  for  account 
and  distribution  of  the  estate  of  Joseph 
Tucker,  deceased.  The  complainants  are 
legatees.  The  defendant,  George  H.  Tucker, 
is  a  legatee ;  he  is  also  executor  of  the  es- 
tate.   The  other  defendants  are  legatees. 

The  present  litigation  relates  entirely  to 
*151 
three  negroes,  alleged  *by  the  complainants 
to  belong  to  the  estate.  The  defendant, 
George  H.  Tucker,  denies  that  they  were 
the  property  of  the  testator,  and  sets  up 
title  in  himself. 

The  negroes  in  dispute  are  Isaac,  Sam, 
(sometimes  called  Dave,)  and  Bull,  (some- 
times called  Lewis.)  The  defendant,  George 
H.  Tucker,  omitted  to  include  these  negroes 
in  his  return  as  executor.  The  complainants 
in  their  bill  mentioned  this  fact ;  alluded  to 
the  claim  set  up  by  the  executor;  and  charg- 
ed that  the  negroes  were  the  property  of  the 
testator,  and,  passed  under  the  residuary 
clause  of  his  will.  The  executor  contends 
that  his  answer,  denying  the  right  of  his  tes- 
tator to  the  negroes,  and  setting  up  a  title, 
is  evidence  in  his  behalf  to  establish  his 
claim.  I  think  not.  The  negroes  were  on  the 
plantation  of  the  testator,  in  his  employment, 
and  imder  his  control ;  and  I  do  not  think 
that  there  is  any  authority  or  reason  for 
holding,  that,  under  these  circumstances, 
an  executor  should  avail  himself  of  his  fiduci- 


ary position  and  possession  to  seize  upon  a 
portion  of  the  ostensible  property  of  the  testa- 
tor, and  retain  the  same  in  his  own  right; 
and,  on  a  bill  filed  by  the  legatees,  claiming 
such  property  as  a  portion  of  the  estate,  by 
his  answer  establish  his  own  adverse  claim. 
The  answer,  in  the  judgment  of  the  Court,  is 
inadmissible  as  evidence,  and  the  case  must 
rest  upon  other  testimony. 

The  testimony  conclusively  shows  that  the 
negroes  were  in  the  possession  of  the  testator 
at  and  before  the  time  of  his  death,  and  were 
managed  and  employed  as  he  managed  and 
employed  his  other  negro  property.  It  is  true 
that  George  H.  Tucker  lived  with  his  father, 
and  never  lived  separate  from  him.  He  lived, 
after  lie  was  grown,  as  an  overseer  or  super- 
intendent, and  was  his  father's  general  agent 
in  the  management  of  his  business.  There 
is  no  proof  that  he  had  any  special  control 
or  possession  of  these  negroes  that  mignt  be 
referred  to  the  character  of  a  proprietor. 
There  is  no  proof,  in  fact,  that  he  had  any 
control  or  possession  at  all  in  reference  to 
these  negroes,  more  than  he  had  of  any  ne- 

*152 
groes  owned  by  Joseph  Tucker.     *The  pre- 
sumption of  title  is,  therefore,  with  the  lat- 
ter, and  the  onus  lies  upon  George  H.  Tucker 
to  prove  his  claim. 

In  relation  to  the  slaves  Bull  and  Sam,  I 
am  strongly  impressed  that  the  evidence  is 
entirely  insufficient  for  any  such  purpose. 
As  to  Isaac,  the  case  is  different.  George  H. 
Tucker  claimed  him  in  his  father's  life  time. 
The  father  admitted  that  Isaac  belonged  to 
George,  and  what  is  more,  he  said  that 
George  had  bought  him.  And  George  H. 
Tucker,  we  may  well  suppose,  as  his  fa- 
ther's overseer,  had  the  means  of  purchasing 
one  negro,  but  not,  probably,  in  the  short 
time  he  was  thus  employed,  of  purchasing 
three,  in  addition  to  the  one  (Larry)  which,  by 
some  means,  he  had  got  before. 

As  to  Bull  and  Sam,  there  is  no  proof  that 
he  ever  set  up  a  claim  till  after  testator's 
death. 

Only  the  Spring  before,  he  paid  taxes  on 
but  one  negro,  and,  I  suppose,  made  his  re- 
turn on  oath,  as  by  law  required.  Whether 
he  meant  to  pay  the  tax  for  Isaac  or  Larry, 
I  have  no  means  of  knowing.  The  fact  is 
significant  either  way.  It  is  certainly  not 
calculated  to  produce  the  impression  that  he 
then  owned  four  negroes. 

The  facts  relied  on  to  support  the  claim  of 
defendant  to  Bull  and  Sam,  are  very  incon- 
clusive. They  were  purchased  at  the  sale  of 
the  estate  of  old  John  Tucker.  George  H. 
Tucker  bid  them  off,  took  the  titles  in  his 
own  name,  executed  the  mortgage  to  secure 
the  purchase  money,  and  his  name  was  first 
on  the  bond.  But  the  testator  was  also  an 
obligor  on  the  bond.  And  it  is  in  proof  that 
he  paid  the  cash  instalment  for  the  negroes, 
and  for  this  purpose  asked  George  H.  Tucker 


60 


®=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


REEVES  V.  TUCKER 


♦155 


to  lend  him  the  money,  which  he  did.  It 
would  liavt'  been  a  very  idle  cereujuuy,  if 
Geor;;e  II.  Tucker  had  purcha.scd  the  negroids 
for  himself,  for  his  father  to  have  borrowed 
of  him  the  money  to  make  the  cash  payment. 
There  were  very  intimate  bu.siness  relations 
between  tne  father  and  son.  They  very  well 
understood  each  other;  and  as  the  negroes 
were  transferable  by  delivery.  It  did  not  mat- 
ter which  of  them  took  the  titles. 

•153 
♦And  as  an  illustration  of  this,  we  have  In 
evidence  another  business  transaction  of  a 
similar  character.  Isaac,  Will,  and  Teggy, 
were  bid  off  by  the  testator,  in  i»erson,  at 
Moncrieff's  estate  sale,  yet  we  find  George  H. 
Tucker,  the  fir.st  obligor  on  the  bond,  Joseph 
Tucker,  the  second,  and  A.  liyrd.  the  third. 
Titles  were  also  e.xecuted  in  this  transaction 
for  Isaac,  Will,  and  I'eggy,  to  (ieorge  II.  Tuck- 
er, who  gave  a  mortgage  of  them  to  I.  E. 
Robinson,  the  administrator  of  the  e.state, 
to  secui'e  the  purchase  money.  Will  and 
Peggy,  though  included  in  the  bill  of  sale  to 
George  n.  Tucker,  were  confessedly  bought 
for  Joseph  Tucker,  and  were  his  property  at 
his  death.  Will  was  given  by  Jo.seph  Tuck- 
er's last  will  to  Get)rge  II.  Tiicker,  and  I'eggy 
to  Lewis  Tucker,  under  which  bequest  they 
are  now  claimed.  This  transaction  shows 
their  mode  of  doing  business,  and  shows  what 
little  force  is  to  be  given,  to  the  fact  that 
George  H.  Tucker  received  the  bill  of  sale 
for  Bull  and  Sam  from  the  executor  of  John 
Tucker. 

The  conclusion  is,  that  Isaac  is  the  proper- 
ty of  George  H.  Tucker,  and  Bull  and  Sam, 
of  the  estate  of  Joseph  Tucker,  deceased,  and 
pass  under  the  residuary  clause  of  his  last 
will  and  testament.  And  it  is  so  ordered  and 
•decreed. 

It  is  further  ordered  and  decreed,  that  par- 
tition be  made  of  the  residuary  estate  of 
Joseph  Tucker,  including  Bull  and  Sam, 
among  the  parties  in  intere.st,  according  to 
the  provisions  of  said  will. 

It  is  further  ordered  and  decreed,  that  the 
accounts  of  the  executor,  George  II.  Tucker, 
be  referred  to  the  Commissioner  of  this 
Court,  and  that  he  report  thereon. 

It  is  further  ordered  and  decreed,  that  the 
parties  have  leave  to  apply,  at  the  foot  of 
this  decree,  for  the  necessary  orders  to  carry 
the  same  into  execution. 

The  defendant,  (Jeorgc  II.  Tucker,  appealed 
on  the  ground  inter  alia: 

Because  the  answer  of  the  said  George  H. 
Tucker,  (wiiich  is  in  direct  resjionse  to  the 
allegations  of  the  bill  charging  the  said  slaves 
to  be  the  property  of  tlie  said  Joseph  Tucker,) 

♦154 
expressly   ♦denies  that  the  slaves.   Bull  and 
Sam,  were  at  any  time  the  projicrty  of  the 
said    Joseph   Tucker;    and   claims   that  the 


said  slaves  are  the  property  of  the  said  de- 
fendant ;    nor  was  said  answer  contradicted. 

Hut  son.  Bellinger,  for  appellant. 

Owens,    contra. 

The  opiidon  of  the  Court  was  delivered  by 

DAUGAN.  Hi.  The  only  comment  which 
I  deem  necessary  on  the  tiue.stions  raised  In 
this  apiieal.  in  addition  to  what  has  iieen  .-^aid 
in  the  Circuit  decree,  will  relate  to  the  posi- 
tion assumed  by  the  defendant.  (Jeorge  II. 
Tucker,  tiiat  his  answer,  denying  tlie  title  of 
his  testator  to  the  negroes  in  controversy, 
should,  under  the  circumstances  of  thi.«*  case, 
be  receivetl  as  evidence  of  his  own  title  to 
the  .said  negroes.  If  the  answer  is  adnds- 
sible  as  evidence,  I  apprehend,  that  it  must 
be  received  with  the  usual  force  of  tiiat  kind 
of  evidence,  and  nmst  prevail,  unless  contra- 
dicted by  the  testimony  (»f  two  witnesses,  or 
of  one  and  corroborating  circumstances. 

The  facts  are,  that  the  testator  dieil  in 
possession  of  the  ni'groes.  the  title  to  whom 
is  involved  in  this  litigation.  He  used  and 
employed  them  as  he  did  his  other  negroes, 
to  the  day  of  his  death,  without  (luestion,  or 
claim  on  the  i»art  of  the  defendant,  who  now 
sets  up  an  adverse  right.  On  a  bill  filed  by 
some  of  the  legatees  against  the  defendant, 
George  H.  Tucker,  (who  was  both  legatee  and 
executor.)  and  against  the  other  legatees,  for 
a  partition  of  the  e.state.  the  said  executor, 
in  his  answer,  denietl  that  these  two  negroes 
were  the  property  of  his  testator,  and  a.ssert- 
ed  a  title  in  himself.  The  presiding  Chan- 
cellor ruled,  that  the  answer  of  the  executor 
was  not  admissible  as  evidence,  in  supiwrt 
of  his  claim  to  the  negroes.  And  this  Court 
is  of  the  opinion,  that  the  Chancellor  was 
right. 

When  a  testator  or  intestate  has  died  in 
the  possession  of  personal  property,  and  that 
fact  is  alleged  after  the  usual  form  in  a  bill 
for  partition  or  account,  against  the  executor 
or  administrator,   the  answer  of   the  latter 

♦155 
cannot  be  received  as  evidence.  In  ♦support 
of  a  title  adverse  to  that  of  the  testator,  or 
intestate.  But,  the  executor  or  administrator 
asserting  such  claim,  must  prm-eed  to  suppc>rt 
it  by  the  same  evidence,  as  If  he  were  the 
actor  in  the  proceedings. 

What  was  the  particular  form  of  the  plain- 
tiffs' allegations  in  this  case,  has  not  been 
satisfactorily  shown.  The  brief  sets  forth 
only  fragmentary  portions  of  the  i)leading.s. 
It  is  assumed,  that  the  bill  contained  the 
usual  statements  of  bills  for  partition  and 
account,  under  the  like  circumstances. 

The  appeal  is  dismissed,  and  the  Circuit 
decree"  athrnied. 

JOHNSTON.    DUNKIN,   and   WARDLAW, 
CC,  concurred. 
Appeal  dismissed. 

61 


n55 


5  RICHARDSON'S  EQUITY  REPORTS 


5    Rich.  Eq.    155 

ROBERT  MOFFATT,  Adm'r  v.  A.  W. 
THOMSON. 

(Columbia.     Nov.  and  Dec.  Term,  1852.) 

[Partnership  <g=189.] 

Wliere  one  partner  dies  insolvent,  and  is.  at 
the  time  of  his  death,  indebted,  individually, 
to  the  surviving  partner,  individuall.v,  and  the 
surviving  partner  afterwards  collects  funds  of 
the  partnership,  he  cannot  apply  the  share  of 
the  deceased  partner  to  the  individual  debt  due 
to  himself — such  share  must  be  paid  to  the  rcp- 
resentati.'e  of  the  deceased  partner,  to  be  ap- 
plied to  his  debts,  as  directed  bv  the  Act  of 
1789. 

[Ed.  Note. — For  other  cases,  see  Partnership, 
Cent.  Dig.   §  343;    Dec.  Dig.  <©=>189.] 

[Partnership   <g=>24.5.1 

A  surviving  partner  is  entitled  to  take  and 
hold  as  survivor,  for  the  purpose  of  administer- 
ing the  co-partnership  estate,  but  after  the  ef- 
fects have  been  reduced  to  money,  and  the  debts 
of  the  co-partnership  paid,  the  share  of  the  de- 
ceased partner  constitutes  assets,  and  belongs 
to  his  representative. 

[Ed.  Note.— Cited  in  Wiesenfeld.  Stern  &  Co. 
V.  Byrd,  17  S.  C.  114. 

For  f)ther  oases,  see  Partnership,  Cent.  Dig. 
§§  .514-518:    Dec.  Dig.  <©=:5245.] 

[Partnership  <S=>89.] 

Though  each  partner  has  a  lien  upon  the 
co-partnership  effects  for  a  debt  due  him  liy 
the  co-partnership ;  yet,  for  a  private  debt,  the 
survivor  has  no  lien  upon  the  share  of  the  de- 
ceased partner. 

[Ed.  Note. — For  other  cases,  see  Partnership, 
Cent.  Dig.  §  137;    Dec.  Dig.  <S=89.] 

Before  Wardlaw,  Ch.,  at  Union,  June,  1851. 

Wardlaw,  Ch.  This  is  a  bill  filed  by  the 
plaintiff,  as  administrator  of  Lewis  Bowers, 
against  the  defendant,  as  surviving  partner, 
for  an  account  of  the  assets  of  the  partner- 

*156 
ship  of  Thom*son  &  Bowers,  as  attorneys  and 
solicitors.  The  partnership  was  formed  in 
the  beginning  of  the  year  1841,  and  continu- 
ed until  October,  1844,  wlien  it  was  dissolved 
by  the  death  of  Bowers.  There  was  no  writ- 
ten agreement  between  the  parties,  as  to  the 
terms  of  the  partnership;  but,  according  to 
the  proof,  Thomson  was  to  furnish  the  office 
and  books,  and  defray  the  incidental  ex- 
penses of  the  office;  and  the  profits  of  the 
practice  were  to  be  divided  between  them  in 
the  proportion  of  one-third  of  the  tax  costs, 
and  one-quarter  of  the  counsel  and  other  fees 
to  Bowers,  and  the  rest  to  Thomson.  By 
contract  between  them,  but  not  as  an  inte- 
gral part  of  the  partnership  arrangement, 
Bowers  was  to  board  with  Thomson,  and  be 
furnished  with  food,  chamber,  fuel,  lights 
and  washing,  at  the  price  then  customary  in 
the  village  of  Union;  and  he  did  so  board 
from  January  13,  1841,  until  his  death,  be- 
ing absent  only  two  or  three  weeks ;  and 
he  was  charged,  and  the  charge  was  proved 
to  be  moderate,  at  the  rate  of  $137  a  year. 
No  portion  of  this  debt,  except  $24  for  wash- 
ing, was  paid  by  Bowers  in  his  lifetime;  nor 
was  there  ever  an  account  stated  between  the 


partners.  Both,  however,  at  various  times, 
during  the  existence  of  the  partnershii),  re- 
ceived sums  of  money  on  account  of  the  jiart- 
nership,  and  at  Bowers's  death,  Thomson  had 
thus  received  money,  in  excess  of  his  share 
of  the  profits,  suHlcient,  or  nearly  sutticient, 
to  pay  his  demand  for  board,  if  he  be  enti- 
tled to  make  such  application  of  what  was 
then  in  his  hands  belonging  to  Bowers.  In 
the  answer  of  Thomson,  it  is  stated  that  Bow- 
ers directed  him  to  draw  from  the  sheriff's 
office  the  fees  due  to  him.  Bowers,  and  there- 
with pay  himself,  Thomson.  But  this  state- 
ment is  not  responsive  to  the  allegations  of 
the  bill,  and  is  not  otherwise  proved.  The 
estate  of  Bowers  is  insutficient  to  pay  the 
debts  in  full,  and  the  administrator,  in  behalf 
of  other  creditors,  insists  that  Thomson  is  en- 
titled to  retain,  for  his  debt,  ratably  with 
other  creditors,  and  no  more.  The  Commis- 
sioner sustains  the  view  of  the  administrator, 
and  the  matter  comes  before  me  on  excep- 
tions to  the  Commissioner's  report. 
*157 

*As  to  the  private  debt  of  Bowers  to 
Thomson,  not  connected  with  the  partner- 
ship, Thomson  seems  to  occupy  the  position 
of  any  other  creditor  of  Bowers.  For  all 
sums  received  by  him,  as  surviving  partner, 
he  must  account  to  the  administrator ;  aud 
as  to  these,  his  equity,  after  the  settlement 
of  the  partnership  debts,  if  any,  is  not  supe- 
rior to  that  of  any  other  creditor  of  Bowers 
individually.  But  Thomson,  as  any  other 
creditor  of  Bowers,  has  the  Might  to  apply 
any  sum  received  on  account  of  Bowers,  in 
Bowers'  life  time,  to  the  extinguishment  of 
the  debt  owed  to  him  by  Bowers.  The  bal- 
ance of  the  indebtedness  on  one  side  or  the 
other,  at  Bowers's  death,  is  to  be  ascertained 
by  collating  the  debts  at  that  time,  of  each 
to  the  other,  and  subtracting  the  gross 
amount  of  the  smaller  from  the  larger  debts 
of  the  parties,  respectively.  The  state  of  in- 
debtedness existing  at  the  death  of  the  intes- 
tate cannot  be  clianged  injuriously  to  the 
creditors  of  the  intestate  generally,  by  a  sub- 
sequent contract,  such  as  the  purchase  of  a 
note  of  intestate,  or  receiving  money  from 
his  debtor.  These  views  result  from  the  con- 
struction which  has  been  given  to  our  dis- 
count law,  (Mayhew  v.  Flake,  2  N.  &  McC, 
398;  Happoldt  v.  Jones,  Haip.  109,)  and 
they  might  be  deduced  from  the  superior  lieu, 
and  rights  of  a  creditor  in  possession.  I  am 
of  opinion  that  the  defendant  is  entitled  to 
set-off  his  debt,  upon  the  intestate,  against 
any  liability  he  incurred,  from  receiving 
the  money  of  the  intestate  in  his  life  time, 
and  the  Commissioner  is  ordered  to  amend 
his  report  accordingly. 

The  frame  of  the  bill  in  this  case  is  imper- 
fect; there  is  no  allegation  of  the  insolvency, 
or  even  the  indebtedness  of  the  estate  of  the 
intestate;  and  defendant  might  treat  this 
suit  as  having  all  the  incidents,  and  among 


62 


®=»For  other  cases  see  same  topic  and  KEY- NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


MOFFATT  V.  THOMSON 


460 


them  the  doctrine  of  discount,  wliicli  woukl 
belong  to  a  suit  of  Bowers  ajiainst  tin*  present 
defendant.  But  I  understand  all  objection, 
on  this  score,  to  be  waived. 

Other  exceptions  were  tiled;  including 
slij,'ht    mistakes,    principally    clerical,    to   the 

♦158 
report,  but  these  were  not  argued,  and  ♦seem- 
ed to  be  abaiiddned  by  counsel.     These  mis- 
takes of  fact  should  Im'  c()rrected. 

It  is  ordered  and  decreed  that  tlie  Commis- 
sioner's report  be  re-coiuniitted  for  correction, 
according  to  the  opinions  herein  ex|tressed. 
Costs  to  be  paid  out  of  estate  of  intestate. 

At  June  Sittings.  18.>L',  the  case  again  came 
up,  on  the  report  of  the  Connnissioner,  before 
his  Honor,  Chancellor  .Tohn.ston,  who  made 
the  following  decree. 

Johnston.  Ch.  On  hearing  the  n']i(>rl  of 
the  Commissioner  in  this  case,  dated  Hth 
June,  ISO:.',  and  the  exceptions  tiled  by  the 
defendant  thereto:  Ordered,  that  the  excep- 
tions be  overruled,  and  that  tiie  Commission- 
er's rei)ort  be  confirmed,  and  In'come  a  decree 
of  this  Court. 

The  defendant  api)ealed  from  both  decrees, 
on  the  ground : 

Becau.se  the  defendant  had  a  good  and 
equitable  right  to  retain  for  the  debt  due  to 
him  from  his  partner,  as  the  case  is  not  like 
that  of  an  executor  or  administrator,  whose 
rights  are  fixed  by  statute  in  this  State,  and 
our  discount  law  applies  to  this  case. 

Jeter,  for  appellant. 
Dawkins,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DI'XIvIN,  Ch.  The  ground  of  appeal  in- 
volves the  inquiry,  whether  the  surviving 
co-partner  can  set-off  a  i)rivate  debt  due  to 
him  by  his  deceased  partner,  against  his 
share  of  assets  collected  since  the  dissolution 
of  the  co-partnership.  The  Chancellor  has 
directed,  that  for  any  balance  due  the  deceas- 
ed at  the  dissolution,  the  survivor  is  entitled 
to  discount;  but  that  the  rights  of  the  parties 
were  fixed  at  the  death  of  the  intestate, 
and  cannot  be  varied  by  subsequent  transac- 
tions. This  general  principle  has  been  re- 
peatedly recognized,  and  can  scarcely  be 
regarded  as  open  for  di.scussion.  In  the  re- 
cent case  of  Morton  &  Courtnay  v.  Caldwell, 

*159 
(.'5  Strob.  E(i.  Kil.l  the  Court,  in  ♦(  (Munu'nting 
uiton  the  statute  of  17s<),  remark,  that  "while 
this  statute  abolishes  preferences  among  cred- 
itors of  e(|ual  rank,  and  virtually  entitles 
each  creditor,  in  ca.se  of  deficient  ass«'ts,  to 
a  claim  on  the  estate  of  the  deceased  debtor, 
proportioned  to  his  demand,  it  d(H>s  not,  in 
tenus,  settle  any  point  of  time,  in  reference 
to  which  the  resi)ective  demands  nnist  be 
cxamiiied.  in  order  to  determine  the  relative 
proportion  of  assets  liable  to  their  payment." 
"But  that  .still  it  is  a  fundamental  idea  in 
the  statute — a  disregard  of  which  must  ren- 


der its  due  administration  intolerably  per- 
plexing, if  not  impracticable — that  the  junc- 
tur*',  for  the  purpose  of  .«<uch  a  calculation, 
is  the  death  of  the  debtor.  It  is  tlien  the 
remedy  of  tue  creditor  ceases  as  to  the  per- 
son, and  is  restricted  to  tlie  effects  of  the 
party  indebted."  So  far  is  the  principle  car- 
ried, that,  if  a  creditor  afterwards  receives 
")<)  per  cent  of  his  debt  from  a  third  imrty,  he 
is  entitled  to  recover  the  balance  from  the 
as.sets  of  the  intestate,  according  to  the  pro- 
portion assigned  to  his  original  <lebt.  On  tlie 
other  hand,  the  amount  of  a.s.sets  for  dis- 
tribution cannot  be  diminislied  by  any  .subse- 
•pient  arrangement,  or  management,  of  an 
unsatisfied  creditor.  Thus,  in  llai)piddt  v. 
.lones.  Harp.  10!».  a  debtor  of  the  intestate  at- 
tempted to  set-off  a  note  of  the  intestate  to 
a  third  person,  which  had  been  transferred 
to  the  defen<lant  since  the  intestate's  decease. 
The  Court  say,  "the  Act  expressly  provides 
that  no  preference  shall  be  given  to  creditors 
in  e(iual  degree.  The  debt  due  by  the  defend- 
ant, was  assets.  The  effect  of  allowing  the 
whole  amount  of  the  discount,  is  the  payment 
of  that  entire  demand,  in  exclusion  of  others, 
and  is  in  direct  opposition  to  the  provisions 
of  the  Act." 

At  the  death  of  the  intestate.  Bowers,  he 
was  indebte<l.  individually,  to  the  defendant, 
Thomson,  individually,  in  a  ceitiiin  amount. 
For  the  balance,  as  it  tluis  stood,  the  de- 
fendant was  entitled  to  this  proportion  of  the 
assets  of  the  intestate.  But  in  tlie  eour.se 
of  the  adn)iiustration,  it  appeared  timt.  sulv 
seqnent  to  the  death  of  the  intestate,  funds 
of  the  co-partnershii)  of  Thom.son  and  Bow- 
ers had  been  collected,  after  the  dissolution, 
by  the  surviving  copartner.  The  position 
*160 

assumed,  is.  that  *Thomson  is  entitled  to  ap- 
propriate the  share  of  the  intestate  in  these 
funds  to  the  extinguishment,  in  full,  of  the 
debt  due  by  the  intestate,  individually,  to 
the  defendant,  individually.  If  the  intes- 
tate's proportion  of  this  fund  constituti-d  as- 
sets, the  position  is  untenable,  unless  the 
defendant's  condition,  as  surviving  partner, 
gave  him  a  preference  over  the  other  in- 
dividual creditors  of  the  intestate.  Both 
will  be  considered.  The  priniiple  is  as  old.  at 
loiist,  as  the  time  of  Lord  Coke,  that  co- 
partners constitute  an  exception  to  tlu'  rule 
as  to  the  jus  acrre.s.sendi  amongst  joint  ten- 
ants. Co.  Litt.  isii.  a.  Tliouuh  they  are 
joint  tenants  of  all  the  partnership  stock 
during  their  lives,  there  is  no  survivorship 
either  at  law  or  in  e<iuity.  Story  on  I'art.  § 
90.  It  follows  that,  upon  the  decease  of  one 
of  several  partners,  his  sh;ire  of  the  stock 
and  effects  of  the  partni'rsbip.  subject  to  the 
partnership  debts,  devolves  to  his  personal 
representatives,  who  thereupon  become,  both 
at  law  and  in  equity,  tenants  in  connnon 
with  the  surviving  partner.  Such  is  the 
doctrine   of  Kent,    of   Story,    and   indeed    of 

63 


*160 


5  RICHARDSON'S  EQUITY  REPORTS 


every  elementaryl  writer  on  the  subject. 
But,  as  on  the  decease  of  one  of  the  partners, 
the  surviving  partner  stands  chargeable  with 
the  whole  of  the  partnership  debts,  he  is  au- 
thorized to  take  and  hold  as  survivor,  for  the 
puiTOse  of  administering  the  co-partnership 
estate,  until  the  effects  are  reduced  to  money, 
and  the  debts  are  paid.  When  this  is  done, 
the  surviving  partner  shall  be  held  to  ac- 
count with  the  representatives  of  the  deceas- 
ed, for  his  just  share  of  the  partnership 
funds.  Collyer  on  Part.  §  129.  It  is  very 
difficult  to  make  these  principles  more  clear. 
On  the  death  of  one  of  the  partners,  his 
share  in  the  concern  constitutes  assets,  sub- 
ject only  to  the  charge  of  co-partnership 
debts.  No  other  debt,  except  a  debt  due  by 
the  co-partnership,  lias  any  preference  in  re- 
lation to  the  share  of  tlie  intestate  in  these 
funds.  The  lien  which  a  partner  has,  is 
equally  well  settled  and  distinctly  limited. 
Each  has  a  specific  lien  on  the  partnership 
stock  and  effects  for  moneys  advanced  by  him 
for  the  use  of  the  co-partnership,  beyond  his 
proportion,  and  for  moneys  abstracted  by  his 
co-pajlner,    fi-om    the    co-partnership    funds, 

*161 

beyond  the  amount  of  his  share.  In*deed, 
as  declared  by  Lord  Hardwicke,  nothing  can 
be  considered  as  the  share  of  a  partner,  but 
his  proportion  of  the  residue,  after  an  ac- 
count has  been  taken  of  what  has  been  paid 
or  advanced,  by  each  partner,  in  the  partner- 
ship transactions.  The  result  is,  that,  ac- 
cording to  acknowledged  principles,  upon  the 
dissolution  of  a  co-partnership  by  the  death 
of  one  of  the  partners,  the  sui-vivor  has,  as 
such,  no  rights,  either  in  law  or  equity,  ex- 
cept for  the  collection  of  co-partnership  as- 
sets, and  the  payment  of  copartnership  debts. 
That  done,  he  is  bound  to  pay  to  the  repre- 
sentative of  the  deceased  partner  his  share 
of  the  fund,  which  is  liable  for  distribution 
among  his  creditors  upon  the  principles  pre- 
scribed by  law.  The  partners  are  declared 
to  have  no  specific  lien  except  for  the  pur- 
pose of  securing,  or  re-imbursing  themselves, 
for  advances  made  on  account  of  the  co- 
partnership. The  survivor  has  no  other  lien 
over  the  share  of  his  deceased  partner.  It  is 
not  pretended  that  the  debt  of  the  intestate 
was  due  to  the  firm  or  co-partnership.  It 
was  an  individual  transaction  with  the  de- 
fendant. Assuming  that  the  other  co-part- 
nership affairs  were  closed  prior  to  the  in- 
testate's death,  the  case  may  be  thus  simpli- 
fied. Suppose  that,  on  the  decease  of  the 
intestate,  insolvent,  he  owed  the  defendant 
a  private  debt  of  one  hundred  and  fifty  dol- 
lars, and  that  in  his  possession  the  adminis- 
trator found  a  note  due  to  the  co-partnership 
by  a  third  person,  of  five  hundred  dollars.  As 
he  was  bound  by  law  to  do,  the  administrator 
delivers  this  note  to  the  defendant,  the  sur- 
viving partner,  who  collects  the  money,  and 


then  insists  on  retaining  one  hundred  and 
fifty  dollars  from  the  share  of  the  intestate, 
in  payment  of  the  private  debt  due  to  him. 
If  there  be  any  reliance  on  the  principles 
stated,  the  administrator  had  an  equal  nght 
with  the  defendant,  both  in  law  and  equity, 
to  this  fund.  For  convenience,  as  well  as 
for  other  reasons  before  stated,  the  surviving 
partner  is  authorized  to  collect  the  note. 
That  done,  and  the  debts  due  by  the  co- 
partnership paid,  he  is  bound,  in  the  lan- 
guage of  the  authorities,  to  pay  over  to  the 
legal  representative  of  the  deceased,  his  just 
share  of  the  partnership  funds.  He  has  no 
lien  upon  it  for  his  private  debt.     His  Uen, 

*162 
*by  the  authorities,  is  limited  to  advances 
for  co-partnership  purposes.  Upon  what 
principle  then,  or  upon  what  authority,  can 
he  claim  to  appropriate  the  share  of  the 
intestate  to  the  extinguishment  of  his  private 
debt,  and  thus  obtain  a  preference  over  other 
private  creditors,  and  disturb  the  due  dourse 
of  administration?  The  authorities,  from 
Lord  Coke  down,  declare  that  the  surviving 
co-partner  and  the  representative  of  the  de- 
ceased partner,  are  to  be  regarded  as  tenants 
in  common  of  the  co-partnership  effects.  If 
there  were  three  negroes  belonging  to  the 
firm,  and  the  debts  paid,  could  the  defendant 
resist  the  claim  of  the  administrator  for  par- 
tition on  account  of  a  private  demand  which 
he  had  against  the  intestate?  Or,  if  there 
were  a  sale  for  partition,  would  his  open  ac- 
count exclude  the  specialty  creditors  of  the 
intestate?  It  is  believed  that  no  tenant  in 
common,  although  in  exclusive  possession  of 
the  common  property,  has  ever  been  sustain- 
ed in  such  a  pretension.  Upon  the  whole, 
the  Court  is  of  opinion  that  the  judgment  of 
the  Chancellor  is  sustained  by  established 
principles,  and  the  appeal  is  dismissed. 

DARGAN     and     WARDLAW,     CO.,     con- 
curred. 

Appeal  dismissed. 


5   Rich.  Eq.    162 

JOHN  McLURB  v.  ELIZABETH  ASKEW, 

Executrix,   and   Others. 

(Columbia.     Nov.   anl   Dec.  Term,  1852.) 

[Witnesses  <^=^107.'\ 

Bill  to  subject  legacies  assented  to,  and  land, 
sold  under  a  power  conferred  by  the  will  to 
raise  a  fund  to  satisfy  pecuniary  legacies,  to 
plaintiff's  debt  against  the  testator:  the  execu- 
trix had  retained  sufficient  assets  to  pay  the 
debt,  but  had  wasted  them,  and  was  insolvent; 
and  some  eight  years  before  the  bill  was  filed, 
the  plaintiff  had  taken  the  note  of  the  executrix 
in  payment  of  the  debt: — Held,  that  the  execu- 
trix, who  was  a  party  defendant  to  the  bill,  was 
a  competent  witness  for  her  co-defendants ;  and 
that  plaintiff  had  no  equity  to  subject  the  lega- 
cies and  the  land  to  his  debt. 

[Ed.    Note. — For    other   oases,    see   Witnesses, 
Cent.  Dig.  §  265:    Dec.  Dig.  <S=107.] 


64 


©=sFor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


McLURE  V.  ASKEW 


*165 


•163 

[Payment  <S==>18.] 

*A  croditor  of  tostatur  takinjj  tht>  noto  of 
the  executrix  for  the  dobt,  hrhl.  upon  tlic  evi- 
dence, tf>  have  taivcn  it  as  paviiitnt  ami  dis- 
charged the  estate  of  the  testator. 

[Ed.  Note.— Cited  in  Ad;.'er  &  Co.  v.  PrinRle. 
11  S.  C.  548;  Ex  parte  Williams.  17  S.  C. 
40o. 

For  other  oases,  see  Pavment,  Cent.  Die. 
§  78;    Dec.  Dig.  <S=>1S.] 

[Executorfi  and   AthninistratoiK   e=>.'?18.1 

An  executrix  who  has  retain. 'd  siillicient  as- 
sets to  pay  debts  and  le-ji.ies.  ;ui(l  has  wasted 
them,  cannot  sustain  a  l>ill  auain.st  the  paid 
legatees  to  compel   them   to   refund. 

fEd.  Note. — For  other  cases,  see  Executors 
and  Administrators.  Cent  Dis  SS  i;{ll)-i:;''(! 
1328-1331;    Doc.   Dijr.   «s=5;]is.i 

[Executors   and   Administrators  <@=>318.] 

The  principles  upon  wliich  oxeoiitors,  and 
unsatisfied  legatees,  may  sustain  hills  to  com- 
pel satisfied  legatees  to  refund,  examined. 

[Ed.  Note.— For  other  ca.ses,  see  Executors 
and  Administrators,  Cent.  Dig.  §  1322;  Dec 
Dig.  (©=5.'ilS.] 

[Wills  <©=3832.] 

The   right   of  a   creditor  of  the   testator   to 

follow   legacies   assented    to,    is   a    mere   equity 

and  should  not  be  enforced  iueguitably.  ' 

[Ed.   Note.— For  other  cases,  see  Wills    Cent. 

Dig.  §  2141 ;    Dec.  Dig.  <g=s32.] 


Thi.s  cause  was  heard  at  Union.  June,  1852, 
l)efore  Johnston,  Ch.,  who  made  the  follow- 
ing decree: 

Johnston,  Ch.  From  the  pleadings  and  the 
proof  taken  before  the  Commissioner,  and 
the  evidence  taken  at  the  hearing,  and  ap- 
pearing on  my  notes,  which  fully  disclose 
the  case,  I  shall  extract  only  so  much  as  will 
serve  to  explain  the  judgment  I  am  about 
to  render. 

This  is  a  case  in  which  a  creditor  seeks 
payment  from  the  estate  of  his  debtor,  out 
of  assets  delivered  over  by  the  executors, 
and  in  the  hands  of  the  legatees. 

The  debtor  in  this  case  was  the  late  Dr. 
A.skew.  At  the  time  of  his  death,  which 
happened  the  18th  of  January,  1841,  he  was 
indebted  to  the  plauitiff.  McLure,  as  the  bill 
states,  by  sealed  note,  dated  about  the  4th 
of  March,  1840,  in  the  .sum  of  $410.5()i4,  with 
interest  from  the  1st  January,  1840,  (sub- 
ject to  a  credit  of  ."j;(!0,  paid  on  it  the  21st 
December,  1841.)  and  also  in  the  further  sum 
of  $20.2614,  upon  open  account. 

Dr.  Askew  left  a  will,  of  which  the  de- 
fendants, Elizabeth  Askew  and  W.  T.  Cren- 
shaw, were  executors. 

Mrs.  Askew,  the  executrix,  who  was  the 
widow  of  Dr.  Askew,  on  the  ."Ist  of  Decem- 
ber, 1842,  took  up  the  open  account  by  her 
own  note;  and  then,  on  the  22d  of  January, 
1844,  took  up  that  note  and  the  note  of  her 
testator,  by  giving  the  plaintiff  her  sealed 
note  of  that  date,  in  her  unollicial  character, 
for  $474. .>4,  payable  at  one  day. 

A  number  of  judgment.s,  dating  from  the 
20th   Februar.v.   lS4!t.   to  sonic  time  in  April, 


1849,   and   amounting   in  all  to   near  $1300, 
was   obtained    against    Mrs.    Askew    for   her 

♦164 
private    debts;     *under    which    her   property 
was    sold    out    by    the    sheriff    for   $1120.30; 
leaving  her  hi.solvent  for  the  balance  of  those 
judgments. 

On  the  24th  of  February,  which  was  but 
a  few  days  after  the  first  of  these  judg- 
ments was  obtained.  McLure  brought  suit 
upon  his  note:  but  hi  18.->l,  his  c(mn.sel 
dropiied  the  proceeding,  and  returned  the 
note  to  him;  and  on  the  2d  .March,  1852, 
he  filed  this  bill. 

The  bill  alleges,  and  it  is  proved,  that  both 
the  executrix  and  executor  are  lns<»lvent; 
and,  having  no  relief  against  them,  the  plain- 
tiff contends  that  he  has  an  e<iultable  right 
to  recover  his  demand  against  the  estate 
of  his  original  debtor,  and  to  have  satis- 
faction out  of  a.ssets  delivered  to  legatees 
under  the  will. 

For  the  understanding  of  this  matter,  it 
is  necessary  to  state  some  of  the  provisions 
of  Dr.  Askew's  will. 

He  left,  besides  his  widow,  three  .sons, 
Fleury  S.  D.  Askew,  James  M.  Askew,  Wm. 
N.  A.skew,  and  four  daughters,  Charlotte, 
(wife  of  Henry  Anderson.)  l^unice,  (wife  of 
Newton  Anderson.)  Jemima,  (wife  of  W.  P. 
Anderson,)  and  Sarah,  (wife  of  the  defend- 
ant, W.  T.  Crenshaw.) 

By  his  will,  duly  executed  20th  of  De- 
cember, 1837,  he  directs,  that,  for  payment 
of  his  debts,  his  executors  should  sell  so 
much  of  his  plantation  stock  as  his  wife 
might  think  she  could  conveniently  .spare — 
and  if  that  should  not  suffice  for  the  punuise. 
then  that  they  should  sell  so  much  of  his 
land  as  should  be  required. 

He  then  devised  "all  his  lands,  remain- 
ing after  the  payment  of  his  debts,"  to  his 
wife— on  her  death  to  be  .sold,  and  the  pro- 
ceeds equally  divided  among  his  seven  chil- 
dren. 

He  bequeathed   her,   for  life,   six   negroes, 
Nathan,    Abby.    Scilla,    Mary,    Beekj',    and 
Maria,  with  the  power  to  appoint  any  three 
of  them,  by  will,  at  her  pleasure,  among  his 
children ;     and    such   as   she   should   not   ap- 
point, to  1h'  divided,  with  the  increase,  ecpial- 
ly,  between  his  two  daughters,  Charlotte  and 
Jemima,  and  his  sou,  Henry  S.  D.  Askew. 
*165 
♦He   bequeathed,   also,    to   his   wife,   abso- 
lutely, all  his  farming  utensils,  all  his  house 
and   kitchen   furniture  and   utensils,   and   so 
much  of  his  plantation  stock  as  she  might  not 
wish  .sold  for  the  payment  of  his  debts. 

He  be<|ue:ithed  to  his  daughter  Jemima, 
ab.solutely,  three  negroes,  Huldah.  Evelin', 
and  Manda ;  and  $2(H),  to  be  paid  on  her 
marriage,  or  attaining  majority;  to  be  rais- 
ed by  a  sale  of  land ;  with  {lower  to  the  ex- 
ecutors to  make  the  sale. 

To  his  son,   Henry   S.   D.  Askew,  he  gave 


«=»Kor  otlier  cases  see  same  topic  and  KEY-NL'MBEU  in  all  Key-Numbered  Digests  and  IndexM 
«>  JKicii.Ey. — a 


65 


465 


5  RICHARDSON'S  EQUITY  REPORTS 


two  negroes,  Matilda  and  David,  absolutely; 
and  $200,  to  be  paid  at  his  majority;  to 
be  raised  by  sale  of  land,  &c. 

There  are  various  other  legacies  to  his 
children,  not  necessary  to  be  noticed. 

By  a  codicil  executed  the  14th  of  January, 
1841,  the  testator,  reciting  the  power  he  had 
given  his  executors,  to  sell  lands  for  the 
payment  of  debts,  declares,  "as  I  have  since 
sold  the  land  thereby  intended  to  be  sold, 
I  hereby  revoke  that  clause  in  my  said  will." 
He  makes  some  other  alterations,  not  neces- 
sary to  be  stated. 

All  the  legacies  have  been  long  ago  assent- 
ed to,  and  delivered — the  last  of  them  (ex- 
cept as  I  shall  hereinafter  state.)  more  than 
eight  years  ago — and  the  legatees,  with  the 
exception  of  Henry  S.  D.  and  James  M. 
Askew,  are  without  the  State,  and  have  no 
personal  property  in  this  jurisdiction. 

It  might  have  been  stated,  that,  on  the  8th 
of  May,  1849,  the  executors,  for  the  purpose 
of  raising  the  .$200,  payable  to  Jemima  on 
her  marriage,  (which  had  taken  place,)  and 
the  $200  payable  to  Henry  S.  D.  at  his  ma- 
jority, (which  occurred  the  10th  of  January, 
1847,)  sold  and  conveyed  to  the  said  Henry  S. 
D.,  and  to  Wm.  P.  Anderson,  at  the  price 
of  $901.50,  a  small  body  of  land,  described 
in  the  pleadings. 

The  effort  is  to  subject  this  land,  and  the 
negroes  in  the  hands  of  these  legatees,  to 
the  payment  of  the  debt  fomuerly  held  by  the 
plaintiff  against  the  testator. 

The  conveyance  of  the  laud  might  be  sus- 
pected  of  being  colorable;    but  there  is  no 

*166 

such  charge  in  the  bill.  The  ground  *taken 
is,  that  the  debt  of  the  testator  still  equi- 
tably subsists  against  the  land,  irrespective 
of  the  fraudulency  or  fairness  of  the  con- 
veyance. 

But  the  first  question  is,  whether  the  plain- 
tiff is  a  creditor  of  the  testator,  as  he  as- 
sumes in  his  bill.  That  he  held  demands 
against  him  at  his  death,  is  admitted.  But 
these  demands  were  surrendered  to  the  ex- 
ecutrix, upon  the  consideration  that  she 
should  substitute  her  personal  note  for  the 
amount.  Whether  this  substituted  note  was 
a  payment  of  the  demands  against  the  tes- 
tator, depends,  in  my  opinion,  upon  the  in- 
tention of  the  parties.  That  is  payment, 
which  is  intended  as  payment. 

The  evidence  is,  that  "the  estate  was  to 
be  freed  from  debt,  and  the  liability  of  the 
executrix  substituted  in  place  of  that  of  the 
estate."  "The  plaiutifC  proposed  to  the  ex- 
ecutrix to  take  up  the  estate  note,  t&c,  and 
give  her  own  individual  note."  "The  execu- 
trix asked  him,  after  she  took  them  up,  what 
she  should  do  with  them,  and  he  said  she 
might  take  them  home,  tear  them  up,  burn 
them,  or  do  what  she  pleased  with  them, 
and  slie  tore  the  name  off  in  liis  presence." 

The  estate,  in  my  opinion,  was,  (accord- 
ing to  this  evidence,)  intentionally  discharg- 
es 


ed.fa)  If  the  plaintiff  has  any  equities  upon 
the  estate,  they  are  not  equities  belonging  to 
him  as  a  creditor  of  the  estate — he  is  simply 
a  creditor  of  Mrs.  Askew ;  and  if  she  be- 
ing executrix,  has  any  equitable  right  to  sub- 
ject the  assets  in  the  hands  of  the  legatees, 
the  plaintiff  may,  perhaps,  as  her  creditor, 
insist  on  that  equitable  right  in  her  name. 

Then,  taking  the  executrix's  riglit  to  be 
the  measure  of  the  plaintiff's,  the  inquiry  is, 
could  the  executrix  maintain  this  bill  for 
the  purposes  indicated  in  it? 

"It  is  the  rule  in  Equity,"  says  Mr.  Roper, 
(1  Rop.  Leg.  408,  2d  Lon.  edit.,  chap  9. 
Abatement  and  refunding  of  legacies,)  "to 
presume  that  where  an  executor  pays  over  a 
legacy,  he  has  possessed  assets  sufficient  to 
*167 

pay  all  the  legacies;  and  although  *the  fact 
may  not  be  so,  yet  not  to  admit  proof  to 
the  contrary.  Therefore,  in  such  oases,  exec- 
utors will  be  obliged  to  make  up  the  deficien- 
cy out  of  their  own  money,  as  the  Court  will 
not  permit  them  to  institute  suits  against 
the  legatees,  whom  they  have  voluntarily 
paid,  to  oblige  them  to  refund." 

It  has  been  sometimes  supposed,  that  a 
distinction  obtains  between  legacies  volun- 
tarily paid  or  assented  to  by  executors,  and 
payments  of  legacies  to  which  the  executor 
is  enforced  in  invitum  by  the  judgment  of 
a  Court :  and  it  has  been  suggested,  that, 
in  the  latter  case,  the  executor  is  better  en- 
titled than  in  the  former  to  recoup,  in  case  of 
insufficiency  of  assets  to  meet  creditors  or 
other  legatees.  To  this  point  Mr.  Roper 
quotes  Newman  \.  Barton,  Grove  v.  Bauson, 
and  Hodges  v.  Waddington,  (lb.  400.)  I  think, 
however,  that  this  distinction  must  be  doubt- 
ful. It  would  seem,  upon  principle,  that  the 
recovery  against  the  executor,  must  be  re- 
garded as  res  judicata  against  him,  and  con- 
clusive of  every  defence  which  it  was  in  his 
power  to  set  up  in  that  suit ;  as  certainly  an 
insufficiency  of  assets, — if  that  were  then 
known  to  him, — would  have  been.  The  more 
I'easonable  doctrine  would  seem  to  be  that  of 
Nelthorpe  v.  Biscoe,  (1  Chan.  Ca.,  135,) 
where,  without  reference  to  any  distinction 
between  payments  made  voluntarily,  or,  in 
invitum,  it  was  said,  and  admitted  by  the 
Court,  that  if  executors  pay  away  assets  in 
legacies,  and  afterwards  debts  appear,  and 
they  be  obliged  to  pay  them,  of  which  debts 
they  had  no  notice  before  the  legacies  were 
paid,  the  executors,  by  a  bill,  might  compel 
the  legatees  to  refund. 

When  one  legatee  has  been  paid  in  full, 
while  other  legatees  of  equal  grade  remain 
unsatisfied,  these  latter  legatees  have,  in  gen- 
eral, no  right  to  compel  the  former  to  abate 
or  refund,  but  must  go  against  the  executor, 

(a)  Vide  Eraser  v.  Hext,  (2  Strob.  Eq.  257 ;)" 
Dogan  V.  Ashbey,  (1  Rich.  36;)  Chastain  v. 
Johnson,  (2  Bail.  574:)  Thorntou  v.  Payne,  (5 
Johns.  R.  74 ;)  Douglas  v.  Eraser.  (2  McC.  Eq. 
106 ;)    and  Wardlaw  v.  Gray,  (2  Hill.  Eq,  644.) 


McLURE  V.  ASKEW 


♦170 


unless  it  can  be  shewn,  that  there  was  an 
orj^jinal  deficiency  of  assets  to  meet  the  lega- 
cies reniaiiiinf;  unsatisfied.  In  that  case,  a 
refundinf.'  will  lie  decreed,  so  as  to  put  ail  the 
legatees  iiiton  their  proper  footing,  in  regard 
to  the  actual  assets.  But.  if,  at  tlie  time  tliat 
one  legatee  was  paid,  the  «'Xecutor  retained 
enough    to    pay    the    other,    though    the    ex- 

*168 
*ecutor  wasted  tlmsc  latter  funds,  the  unsat- 
isfieil  legatees  are  not  iMitltled  to  any  tlung 
from  the  paid  legatee,  wlio  lias  obtained  no 
more  tiian  his  due.  lie  is  no  surety  for  the 
♦'xecutor's  adnunistration.  And  if,  after  he 
had  received  his  own  legacy,  he  liad  filed  a 
hill  to  prevent  the  executor  from  wasting  tlie 
residue  in  his  hands,  his  Itill  W(»uld  have 
iieen  dismissed  as  impertinent;  .so  tiiat  he 
has  no  power  to  regulate  the  after  conduct 
of  tlie  executor  in  such  a  case,  and  should 
not  he  responsil)le  for  it. 

Even  upon  this  princiiile.  l)etween  legatee 
and  legatee,  (if  the  executrix  in  the  jire.sent 
ca.se  can  claim  its  benefit,)   slie  can  have  no 

<  laim  against  the  legacies  to  which  .she  has 
assented.  It  is  in  evidence  that  she  n'tained 
enough  to  pay  all  demands  against  the  es- 
tate; and  if  she  has  wasted  what  she  thus 
retained,  her  own  misconduct,  in  this  respect, 
is  the  wor.st  reason  she  could  possii)ly  urge 
for  a  decree  against  the  legatees. 

Then,  again,  in  relation  to  the  land  con- 
veyed, in  order  to  raise  the  pecuniary  lega- 
cies paid  to  the  two  younger  children, — there 
was  no  deficii'iicy  of  power  under  the  will. 
If  there  was.  it  is  for  those  entitled  to  the 
land,  to  make  the  complaint.  Tlie  executrix 
could  not  disafiirm  her  own  act,  if  she  de- 
sired to  do  so. 

It  remains  only  to  state  that  the  plaintiff 
is,  himself,  perhaps,  responsible  for,  at  least, 
a  large  part  of  the  debt,  the  payment  of 
wliich  he  claims  out  of  others. 

The  projierty  given  to  the  widow  under  the 
will,  is  charged  with  payment  <tf  debts.  She 
was  chargeable  with  the  del)ts  in  respect  to 
tins  prf»perty.  Could  she  have  claimed  credit 
for  the  notes  she  took  up  against  the  other 
legatees? 

At  the  sale  of  her  property  l»y  the  sheriff, 
iM<  hiding  that  given  to  her  under  the  will, 
tiie  plaintiff  pnrchased  .several  valual)le  i)ar- 

<  els  of  it.  at  api^arently  under-value.  He 
lioJds  that  property  in  tlie  right  of  the 
widow  ;  and  if  his  debt  were  now  chargeable 
to  tlie  I'state,  must  not  that  proiierty  be  first 
<'xliaustedV 

There  still  remains  one  other  consldera- 
tinii.  If  the  plaintitT  were  still  entitled  in 
I'.ipiity  to  be  regarded  as  a  creditor  of  the 
estate,  after  taking  another  security,  the  es- 

♦169 
fate's  assets  became,  'as  to  him.  the  .secon- 
dary security,  and  he  diseliarged  it  by  his 
laches  in  regard  to  the  primary  security. 
After  the  executrix  gave  him  her  note,  it  is 
in  evidence  that  she  went  to  him  three  years 


.  in  .succv.ssion,  and  offered  to  sell  property  to 
him — and  he  replied,  "oh,  no :  hold  on.  this 
is  not  a  good  time  to  .sell  property.  Hold 
(m.  I  will  never  distress  you."  His  right  to 
go  against  the  legatees  is  a  mere  e<iuity,  and 
should  not  be  enforced  iniMpiitably.  (IMc- 
Mullin  V.  Hrownl  l'  Hill  E.i.  4<!l'.) 

It  is  ordered  that  the  bill  in*  dismissed. 
The      rom|ilaiiiant      appealed,      upon      the 
grounds: 

1.  lU*cause  the  acceptance  of  tht>  sealed 
note  of  the  ext'cutrix,  by  the  plaintiff,  was  no 
dis(harg<>  of  the  estate  of  lier  testator,  and 
Was  not  intended  to  lie  .so.  the  executrix  never 
having  charged  the  estate  with  the  payment 
of  tile  same. 

2.  Because  the  land  conveyed  to  H.  S.  D. 
Askew  and  W.  P.  .Vndersoii.  should  have 
been  decreed  liable  to  plaintiff's  demand. 

3.  Becaus.'  the  negroes  devl.sed  to  the  exec- 
utrix should  have  been  decreed  liable  to 
plaintiff's  demand. 

4.  Because  the  Court  .should  have  decreed 
against  the  executor  and  executrix,  so  as 
to  make  any  assets  which  mijj:ht  hereafter 
come  into  their  hands,  lialile  to  the  payment 
of  plaintiff's  demand.* /<i 

ij.  Because  the  plaintiff  was  entitled  to  a 
reference  to  ascertain  the  fact  whether,  when 
the  specific  legacies  were  delivered  over,  the 
executrix  retained  sulhcleut  assets  to  satisfy 
plaintiff's  demand. 

G.  Because .  Elizabeth  Askew  was  au  in- 
competent witness, 

Dawkins,  for  appellant. 
Ilerndon,  contra. 

The  opinion  of  the  Court  was  delivered  by 

JOHXSTOX,  Ch.  This  Court  has  consid- 
ered all  the  grounds  of  appeal,  and  is  entire^ 

♦170 
ly  satisfied  with  the  decree:  and  it  is  ♦deem- 
ed unnecessary  to  add  anything  to  the  ob- 
servations of  the  Chancellor,  except  upon  the 
sixth  ground,  in  respect  to  which  he  has 
.said  ni>thing  in  his  decree. 

If  the  plaintitT.  upon  the  case  made  iu 
the  hill,  and  witli  the  parties  who  were  be- 
fore the  Court,  had  been  entitled  to  a  de<ree 
against  the  estate. — binding  against  Mrs. 
Askew,  as  executrix, — her  interest.s,  as  be- 
tween that  liability  atid  her  liability  on  the 
note  she  had  given  to  the  plaintiff,  would  have 
lieen  eipially  balanced.  A  .satisfaction  of  ei- 
ther demand,  would  he  a  discharge  of  the 
other:  and  it  was  immaterial  to  her  which 
of  them  she  was  made  liable  for. 

The  evidence  she  gave,  to  protect  the  lega- 
cies in  the  hands  of  the  legiitees  from  liability 
to  i)ay  her  note  to  the  plaintiff,  or  whatever 
demand  he  might  have  against  her  as  ex- 
ecutrix,  was  certainly   evidence  against   her 


{b)  No  .such  claim  sot  up  in  tlio  Idll,  nor  made 
at  the  ln'aring.  The  bill  alleged  that  all  the 
assets  wore  exhausted,  except  that  delivered  to 
tbo  legatees, 

67 


*170 


5  RICHARDSON'S  EQUITY  REPORTS 


interest;    which  was  to  discharge  her  own 
liabilities  out  of  those  legacies. 

It  is  ordered,  that  the  decree  be  affirmed, 
and  the  appeal  dismissed. 

DUNKIN,  DARGAN  and  TV^ARDLAW,  CC, 

concurred. 
Appeal  dismissed. 


5   Rich.  Eq.    170 

MATILDA  POAG  and  Others  v.  C.  P.  SAND- 
IFER,  and  Others. 

(Columbia.     Nov.  and  Dec.  Term,  1852.) 

[Frauds.  Statute  of  <®=3l52.] 

To  a  bill  to  enforce  an  agreement  in  rela- 
tion to  land,  if  the  defendant  deny  the  agree- 
ment in  his  answer,  he  need  not  plead  the  stat- 
ute of  frauds. 

[Ed.  Note.— Cited  in  Hubbell  v.  Courtney,  5 
S.  C.  90:  Groce  v.  Jenkins,  28  S.  C.  175.  5 
S.  E.  352;  Suber  v.  Richards.  61  S.  C.  398, 
403,  39   S.  E.  540. 

For  other  cases,  see  Frauds,  Statute  of,  Cent. 
Dig.  §  371;    Dec.  Dig.  ®=5l52.] 

[Frauds.  Statute  of  (&=3l29.] 

The  mere  retention  of  a  pre-existing  posses- 
sion, will  not  take  a  case  out  of  the  statute  of 
frauds. 

[Ed.  Note. — Cited  in  Boozer  v.  Teague,  27  S. 
C.  357,  363,  8  S.  E.  551 :  Charles  v.  Byrd,  29 
S.  C.  559,  8  S.  E.  1:  McMillan  v.  McMillan, 
77  S.  C.  515,  58  S.  E.  431. 

For  other  cases,  see  Frauds,  Statute  of.  Cent. 
Dig.  §  308 ;    Dec.  Dig.  <S=»129.] 

This  cause  was  first  heard  before  Ward- 
law,  Ch.,  at  York,  June  Sittings,  1851,  who 
made  the  following  decree: 
*171 

*Wardlaw,  Ch.  As  I  have  formed  the  opin- 
ion that  all  proper  parties  are  not  before  the 
Court,  I  shall  state  so  much  only  of  the  case 
as  involves  that  point. 

In  1819,  John  Carroll  obtained  from  the 
Catawba  Indians,  a  lease  for  ninety-nine 
j-ears,  of  a  tract  of  laud,  including  sixty 
acres  the  subject  of  this  suit,  within  the  In- 
dian boundary  of  York  District.  He  died  in 
May,  1837,  having  devised  this  land  to  Minor 
Carroll.  In  1841,  Minor  Carroll  took  a  grant 
of  the  land  from  the  State.  He  died  intestate 
in  May,  1844,  and  in  1845,  this  land  was  sold 
under  proceedings  in  this  Court  for  partition, 
and  purchased  by  C.  P.  Sandifer,  who  has  not 
yet  paid  the  whole  of  the  purchase  money. 

The  claim  of  the  plaintiffs  is,  that  an  un- 
divided portion  of  the  sixty  acres  of  this  land 
were  held  by  John  Carroll,  from  1819  anterior 
to  his  lease  under  a  parol  trust  for  his  sister 
Jane  Gallagher.  She  died  in  May,  1832,  leav- 
ing of  force,  a  will,  which  contained  no  ex- 
press mention  of  this  land,  whereof  Joseph 
Carroll,  since  dead,  was  executor ;  and  leav- 
ing as  her  next  of  kin,  her  children  Matilda 
Poag,  Martha  Abshier  and  Esther  Poag.  The 
husband  of  Martha  Abshier  left  this  State 
about  fourteen  years  ago,  and  has  not  been 


heard  of  since.  Esther  Poag  died  in  18.39, 
leaving  a  husbanii  Jackson  Poag.  and  two 
children,  Dorcas  and  Mary  J.  The  bill  is 
tiled  by  Matilda  Poag,  Jackson  Poag.  Dorcas 
Poag,  and  Mary  J.  Poag,  as  heirs  at  law  of 
Jane  Gallagher  against  C.  P.  Sandifer,  the 
present  owner  of  the  land,  and  against  the 
administrators  and  distributees  of  Minor  Car- 
roll, and  prays  that  Sandifer  be  compelled 
to  deliver  up  the  sixty  acres,  and  account 
for  rents  and  profits,  or  that  Sandifer,  or  the 
administrators  of  Minor  Carroll,  if  they  have 
sufficient  assets  in  their  hands,  otherwise  the 
distributees  of  Minor  Carroll,  account  for  the 
value  of  the  land  with  rent  or  interest.  Mar- 
tha Abshier  is  not  made  a  party,  and  it  is 
alleged  that  she  has  released  her  interest  to 
Matilda  Poag. 

The  defendants  deny  the  trust,  and  plead 
the  statute  of  limitations ;   but,  in  limine,  in- 

*172 
sist  that  Martha  Abshier  and  the  'personal 
representatives  of  Jane  Gallagher  and  Esther 
Poag,  are  necessary  parties  to  the  suit.  The 
determination  of  the  question,  whether  any  of 
these  is  a  necessary  party,  may  depend  on 
the  character  of  John  Carroll's  legal  estate 
in  the  land,  whether  leasehold  or  freehold, 
at  the  death  of  Jane  Gallagher,  in  1832 ;  and, 
perhaps,  on  that  of  his  devisee  afterwards. 
I  mean  their  estate  in  the  Indian  lands  under 
our  legislation,  for  it  is  unr.ecessarj-  to  inves- 
tigate whether  the  reversionary  right  was 
originally  in  the  State  or  the  Indians. 

By  the  Act  of  1739,  3  Stat.  525,  all  persons 
were  inhibited  from  treating  with  the  In- 
dians for  their  lands,  without  a  license  from 
the  Governor  and  Council,  and  all  conti-acts 
with  the  Indians  for  their  lands  were  declar- 
ed void.  In  1808,  the  Catawba  Indians  were 
empowered,  under  certain  restrictions,  to 
lease  their  lands  for  a  term  not  exceeding 
three  lives  in  being  or  ninety-nine  years.  (5 
Stat.  576.)  In  1812,  some  of  the  restrictions 
upon  leasing  were  repealed,  and  it  was  fur- 
ther provided,  "that  a  lease  for  three  lives 
or  ninety-nine  years  of  the  said  Catawba 
lands  shall  be,  and  the  same  is  hereby  de- 
clared to  be,  a  qualification  equivalent  to  a 
freehold,  in  all  cases  where  a  freehold  is  not 
required  by  the  Constitution  of  this  State,  or 
of  the  United  States."  (5  Stat.  678.)  The 
Act  of  1838,  (6  Stat.  602,)  invested  on  pre- 
scribed conditions,  all  the  reversionary  right 
and  interest  of  the  State  in  these  lands  in  the 
lessees;  and  the  Act  of  1840,  (11  Stat.  102,) 
authorized  the  lessees  on  certain  terms  to 
take  out  grants  for  these  lauds,  and  to  hold 
them  as  other  lands. 

The  title  of  John  Carroll  to  the  tract  in 
question,  from  his  lease  in  1819  until  his 
death  in  1837,  governed  by  the  Acts  of  1803 
and  1812,  was  clearly  enough  a  chattel  in- 
terest, unless  the  latter  Act  converted  it  into 
a  freehold:  and  it  is  argued  that  such  is  the 
effect  of  the  Act.     But  the  Act  does  not  pro- 


68 


^=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Kumbered  Digests  and  Indexes 


POAG  V.  SANDIFER 


fess  to  change  the  nature  of  the  estate  of  the 
lessees;  it  <.nly  makes  a  chattel  interest 
(Hiuivalent  to  freeh(.Id  for  certain  political 
purposes;  it  qualifies  the  lessees  to  sit  as 
jurors  on  the  trial  ..f  slavrs.  and  to  exercise 

*173 
other  privile^'es  limited  by  law  to  free'hold- 
ers— perhaps    to    iH'cme    members    of    our 
House  of  Representatives,  under  the  consti- 
tutional re.|uin-m<'nt  of  "a  real  estate  of  the 
vaiue  (.f  £150  sterlin;:.  clear  of  debt  "     I  am 
informed  that  these  leasehohls.  where  grants 
have  not  been  taken  out   nii<ler  the    \ct  of 
1S40,  have  always  been  refrarded  without  dis- 
pute as  passing  to  the  personal   representa- 
tives of  deceased  owners,  for  sale  or  other 
disposition.     In  I'ayne  v.  Harris.  .3  Strob   Fq 
39  42,  wliere  the  nature  of  the  estate  in  the'se 
Indian   lands   of  an   intestate,    who  died  in 
1841,  was  in  question,  the  Court  say:    "lease- 
hold estates  go  to  the  executor,  and  are  per- 
sonal estate  within  the  meaning  of  the  Act 
of  1701,  which  intended  to  include  under  the 
term,  whatever  was  to  be  administered  by  the 
personal  representative  of  the  deceased."     If 
the  legal  estate  was  a  chattel  real,  any  trust 
imposed  upon  it  would  follow  its  nature-   and 
the  benelicial  interest  of  .lane  (iallagher  at 
her  death  in  1852.    passed  to  her  executor 
This  question   is  not   formal  merelv    for  on 
the  terra  of  the  statute  of  limitations  'and  the 
effect  of  the  acts  and   declarations  of  Jane 
Ciallagher-s    executor,    both    of    which    may 
seriously  affect  the  rights  of  the  parties    the 
decision  may  turn.     It  is  urged,  that  as  bene- 
h<iaru.s  have  the  option  to  accept  the  subject 
in  which  trust  funds  have  been  invested  by 
trustees,    and   as   the  land  here  has  become 
Ircehold  by  the  grant  of  1841,  the  ellect  must 
be  to  change  the  character  of  the  beneficiaries 
retroactively  into  heirs  at  law.    But  I  cannot 
venture,    without   hearing  the   personal   rei)- 
rcs.-iitative.  thus  to  nullify  intermediate  Acts 
and  establish  new  rights  and  liabilities  l)y  re- 
lation.    I  think  that  the  personal  representa- 
tive  of   Jane   Gallagher  should    be   made   a 
party. 

liien  as  to  the  necessity  of  bringing  the 
personal  representative  of  Esther  Poag  before 
the  Court.  Many  of  the  preceding  ..bserva- 
tions  ai)ply  to  this  question,  but  before  her 
(  eath  the  Act  of  18;rs  came  into  operation 
ihe  reversionary  right  and  interest  of  the 
Mate  granted  by  that  Act  to  the  lessees 
l>robably  means  the  possibility  of  reverter  to 
the  State  upon  the  extinction  of  all  the  In- 
dian iiossess(.rs,  and  the  right  of  the  State  to 
extinguish  by  treaty  their  usufructuary  in- 
terest 

•174 
'The  grant  cannot  be  construed  to  change 
the  estate  of  the  les.sees  Into  freehold  es- 
pecially after  the  ca.se  of  Payne  v.  Harris 
Supposing,  however,  the  beneficial  interest  of 
Esther  Poag  was  of  the  nature  of  a  chattel 
real,  then,  if  Jackson  Poag.  her  husband  re- 
duced it  into  possession  during  the  coverture 


♦175 


he  became  entitled  to  it  as  a  marital  right 
and  IS  properly  U^fore  the  Court,  although 
his  children  Horcas  and  Marv  J.  are  mis- 
joined  as  plaintifTs.  But  it  is  not  clear  that 
he  coul.l  reduce  to  po.ss.-ssion  su.-h  an  e.piita- 
I.  e  interest:  nor  does  it  appear  that  he  either 
aliened  this  chattel  or  attempted  to  reduce 
It  to  possession  during  the  coverture.  It 
seems  by  the  cro.ss-examinatlon  of  .Martha 
A  .shier,  that  he  never  lived  upon  the  land, 
ihe  p.'r.sonal  rejjresentatlve  of  P:sther  Poag 
should  be  made  a  party,  (i  Wms.  Kxors 
•ir.).) 

Then  as  to  .Martha  Absbier.     .\ny  interest 
that   she   could    release   to   .Alatibla    Poag  is 
probably  an  equitable  interest.  n..t  transfer- 
"I'le  at  law;    and  it  is  settled  that  the  as- 
signor must  be  a  party  to  any  suit  bv  the  a.s- 
slgiiee    respecting    the    cho.se.— Cathcart     v 
Lewi.s.  1  Ves.  jun..  4G.'{;    Wnlburn  v.  Ingllby." 
1  Alyl.  &  K.,  Gl.     (0.  Con.  Eng.  Ch.  R..  498 ) 
Jf  hers  were  a   legal    interest   in   a   .battel 
real,  it  would  .seem  that  it  was  reduced  to 
IH.ssession  by  her  husband  during  coverture- 
and  his  representative  would  be  a  iieces.^ary 
part.v.      But    I    am    not    j.repareil    to    de.i.j'e 
that  the  interest  was  susceptible  of  reduc- 
tion into  pos.session.     I  have  alreadv  waived 
prejudging   the  effect   of  the  grant   of   1S41 
on  the  estate  of  the.se  claimants.     Mv  con<-lu- 
sion  is.  that  Martha  .\bshier  is  a  {.roper  j.ar- 
ty— that  the  plaintifls  might  use  her  as  a  wit- 
nes.s.  is  suggested  in  the  answer  as  the  na- 
tive of  omitting  lier  as  a   party  originailv; 
and  I  may  say.  to  avoid  misconception,  that 
the  exclusion  of  her  testimony  does  not  nec- 
es.sarily  folb.w  from  this  (le<ision 

It  is  ordered,  that  the  i-Iaintiffs.  within  a 
reasonable  time,  make  .Martha  Absbier  and 
l.ersonal  representatives  of  Jane  (Jallaglier 
and  Ksther  Poag.  parties  to  this  suit 

Afterwards,  at  June  Sittings.  l,So2  the 
cau.se  was  heard  before  his  Honor.  Chancel- 
lor Johnston,  who  made  the  following  de- 
cree: 

*175 
♦Johnston.  Ch.  This  cause  relates  to  cer- 
tain lands  lying  within  the  Indian  boundarv 
in  York  district;  and  it  may  be  proper,  by 
way  of  introduction,  to  .state  the  statutory 
law  of  the  State  relating  to  lands  of  this 
description.  I  am  indebted  to  mv  brother 
^\ardlaw.  who  has  made  a  decision  upon  cer- 
tain points  in  this  cau.se,  for  the  followine 
summary  of  it: 

Ry  the  Act  of  17;J9,  (3  Stat.  r,2.-,.)  all  per- 
sons were  inhibited  from  treating  with  the 
Indians  for  their  lands  without  licen.se  frf.in 
the  (Governor  or  Council,  without  which  all 
contracts  with  the  Indians  f(.r  tli-ir  lands 
were  ditlared  void. 

In  isos,  the  Catawba  In<lians  were  era- 
lowered,  under  certain  restrictions,  to  lease 
their  lands  tor  a  term  not  exceeding  three 
lives  in  lu-ing.  or  99  years.  (.1  Stat.  .-.7(>.) 

In  isin.  some  of  the  restrictions  upon  leas- 
ing were  repealed;    and  it  was  furiher  pro- 

69 


*175 


5  RICHARDSON'S  EQUITY  REPORTS 


vided  that,  "a  lease  for  three  lives,  or  99 
years,  of  the  said  Catawba  lands,  shall  be, 
and  the  same  is  hereby  declared  to  be,  a 
qualification,  equivalent  to  a  fi'eehold,  in  all 
cases  where  a  freehold  is  not  required  by  the 
constitution  of  this  State,  or  of  the  United 
States."    (5  Stat.  678.) 

The  Act  of  1S8S,  (6  Stat.  602,)  vested,  on 
prescribed  conditions,  all  the  reversionary 
right  and  interest  of  the  State  in  these  lands 
in  the  lessees. 

And  the  Act  of  1840,  (11  Stat.  102,)  author- 
ized the  lessees,  on  certain  terms,  to  take  out 
grants  for  these  lands,  and  to  hold  them  as 
other  lands. 

Thomas  Carroll  held  a  large  body  of  lands 
of  this  description,  on  which  he  resided  in 
1819,  and  had  resided  from  the  beginning  of 
the  present  century,  and  for  some  years  pre- 
vious. In  June,  of  that  year,  (1819,)  he  au- 
thorized a  survey  to  be  made  by  one  Kuyken- 
dal,  for  the  division  of  his  lands  between 
his  three  sons,  then  living,  to  wit:  John  Car- 
roll, Matthew  Carroll  and  Joseph  Carroll. 
At  the  time,  John  Gallagher,  the  husband  of 
his  daughter  Jane,  wag  residing,  with  his 
family,  on  this  land. 

The  survey  had  been  nearly  completed 
when  Gallagher  interfered  and  set  up  a  claim 

*176 
to  some  portion  of  the  land  intended  *to  be 
divided.  This  led  to  a  dispute,  which  was 
compromised,  however,  by  including  the  resi- 
dence of  Gallagher,  and  the  spot  of  ground 
cultivated  by  his  family  around  his  house,  in 
the  portion  to  be  laid  off  to  John  Carroll. 

The  portion  laid  off  to  John  Carroll,  con- 
taining 524  acres,  was  platted  by  Kuykendal, 
the  1st  of  June,  1819 ;  but  the  plat  takes  no 
notice  of  the  possession  of  Gallagher,  nor  of 
any  portion  of  the  land  or  its  boundaries, 
now  alleged  to  have  been  intended  for  his 
wife  within  the  limits  of  that  plat. 

Shortly  after  this  division,  the  lease  of 
Thomas,  the  father,  was  surrendered,  and 
among  others,  John  Carroll,  on  the  of 

,  1819,  took  out  a  new  lease  to  himself 
for  the  524  acres  allotted  to  him,  and  if  not 
already  in  possession,  he  took  possession  of  it. 

Thomas,  the  father,  died  at  some  uncertain 
period  afterwards. 

Gallagher  and  his  family  remained  on  the 
land  as  before  the  division. 

Gallagher  died  6th  March,  1825,  but  his 
wife  and  children  continued  on  the  land. 

On  the  8th  of  March,  1832,  Jane  Gallag- 
her made  her  will,  of  which  she  appointed  her 
brother,  Joseph  Carroll,  one  of  the  executors, 
who  alone  qualified  and  acted.  This  will  was 
admitted  to  pi'obate  the  21st  of  the  same 
mouth ;  so  that  she  must  have  died  between 
the  8th  and  21st  of  March,  1832. 

The  will  makes  no  express  mention  of 
lands ;  but,  after  disposing  of  a  negro,  Andy, 
her  cooking  utensils,  a  loom,  a  reel,  two  pairs 
of  cards,  two  wheels  and  two  beds,  with  their 
furniture,  the  testatrix  proceeds  thus: — "All 

70 


the  balance  of  my  property,  consisting  of  my 
negro  man,  Jim,  my  cows,  and  many  other 
pieces  of  property,  li  direct  my  executors, 
hereinafter  named,  to  expose  to  public  sale," 
&c. 

Jane  Gallagher  left  three  daughters,  Ma- 
tilda, then  the  wife  of  Leander  I'oa^  Martha 
and  Esther.  The  three  sisters,  with  Leander 
Poag,  Matilda's  husband,  i-emained  at  the 
old  spot  on  the  land ;  Martha  married  one 
Alfred  Abshier,  and  he  came  in  with  them, 
as  did  also  Jackson  Poag,  who  married 
Esther. 

"►177 

*In  1834,  Abshier  gave  his  note  to  John 
Carroll  for  that  year's  rent  of  the  premises 
in  their  occupancy.  The  next  year  he  refused 
to  give  another  note  for  rent,  and  John  Car- 
roll sued  him  for  the  possession.  He  defend- 
ed himself,  and  in  the  plat  of  survey  made 
for  the  trial  of  the  case,  (dated  Oct.  6,  1834,) 
we  have,  for  the  first  time,  the  spot  located 
where  the  family  of  Jane  Gallagher  resided. 
It  is  laid  down  by  dotted  lines  as  "Abshier's 
farm— about  twenty  acres  cleared  and  in 
crop."  On  the  1.5th  of  October,  1836,  the 
action  was  tried,  and  John  Carroll  recover- 
ed ;  and  under  further  proceedings  in  that 
case,  Abshier  and  his  co-occupants  were  dis- 
possessed, and  Carroll  put  in  possession  in 
their  place.  Abshier  absconded  2d  July,  1887, 
and  has  not  been  since  heard  from. 

John  Carroll  died  6th  May,  1.837,  having 
devised  his  lands  to  Minor  Carroll,  who  came 
into  possession.  In  1841,  Minor  took  a  grant 
covering  the  whole  524  acres  from  the  State. 
He  died  intestate,  in  possession,  in  May, 
1844 ;  and,  in  1845,  the  whole  body  of  land 
was  sold  for  partition  among  his  heirs,  under 
proceedings  in  this  Court,  and  bought  by  the 
defendant,  Calvin  P.  Sandifer,  who  has  not 
yet  paid  the  whole  purchase  money. 

Dudley  Jones  and  one  Thomas  Carroll, 
jointly  administered  on  Minor's  estate,  and 
are  made  defendants  to  this  suit— as  are  also 
the  heirs  of  Minor. 

Matilda's  husband,  Leander  Poag,  having 
died,  Abshier,  the  husband  of  ^Nlartlia,  hav- 
ing removed  from  the  Stace,  and  being  pre- 
sumed to  be  dead — and  Esther  having  died, 
leaving  her  husband,  Jackson  Poag,  and  two 
children,  who  are  still  infants: — an  action 
was  brought  by  the  two  sisters,  Matilda  and 
Martha,  and  by  the  distributees  of  Esther 
against  Sandifer,  the  purchaser  of  the  land, 
to  recover  possession.  Their  action  was 
brought  ,  1849,  and  came  on  to  be  tried 

at  February,  Extra  Term,  1851,  of  the  Com- 
mon Pleas  for  York;  and  resulted  in  a  ver- 
dict for  the  defendant,  Sandifer.  There- 
upon, the  same  parties,  with  the  exception  of 
Martha  Abshier,  who  is  made  a  defendant, 
filed  this  bill,  the  17th  of  March,  1851.     Ma- 

*178 
tilda  Poag  sues  in  *her  own  right,  and  as  ad- 
ministratrix  de   bonis  non,   cum   testamento 
annexo,  of  her  mother,  Jane  Gallagher,  whose 


POAG  V.  SANDIFER 


*180 


executor.  Joseph  Carroll,  is  dead,  and  also, 
as  administratrix  of  her  deceased  sister, 
Esther  I'oaii;.  The  defendants  are  Martha 
Alishier,  Sandifer,  and  the  administrators 
and  heirs  of  Minor  Carroll. 

The  bill,  which  is  very  vague,  states  that 
John  (Jallajiher,  shortly  after  his  marriage 
with  Jane  Carroll,  the  daughter  of  Thomas 
Carroll,  removed  and  settled  upon  a  part  of 
a  certain  tract  of  land  then  held  by  the  said 
Thomas  Carroll,  under  a  lease  from  the 
Catawba  Indians,  lying,  &c.,  "and  having  such 
shapes  and  boundaries  as  will  appear  by  ref- 
erence to  plats  of  the  same  herewith  filed, 
as  exhibits  A  &  B,"  (which,  by  the  way,  were 
never  filed.)  "That  the  said  John  Gallagher 
continued  in  the  peaceable  and  undisturbed 
po.ssession  of  said  land,  for  a  period  of 
about  twenty  years,  until  his  death,  without 
the  said  Thomas  having  executed  a  lease 
therefor."  "That  Jane  (Jallagher,  the  widow 
of  the  said  Jolin,  continued  in  possession 
of  tlie  said  land  until  her  death,  in  the  year 
of  our  Lord,  18;J2 ;  leaving  your  oratrix, 
Matilda  I'oag,  Martha  Abshier,  and  Ksther 
I'oag,  lier  only  surviving  children.  That  the 
said  Jane  left  a  last  will  and  testament." 
(referred  to  as  an  exhibit,  but  not  exhibited.) 
•'That  one  Joseph  Carroll  took  upon  himself 
the  execution  of  the  said  will.  That  as  ex- 
ecutor of  Jane  (Jallagher,  he  in  no  wise  claim- 
ed or  administered  upon  .said  land  as  a  part 
of  tlie  estate  of  Jane  (Tallagher."  "That  on 
the  day  of  June,  in  the  year  of  our  Lord, 

1819.  Thomas  Carroll  made  a  partition  of  his 
lands — and  a  tract  leased  by  him  to  liis  son, 
-Moses  Carroll,  who  had  died,  leaving  neither 
wife  nor  children.  That  upon  that  occasion, 
it  was  agreed  by  and  between  the  said  Thom- 
as Carroll  and  liis  children,  John  Carroll. 
Matthew  Carroll,  Jo.seph  Carroll,  John  and 
Jane  Gallagher,  that  sixty  acres  of  land,  em- 
bracing the  liouse  where  the  said  John  Gal- 
lagher then  lived,"  (no  other  description  of 
its  location  or  boundaries.)  "should  be  run 
into  the  said  John  Carroll's  share  of  land, 
for  the  use  and  benefit  of  the  said  Jane  Gal- 
lagher  and   her    children."      "That   no  lease 

*179 
was  executed  for  the  share  of  ♦said  Jane 
(Jallagher  and  her  children,  in  the  partition 
of  said  land,  but  that  the  same  was  so  run 
into  the  plat  of  the  said  John  Carroll,  In 
special  trust  and  confidence  that  the  said 
John  should  .stand  seized  of  the  same  for 
the  sole  use  and  benefit  of  the  said  Jane 
(iallagher  and  her  children — in  order  that 
the  share  of  the  said  Jane  in  the  lands  so 
liiirtitioned,  should  not  be  subject  to  the  con- 
trol or  debts  of  the  said  John  (Jallagher,  who 
was  thriftless  in  his  habits  an<l  in  insolvent 
circumstances."  "That  said  John  Carroll, 
from  the  time  of  the  said  partition  until  his 
death,  acknowledged  that  sixty  acres  of  land 
covered  by  his  lease,"  (viz:  one  which  lie 
took  from  the  Indians  after  the  partition,) 
"and   lying  around  the  Gallagher  liouse,  of 


right  belonged  to  his  si-ster  Jane  Gallagher, 
and  her  children — and  that  he  was  holding 
the  same  for  their  use  and  benefit." 

The  bill  then  proceeds  to  state  the  death 
of  John  Carroll,  after  having  ousted  Abshier 
and  his  companions;  his  devise  to  Minor  Car- 
roll; the  grant  taken  out  by  Minor  in  1841: 
his  death;  the  purchase  of  his  land  by  Sand- 
ifer, &c.,  as  I  have  narrated  them:  and 
avers,  that  the  administrators  of  Minor,  have 
a.s.sets  to  compensate  them  for  the  value  and 
rents  of  the  sixty  acres,  which  the  plaintiffs 
claim;  if  not,  that  the  residue,  due  by  Sand- 
ifer on  his  purcha.se.  should  be  subjected ; 
and  if  insufficient,  the  heirs  of  Minor  should 
answer  out  of  so  nuich  of  the  proceeds  of 
the  sale,  and  a.ssets  of  the  estate  of  Minor, 
as  they  have  received.  The  bill  also  states, 
that  Martha  Abshier  has  assigned  her  inter- 
est to  Matilda  I'oag,  her  sister. 

If  the  plaintiffs  are  entitled  to  the  value  of 
the  land,  I  suppose  an  in«iuiry  might  be  made 
into  the  assets  and  the  balance  due  by  Sand- 
ifer, &c.,  and  a  decree  made  accordingly. 

Hut  the  statements  of  the  bill  which  I 
have  quoted,  are  denied  by  the  answer  gen- 
erally. It  is  denied  that  Moses,  the  son  of 
Thomas  Carroll,  who  died  before  the  divisi<kn 
of  1811),  ever  had  any  lease  from  his  father, 
or  any  other  interest  in  any  portion  of  his 
lands,  than  a  permissive  pos.session  as  tenant 
at  will.  It  is.  denied  that  John  Carroll  ever 
agreed  to  hold  the  sixty  acres  in  trust  for 
Jane   Gallagher  and    her   children,   although 

*180 
he  agreed  *to  permit  her  to  reside  on  his 
lands  during  her  life:  and  the  answer  denies, 
that  he.  at  any  time,  acknowledgetl  the  land 
to  belong  to  her  or  her  children,  or  that  he 
held  it  in  trust  for  her  or  them. 

Now,  if  there  is  evidence  to  establish  the 
agreement,  it  must  be  in  writing,  or  the 
contract  must  be  taken  out  of  the  statute  of 
frauils  by  some  circumstance,  so  as  to  let  In 
parol  proof  of  it. 

The  defendants  have  not  pleaded  the  stat- 
ute, but  having  denied  the  contract  as  statetl. 
they  objected,  at  the  hearing,  to  the  proof  of 
it  by  parol. 

In  Cozine  v.  Graham,  2  I'aige,  177.  where 
the  contract  relateil  to  land,  the  Chancellor, 
upon  an  examination  of  cases  in  the  Court 
of  Chancery,  observes:  "The  rule  of  pleading 
on  this  subject  is  well  settled  in  the  Court 
of  Law;  and  I  do  not  see  why  the  i)rinciitle 
of  that  rule  is  not  equally  applicable  to  this 
Court.  It  is  there  held,  that  the  statute  did 
not  alter  the  form  of  pleading.  That  if  au 
agreement  or  contract  is  stated  in  tlu'  decla- 
ration to  have  been  made,  it  is  not  nect-ssary 
to  allege  that  it  was  in  writing,  as  that  will 
be  presmned  until  the  contrary  appears.  If 
the  agreement  is  denied,  the  jdaintilT  must 
produce  legal  evidence  of  its  existence,  which 
can  only  be  done  by  producing  a  written 
agreement,  duly  executed  according  to  the 
provisions  of  the  statute.     If  the  agreement 

71 


*1S0 


5  RICHARDSON'S  EQUITY  REPORTS 


is  admitted  by  the  pleadings,  no  evidence  to 
prove  its  existence  is  necessary,  and  the 
Court  never  inquires  whether  it  was  in  writ- 
ing or  not." 

In  the  Ontario  Bank  v.  Root,  3  Paige,  478, 
the  principle  affirmed  in  Cozine  v.  Graham, 
is  referred  to  and  approved.  In  this  latter 
case,  (Bank  v.  Root,)  the  agreement  fell  under 
another  head  of  the  statute  of  frauds.  It 
was  an  agreement  to  pay  the  debt  of  another ; 
and  was  denied  in  the  answer.  The  Chancel- 
lor says,  "As  the  agreement  was  denied  in 
the  defendant's  answer,  it  was  not  necessary 
for  him  to  insist  upon  the  statute  as  a  bar. 
The  complainant  in  such  case  must  produce 
legal  evidence  of  the  existence  of  the  agree- 
ment, which  cannot  be  established  by  parol 
proof  merely." 

*181 

*This  appears  to  be  a  reasonable  view  of 
the  subject.  In  this  case,  the  bill  states 
that  no  lease  was  executed  for  what  the 
plaintiffs  denominate  "the  share  of  Jane," 
in  the  division  of  1819,  which  approaches 
very  near  to  stating,  that  the  agreement,  stat- 
ed to  have  been  made  in  relation  to  her 
"share,"  was  merely  verbal.  If  that  had 
been  explicitly  stated  in  the  bill,  the  bill 
itself  would  have  put  the  agreement  within 
the  statute,  and  the  defendants  need  not  have 
pleaded  it.  It  is  the  function  of  a  plea  to  bring 
to  the  view  of  the  Court,  independent  facts 
not  stated  in  the  pleading  of  the  other  party; 
which  facts  are  sufficient  in  law  to  bar  the 
claim  set  up  in  that  pleading.  But  if  the 
other  party  himself  states  matter  which  is 
good  ground  of  defence,  he  pleads  against 
himself,  and  must  submit  to  the  bar  which 
he  himself  establishes.  There  is  no  need 
to  plead  the  bar  in  such  a  case.  But  it  is 
possible,  that  though  no  lease  was  executed, 
a  written  agreement  was  made  of  the  descrip- 
tion stated.  The  defendants  deny  that  any 
agreement  of  the  kind  was  made,  and  call  for 
the  proof.  No  written  agreement,  as  required 
by  the  statute,  is  produced,  but  in  its  place 
parol  evidence  is  adduced.  The  defendants 
object  to  it,  and  the  statute  decides  it  gen- 
erally insutficient.  The  statute  must  avail 
the  defendants,  unless  a  case  is  stated  and 
proved,  which  in  some  way  escapes  its  oper- 
ation. 

It  has  been  urged,  that  the  long  possession 
of  Jane  and  her  family,  under  the  "alleged" 
agreement,  takes  it  out  of  the  statute,  being 
in  the  nature  of  a  part  execution  of  the  con- 
tract: and  so  it  would  (possibly)  if  that  pos- 
session had  been  taken  under  the  agreement. 
A  statute  made  for  the  suppression  of  fraud, 
shall  not  be  perverted  by  construction  so  as 
to  make  it  the  instrument  of  fraud.  If  a 
party,  by  means  of  a  verbal  contract,  induces 
another  to  take  possession  of  lands,  by  which 
he  would  be  liable  as  trespasser,  unless  the 
agreement  was  allowed  and  enforced,  this 
would  be  a  fraud;  and  the  party  guilty  of  it 
shall  not  shield  himself  under  a  statute  in- 


tended simply  as  a  defence  against  injustice. 
But  Jane's  possession  was  not  taken  under 
the  agreement  alleged,  but  existed  before,  and 

*182 
it  has  been   *often  held,   that  tbe   mere  re- 
tention of  a  pre-existing  possession  does  not 
take  a  case  out  of  the  statute. 

But  it  is  attempted  to  take  the  case  out  of 
the  statute  in  another  way.  It  is  alleged  that 
Moses,  the  deceased  son  of  Thomas  Carroll, 
held  a  lease  from  his  father  for  part  of  the 
premises  partitioned-  among  the  surviving 
sons  in  1819,  and  that  Moses  having  left  nei- 
ther wife  nor  issue,  Jane  was  entitled  to  a 
"share"  of  his  leasehold  estate  part  of  the 
lands  to  be  divided.  The  intimation  is,  that 
the  surviving  brothers  were  allowed  to  throw 
her  share  into  the  lot  of  John,  upon  condition 
that  he  would  hold  it  in  trust  for  her  benefit. 
This  would,  certainly,  be  sufficient,  in  two 
ways,  if  the  facts  existed.  It  would  give  a 
right  of  partition  in  Moses'  portion  of  the 
lands;  or  it  would  operate  as  a  consideration 
of  the  trust  contract  alleged  in  the  bill ;  and 
John  Carroll's  being  let  into  possession  of 
the  residue  of  the  land,  would  be  a  sufficient 
part  execution  to  bind  him. 

But  the  proof  that  Moses  ever  had  such 
a  right  as  is  alleged,  utterly  failed.  He  was 
an  occupant  of  part  of  the  land  in  his  life 
time.  But  that  he  ever  had  a  lease  or  other 
title  from  his  father,  so  as  to  constitute  it  his 
estate,  does  not  appear;  nor  is  the  amount  or 
boundaries  of  his  supposed  land  ascertained. 
It  rather  appears  to  have  been  a  permissive 
occupancy.  The  whole  land  divided  belonged 
to  the  father,  and  he  disposed  of  it,  as  his 
own,  to  his  sons. 

Were  the  statute  not  in  the  way,  I  think 
the  evidence  of  the  contract  alleged,  alto- 
gether too  loose  to  make  it  tlie  ground  of  a 
decree,  under  the  circumstances  of  this  case. 
The  evidence  is  all  in  writing,  and  will  verify 
my  remark. 

Were  the  evidence  not  only  sufficient  to 
take  the  case  out  of  the  statute  of  frauds, 
but  so  explicit  as  to  be  made  the  ground  of 
a  decree,  there  are  other  difficulties  which 
I  have  felt,  and  which  I  will  mention  with- 
out  concluding  anything  on  them. 

It  is  not  a  reasonable  construction  of  any- 
thing testified  to  by  any  witness,  to  conclude 
that  the  import  of  John  Carroll's  engagement 
was,  that  he  was  to  hold  the  land  in  trust 
entirely  for  his  sister  Jane,  during  her  life, 

*183 
and  then  for  her  children,  by  way  *of  re- 
mainder, after  her  death;  nor,  (by  the  by)  is 
that  the  way  in  which  the  bill  states  the 
contract.  Such  modes  of  verbal  arrangement 
are  too  unusual,  to  render  it  reasonable  to 
believe  such  was  the  case,  in  this  instance. 
When  contracts  of  that  complexity  are  enter- 
ed into,  parties  are  disposed  to  put  tliem  in 
writing.  It  would  be  unsafe,  (in  contracts 
relating  to  land,)  to  infer  from  a  conversa- 
tion such  as  took  place  in  1819,  distinct  11ml- 


POAG  V.  SANDIFER 


»185 


tations  of  such  proporty.  'Witnesses  are  too 
liable  to  be  mistaken,  especially  after  the 
lapse  of  thirty  years,  ttt  allow  of  this.  The 
inherent  evidence  is  better  than  the  recollec- 
tion of  any  witness  in  such  a  case.  The  in- 
tention plainly  was  to  keep  the  land  for 
Jane,  she  beinp  the  <)lije<t  of  affection,  and 
the  n)cnti<»n  of  her  children  was  not  made 
with  an  intention  to  yive  them  any  title,  but 
by  way  of  indicatin;;  that  their  mother 
should  have  a  shelter  for  them.  Such  is 
njy  inference  from  the  testimony,  so  far  as  I 
think  it  credible. 

Then,  consideriufr  the  land  as  Jane's,  I 
am  of  opinion  with  my  brother  Wardlaw, 
that,  as  leasehold,  it  went  to  her  e.xecutor, 
Joseph  Carroll: — and  he  not  elaimiiiK  it,  (as 
the  bill  says. I  as  part  of  her  estate,  was 
bound  l)y  tiie  adverse  holdinti:  of  John  Carroll 
and   Minor  Carroll. 

John  (Jallagher,  her  husband,  did  no  act 
in  bis  life  time  to  destroy  her  riyht  by  sur- 
vivorship. The  law,  apiilicalde  to  leasehold 
estate,  is  well  stated  by  a  good  elementary 
writer,  (Wuis.  on  Ex'ors.,)  thus:  "The  law 
gives  a  qualified  interest  to  the  husband  in 
the  chattels  real,  of  which  the  wife  is,  or 
may  be,  possessed  during  marriage;  viz:  an 
interest  in  his  wife's  right,  with  a  power  of 
divesting  her  property  during  the  coverture. 
If,  therefore,  he  so  disposes  of  his  wife's 
terms,  or  rather  chattels  real,  by  a  complete 
act  in  his  life  time,  her  right  by  survivorship 
will  be  defeated.  But  if  he  leave  them  in 
statu  (luo.  and  the  wife,  be  the  survivor,  she 
will  be  entitled  to  them  to  the  exclusion  of 
the  executors  or  administrators  of  her  hus- 
band." John  Gallagher  did  no  act  to  reduce 
his  wife's  leasehold  into  a  right  in  himself; 
nor  did  he  alienate  it.     It  survived  to  her, 

*184 
♦and  according  to  I'ayne  v.  Harris,  3  Strob. 
Eq.  oD,  went  to  her  executor ;  who  was  bar- 
red. The  title  was  in  him.  It  did  not  "de- 
scend, or  come"  to  Jane's  distributees ;  and 
the  statute  of  1824,  saving  the  bar  of  the 
statute,  where  titles  descend  upon  a  number 
of  persons,  some  of  whom  are  infants,  does 
not  apply.  The  statute  having  begun  to  run 
against  the  executor,  though  it  had  not  com- 
pleted its  bar  in  his  life  time,  run  on,  aud 
was  not  su.spended  in  the  interval  between 
his  death,  and  the  grant  of  administration  to 
Matilda  I'oag,  his  successor.  I  incline  to  the 
opinion,  this  is  the  law  on  this  part  of  the 
case,  though  I  do  not  think  it  necessary  so 
to  decide. 

I  return  to  the  statute  of  frauds,  and 
make  that  the  foundatiou  of  my  decree. 


It  is  ordennl  that  the  bill  be  dismissed. 

The  complainants  appealiMl  from  the  de- 
cree of  his  Honor,  Chancellor  Johnston,  and 
moved  this  Court  to  reverse  the  same  on  the 
grounds: 

1.  Hecau.se  the  defendants  not  having 
plea<led  the  statute  of  frauds,  they  are  pre- 
cluded from  setting  it  up  as  a  defence. 

li.  Hecause  .Fobn  Carroll  having  procured 
Jane  (Jallagher's  share  of  Mo.ses  Carroll's 
land  to  be  run  into  his  plat,  on  his  parol 
assurance  to  hold  the  .same  for  her  and  her 
diildren,  it  would  operate  as  a  fraud,  to  per- 
mit him,  or  those  clainnng  under  Idm,  to  set 
up  the  statute  of  frauds  as  a  liar. 

.'{.  Hecause  the  long  possession  of  John  <ial- 
lagher  and  family,  under  the  parol  partition 
of  ISIO,  takes  the  trust  contract  out  of  the 
statute,  iiuismuch  as  the  consideration  of 
said  contract  was  Jane  (Jallaglier's  share  of 
her  brother  Mos»'s'  lands. 

4.  Because,  under  the  circumstances,  the 
complainants  are  entitled  to  have  jiartition 
of  the  land  in  disiiute,  in  right  of  Mo.ses  Car- 
roll. 

5.  Because    the    trust    contract    is    jtrnved 

*185 
with  sufficient  certainty  'to  entitle  comjilain- 
ants  to  have  an  account  ft)r  the  value  of  the 
land,  and  rents,  and  profits. 

0.  Because  the  statute  of  limitations  does 
not  apply,  and  there  was  no  one  against 
whom  it  could  run  ;  that  in  any  event  the 
infant  complainanis  are  not  barred. 

7.  Because  John  Carroll  at  no  time  did 
any  act  declaring  his  intention  to  discharge 
himself  of  his  trust,  but  on  the  contrary, 
after  he  dispossessed  Abshier,  admitted  com- 
plainants' title  to  the  land. 

.S.  Because  the  grant  covering  the  land 
was  ol>tained  by  Minor  Carroll,  upon  the 
lease  of  complainants,  the  iH'neticiary  owners 
of  the  same,  upon  which  alone  he  could  have 
obtained  it. 

9.  Because  au  executor  is  not  to  be  deemed 
in  possession  of  chattels  real  before  entry. 

Smith,  for  appellants. 
Williams,  contra. 

PER  CURIAM.  This  Court  sees  no  reason 
to  disturb  the  conclusion  to  which  the  Chan- 
cellor has  come:  and  it  is  ordered  that  his 
decree  be  affirmed,  and  the  ajipi-al  dismissed. 


JOHNSTON,     DUNKIN,     DARGAN 
WARUI^W,  CC,  concurring. 
Decree  affirmed. 


aud 


73 


CASES   IN   EQUITY 


ARGUED    AND    DETERMINED    IN    THE 

COURT  OF  APPEALS 

AT  CHARLESTON,  SOUTH  CAROLINA— JANUARY   TLR.^L  1S53. 


Chancellors  Present. 

Hon.  jor.  JOHNSTON, 
"       BEN  J.  F.  1  UN  KIN. 
"       GE()R<JE  W.   PAJIGAN, 
"       F.  H.  WARDLAW. 


5   Rich.  Eq.  *I87 

♦ROBERT  S.  BAILEY,  and  Others,  v.  KER 
BOYCE    and    Others. 

(Charleston.      Jan.    Term,    1S53.) 

\lJdCciitors  and    Adnihiistraturs   <©=>.S91.] 

The  defendant  concurred  witli  his  co-execu- 
tor in  acts,  as  (1)  an  ajireenient  to  sell,  and 
(2)  an  answer  in  Equity  eoncurrins  in  the 
lirayer  of  the  purchaser's  bill  that  the  sale  l)e 
i-onHriued,  whereby  the  co-executor  was  enabled, 
without  necessity,  tt)  sell  the  testator's  laud  on 
credit:  the  debt  was  lost  throujih  the  neglect  of 
the  co-executor  to  record  a  uiortiiage  of  the 
l)reniises,  given  to  secure  the  payiuout  of  the 
purchase  money :—//(/(/.  that  defendant  was  lia- 
ble, to  a  devisee,  for  the  loss ;  but  not  liable 
to  another  devisee,  who  was  also  executrix,  and 
as  a  party  to  the  purchaser's  bill  had  also  con- 
curred  in    the  prayer. 

[Ed.  Note.— For  other  cases,  see  Executors 
and    Administrators,   Cent.   Dig.   §   15S9;    Dec. 

Dig.  c=>:',\n.\ 

\  Infants  <S=5l05.] 

An  infant  not  bound  by  a  decree  to  which 
she  was  not  regularly  a  party,  may  nevertheless 
attirra  it  and  claim  its  benelit. 

[Ed.  Note. — For  other  cases,  see  Infants,  Cent. 
Dig.  S  ''02:    Dee.  Dig.   <©=10n.l 

[Ej-C(itt<irs   and   Adniinixtrators   C^Jli,*^.! 

Where  one  executcu"  cniicurs  with  a  devastat- 
ing co-executor  in  an  a<t  by  which  the  latter 
gets  possession  of  the  funds  wasted  or  lost,  and 

♦188 
which   without   such   act  of  concur*rence  could 
not   have   liapi)ened,  the  consenting,    though    in- 
nocent,   executor    becomes    responsible    for    him 
who  has  committed  the  waste  or  default. 

[Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  L)ig.  §§  49(>-530; 
Dec.  DiL'.  <©i=>l'j;j.] 

[IJ,]iiH'!J&:^:\W.] 

Where  an  answer,  neither  signed  nor  sworn 
to  liy   till-  defi-ndant.   is  tiled   in    liis  name,   and 


purports  to  be  signed  by  his  solicitor  in  his 
behalf,  and  the  case  proceeds  to  a  hearing  and 
judgment,  such  defendant  is  i)ound  by  the  de- 
cree, unless  he  can  shew  that  the  solicitcu*  who 
acted  for  him  was  not  in  truth  authorized  to 
do  so. 

I  Ed.  Xote.-Cited  in  Bulow  v.  Witte.  3  S.  C. 
:\'22:  Latimer  v.  Latimer.  22  S.  C.  Jii;i:  San- 
ders v.  Triced  'A\  S.  ( ".  4,  IVA  S.  E.  731  :  Mc- 
Cullough  V.  Hicks.  ti3  S.  C.  547.  41  S.  E.  7(il. 

For  oth^r  cases,  see  Equity,  Cent.  Dig.  §  (Jl'l ; 
Dec.   Dig.   <S=31U.l 

[Jndfinient   <©=»4!tL'.] 

Nor  can  such  a  decree  be  (piestioned,  or 
treated  as  void,  on  a  collateral  issue:  it  must 
stand  good  until  vacated  on  a  proceeding  in- 
stituted specifically  for  that  purpose. 

[Ed.  Note. — For  other  cases,  see  Judgment, 
Cent.  Di^'.  §  930;    Dec.  Dig.  €=3492.1 

[Attorney  and  Client  <©=>7L'.l 

Evidence  that  the  .solicitor  who  signed  de- 
fendant's answer— not  signed  or  sworn  to  by 
defendant — had  not  been  empbjyed  by  him,  re- 
viewed and  declared  ins-itlicient. 

[Ed.  Note. — For  other  cases,  see  Attornev  and 
Client.  Cent.  Dig.  SS  lOli-104 ;  Dec.  Dig.  C= 
72.] 

Before  Dargan,  Ch.,  at  Charleston,  June, 
1852. 

This  case  came  up  upon  the  report  of  Mr. 
Tupper,  oue  of  the  Masters,  and  exception 
thereto.    The  report  is  as  follows: 

"The  late  Oeorge  Henry  appointed  the  de- 
fendants, Ker  Boyce  and  John  Magrath,  the 
executors  of  his  last  will  and  testament,  both 
of  whom  {]ualitied.  In  January,  1847,  the 
comidaiiuints  tiled  their  bill  in  this  Court, 
prayini:.  among  other  things,  an  account  of 
the  estate  of  the  testator.  In  investjgatin.ig 
the  matters  of  account,  which  have  been  re- 
ferred to  me.  a  questi<m  has  arisen  as  to  the 


<£;=»For  other  cases  see  same  topic  auU  KEY-NLMliEH  iu  all  Key-Numbered  Digests  aud  Indexes 


V5 


*188 


5  RICHARDSON'S  EQUITY  REPORTS 


liability  of  the  defendant,  Boyce,  for  a  loss 
sustained  by  the  estate  of  his  testator,  from 
the  nonrecordiug  of  a  mortgage  taken  to 
secure  a  debt  due  to  the  said  estate. 

"To  the  proper  understanding  of  this  ques- 
tion, the  following  statement  is  necessary: 
— George  Henry,  at  the  time  of  his  death, 
which  occurred  in  1S37,  was  seized  of  a  lot 
of  land  on  the  south  side  of  Market-street, 
in  this  city ;  in  May  of  the  year  1839,  an 
agreement,  in  writing,  was  entered  into  be- 
tween one  Thomas  D.  Fell  and  the  defend- 
ants, Ker  Boyce  and  John  Magrath,  executors 
of  the  said  George  Henry,  for  the  sale  of 
the  ^aid  lot  to  Fell  for  the  sum  of  ?2700.  on 
the  following  terms:  one-fourth  of  the  pur- 
chase money  to  be  paid  in  cash,  and  the  bal- 
ance in  a  bond,  payable  with  interest  an- 
nually, in  one,  two  and  three  years,  secured 
by  a  mortgage  of  the  premises.  After  the 
execution  of  this  agreement,  it  was  discovered 
that  the  executors  had  no  authority  to  sell 
the  said  lot,  which  had  been  devised  by  their 
testator  to  his  widow  and  his  infant  daugh- 

*189 
ter,  in  equal  pro*portions.  For  the  purpose 
of  securing  a  good  title,  Thomas  D.  Fell,  on 
the  6th  June,  1840,  filed  his  bill  in  this 
Court,  setting  forth  his  agreement  for  the 
purchase  of  the  said  lot,  the  payment  by  him 
of  the  cash  portion  of  the  purchase  price, 
and  the  execution  of  the  bond  and  mortgage 
required  by  the  terms  of  the  said  agreement, 
also  the  delivery  to  him  of  the  possession 
of  the  said  premises,  the  inability  of  the 
said  executors  to  legally  convey  the  said 
property,  and  praying  the  aid  of  this  Court 
in  perfecting  his  title  to  the  same.  To  this 
bill,  answers,  admitting  the  allegations  of 
the  complainant  and  seeking  a  confirmation 
of  the  sale,  were  put  in  by  the  defendants, 
Ker  Boyce  and  John  Magrath,  and  also  by 
William  T.  Woodward  and  Eliza,  his  wife, 
who  was  the  widow  of  the  said  George  Hen- 
ry ;  and  also  by  his  infant  daughter,  Ann 
Henry,  by  her  trustees,  Ker  Boyce  and  John 
Magrath.  The  answers  are  all  signed  by 
the  solicitor  of  the  defendants,  but  not  by 
the  parties  themselves.  On  the  8th  June, 
1840,  an  order  was  made,  referring  the  case 
to  J.  W.  Gray,  to  examine  into  the  facts  and 
report  thereon.  In  compliance  with  this  or- 
der, the  Commissioner  reported  that,  'George 
Henry,  the  testator,  died  seized  and  possess- 
ed of  the  said  lot  of  land  situate  on  the 
south  side  of  Market-street,  in  the  city  of 
Charleston,  which  it  is  proposed  to  sell  to 
Thomas  D.  Fell,  the  complainant,  for  $2700. 
That  by  the  provisions  of  the  will  of  George 
Henry,  his  estate  was  to  be  equally  divided 
between  his  wife  and  infant  daughter ;  and 
in  the  event  of  his  wife's  marrying  again, 
his  executors,  Ker  Boyce  and  John  Magrath 
were  made  trustees  of  his  said  daughter's 
share  of  the  estate,  part  of  which  is  the  lot 
in  question.' 

"  'I  find  that  Mrs.  Henry  has  lately  married 

76 


again,  and  the  interest  of  her  said  daughter 
is  placed  under  the  trusts  of  the  will.  That 
Thomas  D.  Fell  has  agreed  to  become  the 
purchaser  of  the  said  lot  of  land  for  the  sum 
of  two  thousand  seven  hundred  dollars,  pay- 
able as  follows:  one-fourth  cash,  and  the 
residue  in  a  bond  with  interest  payable  an- 
nually, in  one,  two  and  three  years  from 
date,  secured  by  a  mortgage  of  the  proper- 
ty ;     that   as    the   executors   have   no   power 

*190 
under  the  will  to  sell,  *and  as  the  infant 
daughter  of  George  Henry  cannot  consent  to 
the  sale  by  reason  of  her  minority,  a  good 
title  cannot  be  made  without  the  aid  of  this 
Court.  I  find  that  the  property  has  been  un- 
productive to  the  estate  of  Henry,  since  the 
great  fire  of  April  1838,  by  which  the  build- 
ings were  consumed;  and  I  have  taken  the 
testimony  of  a  witness,  who  is  well  qualified 
to  form  a  judgment  of  the  value,  and  find 
that  the  price  offered  by  Fell  is  a  full  and 
fair  consideration,  and  I  respectfully  sufcmit 
to  your  Honors  that  the  said  offer  be  accept- 
ed and  the  title  made  to  the  purchaser  as 
desired.' 

"Upon  the  coming  in  of  this  report,  it 
was  ordered,  'that  it  be  confirmed,  and  that 
the  Commissioner  of  this  Court  do  make  ti- 
tles for  the  said  lot  of  land  to  the  said  Thom- 
as D.  Fell,  upon  his  complying  with  the  terms 
of  the  contract,  as  set  forth  in  the  said  report. 
The  share  of  the  infant,  Ann  Boyce  Henry, 
to  be  held  by  the  said  executors  under  the 
trusts  of  the  said  will  of  the  said  testator, 
George  Henry.  And  the  costs  and  charges  to 
be  paid  out  of  the  estate  of  George  Henry, 
deceased.' 

"Subsequent  to  these  proceedings,  Thomas 
D.  Fell  mortgaged  the  said  lot  to  the  Bank 
of  the  State,  to  secure  a  loan  negotiated  by 
him  under  the  Act  for  rebuilding  the  city 
of  Charleston.  Under  this  mortgage  the  lot 
was  sold,  and  the  proceeds  applied  to  Fell's 
debt  to  the  Bank.  The  mortgage  made  by 
Fell  to  secure  the  payment  of  his  bond  to 
the  estate  of  Henry,  for  the  purchase  of 
this  lot,  has  never  been  recorded,  and  still 
remains  unsatisfied.  Upon  these  facts  the 
complainants  in  the  cause  now  before  the 
Court,  rely  to  charge  Mr.  Boyce  with  the 
amount  of  principal  and  interest  due  upon 
the  bond  given  by  Fell,  for  the  credit  portion 
of  the  purchase  of  the  lot  in  Market-street. 
On  the  other  hand,  it  is  contended  on  behalf 
of  Mr.  Boyce,  that  he  had  nothing  to  do  with 
the  bond  and  mortgage  from  Fell,  or  with  the 
proceedings  instituted  by  him.  to  perfect  his 
title.  That  in  no  way  was  he  connected  w'ith 
either  the  possession  of,  or  the  default  in  not 
recording  the  said  mortgage,  and  the  evidence 
adduced  in  support  of  these  positions,  is  re- 
lied upon  to  discharge  him  from  all  liability 

*191 
or  loss  resulting  to  the  estate  by  *reason  of 
the  said  default.    The  testimony  of  Mr.  Phil- 
lips,   who   represented   Fell  in  the   proceed- 


BAILEY  V.  BOYCE 


•193 


Inps  in  this  cause,  establishes  tlie  fact  that 
Mr.  Royce  was  a  party  to  the  original  agree- 
ment, between  the  executors  of  Henry  and 
Fell,  for  the  sale  of  this  property.  With 
this  exception  I  have  b«'en  unalile  to  (li.><cover 
any  thing  to  connect  Mr.  lioyce  witli  this 
transaction.  There  is  no  proof  that  he  knew 
of  Fell's  having  compiled  with  the  terms  of 
this  agreement.  Mr.  l'hillip.s  says:  that  he 
never  saw  lioyce  on  the  subject,  all  his  con- 
ferences were  with  his  co-executor,  John  Ma- 
grath.  It  is  true,  that  the  answer  of  the  ex- 
ecntors  to  the  bill  of  Fell  admits  that  be  had 
complied  with  tiie  terms  of  the  agreement; 
but  lioyce's  name  is  not  signed  to  the  answer, 
and  the  testimony  of  A.  G.  Magrath,  who 
represented  the  executors,  justifies  the  con- 
clusion that  Boyce  knew  nothing  of  the  pro- 
ceedings in  this  Court.  He  depo.ses,  that 
about  this  time  Ker  Boyce  was  very  freijuent- 
ly  absent  from  the  city;  that  John  Magrath 
appeared  to  be  acting  executor  of  the  estate 
of  Henry ;  that  the  bond  and  mortgage  of 
Fell  were  in  John  Magrath's  possession;  and 
that  he  gave  instructions  as  to  the  proceed- 
ings referred  to.  The  evidence  of  Mr.  Gray 
strengthens  this  opinion.  He  says:  "I  ex- 
ecuted a  title  to  Thomas  D.  Fell,  of  the  lot  of 
land  in  Market-street,  on  the  ll-'th  of  June, 
1840,  upon  satisfactory  evidence  being  fur- 
nished me.  that  the  terms  of  sale,  as  in  the 
proceedings,  had  been  complied  with."  The 
evidence  referred  to  by  Gray,  is  a  certificate 
signed  "John  Magrath,  executor  of  the  estate 
of  George  Henry,"  in  which  he  says :  "I 
have  sold  Mr.  T.  D.  Fell  the  lot  in  Market- 
street.  &c."  Mr.  Gray  further  states,  that 
the  bond  and  mortgage  executed  by  Fell  were 
never  in  his  possession  ;  that  no  money  was 
ever  paid  to  him,  except  his  costs,  which  were 
paid  by  A.  G.  Magrath.  The  fact  that  Boyce 
may  have  remained  passive,  and  not  obstruct- 
ed his  co-executor  in  receiving  the  credit  pro- 
ceeds of  the  sale  of  this  property,  will  not.  I 
conceive,  make  him  answerable  for  any  de- 
fault on  the  part  of  Magrath,  and  there  is 
nothing  before  me  which  shews  that  the  pos- 
session of  the  latter  of  the  securities  belong- 

*192 
ing  to  the  estate  of  Henry,  was  *tbe  result  of 
any  act  on  the  part  of  Boyce.  The  interest 
claimed  by  the  complainants  in  the  proceeds 
of  the  sale  of  this  lot  is  derived  through  Ann 
Boyce  Henry,  the  daughter  of  the  testator, 
who  was  a  minor  at  the  time  this  property 
was  sold  by  order  of  this  Court.  If  it  should 
appear  that  she  was  not,  jiroperly,  a  party  to 
the  proceedings  under  wliieli  this  ord«'r  was 
made,  it  may  be  that  the  complainants  will 
find,  in  their  present  title  to  the  land,  a 
stronger  reason  tiian  any  here  given,  for  the 
nonallowanci'  of  their  claim." 

On  an  excejition  to  the  reiJort,  his  Honor 
made  the  following  decree: 

Dargan,  Ch.  This  case  was  submitted  with- 
out argument.  It  comes  before  me  on  report 
and  exception.     The   Master's   report,   as  to 


the  facts,  is  full  and  perspicuous,  and  no  fur- 
ther statement  is  necessary. 

The  exception  relates  to  the  liability  of 
the  defendant,  Ker  Boyce,  for  a  loss  sus- 
tained by  the  estate  of  his  testator,  from  the 
non-recording  of  a  mortgage  taken  to  secure 
a  debt  due  to  the  estate. 

The  debt  thus  lost  was  for  the  proceeds  of 
the  sale  of  a  lot  of  the  testator,  on  the  south 
side  of  Market-street,  which  was  sold  to  one 
Thomas  I).  Fell  by  the  defendants,  Ker  Boyce 
and  John  Magrath,  as  executors  of  George 
Henry,  for  .$!-•, 7(10.  to  be  paid  in  the  manner 
si»eciHed  in  a  written  agreement  executed  by 
the  said  defendants.  Fell  executed  a  bond 
for  the  purchase  money,  and  a  mortgage  of 
the  premises  to  .secure  the  payment  of  the 
purchase  money.  This  was  the  mortgage,  the 
non-registry  of  which,  occasioned  the  loss 
to  the  estate.  The  mortgage  was  otherwise 
irregular;  for  Its  execution  by  Fell  preceded 
any  conveyance  of  title  to  him. 

After  the  execution  of  the  agreement  to 
sell,  by  the  executors,  it  was  discovered  that 
they  had  no  authority  to  .sell,  the  lot  in  ques- 
tion having  been  devised  by  the  testator  to 
his  wife  and  daughter,  in  e«iual  proportions. 
On  the  Gth  June,  1840,  Fell  filed  a  bill  in 
Equity,  setting  forth  the  agreement,  the  pay- 

♦193 
ment  *by  him  of  the  cash  portion  of  the  pur- 
chase money,  and  his  giving  a  bond,  and 
mortgage  of  the  premises,  to  secure  the  pay- 
ment of  thebalance;  and  prayed  fi>r  a  con- 
firmation of  the  sale,  and  for  the  aid  of  the 
Court  in  perfecting  his  title.  To  this  bill, 
the  defendants.  Boyce  and  Magrath,  fih'd  an- 
swers, admitting  the  allegations  of  the  bill, 
and  also  concurring  in  the  prayer  of  the  bill 
for  the  confirmation  of  the  sale,  and  that  the 
comi)lainants  should  have  good  titles.  The 
widow,  and  infant  daughter  of  the  testator, 
were  al.so  made  parties  to  the  proceedings, 
and  filed  answers.  The  answer  of  the  testa- 
tor's infant  daughter  was  put  in  by  the 
trustee  under  the  will,  and  was.  therefore  ir- 
regular. Whether  she  had  a  gininlian  ad 
litem  does  not  appear. 

The  case  was  referred  to  Master  .7.  W. 
Gray.  On  a  favorable  rei)ort  from  him.  the 
Court  confirnied  the  sale,  and  ordered  titles 
to  be  made  to  Fell,  by  the  Commissioner  of 
the  Court,  on  his  conqtlyiiig  with  the  tenns  of 
the  contract,  as  set  forth  in  the  said  report. 
Titles  wt're  executed,  and  delivered  to  Fell, 
in  i»ursuance  of  this  order ;  but  no  new 
mortgage  was  executed  by  him  to  the  Com- 
I  missioner,  or  to  the  executors;  Fell  having, 
prior  to  the  filing  of  the  bill,  complied  with 
I  all  the  terms  of  the  sale  as  set  forth  in  the 
agreement.  The  construction  which  I  put 
upon  the  decree  is,  that  it  intended  to  con- 
firm the  sale,  and  perfect  the  title,  and  to 
leave  the  bond  and  mortgage  In  the  hands  of 
the  executors,  to  be  disposed  of  in  conformity 
with  the  devises  and  trusts  of  the  will. 

^>ubse«pient    to   these   proceedings,  Thomas 

71 


*193 


5  RICHARDSON'S  EQUITY  REPORTS 


D.  Fell  mortgaged  the  said  premises  to  the  [ 
Bank  of  the  State,  to  secure  a  loan  negotiat- 
ed by  him  under  an  Act  for  rebuilding  the 
City  of  Charleston.  Under  this  mortgage  the 
lot  has  been  sold,  and  the  proceeds  applied  to 
the  payment  of  the  debt  of  Fell  to  the  Bank. 
The  mortgage  to  secure  the  debt  due  to  the 
estate  of  George  Henry,  in  consequence  of 
its  not  being  recorded,  has  been  postponed 
to  that  in  favor  of  the  Bank.  The  debt  due 
to  the  estate  of  Henry  has  never  been  paid, 
with  the  exception  of  the  one-fourth  of  the 
purchase  money  received  as  the  cash  instal- 

*194 
ment.   *Fell  is   insolvent.     John  Magrath  is 
also  insolvent.     And  the  question  is,  whether 
Boyce  is  liable? 

The  defence  of  Boyce  rests  upon  the  as- 
sumption, that  the  money,  (cash  instalment.) 
the  bond  and  the  mortgage,  went  into  the 
possession  of  his  co-defendant,  John  Ma- 
grath ;  that  the  whole  transaction  was  man- 
aged by  him  ;  and  that  the  loss  has  resulted 
from  his  default  alone.  The  evidence  ad- 
duced to  establish  the  state  of  facts  thus  as- 
sumed, is,  to  my  mind,  inconclusive.  But 
admitting  the  facts,  as  above  stated,  to  be 
true,  there  are  still  other  facts,  having  an 
important  bearing  upon  the  question,  which 
are  also  indisputably  true.  Boyce  did.  joint- 
ly with  his  co-executor,  execute  the  contract 
of  sale  to  Fell.  The  bond  and  mortgage  were 
given  jointly  to  the  two  executors,  Boyce  and 
Magrath.  On  the  bill  filed  by  Fell  for  a  con- 
firmation of  the  sale,  and  for  the  perfection 
of  his  title,  they  both  filed  answers,  and  both 
concurred  in  a  prayer  that  the  sale  should  be 
confirmed,  and  the  title  of  the  complainant 
should  be  perfected. 

This  is  precisely  the  case  of  Mathews  v. 
Mathews,  McM.  Eq.  410.  In  the  latter  case, 
the  testator,  George  Mathews,  devised  the 
real  estate  in  question  to  his  five  younger 
children.  He  appointed  Mi's.  Martha  Ann 
Mathews  his  executrix,  and  William  Savage 
Elliott  his  executor — of  whom  the  latter 
alone  proved  the  will,  and  acted  in  the 
execution  of  it.  He  sold  the  land  to  Edward 
Gamage,  and  afterwards  filed  a  bill,  in  which 
Mrs.  Mathews  joined,  for  the  confirmation  of 
the  sale.  In  pursuance  of  an  order  of  the 
Court,  the  Master  in  Chancery  executed 
titles  to  Gamage,  received  the  purchase  mon- 
ey, and  paid  it  over  to  the  executor,  W.  S. 
Elliott.  On  a  bill  filed  by  the  devisees  of  the 
testator,  George  Mathews,  against  Mrs. 
Mathews,  the  executrix,  for  an  account,  it 
was  decided,  that  she  was  accountable  for 
the  devastavit  of  her  co-executor,  (who  was 
insolvent,)  in  regard  to  the  fund  arising  from 
the  sale  of  the  real  estate.  This  case  is  much 
stronger  in  favor  of  the  party  who  did  not 
receive  the  money,  and  who,  personally,  com- 
mitted no  devastavit,  than  the  one  now  be- 

*195 
fore   me    for    judgment.      In    *ueither,    was 
78 


there  a  necessity  to  sell  for  the  payment  of 
debts.  And  in  both,  the  innocent  executor 
concurred  with  the  devastating  executor  in 
an  act.  by  which  the  latter  was  enabled  to 
get  possession  of  the  fund,  and  which,  with- 
out such  concurrence,  he  could  not  have  done. 
Chancellor  Harper,  in  his  decree  in  the  case 
cited,  says  "it  is  to  be  observed,  that,  as 
executors,  they  had  nothing  to  do  with  the 
land.  There  does  not  appear  to  have  been 
any  necessity  to  sell  for  the  payment  of 
debts ;  and  in  procuring  a  sale  of  the  land, 
they  seem  to  have  volunteered  to  act  as 
trustees.  And  though  it  is  said  in  the  cases, 
that  when  a  trustee  joins  in  a  receipt,  or  con- 
veyance, by  which  his  co-trustee  is  enabled 
to  receive  the  money,  he  is  not  responsible, 
because  it  was  necessary  for  him  to  join  for 
conformity — yet,  in  this  case,  I  think  there 
was  no  necessity  for  her  to  join ;  there  was 
no  necessity  for  her  to  volunteer  as  trustee." 
The  case  of  Brice  v.  Stokes,  11  Ves.  319, 
decided  by  Lord  Eldon,  and  cited  by  Chan- 
cellor Harper,  is  an  exceedingly  strong  one 
in  support  of  his  view  of  the  subject. 

In  Toller's  Law  of  Executors,  it  is  laid 
down  as  a  well  settled  rule,  that  "where,  by  an 
act  done  by  one  executor,  any  part  of  the 
estate  comes  to  the  hands  of  his  co-executor, 
the  former  will  be  answerable  for  tte  latter, 
in  the  same  manner  as  he  would  have  been 
for  a  stranger  whom  he  had  enabled  to  re- 
ceive it."  Upon  this  rule  the  Court  founded 
its  decree  in  Johnson  v.  Johnson,  2  Hill, 
Eq.  289  [29  Am.  Dec.  72].  See  also  the  case 
of  Crosse  v.  Smith,  7  East,  246. 

The  case  of  Atcheson  v.  Robertson,  3  Rich. 
Eq.  132  [55  Am.  Dec.  634],  was  a  ca.se  of  per- 
sonal estate  where  there  was  a  testamentary 
authority  to  sell,  and  a  necessity  to  sell  for 
the  payment  of  legacies,  and  where  both  the 
executors  had  equal  authority.  The  act  of 
one  of  them  would  have  been  as  authoritative 
as  the  act  of  both.  The  I'eceipt  of  one,  in 
discharge  of  a  debt  due  the  estate,  would 
have  been  good,  even  though  the  one  giving 
the  discharge  on  receiving  the  money,  might 
not  have  been  in  possession  of  the  note,  or 
evidence  of  the  debt.  In  that  case,  the  two 
executors  concurred  in  the  sale  of  the  person- 

*196 
al  estate.  They  both  signed  *the  account 
of  sales  returned  to  the  Ordinary.  They 
afterwards  divided  between  them  the  notes 
which  were  given  for  the  proceeds  of  the 
sale.  One  of  them  died  insolvent,  having 
committed  a  devastavit ;  and  it  was  decided 
that  the  surviving  executor  was  not  account- 
able for  the  devastavit  of  his  co-executor. 
But  that  case  was  clearly  distinguished  In 
the  judgment  of  the  Court  from  that  of 
Mathews  v.  Mathews ;  and  the  latter  intend- 
ed to  be  left  intact. 

The  exception  is  sustained.  It  is  ordered 
and  decreed,  that  Ker  Boyce  and  John  Ma- 
grath do  jointly  account  for  the  sum  of  $2,- 


BAILEY  V.  BOYCE 


•19R 


700,  the  prooeods  of  the  sale  of  tlu'  lot  of  the 
testator,  ill  Market-stn-t't ;  with  interest 
thereon,  to  he  calculatfd  in  the  same  manner 
as  if  the  purchaser.  Tliomas  D.  Fell,  had 
paid  the  purchase  money  according  to  the 
terms  of  the  sale,  expressed  in  the  agree- 
ment. It  is  further  ordered  and  de<-reed,  that 
the  account  he  referred  hack  to  Master  Tup- 
per,  to  he  adjusted  according  to  the  prin- 
ciples of  this  decree. 

Defendant,  Boyce,  appealed  for  the  fol- 
lowing reasons: 

1.  That  the  default  or  miscarriage  by 
which  the  mortgage  of  Fell  was  lost,  was  not 
coniniitted   b.v  him. 

■J.  That  he  was  not  responsilile  for  the 
other  executor.  If  the  other  executcn*  had 
received  the  money  and  lost  it,  this  defend- 
jint  would  not  have  been  l)ound.  Tiiat  the 
other  executor  received  the  bond,  and  lost  it 
— and  for  the  same  reason,  the  defendant  is 
not  bound  for  the  loss  of  the  bond. 

3.  That  the  complainant,  Eliza  Uritton, 
■was  as  much  a  party  to  the  proceedings  in 
E<iuity.  as  this  defendant,  and  defendant  is 
not  bound  to  indemnify  her  against  the  mis- 
(  arriage  of  that  suit. 

4.  That  the  only  act  which  he  did  was  in- 
nocent and  lawful,  for  which  he  is  not  an- 
swerable at  all,  and  much  less  for  remote 
and  consequential  damages. 

Petigru,  Lesesne,  for  apitellant.  cited  Hill 
on  Trustees,  310;  Attorney  (Jeneral  v. 
liandall,  2  Eq.  Ca.  Abr.  742:  .lacomb  v.  Har- 
wood,  2  Ves.  sen.  2G7 ;   I^eigh  v.  Harry,  3  Atk. 

*197 
nS3 ;     *Shipbrook    v.    Ilinchinltrook.    lt>   Ves. 
477;    Bacon  v.  Bacon,  5  Ves.  :VM;    Lewin  on 
Trustees,  241. 

Brewster,  contra,  cited  Wms.  on  Ex'ors., 
1.j4S  :  UnderwocMl  v.  Stevens,  1  Meri.  712 ; 
Saddler  v.  Ilohbes,  2  Bro.  Ch.  11.  07,  note  c, 
•OS  note,  Perkins'  edit. ;  Chambers  v.  Min- 
chiu,  7  Ves.  ISO:  Xelson  v.  Carrington,  4 
Munf.  332;  Ilauser  v.  Shepmau,  2  Ired.  Ch. 
7)04;  Clark  v.  Clark,  8  Paige,  303;  2  Story 
Eq.  §  1283,  et  se<i. 

The  opinion  of  the  Court  was  di'livered  by 

DARGAN,  Ch.  It  is  very  clear  that  the 
infant  daughter  of  George  Henry  was  not 
properly  i-epresented  in  the  proceedings  in- 
stituted by  Thos.  I).  Fell,  against  the  execu- 
tors and  devisees  of  the  said  (ieorge  Henry, 
lor  the  purpose  of  perfecting  his  title  to  the 
lot  which  had  been  jtrevlously  sold  to  him 
l)y  the  executors.  The  infant  devistv  had 
no  guardian  ad  litem:  but  an  answer  was 
filed  in  her  name  by  the  truste(>s  aitjjointed 
i»y  the  will.  She  would  not  lie  itound  by  the 
decree,  for  every  formality  re<piisite  to  bind 
an  infant,  by  the  judgment  of  the  Court  is 
wanting.  Nevertlieless,  it  is  uncpiestionable 
that  she  may  athrm  the  contract  irregularly 
made  in  her  behalf,  and  seek  tt  recovery  of 
the  purchase  money. 


It  is  not  denied,  but  that  the  legal  propo- 
sitions by  which  the  defendant,  Boyce,  is 
made  lialde  in  the  circuit  decrtv,  are  correct- 
ly expounded.  Nothing  can  be  clearer  upon 
the  authorities,  than  the  |»rinciple,  that 
where  one  executor  concurs  with  a  devastat- 
ing co-executor  in  an  act  by  which  the  latter 
gets  pos.scssion  of  the  funds  wasted  or  lost, 
and  wiiich  without  such  act  of  concurrence 
could  not  have  haiijiened,  the  con.sentiug, 
though  innocent,  executor  becomes  resi)onsi- 
bh'  for  him  who  has  committed  the  waste  or 
default. 

The  law  being  thus  clear,  the  only  question 
open  to  discussi(Ui  is  one  of  fact.  Did  Boyce 
concur  with  his  co-defendant,  Magrath,  in 
the  .sale  and  tlie  judicial  proceedings  by 
wliich  the  testator's  real  estate,  devised  to 
his  wife  and  infaiit  daughter,  was  conveyed 
to   Fell/     If   there  be  no  such   evidence,   he 

♦198 

must  *lie  discharged;  but  if  there  be  satis- 
factory evidence  of  such  concurrence  on  his 
part,  he  must  be  held  accountable. 

In  the  fli-st  place,  it  is  worthy  of  remark, 
that  there  was  no  necessity  to  .sell  this  lot 
for  the  payment  of  the  testator's  debts.  The 
personal  assets  in  the  hands  of  the  execu- 
tors were  more  than  ample  for  this  purpose. 
I  do  not  perceive  that  it  would  help  the  case 
of  the  defendant,  "Royce,  if  such  necessity  to 
sell  had  existed:  though  some  of  the  cases 
seem  to  lay  stress  on  this  fact.  Nor  was 
there  any  nei-essity  for  a  partition  at  that 
time.  Neither  of  the  two  tenants  in  common 
was  moving  ft>r  a  partition.  It  was,  there- 
fore, merely  a  voluntary  and  speculative 
sale,  brought  about  by  parties  who  had  no 
interest  or  title  in  the  prt)perty. 

But  the  question,  as  T  have  said,  is  as  to 
the  concurrence  of  Boyce.  Tlie  evidence  on 
this  point  is,  to  my  mind,  irresistible.  I 
will  not  comment  upon  it  in  detail,  but  will 
attempt  merely  to  group  together  the  princi- 
pal facts.  John  Phillips,  who  was  ctfunsel 
for  Fell  in  the  proceedings  in  Ecpiity,  insti- 
tuted for  the  purpo.se  of  iHM-fecting  Fell's  ti- 
tle to  the  Market-street  lot.  says:  "There 
was  a  written  agreement  between  Thomas 
D.  Fell  and  Iver  Boyce,  and  John  Magrath, 
for  the  sale  of  this  property  by  the  said  ex- 
ecutors to  the  said  IVU.  This  agreeiuent 
was  submitted  to  witness  by  Fell,  upon  which 
he  instituted  the  prot-eedings  in  ICtpiity  to 
obtain  titles  tt)  said  property."  Mr.  Phillii>s 
also  says,  that  "there  was  a  mortgage  to 
John  Magrath  and  Ker  Boyce.  as  executors." 
It  is  hardly  to  be  presumed,  that  Fell  would 
have  executed  a  mortgage  of  the  lot,  with- 
out first  having  obtained  titles  or  some  writ- 
ten agreement  by  which  he  thought  the  lot 
was  assured  to  him. 

On  discovering  that  the  executors  had  no 
power  under  the  will  to  sell  and  convey  the 
real  estate.  Fell  filed  his  bill,  as  has  before 
been  stated.  He  made  the  executors  and  the 
testator's  widow   and  infant  daughter   (who 

79 


*198 


5  RICHARDSON'S  EQUITY  REPORTS 


were  devisees)  defendants.  He  charges  in 
the  bill,  that  the  two  executors  had  entered 
into  an  agreement  to  sell  him  the  lot  for  the 
sum  of  $2,700,  to  Be  paid  in  certain  instal- 
ments.   He  asserts  that  they  had  let  him  into 

*199 
*the  possession,  in  pursuance  of  the  agree- 
ment. He  prays  that  the  Court  would  de- 
cree him  a  title,  in  conformity  with  the  terms 
of  the  agreement.  Tlie  two  executors  filed 
a  joint  answer:  in  which  they  admitted  all 
the  allegations  of  the  complainant's  bill,  and 
concurred  in  the  prayer  thereof:  that  Fell 
should  have  his  title  perfected  by  a  decree  of 
the  Court.  Here  it  would  seem,  that  there 
was  evidence  of  Boyce's  concurrence,  which 
sophistry  could  not  assail,  nor  scepticism 
doubt. 

But  the  zeal  and  the  ingenuity  of  counsel, 
has  raised  a  question  on  this  evidence.  On 
an  examination  of  the  joint  answer  of  Boyce 
and  Magrath  to  the  bill  of  Fell,  which  is  of 
record,  it  appears  that.  neitlTer  of  them  sign- 
ed the  answer;  nor  was  Oie  answer  sworn 
to.  It  was  signed  "A.  G.  Magrath,  defend- 
ant's solicitor."  It  is  contended  that  this 
answer  is  no  evidence  of  Boyce's  concurrence, 
because  there  is  no  evidence  that  A.  G.  Mag- 
rath was  his  solicitor,  or  was  authorized  to 
sign  an  answer  for  him.  The  negative  parol 
evidence,  on  this  point,  is  very  inconclusive. 
The  validity  of  the  objection  must,  there- 
fore, rest  upon  the  abstract  apropos! tion, 
that  a  defendant  is  not  bound  by  a  decree 
of  the  Court,  unless  his  answer  has  been 
sworn  to,  or  signed,  or  there  be  proof  that 
the  person  who  signed  the  answer  for  him 
was,  in  fact,  his  solicitor.  It  requires  but 
little  reflection  to  perceive,  that  the  doctrine 
contended  for,  would  be  exceedingly  danger- 
ous, if  admitted.  It  would  render  null  many 
decrees,  and"  subvert  many  titles.  I  think  it 
has  been  a  vei'y  general  practice,  in  many 
parts  of  the  State ;  and,  perhaps,  in  no  place 
more  common,  than  in  this  city,  to  consider 
the  answer  as  sufficient,  if  signed  by  the  de- 
fendant's solicitor.  If  the  answer  was  not 
sworn  to,  it,  of  course,  could  not  be  evidence 
for  the  defendant.  And  if  the  plaintiff  de- 
sired a  discovery  from  the  defendant,  he 
would  except  to  the  anstver  for  this  omis- 
sion. It  so  happens,  that  in  the  very  case  I 
am  now  considering,  there  are  several  an- 
swers not  sworn  to,  or  signed  by  the  defend- 
ants in  person.  I  do  not  justify  this  loose 
and  reprehensible  practice,  which,  doubt- 
less, leads  to  many  evils  and  abuses.  These, 
I  can  not  now  pause  to  notice.     But  what  I 

*200 
would  say,  is  this,  *that  where  an  answer 
has  been  filed  in  the  name  of  a  defendant, 
and  purports  to  have  been  signed,  by  his 
solicitor,  in  his  behalf,  and  the  case  pro- 
ceeds to  a  hearing  and  judgment,  such  a  de- 
fendant is  bound  by  the  decree,  unless  he 
can  shew  that  the  solicitor,  who  undertook 
to  act  for  him  in  the  premises,  was,  in  truth, 

80 


not  authorized  to  do  so.  Neither  can  such  a 
decree  be  questioned,  or  treated  as  void  on  a 
collateral  issue,  but  it  must  stand  as  the 
decree  of  the  Court,  until  it  is  set  aside  and 
vacated,  on  a  proceeding  instituted  specifical- 
ly for  that  purpose.  Every  Court  must  be 
presumed,  when  it  proceeds  to  deliver  its 
judgment,  to  have  adjudged  the  fact,  that 
the  parties  to  be  affected  by  its  judgment, 
were  properly  represented  before  it ;  and 
upon  this  presumption  the  decree  must  stand, 
until  it  is  reversed  by  a  competent  jurisdic- 
tion. Chancellor  Harper  has  considered  this 
subject  in  Winslow  v.  Barry,  and  we  sug- 
gest, that  his  opinion  be  reported  in  connec- 
tion with  this  case.(o) 


(a)  The  following  is  the  opinion  of  Clianrel- 
lor  Harper,  in  the  case  of  Winslow  v.  Barry. 

Harper,  Ch.  But,  with  respect  to  Mrs.  Wins- 
low, it  is  urged,  that  a  married  woman  can  not 
alienate  her  inheritance  in  any  other  manner 
than  that  pointed  out  by  the  Act  of  Assembly 
uptin  tlie  subject.  But  there  is  no  doubt  that 
she  may  alienate  it  by  the  sanction  and  decree 
of  a  Court  of  Equity,  and  the  decree  made  by 
the  Court  does  sanction  and  confirm  her  con- 
veyance, and  settle  the  title  of  the  parties.  It 
is  argued,  as  I  understand  it,  that  she  ought 
not  to  be  considered  a  party  to  that  suit,  be- 
cause her  answer  does  n«t  appear  to  be  signed 
or  sworn  to:  and  authority  was  quoted  to  shew 
that  tliese  are  requisite.  But  this  is  a  mis- 
concei)tion.  It  is  said,  4  Bridg.  Dig.  2d,  Title, 
Answer  VI.,  122,  referring  to  Bunb.  251, — that 
"a  defendant  ought  to  sign  his  answer,  or  for 
such  default  an  injunction  may  be  continued. 
But  quM're,  whether  if  plaintiff  takes  an  office 
copy  of  the  answer  it  is  not  a  waiver  of  that 
informality."  It  would  seem  from  this  that  it 
is  for  the  plaintiff's  security  that  the  signing  is 
required.  In  Barley  v.  Pearson,  3  Atk.  439,  it 
was  moved  to  suppress  an  answer  for  want  ot 
being  signed. — I'pon  a  search  for  precedents  it 
was  certified,  that  there  were  precedents  both 
ways ;  some  signed  and  some  not  signed  by 
the  parties.  In  support  of  the  motion  was  urged 
the  difficulty  of  convicting  for  perjury,  in  case 
of  a  false  answer.  Lord  Hardwicke  acknowl- 
edged the  difficulty,  but  refused  to  make  the  or- 
der, as  there  were  precedents  both  ways.  He 
said,  however,  that  he  would  consider  of  some 
method  of  making  the  practice  uniform  in  fu- 
ture. This  was  in  174G;  accordingly  in  1748, 
(2  Atk.  290,)  he  made  an  order  reciting  the 
difficulty,  ami  directing  in  future  all  answers  to 
be  signed  by  the  party.  There  is  a  similar 
rule  in  the  Court  of  New  York.  Blake's  Ch, 
118.  Now  it  might  be  well  to  enforce  the  order 
of  Dord  Hardwicke,  by  directing  the  officer  not 
to  file  the  answer  until  it  is  signed  and  sworn 
to ;  or  by  directing  it,  on  motion,  to  be  taken 
from  the  file  during  the  pendency  of  the  suit. 
But  no  one  has  conceived  that  this  is  ground, 
for  vacating  a  decree  once  pronounced.  As  to 
the  swearing,  that  is  evidently  a  matter  for  the 
security  of  the  plaintiff,  which  he  may  waive^ 
if  he  will.  But  surely,  it  is  not  for  the  defend- 
ant, or  those  claiming  under  him,  to  take  ad- 
vantage of  the  informality  of  his  own  answer. 
If,  in  point  of  fact,  Mrs.  Winslow  was  not 
served  with  process,  or  apprised  of  the  suit, 
and  did  not  authorize  the  aypearance  by  Coun- 
sel, it  is  possible  that  she,  or  her  heirs,  a  ma- 
jority of  whom,  by  the  by,  are  before  the  Court 
seeking  to  support  the  deed,  might,  by  proper 
proceedings    for   the   purpose,    and    by   shewing 

*20l 
those  facts,  set  aside  *the  decree;  if  indeed  shs 
had  not  afterwards   recognized  the  fact  of  her 
being  a  party  to  the  suit,  by  the  deed  of  separt- 


PERRY  V.  LOGAN 


*202 


♦201 


•Ker  Boyce,  therefore,  in  this  case  must 
be  prosuint'd  to  have  been  a  proper  party  In 
Fell  V.  Ex'ors  of  Henry.  And  that  Mr.  Ma- 
grath  \va.s  duly  authorized  by  him,  to  repre- 
sent him  in  the  premise.s.  Tliis  is  a  pre.sunii> 
tion  well  .supported  by  the  evidenee  of  Mr. 
Masrath,  who  .says,  that  he  "was  employed 
to  repre.sent  the  e.xecutors."  He  .says  fur- 
ther, that  "he  was  eniph)yed  in  the  usual 
way  to  repre.seTit  tlie.se  partie.s."  The  con- 
clusion of  the  Court  is.  that  Koyce's  eoiuur- 
rence  in  the  sale  to  Fell,  has  been  sufficiently 
proved:  and  the  further  conclusion  of  tlie 
Court,  as  a  matter  of  law.  is.  that  he  is  li- 
able for  the  ne;;lect,  or  omi.ssion  of  his  co- 
executor  to  rword  the  moitfraKe.  from  which 
loss  has  accrued  to  the  estate. 

The  Court  is  further  of  the  opinion,  that 
there  is  merit  in  the  third  jirouiid  of  ai)iieal 
of  the  defendant  Boyce.  Mrs.  Eliza  Henry 
(testator's  widow,  now  Mrs.  Britton.)  was 
also  an  executrix  of  the  will  of  fi!eor«e  Hen- 
ry. She  was  a  i)arty  to  the  bill  of  Thomas  D. 
Fell.  She  assented  to  and  concurred  in  the 
sale.  The  very  same  principle  which  suli- 
jects  Boyce  to  liability,  oufrht  to  exempt  him 
from  liability  to  her  for  her  part  of  the 
loss. 

The  judgment  of  this  Court  is,  that  the 
defendant.  Boyce.  is  to  account  only  for  the 
moiety  of  the  imrchase  money  of  the  .said 
lot,  which  belonu'ed  to  Anna  B.  Bailey,  the 
Infant  dnusriiter  of  the  te.stator.  Ceor«e  Hen- 
ry. And  so  much  of  the  Circuit  decree  as 
orders  an  account  for  the  moiety  of  the  pur- 
chase money  of  said  lot.  that"  was  due  to 
the  testator's  widow  (now.  Mrs.  Britton.)  be 
reversed  :    it  is  ordered  and  decreed,  that  the 

*202 
♦Circuit   decree   lie   so   modified:    that   in   all 
other  respects  it  be  allirmed.  and  the  appeal 
be  dismissed. 


5   Rich.  Eq.  202 

BENJAMIN  I'i:i{KY,  Adm'r  uf  I.saac  P.  Droze. 

V.  BENJAMIN   LUGAN  and  Others. 

(Charleston,      Jan.    Term,    l.Soo.) 

[Descent  ami  Distribution  «@=341  ) 

t  nder  the  statute  of  (listril)iitinns.  mu-les 
ami  aunts  of  the  ha!f-l.l.„Kl  are  entitled  as  n.-xt 
<•!  Kin,  lu  exclusion  of  tirst  oousins  of  th.-  whole- 
uiood. 

|E<1.   Note.— For  other  oases,  see  I)es.-..nt  and 
jMstnbution.  Cent.  Di^-.  §  11(5;    IK-c.   IM«.   ^ 

[I'eriirtuitics  <@=34.] 

Where  a  testator  directs  his  real  estate  to 
)e  sol(  l.y  l„.s  executors,  and  be.,u.'aths  -the 
.  o.e,.ds.  such  ••j.roci^vls"  heins:  reRar.Ie.l  in 
M  '  .•  '  ,"**  j"'''''"""'^^-  a  limitation  over,  upon 
the  ,l,.ath  of  the  lesatee.  "I.-avin;:  no  lawful  is 
Mie,  IS  not  t(.o  remote;  and  it  n.ak.s  nu  dif- 
ference that  tho  executors  n.-Kle.t.-.l  to  sHI.  and 
rnat  the  le-atee  occupird  and  enjoyed  tiie  land. 

rl!!f-i^"^'\~]'y  1'^^''^  '"'««'^.   •^•'•'  Perpetuities", 
Cent.   1)1^'.   j^  ;u):    Dec.  Di^'.  Cz34.] 


DUNK  IN 
red. 


and    WAKDLAW,    CC,    concur- 


JOHNSTO.X.    Ch..    beins    connected    with 
some  of  the  i)Mrties.  did  not  sit  in  the  cause. 
Decree  modified. 


tion  of  IS-J.,.  i-,.,itiii«  it.  and  hv  what  is  called 
her  wi  1  Or  they  iniuht  perhaps  have  a  rernciv 
against  the  counsH  ^^■U„  si^w.ed  without  antlior- 
t}.  But.  undoubtedly,  while  the  decree  stands 
unrevers..,!  upon   th-  re,-nrd.   I   am  hound  to  re- 

Darnel.  Ihe  pr..smpti..„  i.s.  that  all  iMrsuns 
were  regularly  made  paities.  who.sc  rights  ap- 
I>ear  to  be  d.cnrd  up..n  as  parties.  Anv  other 
practice  would  j.lainly  be  pernicious  and  im- 
Piacticable.      I    ,n,ist  then  declare  the  risiits  of 

I  oni'n'f  r^  <^f  "''''«''«^'  according  to  the  provi- 
Bions  of  the  deed. 

Ex  parte  J.  D.  j,.  Va.n-deksmisskv  an.l 
Lot  ISA  CATHARr.NA  COLI.ETo.V.  His  Wife  In 
Eq    January.  182!>:    Decree  Book  ISL'T  to  is;{(> 

Ai)i)!ication  to  take  answer  from  nlT  file  |„.- 
cause  not  signed  or  .sworn  to.  comes  to,,  "late 
after  decree.  It  seems,  that  if  the  proceedings 
an.  ac(Mii,.sced  in.  the  defendant  is  hound.     Be- 


[Convcrsion  (gzslf).] 

con.S'''i*'-'''l"  "   ^''-^t'-'f'"-  'li't-fts  his   land  to  he 

conNetr.1   int..  money,  and.  as  ii,on,.v.  to  g,.  to 

the  objects  of  his  b..unty.  the  l,..,,;,..st  iV  in 
i'-'iuity,   regarded   as  one   of  personalty. 

t-^^"^'-,m"^''~^''**'^^  '"  Farmer  v.  Si.ell  11  Rich 
lv|.  ;j4..;  Farr  v.  Cill.nath.  Si  s'  ('  ni.-{" 
<olton  V.  (Jalliraith.  ;;r.  .s;  c  r,;;4  '^4'^  y' 
!•;>(:    Clarke   v.   Clarke.  4(i  S    C    "4-''    "4   s     f" 

iillVc.  m^sl'^E'lf  ^'''tti;on ;:  St;...;; 

[Executors    and    Adininintrators    €=>•»"-,  ] 
reje^^ed  as'sfale.""  "''^"""'  "^  ''''''  "'"'"  «>^««t=^ 
lEd     Note— For    other    cases,    .see    Executois 
vr'I-.  -I^' i»'"'«trators.  Cent.  Dig.  5i§  7SJ»-.S()0.  S02 
M>...  s(i;»:    Dpc.  D.g.  (S=3i.>i.'.-,. ] 

I  Willx  <©=>.-.<»;{.] 

Te.stat.ix.  de.laring  that  she  had  given  Jane 
one  of  h.-r  several  legatees,  l.ss  than  tl...  others 
liiects  ea.h  of  h,.r  other  legatees  to  i^ive  Jane 
us  or  her  bond  for  .$1.-,U.  and  charges  their 
legac.es.  respectively,  with  the  pavni.-nt  of  that 
amount  to  Jane,  in  case  l.onds  shouhl  n..t  be 
giv.-n:  alter  the  (hath  of  testatrix  the  l.unds 
were  given  :-//c/</,  that  the  bon.ls  wnc  not  sub- 
ject to  the  i.rovisiou  of  a  codicil  to  the  will 
which  (lircted  that  ••whatever  pn.pertv"  the 
testatrix  ha.l  given  three  named  legatees.  Jane 
I'eing  one,  should,  in  a  certain  event  go  to 
others.  *" 

1^1  !''*'<  ^vo--~?r^  ^^V^-  <-"«•'«•  see  Wills.  Cent. 
l>ig.  !>  l.Ud  ;    Dec.  Dig.  <s=>r){);5.] 

(Ili7/.v  <s=.".!t4.j 

Devis..  to  three,  and  if  all  ••shall  .11.-  with- 
out lawful  i.ssue,  and  l...forc  thev  arrive  at  the 
age  .pf  twenty-...!.-  year.s.-  then  "..v.-r:  all  .li.-d 
without  issue.  tw.>  l..-f...e  arrivi.ii;  at  age  an.l 
on.-  after:-//c/./.  that  the  limitation  ha.l  failed 
-tl...  d..ul.l.-  .•..ntmgeny  „„  which  it  was  to 
take  effect  11. tt   having   happened. 

tJ^'^'I:   ^.y}*:~K''^  VM""'"  •"'••'•■^.  ^^^  WiIU,   cent. 
Dig.  jj  1.514 ;    Dec.  Dig.  <©=).-,i>4.] 

[H'i7/,<t    C=»,-.47.] 

M.-.|U.-st  to  seven  r.-si.hiary  l.-gat.-es  -.'.Miiillv 
to  h.-  .livi.l.'.l  ainonust  them  f..r.-v..r"' :  ..ne  hav- 
ing .li.'.l  l,.-fore  fstator.  /„•/./.  that  his  share  had 
lai.s.Ml  and  I.e.-.. me  intestat.-  property. 

I  Ed.   N..te.— For  other  cas.-s.  s.-e   Wills    Cent 
Dig.  S   n7!»:    Dec.  Dig.  <©=5r>47.] 
[iri7/.«  <©=(i02.] 

.. ,.  i|<'«|i'!'><t    to   one   absolutely,    and    sh.mld    he 
'■"'  b-av..ig  n.i  lawful  issue."  th.-n  to  four  per- 


^uZu%^-T  '''  ^"^"'^  '"P''^  ^"^  KEV-NUMHER  lu  uU  Key-Numbered  Digests  and  I^^^^s 

ol 


*202 


5  RICHARDSON'S  EQUITY  REPORTS 


sons,  naming  them,  "to  be  equally  divided  be- 

*203 
tween"  them:  one  of  the  four  died  *before  the 
testator:— //eW,  that,  as  to  the  one-fourth  which 
he  would  have  been  entitled  to  upon  the  happen- 
ing of  the  contingency,  had  he  survived  the 
testator,  the  estate  of  the  first  taker  was  in- 
defeasible. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  §§  1351-1359;    Dec.  Dig.  <®=5602.J 

[Wills   <©=5602.] 

Where  an  estate  is  given  to  one  absolutely 
in  the  first  instance,  and  is  made  defeasible  upon 
a  contingency,  on  the  happening  of  which  it 
is  to  go  over  to  a  third  person,  if  such  limita- 
tion over  cannot  take  effect,  as,  for  instance, 
because  of  the  death  of  such  third  person  be- 
fore the  testator,  the  estate  of  the  first  taker  is 
indefeasible. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §  1357 ;    Dec.  Dig.  «S=^U02.] 

This  cause  was  heard  at  Colleton,  extra 
sittings,  July,  1852,  before  Dargan,  Ch.,  who 
made  the  following  decree : 

Dargan,  Ch.  Isaac  P.  Droze  departed  this 
life  in  the  month  of  October,  A.  D.,  1S50,  in- 
testate, and  in  the  possession  of  real  and 
personal  estate.  The  complainant,  Benjamin 
Perry,  is  his  administrator.  The  intestate 
left  an  uncle  of  the  half-blood,  to  wit,  Ben- 
jamin S.  Logan,  I'esiding  in  the  State  of 
Alabama ;  an  aunt  of  the  half-blood,  viz., 
Martha  M.  Chipman,  wife  of  Henry  Chip- 
man,  residing  in  the  State  of  Michigan ;  and 
various  other  relations  claiming  to  be  cousins 
german  of  the  whole  blood,  who  are  named 
in  the  bill,  and  whose  names  it  is  unneces- 
sary that  I  should  particularly  mention. 

All  these  persons  are  parties  to  the  bill ; 
and  their  relationship,  as  therein  stated,  is 
admitted  to  be  correct.  The  question  be- 
tween these  parties  is,  whether  the  uncle  and 
aunt  of  the  half-blood  are  entitled  to  take 
in  exclusion  of  cousins  german,  who  are  the 
children  of  the  intestate's  deceased  uncles 
and  aunts  of  the  whole-blood. 

Independent  of  any  authority  in  the  way 
of  a  judicial  decision,  I  should  have  very 
little  difficulty  in  coming  to  a  conclusion  upon 
this  question.  The  case  must,  of  course,  be 
determined  by  the  statute  of  distributions. 
It  obviously  falls  under  the  7th,  Sth,  and  9th 
sections  of  the  first  clause,  which  are  as 
follows : 

"7th.  If  the  intestate  shall  leave  no  lineal 
descendant,  father,  mother,  brother,  or  sister 
of  the  whole-blood,  or  their  children — or 
brother,  or  sister  of  the  half-blood,  or  lineal 
ancestor,  then  the  widow  shall  take  two- 
thirds  of  the  estate,  and  the  remainder  shall 
descend  to  the  next  of  kin. 

"Sth.  If  the  intestate  shall  leave  no  widow, 
*204 
the  provision  *made  for  her,  shall  go,  as 
the  rest  of  the  estate  is  directed  to  be  dis- 
tributed in  the  respective  clauses,  in  which 
the  widow  is  provided  for. 

"9th.  In  reckoning  the  degrees  of  kindred, 
the  computation  shall  begin  with  the  intes- 


tate, and  be  continued  up  to  the  common  an- 
cestor, and  thence  down  to  the  person  claim- 
ing kindred,  inclusively,  each  step  inclusively 
being  reckoned  as  one  degree." 

Now,  the  intestate,  Isaac  P.  Druze,  left 
no  relations  of  the  description  mentioned  in 
the  seventh  clause ;  and  it  follows,  as  a  mat- 
ter of  course,  that  his  estate  must  be  dis- 
tributed in  the  manner  directed  in  the  eighth 
and  ninth  clauses.  In  ascertaining  who  are 
the  next  of  kin,  the  half-blood  come  in  equal- 
ly with  the  whole-blood.  (2  Bl.  Com.  215, 
216;  2  Id.  504,  505;  Guerard  v.  Guerard,  4 
Des.  405,  note.)  The  distinction  between 
these  two  classes  of  heirs  is  dropped  in  read- 
ing the  statute,  as  soon  as  we  get  through 
those  cases  which  are  specifically  provided 
for.  Having  proceeded  thus  far,  the  rest  fol- 
lows. Adopting  the  statutory  mode  of  com- 
putation, (which  was  that  of  the  civil  law.) 
the  conclusion  cannot  be  avoided,  that  an 
uncle  or  aunt,  whether  of  the  whole  or  half- 
blood,  is  one  degree  nearer  to  the  intestate 
than  a  cousin  german.  And  the  surprise 
with  me  is,  that  a  doubt  should  exist,  after 
the  principle  was  settled,  that,  as  next  of 
kin,  the  whole  and  half-blood  should  come 
in  pari  passu.  But  the  question  has  been 
settled  long  since  by  judicial  interpretation. 
Karwon  v.  Lowndes,  2  Des.  210.  And.  more 
recently,  in  Edwards  v.  Barksdale,  2  Hill, 
Eq.  416. 

The  Court  is  of  the  opinion  that  Benjamin 
S.  Logan,  the  intestate's  uncle  of  the  half- 
blood,  and  INIartha  M.  Chipman,  the  intes- 
tate's aunt  of  the  half-blood,  are  entitled  to 
the  whole  of  the  said  intestate's  real  and  per- 
sonal property,  equally  to  be  divided  between 
them.     And  it  is  so  ordered  and  decreed. 

And  it  is  further  ordered  and  decreed,  that 
they  have  leave  to  apply,  at  the  foot  of  this 
decree,  for  a  writ  of  partition,  and  for 
all  orders  that  may  be  necessary  to  carry 
this  decree  into  effect. 

Another  question  arises  in  this  case.  How 
*205 
much  of  the  estate  *of  which  the  intestate 
Isaac  P.  Droze  died  seized  and  possessed, 
was  he  entitled  to  transmit  to  his  next  of 
kin,  or  heirs  at  law.  It  is  admitted,  that 
some  portion  of  his  estate  was  derived  under 
the  will  of  his  grand-mother,  Mary  E.  Droze. 
He  thus  derived  the  three  negroes,  Frank. 
William,  and  Maria,  set  forth  in  the  inven- 
tory of  the  intestate's  estate,  and  another 
negro,  named  Gabriel,  who  was  sold  by  the 
intestate  in  his  lifetime.  The  testatrix,  Mary 
E.  Droze,  having  given  various  legacies  to 
her  seven  grand-children,  in  words  which 
would  convey  an  absolute  estate ;  by  a  codi- 
cil thereto,  and  of  the  same  date,  she  pro- 
vided as  follows : 

"Should  my  grand-children,  Isaac  P. 
Droze,  John  L.  Droze,  and  Jane  L.  Droze, 
die  leaving  no  lawful  issue,  it  is  my  w-ill, 
that  whatever  property   I  have  given  them. 


82 


^ssFor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Inde.\e3 


PERRY  V.  LOGAN 


♦207 


be  equally  dividod  between  my  grand-chil- 
dren, Josiah  Perry.  Iteiijamin  Perry,  Mary 
E.  Waring,  and  Eliza  E.  Bass,  to  tbem  and 
their  heirs  forever.'Y«^. 
*206 
*The  controversy  relates  both  to  personal 
and  to  real  estiite.  In  the  jud;;inent  of  tlie 
Court,  the  words  of  the  codiiil.  in  refertMice 
to  the  personal  property,  are  siillicieiit  to 
create,  and  do  create,  a  ;;ood  limitation  over 
to  the  Perrys,  on  the  happt'iiinj;  of  the  con- 
tin;;ency  upon  which  it  was  made  to  depend. 
The  word  "leaving''  (puiiilied  the  fiencrality 
of  the  word  "issue,"  and  malies  tlu>  limita- 
tion to  depend  upon  the  first  talicr  dying 
without  issue  living  at  his  death. 


(fl»  Tlio  following  are  copit's  of  tin*  will  and 
codicil  of  Marv  E.  Droze.  Tiicv  both  bore  date 
.March   -'li,    ISL'4: 

1,  Mary  K.  I  )tozo.  of  the  Parish  of  St.  George, 
in  tiic  State  aforesaid,  Ix'in^i  of  sound  and  dis- 
posing mind,  nieniory.  and  nnderstaiulinu'.  do 
make  my  last  will  and  testament,  as  follows: 
I  give  and  becpieath  unto  my  grand-daugiiter, 
Mary  E.  Waring,  the  wife  of  .Joseph  loor  War- 
ing, tlio  folliiwintr  negro  slaves,  to  wit:  Peggy, 
Rachel,  Siljliy.  Ken.  Toliy.  and  Charlotte,  to- 
gether with  tlie  future  issue,  and  increase  of  the 
females,  from  the  date  of  this,  my  will.  fr)rover, 
her  executors,  administrators  and  assiiins  for- 
ever. I  also  give  to  my  said  grand-daugliter, 
forever,  my  draught  horse,  called  I>iatnond. 
-VIso,  I  give  and  be(iueatli  the  folluwing  slaves, 
to  wit:  Maria,  Andrew,  Cinderella.  IMward, 
Amelia,  and  I'riscilla,  to  my  grand-daughter, 
Eliza  E.  Pass,  wife  of  Thomas  E.  Pass,  for 
and  during  her  natural  life,  for  her  sole  and 
separate  u.se :  ai!d  from  and  after  her  death 
1  give  and  lie(|ueath  the  said  last  mentioned 
slaves  to  such  child  or  children,  as  my  said 
gran(i-daui;hter.  Eliza  E.  Pass,  shall  have  living 
at  the  time  of  her  death,  (the  lawfully  begotten 
issue,  however,  of  any  deceased  child  or  cldl- 
<lren  shall  take  the  slaves  tliat  his.  lier,  or  their 
parent  or  parents  would  he  entitled  to,  if  living 
at  the  time  of  the  deatli  of  tlie  said  Eliza  E. 
Pass,)  to  them,  their  executors,  administrators, 
and  assigns.  It  is  also  my  will,  that  the  futuie 
issue  and  increase  of  tlie  said  slaves  be(|U(  atlicd 
to  my  said  granddaughter.  Eliza  K.  Pass,  from 
the  date  of  this,  my  will,  shall  be  included  in 
the  said  beciuest,  to  her  and  iier  children.  Also, 
1  give  and  beijueatli  ail  my  houselKdd  furniture 
to  my  said  two  grand-daugliters.  Mar.\'  1'.  War- 
ing and  Eliza  I''..  P>ass.  to  be  equally  (li\i(le<l  be- 
tween them,  forever.  Also,  I  gi\e  and  l)e(picath 
unto  my  great-grand-daugliter,  Mary  E.  I'erry, 
daughter  of  my  grand-son,  .losiali  Perry,  all  my 
stock  of  cattle,  forever.  Also.  1  give  and  be- 
iiueath  unto  my  grand-sou,  .losiah  Perry,  his 
executors,  administrators,  and  assigns,  forever, 
my  waiting-man,  Peter,  my  driver,  .Ned,  and 
Moses,  son  of  Priscilln.  Also,  1  give  and  be- 
queath to  my  grand-son,  Penjannn  Perry,  liis 
I'xecutors,  administrators,  and  assigns,  forever, 
the  following  negroes,  to  wit:  Sam,  Cain,  and 
1  >elia.  with  lier  future  issue  and  increase,  from 
the  date  of  this,  my  will.  Also,  I  give  and  he- 
(|ueatli  to  my  grand-son.  Isaac  P.  I)roze,  his 
executors,  atlministrators,  .-uid  assigns,  forever, 
my  negroes  l""raiik.  I»ick,  and  Hannah,  with  lier 
future  issue  and  increase  from  the  date  of  this, 
my  will.  Also,  I  givo  and  be(iueatli  to  my 
graud-sou,  John  L.  l>roze,  my  negroes  (Jabriel, 
llayne,  and  Clarissa,  with  their  future  issue  and 

*206 
♦increase,  from  the  date  cf  this,  my  will,  to  him, 
his   executors,   administrators   and    assigns,   for- 
ever.    Also  I  give  and  beqiieatli  unto  my  grand- 
daughter, Jane  L.  Druze,  Biuuh,  llagar's  daugh- 


John  L.  Droze  and  Jane  E.  Droze  each 
pre-deceased  I.saae  P.  Droze,  leaving  no  is- 
sue. On  the  death  of  Jane  intestate,  her 
brothers  John  and  Isaac,  who  survived  her, 
being  the  only  persons  intereste*!,  divided 
the  estate  between  them  without  an  admin- 
l.stration. 

On  the  death  of  John,  his  l)rother  I.saae, 
his  sole  heir  at  law  and  dlstriiiutee.  took 
possession  of  all  his  estate  without  an  ad- 
ministration. Thus  all  the  jn-operty  derived 
by  the  Drozes  from  the  estate  of  Mary  E. 
I>roze,  cent«'red  in  the  p(»s.sessl(>n  of  the 
coinplaimmt's  intestate.  Isaac  P.  Droze.  And 
the  contingency  having  happened  upon  whi<-h 

*207 
it  was  to  go  over  to  the  'iVrry  family,  the 
adndnistrator  must  deliver  to  the  remainder- 
men such  of  the  property  as  is  in  esse,  and 
must  account  for  such  portitai  thereof  as  is 
destroyed,  or  is  not  forthcttming.  I  moan 
the  persomil  estate;  for  I  give  a  ilitYcreiit 
construction  to  the  will  as  to  the  real  estate. 
I  am  al.so  of  the  opinion,  that  all  tlie  per- 
sonal property  which  passed  to  the  Drozes 
under  the  residuary  clause  of  Mary  E. 
Droze's  will,  including  their  share  of  the 
lapsed  legacy  to  Josiah  Perry,  is  subject  to 
the  linntation,  in  favor  of  the  F^errys.  cre- 
ated by  the  codicil.  And  thi"  same  having 
been  paid  over  to  Isaac  P.  Droze  by  J.  J.  War- 
ing,  the   executor   of   Mary   E.    L>roze.    (John 

ter.  to  her,  her  executors,  administrators,  and 
assigns,  forever.  In  conseipience  of  my  iiaving 
given  to  my  said  grand-daughter.  Jane  L.  Droze, 
but  one  negro,  I  will  and  direct  that  m\  said 
grand-children.  .Josiah  Pcrrv.  Penianiin  Perry, 
Mary  E.  Waring.  Eliza  E.  Pass.  Isaac  P.  Droze, 
and  .lohn  L.  l)roze,  do  give  unto  mv  executors, 
hereinafter  named,  their  sev«'ral  ami  respective 
bonds,  with  good  security,  conditioned  for  the 
payment  of  the  sum  of  one  hundrec!  and  fifty 
dollars,  with  interest  from  the  day  of  my  death, 
which  said  bonds  shall  severally  and  respective- 
ly be  maile  payable  to  the  said  Jane  L.  Droze. 
(m  her  attaining  the  age  of  eigliteen  years,  or 
day  of  marriage.  And  I  do  hereby  charge  the 
several  and  respective  legat'ies  bequeathed  to  my 
said  grand-children,  Josiali  Perry.  Penjaniin 
Perry,  »Mary  E.  Waring,  Eliza  E.  Pass.  Isaac 
P.  Droze,  and  John  h.  Droze  with  the  p.i\inent 
of  the  said  smn  of  one  hundred  and  tifty  dol- 
lars each,  with  inti-rest  as  afores.iid,  in  case 
from  any  reas<in  such  bond  and  security  shall 
not  be  given.  Also,  I  will  ami  direct  that  my 
said  seven  giand-cliildren  shall  pay  each  an 
equal  pro|>ortion  of  the  debts  that  I  may  owe  j^t 
the  tinu'  of  my  decease. 

All  the  ri'st,  residue  and  remainder  of  my  es- 
tate, real  aii<l  personal.  I  direct  to  be  sold  and 
disposed  »)f  by  my  executors,  as  soon  as  possible 
after  my  deatli;  and  the  proceeds  1  give  and  be- 
((Ueatli  to  my  said  seven  grand  children,  eipially 
to  be  divided  amongst  tliem  forever. 

I^astly.  I  nominate  an  I  appoint  my  ::randson, 
.Josiah  Perry  and  tin'  said  Joseph  loor  Waring, 
executors  of  this,  my  last  will  and  testament, 
hereby  revoking  all  other  ami  former  wills  by 
me.    at    iiny    time   heretofore    made. 

Codiiil.  .*^llould  my  grand-children.  Isaac  P. 
Droze,  .liihn  P.  Droze  and  Jane  P.  Droze  die, 
leaving  no  lawful  issue,  it  is  my  will,  that  wh.it- 
ever  property  I  liave  given  them,  be  equally 
divided  between  my  grand-children,  .Tosiali  Per- 
ry. Benjamin  Perry,  Mary  E.  Waring,  and 
Eliza  E.  Bass,  to  them  and  their  heirs  forever. 

83 


*207 


5  RICHARDSON'S  EQUITY  REPORTS 


and  Jane  Droze  having  died  before  they  re- 
ceived their  legacies,)  the  estate  of  the  said 
Isaac  P.  Droze  must  account  for  the  prop- 
erty so  received  by  him.  And  it  is  so  or- 
dered  and  decreed. 

And  it  is  further  ordered  and  decreed,  that 
the  slaves  and  their  issue,  and  the  other 
chattels  now  in  existence,  that  Isaac  P. 
Droze,  John  L.  Droze,  and  Jane  L.  Droze  de- 
rived under  the  specific  legacies  given  to 
them  by  the  will  of  Mary  E  Droze,  as  also 
all  the  slaves  and  chattels  now  in  existence, 
which  they  derived  under  the  residuary 
clause  of  the  said  will,  be  delivered  up  by 
Benjamin  Perry,  the  administrator  of  Isaac 
P.  Droze,  to  be  equally  divided  among  Eliza 
E.  Bass,  Benjamin  Peri-y,  (the  complainant,) 
and  J.  J.  Waring,  the  administrator,  and  E. 
Waring.  It  is  further  ordered  and  decreed, 
that  the  administrator  of  the  said  Isaac  P. 
Droze  do  account  to  the  persons  last  named, 
(himself  among  the  number,)  for  the  value 
of  the  negro  Gabriel,  sold  by  the  said  Isaac 
P.  Droze  in  his  life  time ;  the  value  of  Ga- 
briel to  be  estimated  at  the  death  of  the 
said  Isaac  P.  Droze ;  and  for  the  interest, 
on  the  estimated  value  of  Gabriel,  from  the 
death  of  the  said  Isaac  P.  Droze.  And  that 
the  said  administrator  do,  in  like  manner, 
account  for  the  value  of  any  other  negro 
of  the  stock  which  Isaac  P.  Droze  derived 
from  the  estate  of  Mary  E.  Droze,  which 
he  may  have  sold ;  and  that  he  do,  in  like 
manner,  account  for  any  moneys,  or  choses 
in  action,  which  Isaac  P.  Droze  may  have 
received  from  the  estate  of  Mary  E.  Droze, 

*208 
under  the  residuary  clause  of  her  *vvill ;  and 
that  he  account  for  the  hire  of  the  negroes 
subject  to  the  limitation  of  the  will,  from 
the  first  day  of  January  next,  after  the 
death  of  the  said  Isaac  P.  Droze,  namely, 
from  the  1st  January,  1851. 

I  must  now  direct  my  attention  to  other 
questions  made  in  the  pleading.  One  of 
the  tracts  of  land  in  the  possession  of  Isaac 
P.  Droze  at  his  death,  namely:  "the  settle- 
ment place,  containing  714  acres,"  more 
particularly  described  in  the  bill,  was  deriv- 
ed under  the  residuary  clause  of  Mary  E. 
Droze's  will ;  and  it  is  contended,  that  this 
property  also,  now  passes  to  the  Perrys,  un- 
der the  limitation  of  the  codicil.  A  limitation 
over,  if  the  first  taker  should  die  without  leav- 
ing issue,  or  leaving  no  issue,  has  a  different 
construction,  and  is  valid  or  invalid  according 
as  it  may  relate  to  personal  or  real  estate. 
Where  real  estate  is  the  subject  of  the  limita- 
tion, it  is  construed  to  be  after  an  indefinite 
failure  of  issue,  and  fails  for  remoteness.  The 
word  "leaving,"'  in  such  a  case,  is  not  re- 
strictive. Forth  V.  Chapman,  1  P.  W'ms. 
665;  Mazyck  v.  Vanderhorst,  Bail.  Eq.  48. 
It  is  the  opinion  of  the  Court,  that  the  lim- 
itation fails  as  to  the  real  estate,  and  that 
the  tract  of  land  in  question,  was  the  abso- 
lute estate  of  Isaac  P.  Droze,  aud  descends 

84 


to  his  heirs  at  law.    And  it  is  so  ordered  and 
decreed. 

A  further  question  arises  under  the  fol- 
lowing circumstances.  In  the  will  of  Mary 
E.  Droze  is  a  clause  in  these  words:  "In 
consequence  of  my  having  given  my  grand- 
daughter, Jane  L.  Droze,  but  one  negro,  I 
will  and  direct  that  my  said  grand-children, 
Josiah  Perry,  Benjamin  Perry,  Mary  E.  War- 
ing, Eliza  E.  Bass,  Isaac  P.  Droze,  and  John 
L.  Droze,  do  give  to  my  executors  herein- 
after named,  their  several  and  respective 
bonds,  with  good  security,  conditioned  for 
the  payment  of  the  sum  of  one  liundred  and 
fifty  dollars,  with  interest  from  the  day  of 
my  death ;  which  said  bonds  shall  severally 
and  respectively  be  made  payable  to  the 
said  Jane  L.  Droze,  on  her  attaining  the 
age  of  eighteen  years,  or  day  of  marriage. 
And  I  do  hereby  charge  the  several  and 
respective  legacies  bequeathed  to  my  said 
grand-children,  Josiah  Perry,  Benjamin  Per- 

*209 
ry,  Mary  E.  Waring,  *  Eliza  E.  Bass,  Isaac 
P.  Droze,  and  John  L.  Droze,  with  the  pay- 
ment of  the  said  sum  of  one  hundred  and 
fifty  dollars  each,  with  interest  as  afore- 
said, in  case,  from  any  teason,  such  bond 
and  security  shall  not  be  given."  Josiah 
Perry  pre-deceased  the  testatrix.  His  lega- 
cy lapsed  and  was  distributed  under  the 
residuary  clause.  John  L.  Droze  and  Jane 
L.  Droze  Iwth  died  befoi'e  the  settlement 
of  the  estate  of  Mary  E.  Droze,  and  before 
this  part  of  the  will  was  carried  into  execu- 
tion. The  rights  of  Jane,  and  the  obligations 
of  John  and  of  Isaac,  were  thus  all  com- 
bined in  the  person  of  the  latter.  There 
remained,  the  obligations  imposed  by  the 
will  upon  Benjamin  Perry,  Mary  E.  Waring, 
and  Eliza  E.  Bass,  to  be  carried  into  effect. 
The  executor,  J.  J.  Waring,  took  the  bond 
of  Benjamin  Perry  for  $150 ;  as  also  that 
of  Eliza  E.  Bass  for  the  like  sum,  according 
to  the  direction  of  the  will,  and  delivered 
them  to  Isaac  P.  Droze  as  tlie  sole  distrib- 
utee of  John  and  Jane,  on  his  attaining  the 
age  of  twenty-one  years ;  and  in  like  man- 
ner, and  at  the  same  time,  delivered  hia 
own  bond  to  Isaac  P.  Droze  for  $150,  on 
account  of  the  charge  created  by  the  will 
upon  the  legac.y  given  to  his  wife,  Mary  E. 
Waring.  These  three  bonds  have  been  sat- 
isfied, by  payments  made  to  Isaac  P.  Droze 
in  his  life  time.  And  as  the  testatrix  in  the 
codicil  desires,  that  should  her  grand-chil- 
dren, John,  Jane,  and  Isaac  Droze,  die  leav- 
ing no  issue,  whatever  property  she  had 
given  them,  should  be  equally  divided  be- 
tween her  grand-children,  Josiah  Perry,  &c., 
it  is  contended,  that  the  amounts  paid  upon 
these  tliree  bonds  fall  within  the  same  cate- 
gory as  the  other  property  given  to  the 
Droze  family,  and  are  in  like  manner  subject 
to  the  limitation  of  the  will.  I  confess,  that 
my  mind  has  wavered  oii  this  question.  I 
have    had    difficulties.     I,    at    first,    tfid    a 


PERRY  V.  LOGAN 


IV. 


«trong  conviction,  that  the  prooeed.s  of  tliose 
bonds  were  not  subject  to  the  limitation  of 
the  will;  suhseciucnt  reflection  has  shaken 
the  strenjrth  of  this  conviction.  I  am  still 
inclined,  thouj^h  dnulitiiiKly,  to  my  orijiinnl 
opinion.  The  proceeds  (»f  these  bonds  con- 
stituted no  part  of  the  estate  of  the  testa- 
trix. It  was  over  and  l»eyond  tlie  total  an- 
grei^ate  of  her  estate;    all  of  which  she  had 

♦210 
<lispo.sed  of  by  the  specific,  *and  residuary 
clauses  of  her  will.  And  I  am  impressed, 
tliiit  the  testatri.K  intended  only  to  limit  "all 
the  property  which  she  had  given"  out  of 
lier  own  estate,  and  not  tlie  sums,  which,  for 
tlie  purpose  of  equalizinjj;  the  deficiency  of 
the  lejracy  to  .Tane  L.  Droze,  she  had  charwd 
upon  the  legacies  of  all  her  other  legatees. 
It  is  the  opinion  of  the  Court,  that  the  pro- 
ceeds of  these  bonds  do  not  pass  under  the 
limitation  created  by  the  codicil  of  the  will. 
And  it  is  so  ordered  and  decreed. 

One  further  question  remains.  A  consid- 
erable portion  of  the  proi)erty  of  which  Isaac 
P.  Droze  died  seized  and  possessed  was  de- 
rived under  the  will  of  his  father,  Hugh 
I»roze.  This  testator,  speaking  in  his  will, 
after  various  dispositions  of  his  property  in 
favor  of  his  three  children,  .Tohn,  .lane,  and 
Isaac  Droze,  declares  as  follows:  "Trovided 
either  of  my  children  shall  die,  liefore  he 
or  she  shall  arrive  at  the  age  of  twenty- 
one  .vears,  and  without  lawful  issue,  then, 
his  or  her  share  shall  go  to  the  survivor 
or  survivors,  in  equal  proportions;  but  pro- 
vided all  my  said  children  shall  die  without 
lawful  issue,  and  before  they  arrive  at  the 
age  of  twent.v-one  years.  I  give  and  devise 
the  same  lands  and  tenements  to  Josiah 
Perry.  Mary  Elizabeth  Waring,  lienjanun 
IVrry.  and  Elizabeth  Esther  Perry,  the  chil- 
dren of  Isaac  and  Eliza  Perry,  deceased;"' 
and  in  a  subsequent  part  of  the  will,  siieak- 
ing  of  the  personal  property,  with  language 
slightly  variant,  he  declares  as  follows: 
'"Provided  either  of  my  said  children  shall 
die  without  lawful  issue,  or  bef<u"<>  he  (tv 
she  shall  attain  the  age  of  twenty-one  years, 
then,  his  or  her  portion  shall  be  equally  di- 
vided between  those  who  shall  reach  the  age 
of  twenty-one  years;  l>ut  provided  eitUor 
of  my  said  children  shall  die  l)efore  tlif  agn 
of  twenty-one  years,  leaving  lawful  issue, 
then  the  share  of  such  deceased  child  shall 
go  to  his  or  her  issue  iMiually.  when  they 
shall  attain  the  age  of  twent.v-one:  the  in- 
crease, in  the  mean  time,  to  be  devoted  to 
their  maintenance  and  education.  Put.  if  all 
n'v  said  children  should  die  without  issue, 
and  under  the  age  of  twenty-one  ye.-irs,  then 
the  whole  of  my  personal  estate-  shall  C(»  to 
.^osiah  Perry,  Mary    Elizabeth   Warini:,  Pen- 

•211 
.1an)»n    Terry,   and    Eliz.i    *Esther  IVrry,   the 
children  of  Isaac  and  Eliza  I'erry,  deceased, 
their  executors,  administrators,  and  assi.'us." 

The  children  of  Hugh  Droze  have  uU  died 


'  without  issue.  Two  of  them,  John  and  Jane, 
I  died  under  the  age  of  twenty-one  years;  but 
I  Isaac,  the  survivor,  lived  some  time  after  he 
attained  that  age.  It  is,  notwithstanding, 
claime<l  on  the  part  of  Penjamin  Perry.  Mrs. 
Pass,  and  the  represn-ntatlves  of  Mrs.  War- 
ing, that  the  limitation  now  takes  eflfect  in 
their  favoi.  The  contingencies  u|)on  which 
tliese  parties  were  to  take,  was  a  double  one. 
Not  only  were  all  the  children  of  the  testa- 
tor to  die  without  issue,  but  they  were  all 
to  die  under  the  age  of  twenty-one  years,  be- 
fore the  lindtation  in  favor  of  the  present 
claimants  <-onld  take  effect.  The  estate 
which  the  children  of  the  testator  took  under 
the  will,  was  a  fee,  defeasible  upon  a  com- 
plicated condition:  all  of  which  has  not  hap- 
luMied.  It  has  been  urged  in  the  argument, 
that  the  word  "and,"  should  be  construe<l 
"or."  with  the  view,  it  is  sjiid,  of  carrying 
into  effect  the  intention  of  the  testator. 
There  is  no  doubt  of  the  propriety  of  this 
kind  of  construction,  in  cases  calling  for  it. 
It  is  to  be  remarke<l.  however,  that  the  disjunc- 
tive conjunction  is  more  frequently  construed 
into  copulative,  than  the  c<M)verse.  The 
Court  should  cortainl.v  be  cautious  in  alter- 
ing, by  constnictiou.  the  language  of  a  will, 
where  the  eflfect  would  be  to  cut  down  an  es- 
tate previously  given.  This  mode  of  inter- 
preting wills  is  a  very  delicate  exercise  of 
jurisdiction,  and  should  only  he  resorted  to 
for  the  inirpose  of  carrying  into  eflfect  rtie 
manifest  intention  of  the  testator — such  man- 
ifest intention  being  made  clear  by  a  strong 
explanatory  context.  I  see  nothing  in  this 
will,  to  justify  a  resort  to  this  mode  of  con- 
struction; nothing  to  shew  that  the  intention 
of  the  testator,  or  the  general  scheme  of  his 
will,  was  dififerent  from  tlwt  which  the  |)lain 
sense  of  the  words  employed  wmild  import. 
It  is  my  opinion,  therefore,  that  the  condition 
on  which  the  limitation  was  to  take  eflect. 
has  not  happened;  and  that  the  property 
which  Isaac  P.  r>roze  derived  from  the  estate 
of  his  lather.  Hugh  Droze.  is  the  absolute 
estate  of  the  sjiid  Isaac  I'.  Droze.  and  is  sub- 

•212 
ject  to  i)artirion  among  *his  heirs  at  law,  and 
distribut«'es   herein   before  <ieclared.     And   it 
I  is  «■•',)  »>rderi^T.     -in,!  Jt  is  further  orderetl  and 
•  decreed,   that   the   costs  of  suit    be   jtaiil   out 
of  tlie  as.spts  of  the  estate  of  Isaac-  I'.  Droze. 
The  remainder-men  under  the  will  ami  cod- 
icil. ap])ealed  on  the  grounds 

1.  Pecause,  his  Honor  erred  in  decreeing. 
tJiat  the  proceeds  of  the  bonds.  directe<l  l)y 
the  will  of  Mary  E.  Droze,  to  he  given  by  her 
legatees  to  Jane  Droze.  and  which  were  i)aid 
to  Isaac-  r.  Droze,  did  not  i>ass  tinder  the 
rimitation.  created  by  the  c-odicil  to  her  will. 

2.  P(>rati.se,  if  the  will  is  not  an  eqjdtable 
conversion  of  the  land  info  money,  then  it  is 
respectfully  subnutted,  that  his  Honor  erred 
in  dec-reeing.  that  the  liuntation  of  the  will 
and  codic-il  of  Mary  E.  Droze.  as  to  the  real 
estate,  falls,  and  that  the  same  became  the 
absolute  estate  of  Isaac  P.  Droze. 

85 


*212 


5  RICHARDSON'S  EQUITY  REPORTS 


3.  Because,  by  the  residuary  clause  of 
Mary  E.  Droze's  will,  her  executors  are 
directed  to  sell  her  lauds,  as  soon  after 
her  death  as  possible,  and  the  proceeds  of 
the  sale  are  bequeathed  to  her  grand  chil- 
dren, which  is  an  equitable  conversion  of 
the  said  lands  into  money,  and  therefore,  it 
is  submitted,  that  his  Honor  erred  in  decree- 
ing, that  the  said  lands  became  the  absolute 
property  of  the  said  Isaac  P.  Droze,  by  rea- 
son of  the  remoteness  of  the  limitation  over. 

4.  Because,  the  lands  of  the  testatrix  being 
converted  by  her  will  into  money,  will  pass, 
with  the  rest  of  her  personal  estate,  as  per- 
sonalty, under  the  limitation  in  the  codicil  to 
her  will,  to  the  persons  to  whom  she  has  be- 
queathed it  in  remainder;  and  his  Honor 
should  have  so  decreed  and  ordered  on  ac- 
count for  the  rents  and  profits  of  the  land,  or 
for  interest  on  the  value  thereof. 

5.  Because,  his  Honor  erred  in  decreeing 
an  account  against  the  estate  of  Isaac  P. 
Droze,  only  for  such  slaves  as  were  sold  by 
him,  as  tenant  for  life,  whereas,  it  is  respect- 
fully submitted,  that  the  remainder-men,  are 

*213 

entitled  to  «  full  account  for  all  *slaves  or 
other  property,  that  are  not  forthcoming  or 
produced,  either  l)y  reason  of  a  sale  thereof, 
by  tenant  for  life,  or  by  reason  of  their  death 
or  destruction,  from  negligence,  or  wilful 
abuse,  and  ill  treatment,  or  from  other  caus- 
es. 

6.  Because,  his  Honor  erred  in  decreeing, 
that  all  the  property  derived  by  Isaac  P.  Droze 
under  the  will  of  Hugh  Droze,  was  his  ab- 
solute estate. 

The  first  cousins  of  the  whole-blood,  ap- 
pealed on  the  ground. 

Because,  his  Honor  erred  in  decreeing,  that 
Benjamin  S.  Logan  and  Martha  M.  Chipman, 
wife  of  Henry  ('hipman,  as  uncle  and  aunt 
of  the  half-blood,  are  entitled  to  the  whole 
estate  of  the  intestate,  Isaac  P.  Droze,  in  ex- 
clusion of  the  first  cousins  of  the  whole-blood. 

Benjamin  S.  Logan  and  Henry  Chipman 
and  his  wife  Martha,  appealed,  on  the 
grounds, 

1,  Because,  it  is  respectfully  submitted, 
that,  as  the  testatrix,  Mary  E.  Droze,  devised 
the  residue  of  her  estate  to  her  seven  grand- 
children, equally  to  be  divided  among  them, 
and  one  of  them,  to  wit:  Josiah  Perry,  died 
in  the  lifetime  of  the  testatrix ;  the  effect  is, 
that  the  testatrix  died  intestate  as  to  one 
seventh-j)art  of  the  residue  of  her  estate,  and 
the  said  one-seventh  part  vested  in  Benjamin 
S.  Perry,  Mary  E.  Waring,  Eliza  E.  Bass, 
Isaac  Perry  Droze,  John  L.  Droze  and  Jane 
L.  Droze  absolutely ;  and  that  as  a  conse- 
quence of  these  propositions,  a  distinction 
should  be  made  between  that  which  Isaac  P. 
Droze  took  as  a  residuary  legatee,  and  that 
which  he  took  as  one  of  the  next  of  kin  ;  and 
the  same  distinction  applies  to  those  parts  of 
the  estate  which  he  took  through  his  brother 
and  his  sister,  and  that  so  much  as  came  to 
8G 


[  them,  in  the  character  of  next  of  kin,  is  not 

j  subject  to  any  limitation  over. 

I      2.  Because,  a  distinction  is  also  to  be  made 

j  as  to  the  legacies,  residuary  and  specific,  be- 
queathed to  Isaac  Perry  Droze,  for,  in  the 
event  that  has  happened,  (that  of  his  dying 
without  leaving  issue,)  one-fourth  part  of  the 
same  is  given  over  to  Josiah  Perry ;  but  as 
Josiah  Perry  died  in  the  lifetime  of  testatrix, 

*214 
the  *bequest  to  him  fails,  and  the  estate  of 
Isaac  Perry  Droze  in  that  one-fourth  part  is 
not  dis'ested;  and  the  same  will  hold  good  as 
to  the  interests  which  Isaac  Perrj'  Droze  took 
through  his  brother  and  sister.  The  conse- 
quence of  which  propositions  is,  that  the  rep- 
resentatives of  Isaac  Perry  Droze  should  ac- 
count to  Benjamin  Perry,  Mary  E.  Waring 
and  Eliza  E.  Bass,  for  three-fourth  parts  of 
those  legacies  bequeathed  to  him  and  his 
brother  and  sister,  and  no  more. 

Perry,  Treville,  for  remainder-men. 
Henderson,  Petigru,   for  Logan  and  Chip- 
man  and  wife. 

Edwards,  for  first  cousins. 

The  opinion  of  the  Court  was  delivered  by 

DARGAN,  Ch.  The  Circuit  decree  in  this 
case  decides  many  questions ;  and  the  ap- 
peals of  the  different  parties  have  involved 
the  necessity  on  the  part  of  this  Court  of  re- 
viewing them  all. — It  will  not  be  necessary, 
however,  that  I  should  discuss  all  the  ques- 
tions raised  in  the  appeal,  or  consider  them 
seriatim. 

The  testatrix,  Mary  E.  Droze,  after  having 
given  specific  legacies  to  her  grand-children, 
Isaac  P.  Droze,  John  L.  Droze,  Jane  L.  Droze, 
and  to  others,  by  the  residuary  clause  of  her 
will,  devised  and  bequeathed  as  follows:  "All 
the  rest,  residue  and  remainder  of  my  es- 
tate, real  and  personal,  I  direct  to  be  sold 
and  disposed  of  by  my  executors  as  soon  as 
jiossible  after  my  death ;  and  the  proceeds  I 
give  and  bequeath  to  my  said  seven  grand- 
children, equally  to  be  divided  amongst  them, 
forever."'  And  by  the  codicil  of  her  will,  she 
declared  her  intentions  in  regard  to  the  Droz- 
es,  in  manner  and  form  as  follows:  "Should 
my  grand-children,  Isaac  P.  Droze,  John  L. 
Droze,  and  Jane  L.  Droze,  die  leaving  no  law- 
ful issue,  it  is  my  will,  that  whatever  proper- 
ty I  have  given  them,  be  equally  divided  be- 
tween my  grand-children  Josiah  Perry,  Ben- 
jamin Perry,  Mary  E.  Waring,  and  Eliza  E. 
Baas,  to  them  and  their  heirs  forever." 

Upon  the  question  of  limitation  arising  on 
the  construction  of  the  codicil,  the  Circuit 
Coui't  held  this  language:  "The  controversy 
relates  both  to  personal  and  real  estate.     In 

*215 
the  judgment  of  *the  Coiirt,  the  words  of  the 
codicil  in  reference  to  the  personal  property 
are  sufficient  to  create  and  do  create  a  good 
limitation  over  to  the  Perrys,  on  the  happen- 
ing of  the  contingency  upon  which  it  was  made 
to  depend.     The  word  'leaving,'  qualified  the 


PEKllY  V.  LOGAN 


n: 


generality  of  the  word  'issue.'  and  makes  the 
limitation  t<>  dciiend  upon  the  first  taker  dyin;: 
witliout  issue  living  at  the  time  of  his  death." 
The  Circuit  decree  proeeeds  to  say:  "A  linuta- 
tionover.  if  tlie  first  taker  should  die  without 
leaving  Issue,  or  leaving  no  issue,  has  a  dif- 
ferent construction,  and  is  valid,  or  invalid, 
according  as  it  may  relate  to  personal  or  real 
»state.  When  real  estate  is  the  suhject  of  the 
limitation,  it  is  construed  to  he  after  an  in- 
defiiute  failure  of  issue,  and  fails  for  remote- 
ness. The  word  leaving,  in  such  a  case,  is  not 
restrictive.  Forth  v.  riiapman.  1  P.  Wms. 
<;»!.">:  Mazyck  v.  Vanderhorst,  P.ail.  Eq.  4.S.  It 
is  theopiinon  of  the  Court,  that  the  linutation 
fails  as  to  the  real  estate,  and  that  the  tract 
i>f  land  in  question  was  the  ahsolute  estate 
of  Isaac  P.  Droze,  and  descends  to  his  heirs 
at  law." 

The  doctrines  thus  asserted  in  the  Circuit 
decrt'e,  and  the  distinction  drawn  between  a 
linutation  of  personal  estate,  and  a  limitation 
of  real  estate,  under  the  words  of  this  will, 
are  unquestionably  correct ;  and  this  Court 
fully  concurs  in  the  views  that  have  been  ex- 
pressed. 

But  there  is  an  aspect  of  the  case,  which 
was  not  presented  on  the  Circuit  trial,  nor 
considered  by  the  Chancellor,  which  prevents 
the  distinction  l)et\veen  personal  and  real 
estate  in  this  respect,  from  being  material 
or  applicable  to  the  case.  In  tins  Court,  ac- 
cording to  the  equitable  doctrine  of  conver- 
sion, there  was  no  real  estate  to  pass  mider 
the  limitations  of  this  will,  although  there 
was  real  estate  disposed  of  by  it.  The  will 
gave  no  land  to  the  beneficiaries ;  but  direct- 
ed that  the  real,  as  well  as  the  personal  es- 
tate siiould  be  sold  by  the  executors:  and  it 
was  the  "proceeds''  of  the  sale  that  the  testa- 
trix gave,  to  be  equally  divided  among  her 
seven  grand  children. 

Wherever  it  is  apparent  from  the  words  of 
the  will,  that  the  testator  meant,  that  his 
real  estate,  as  su:'h.  should  not  pass  into  the> 
possession  of  the  objects  of  his  testamentary 

*216 
bounty:  *but  that  his  real  estate  should  be 
converted  into  money,  and  as  money,  that  it 
should  come  to  those  for  whom  iie  designs  the 
benefaction,  in  Kiputy  it  will  be  regarded  as 
a  betiuest  of  i)ersonal  property.  I'nder  such 
circumstances,  it  will  be  treated  in  all  re- 
sfiects.  as  if  the  conversion  had  been  made  by 
the  testator  in  his  life  tinu'.  Tins  doctrine  is 
fully  sustained  i>y  the  authorities.  1  Uop.  on 
Leg.  .'M.'i,  ;;.")(),  n.')S.  .•',(;.".;  Walker  v.  Denne.  2 
\i's.  Jr.  17ti:  Koach  v.  Ilaynes.  S  Vos.  r>!)l ; 
\\right  V.  Wrigiit.  It!  Ves.  1!)1  ;  Cook  v.  Duck- 
entield.  '_'  Atk.  5«!S;  Durour  v.  Motteux,  1 
Ves.  Sen.  ."liO.  To  these,  mnnerous  other 
ca.ses  nnght  be  added,  were  it  necessary. 

The  lands  devised  in  the  residuary  clause  of 
Mary  E.  Droze's  will,  by  the  directions  to  the 
executors  to  sell  them,  and  to  pay  the  pro- 
ceeds to  the  persons  named,  by  virtue  of  this 
doctrine    of    equitable    conversion,    assumed 


I  under  the  will  itself,  the  form  and  tpialities 
I  of  personal  estate.  It  follows,  that  all  the 
!  limitations  of  the  will,  under  these  circum- 
stances, must  he  considt-red  as  limitations  of 
personal  pntperty  ;  and  in  a  question,  wheth- 
er the  linutation  is  valid,  the  .same  rules  of 
consfrucf  ion  nnist  apply,  which  apply  in  the 
limitations  of  chattels.  Tiie  limitation,  there- 
fore, is  good  as  to  all  the  property  given  to 
the  Drozes,  by  the  residuary  clause  of  the 
testatrix's  will.  At  her  dejith,  tlie  real  estate 
descended  to  her  heirs  at  law,  suhject  to  be 
divested  by  the  sale  and  conveyance  of  tne 
executors.  And  though  the  land  has  not  to 
this  day,  been  sold  by  the  executors,  this 
onnssion  will  not  alter  th«'  case.  In  lupiity, 
that  which  should  have  been  done,  will  be 
considered  as  having  been  done,  and  the  par- 
ties in  interest  be  put  in  the  same  positions 
respectively,  as  they  would  have  occupied, 
had  the  directions  of  the  will  been  fully  ex- 
ecuted. 

The  que.stion  I  have  been  considering,  is 
raised  in  the  third  ground  of  appeal  taken 
by  the  comi)lainant.  and  the  parties  who  are 
in  like  interest  with  him  ;  which  ground  is. 
therefore,  sustaineil. 

The  fourtii  ground  of  the  same  parties, 
raises  a  denumd  for  rents  and  profits.     We 

*217 
are  of  the  opinion,  that  this  claim  can*not 
be  allowed.  Rents  and  profits  are,  in  a  great 
measure,  witliin  the  discretion  of  the  Court. 
This  is  a  stale  claim.  Isaac  P.  Droze  was  in 
possession  of  the  land  for  a  great  length  of 
time:  for  thirty  years  it  is  .said;  and.  <hiring 
tliat  period,  there  was  no  demand  or  account- 
ing for  rent.  Thirty  years'  po.ssession.  under 
the.se  circumstances,  would  raise  a  presunqi- 
tion  of  almost  any  fact  that  would  discharge 
the  claim.  And  when  it  is  said,  that  he  ac- 
knowledged the  rights  of  the  parties  now 
clainnng,  we  understand  inm  to  have  had 
referenc*'  to  their  title,  under  the  linutatituis 
of  the  will,  rather  than  to  an  account  for 
rent.  Nor,  do  we  think  that  the  executors 
are  liable  to  pay  rent  since  the  death  of  Isaac 
P.  Droze,  unless  they  havo  used  tiie  land,  or 
otherwise  made  a  profit  out  of  it.  It  appears 
that  they  sold  the  negroes  soon  after  the  tes- 
tator's death,  and  could  not  have  cultivated 
it,  after  that  sale.  f(u-  tile  benefit  of  the  estate. 
They,  may,  however,  have  leased  it:  in  which 
case,  and  in  any  case,  they  are  liable  to  the 
extent  of  the  profit  they  have  realized.  This 
ground  of  appeal  <'aii  not  be  sustained. 

Penjamin  S.  Logan,  and  Henry  Chiiiinan 
and  Martiia.  his  wife.  ai>peal  on  the  follow- 
ing gnmnds:  "1st.  PiMnuse  it  is  respectfully 
submitted,  that  as  the  testatrix,  Mary  E. 
Droze,  devised  the  residue  of  her  estate,  to 
her  seven  grand-children,  equally  to  be  divid- 
iHl  between  them:  and  one  of  them,  namely. 
Josiah  Perry,  died  in  tiie  life  time  of  the 
testatrix;  the  effect  is,  that  the  testatrix 
died  intestate  as  to  the  one-.s)>ventli  jiart  of 
the  residue  of  her  estate;   and  the  said  one- 

87 


217 


RICHABDSON'S  EQUITY  REPORTS 


seventh  part  vested  in  Benjamin  Perry,  Mary  j 
E.  Waring,    Eliza   E.    Bass,    Isaac  P.    Droze, 
Jolin  L.  Droze,  and  Jane  L.  Droze  absolutely: 
and  that,  as  a  conseiiuence  of  these  proposi-  I 
tions,  a  distinction  should  be  made,  between  | 
that  which  Isaac  P.  i>roze  took,  as  a  residu- 
ary legatee,  and  that  which  he  took  as  one  of 
the  next  of  kin ;   and  the  same  distinction  ap- 
plies to  those  parts  of  the  estate  which  he 
took  through  his  brother  and  sister,  and  that 
so  much  as  came  to  them  in  the  character  of 
next  to  kin,  is  not  subject  to  any  limitation 
over."     The  Circuit  decree  is  silent  on   the 
subject  of  this  appeal.     It  was  not  discussed 
on  the  trial,  and  escaped  my  attention. 
*218 

*The  facts  assumed  in  the  ground  of  ap- 
peal, above  recited,  are  true,  and  the  conclu- 
sion inevitable.  There  was,  on  account  of 
the  lapsed  legacies  to  Josiah  Perry,  a  partial 
intestacy:  and,  of  course,  the  intestate  prop- 
erty cannot  pass  under  the  limitations,  or 
dispositions  of  the  will. 

Josiah  Perry  pre-deceased  the  testatrix. 
The  specific  legacy  to  him  of  the  three  ne- 
groes, Peter,  Ned  and  Moses,  lapsed  into  the 
residuum  of  the  estate,  which  passed  under 
the  residuary  clause.  The  residuary  estate, 
thus  augumented  by  the  lapse  of  the  specific 
legacy  to  Josiah  Perry,  was  given  to  the  seven 
grand-children  of  testatrix,  equally  to  be 
divided  among  them.  Of  these,  Josiah  Perry, 
himself,  was  one.  His  share  of  the  residuum 
which  was  one-seventh,  lapsed  and  became  in- 
testate property.  It  was  divisible  under  the 
statute  of  distributions  among  the  six  remain- 
ing grand-children  of  the  testatrix,  namely: 
the  Drozes,  Isaac,  John,  and  Jane;  Benja- 
min Perry,  Mrs.  Waring,  and  Mrs.  Bass,  one- 
sixth  to  each  of  them.  And,  indisputably, 
such  portions  of  the  intestate  property  of 
Mary  E.  Droze,  as  Isaac  P.  Droze  derived 
through  his  brother  John,  and  his  sister 
Jane,  are  not  to  be  accounted  for,  under  the 
limitations  of  Mary  E.  Droze's  will. 

The  second  ground  of  appeal  by  the  same 
parties  is,  "because  a  distinction  is  also  to 
be  made,  as  to  the  legacies  residuary  and 
specific,  bequeathed  to  Isaac  P.  Droze:  for, 
in  the  event  that  has  happened,  (that  of  his 
dying  without  leaving  issue,)  one-fourth  part 
of  the  same  is  given  over  to  Josiah  Perry  ; 
but  as  Josiah  Perry  died  in  the  life  time  of 
the  testatrix,  the  bequest  to  him  fails,  and 
the  estate  of  Isaac  P.  Droze,  in  that  one- 
fourth  part,  is  not  divested:  and  the  same 
will  hold  good,  as  to  the  interests  which 
Isaac  P.  Droze  took,  through  his  brother  and 
sister.  The  consequence  of  which  proposi- 
tion is,  that  the  representatives  of  Isaac  P. 
Droze  should  accovuit  to  Benjamin  Perry, 
Mary  E.  Waring,  and  Eliza  E.  Bass,  for 
three-fourth  parts  of  those  legacies  bequeath- 
ed to  him,  his  brother  and  sister,  and  no 
more." 

The  position  assumed  in  this  ground  of  ap- 
peal, is  correct.    It  relates  to  the  share  given 

88 


*219 

by  the  will  to  Josiah  Perry,  in  the  *property 
bequeathed  to  the  Drozes,  in  the  event  of 
their  dying  without  leaving  issue.  She  gave 
each  of  them  one-seventh  part  of  her  resid- 
uary estate:  and  in  the  event  of  their  dying 
without  leaving  issue,  it  was  to  go  over  to 
the  Perrys,  of  whom,  Josiah  was  one.  But, 
Josiah,  as  has  already  been  stated,  died  be- 
fore the  testatrix.  It  is  contended,  in  opposi- 
tion to  the  views  of  the  appellants,  that  Josi- 
ah's  share  in  the  remainder  which  now  takes 
effect,  (all  the  Drozes  having  died  without 
leaving  issue,)  or  rather,  would  have  been 
Josiah's  share,  had  he  survived  the  testatrix, 
has  also  elapsed,  and  is  intestate  pi'operty  of 
Mrs.  Droze ;  and,  as  such,  subject  to  distri- 
bution. To  make  this  matter  plainer,  I  will 
divest  it  of  some  of  its  complexities. 

I  will  suppose  that  the  testatrix  has  given 
certain  property  to  Isaac  P.  Droze,  which, 
by  the  terms  of  the  direct  bequest,  would  be 
an  absolute  estate:  and  in  the  event  of  his 
dying  without  leaving  issue,  she  gives  it  to 
Josiah  Perry.  This  is  substantially  the  case 
here.  And  the  position  assumed  on  the  part 
of  the  next  of  kin  of  Mrs.  Droze  is,  that 
Josiah  Perry's  interest  in  the  remainder  over, 
or  what  would  have  been  such,  had  he  sur- 
vived the  testatrix,  has  lapsed  and  io  intes- 
tate property. 

This  proposition  would  be  true,  had  the 
testatrix  not  given  to  the  Drozei?,  by  the 
terms  of  the  direct  gift,  an  absolute  estate. 
The  Chancellor  has  held,  and  this  Court  con- 
curs, that  the  residuary  clause  of  Mrs. 
Droze's  will,  gives  to  the  legatees  therein 
named,  a  fee,  which,  by  the  codicil,  is,  as  to 
the  legacies  given  to  tlie  Drozes,  made  de- 
feasible, in  the  event  of  their  dying  without 
leaving  issue.  Where  an  estate  is  given  to 
one  absolutely  in  the  first  instance,  and  is 
made  defeasible  upon  a  contingency,  on  the 
happening  of  which  it  is  to  go  over  to  some 
third  person,  the  estate  given  to  the  first 
taker  is  not  to  be  defeated,  because  the 
event  upon  which  it  is  to  take  effect,  or  the 
person  who  is  to  take,  is  insufliciently  de- 
scribed ;  nor  because  the  limitation  is  ille- 
gal, or  void  for  any  cause.  The  same  rule 
applies  where  the  person  who  is  to  take  under 
the  limitation  has  died  in  the  life  time  of  the 
testator.  The  absolute  estate  first  given  can 
only  be  defeated  where  the  limitation  over 

*220 
can  take  effect.  This  *ground  of  appeal  is 
sustained,  and  the  decree  must  be  reformed 
accordingly.  The  share  in  the  remainder 
which  Josiah  Perry  would  have  been  entitled 
to.  had  he  survived  the  testatrix  (which  is 
one-fourth  part)  is  the  proper  estate  of  the 
said  Isaac  P.  Droze:  for  which  his  legal  rep- 
resentatives are  not  accotuitable  under  the 
limitations  of  the  will. 

As  to  the  other  questions  decided  by  the 
Circuit  decree,  to  which  exceptions  have  been 
taken  by  the  different  appellants,  it  is  uunec- 


MIKELL  V.  MIKKLL 


essary  to  make  any  conimeut.s:  this  Court 
coruurriiii;  in  tlie  views  expressed  by  the 
Chaucc'llor. 

It  is  ordiTod  and  decreed  that  tlie  Circuit 
decree  he  modified  and  made  to  conform 
witli  tliis  decree.  In  all  other  respects  the 
Circuit  decree  is  attirmcd,  and  the  appeals 
dismissed. 

It  is  further  ordered,  that  the  matters  of 
account  be  referred  to  the  Master,  and  that 
the  parties  to  the  cause  have  leave  to  apply 
to  the  Circuit  Court  for  any  orders  that  may 
be  necessary  to  carry  this  decree,  and  the 
Circuit  decree  as  thus  modified,  iuto  effect. 

WAKDLAW,  Ch.,  concurred. 

Dl'NKlN,  Ch.  I  concur,  except  on  the  Hr.st 
ground  of  appeal.  My  opinion  is.  that  the 
bonds  passed  under  the  descripticju  of  prop- 
erty given  to  tlie  legatee. 

JOII\«TOX.  Ch.,  absent. 
Decree  modi  tied. 


5    Rich.  Eq.   220 

EPHRAIM  S.  MIKKLL  v.  J.  JENKINS 
MIKELL. 

(Charle.ston.      Jan.   Term,   1S5."!.) 

[Exrciifors   and   Administrators   <S=>11S.1 

Defendant,  an  administrator,  emi)l()yod  .slaves 
of  his  intestate,  for  a  ti"nipi)i-ary  i)iiri)()so,  on 
his  own  plniit.-itinn:  the  slaves  i.'ft  tlio  planta- 
tion of  defendant  to  return  to  fiiat  of  the  intes- 
tate, and  were  never  seen  alive  afterwards:  the 
Court,  concluding,  on  the  evidence,  that  the 
slaves  were  destroyed  in  prosecution  of  a  willful 

*221 
art  on  their  part,   *after  they  had  left  the  em- 
ployment of  defendant,  and  after  jiroper  precau- 
tion  on  his  part,   held,   that  defendant  was  not 
liable  for  the  loss. 

I  Ed.  Note.— Cited  in  White  v.  Smith,  12  Rich. 
COli;     Henry   v.   Graham,   9   Rich.   Ei].   .•!r)4. 

For  othor  cases,  see  Executors  and  Adminis- 
trators. Cent.  Dig.   §  474;    Dec.   Dig.   (S=>ll.s.J 

[Executors    and   Administrators    (@==>ns.] 

The  act  of  an  administrator  in  employing 
the  slaves  of  his  intestate  in  his  own  service, 
is  not  illegal. 

I  Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  SS  47li-4Sli ; 
Dec.  Dig.   <S=»11S.] 

[Executors    and    Administrators    <g=!)L| 

The  care  and  diligence  which  a  prudent  man 
bestows  on  his  own  affairs,  is  the  test  liv  which 
the  rcsponsiliility  of  trustees  is  determined:  they 
are  not  insurers  against  losses  from  casualties 
and  misfortunes,  wiiieh  ordinary  sagacity  and 
<iiligence  could  not  prevent. 

I  Ed.  Note.— Cited  in  Rhamo  v.  I.*wis,  l.'l 
Rich.  Eq.  301. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  307;    Dec.  Dig.  (©=5!>1.] 

Before  Wardlaw,  Ch.,  at  Charleston,  Feb- 
ruary, ISul. 

This  ca.se  was  heard  on  exceptions,  by  the 
l)Iaintitr.  to  the  report  of  the  Master.  The 
decree    of    the    Chancellor,    which    <-ontains 


every  thing  necessary  to  a   full  understand- 
ing of  the  case,  is  as  follows: 

NVardlaw,   Ch.     The  plaintiff  in   this  case 
claims    an    account    from    defendant    of    hi* 
transactions  as  administrator  of  the  estate 
of  plaintiff's  fatlu'r,  Ei>hraini  Mikell.  Jr.,  de- 
cea.sed,  and  as  guardian  of  plaint ifl's  estate. 
The  defendant   made   regular  returns  of  his 
transactions  as  administrat«)r,  to  the  Ordina- 
ry of  the  District,  until  May,  1S,3U,  when  he 
was    a|ipointed    by    this   Court,    guardian    of 
plaintiffs  estate;   and  afterwards  the  defend- 
ant made  regular  returns  as  guardian,  to  one 
of  the  Masters  of  this  Court,   until  October, 
1.S4S.  when  the  plaintiff  having  attained  full 
age,  the  defendant  put  him  in  po.ssession  of 
the    plantation,    and    delivered    to    him    the 
slaves    and    other    chattels,    and    the    bonds, 
moneys  and  other  assets,   remaining  of  the 
estates  committed  to  the  defendant.     Master 
(Jray,  to  wlntm  it  was  referred  to  take  tes- 
timony in  the  cau.se,  and  to  report  generally 
as  to  the  matters  in  controversy  l>etween  the 
parties,   reports  that  all  the  accounts  of  de- 
fendant have  been  verified  by  proper  vouch- 
ers, and  that  no  objection  had  been  submitted 
to  him  resi)ecting  them;    and  that  the  only 
controversy  in  the  cause,  as  to  which  alone 
evidence  had  been  offered,  was  as  to  the  lia- 
bility of  defendant  as  adnnnistrator  for  three 
negroes  which  had  belonged  to  the  estate  of 
his  intestate,  and  which  were  lost  in  the  fall 
of  1.S37 ;   and  as  to  this  matter  the  Master  de- 
cides against  the  claim  of  the  plaintiff".    The 
case    comes    before    me    on    exceptions    to 
the  report  rejecting  this  claim. 
*222 
*It  appears,  by  the  evid(>nce,  that  the  de- 
fendant  in   the  fall   of   is;;7,   was   nmnaging 
as  administrator  of  his  intestate,  a  planta- 
tion called  the  Blue  House  plantation,  in  the 
Interior   of  Edisto   Island,   and   about   .seven 
miles  from  I'eters  Toint ;    and  that  he  was 
then  owner,  and  managing  in  his  own  right, 
a  plantation  on  Railey's  Island,  which  is  sep- 
arated from  Edisto  Island  by  a  creek  about 
one  hundred  yards  wide,  but  the  landing  on 
Railey's  Island  is  distant  from  I'eter's  I'oint, 
the  opposite  landing  on  Edisto  Island,  alxmt 
four    hundred    yards.      That    the    lU-fendant 
having  an  unusually  large  blow  of  cotton  on 
his    plantation    on    Railey's    Island,    which 
might  suffer  from  exposure,  ordere<l   f<tur  of 
the  slaves.  Jemmy,  Class.  Amy  and  Ket.  un- 
der his  control  as  administrator  on  the  Blue 
House  plantation,  to  proceed  to  Baileys  Is- 
land and  aid  in  picking  out  his  cotton;    and 
tlie.se   slaves   proceeded   accordingly,   and   re- 
mained  on   defendant's   plantation    for   thr«>e 
days,  from  Tuestiay  niorning  until  Thursday 
evening.      On    Tliursday    evening,    in    calm 
weather,    the    overseer   of   defendant,    under 
his   order,    i)rovi(h'd    a    large    and    safe    boat 
for  the  transportation  of  the  four  slaves  froin 
Bailey's  Island  to  I'eter's  Point,  and  saw  the 
boatmen  on   board,  and  the  four  slaves  i)ro- 


e=>yor  other  cases  see  same  topic  and  KEY-NUMBER  iu  all  Key-Numoered  Digests  aud  Indexe 


SD 


*222 


5  RICHARDSON'S  EQUITY  REPORTS 


ceeding  towards   the   boat,   but   did  not  see  < 
them  aboard  the  boat.     Except  the  risk  of  , 
being  driven  out  to  sea  in  boisterous  weather,  | 
the  passage  across  the  creels  is  regarded  as  i 
safe  as  transportation  for  equal  distance  on  | 
land,  allowing  for  the  difterence  between  wa- 
ter   and    land.      The   passage    is    frequently 
made  by  children  going  to  school,  and  by  ne- 
groes going  to  church.     There  is  no  cause  of 
danger  betwixt  Peter's  Point  and  Blue  House; 
yet,  the  three  slaves  last  named,  after  they 
passed  from  the  ken  of  the  overseer,  were 
never  again  Keen  in  life  by  a  competent  wit- 
ness, and  the  corpse  of  one  of  them  is  the 
only  evidence  of  their  fate.    A  few  days  aft- 
erwards, the  dead  body  of  Class  was  found 
on    South    Edisto    beach,    and    at    the    same 
time  and  place  were  found  the  dead  body  of 
George,  a  slave  of  Ephraim  Mikell,  sen.,  the 
owner  of  Peter's  Point,  and  a  small  paddle 
boat  upturned,  belonging  to  Sampson,  anoth- 
er slave  of  E.  Mikell,  sen.    Early  in  the  morn- 
ing of  Friday,  the  next  day  after  the  four 

*223 
slaves  had  been  ordered  to  be  sent  back  *to 
Edisto,  the  overseer  found  the  boat  in  which 
they  were  directed  to  be  transported,  at  the 
landing  in  Bailey's  Island,  and  the  boatmen 
at  their  proper  employment.  Jemmy,  one  of 
the  four  slaves,  returned  to  the  Blue  House 
plantation  in  proper  time,  and  he  is  still  alive. 
J^'rom  all  the  circumstances  of  the  case,  I 
conclude  that  the  four  slaves  were  safely 
transported  from  Bailey's  Island  to  Peter's 
Point,  on  Thursday  evening,  and  that  in  an 
attempt,  moved  by  their  own  will,  to  return 
in  the  night  to  Bailey's  Island  in  a  small 
boat,  three  of  them  were  drowned. 

Much  testimony  was  offered  before  the 
Master  as  to  the  usage  upon  Edisto  Island 
and  the  neighboring  Islands  as  to  the  remov- 
al of  slaves  from  one  plantation  to  another, 
and  the  interchange  of  work  upon  emergen- 
cies. The  testimony  itself  was  vague  and 
conflicting.  It  was  not  contended  that  any 
local  usage  on  this  subject,  however  fully 
proved,  could  change  the  general  law ;  and 
the  evidence  was  only  urged  upon  the  Court, 
as  exhibiting  the  mode  in  which  masters 
practically  exercised  their  dominion  over 
slaves  and  discharged  the  duty  of  neigh- 
bors. In  this  point  of  view,  it  was  unneces- 
sary or  inadequate.  Judges,  who  are  mem- 
bers of  a  slave-holding  couununity.  either 
know  without  the  testimony  of  witnesses 
how  masters  should  exercise  their  rights 
over  slaves,  or  they  are  not  to  be  controlled 
by  proof  of  provincial  practices.  The  first 
exception  of  plaintiff  which  objects  to  this 
testimony  is  sustained. 

It  was  argued  on  the  part  of  defendant. 
that  any  liability  of  the  defendant  for  the 
slaves  lost  was  extinguished  by  compensa- 
tion for  the  loss  made  in  the  will  of  Eph- 
raim Mikell,  sen.,  grandfather  of  plaintiff. 
This  will,  after  a  devise  to  the  plaintiff  of 
the  Blue  House  plantation,  (previously  given 

90 


by  parol  to  plaintiff's  father)  and  of  negroes 
upon  certain  limitations,  which  it  is  unneces- 
sary to  consider,  declares  as  follows ;  "I 
gave  to  the  father  of  my  grandson  during 
his  lifetime  as  much  of  my  property  as  I 
could  afford  to  give  to  any  one  of  my  chil- 
dren ;  a  part  of  which  property  he  has  al- 
ready inherited,  which  in  addition  to  the 
above  named  negroes  and  land,  is  all  that  I 
can  leave  him  in  justice  to  my  other   chil- 

*224 
dren."  If  there  be  any  *  reference  in  this 
declaration  to  the  loss  of  the  three  negroes, 
it  is  too  indistinct  for  the  basis  of  a  legal 
conclusion ;  but  if  the  intention  of  the  testa- 
tor in  this  devise  were  palpably  manifest 
to  make  satisfaction  to  his  grandson  for  the 
loss,  the  defence  would  not  be  much  strong- 
er. No  case  would  then  be  presented  to  the 
legatee  of  election  between  inconsistent 
provisions  of  the  same  instrument,  or  of 
implied  satisfaction  of  any  demand  of  the 
legatee  against  the  estate  of  the  testator. 
No  hinderance  would  be  interposed  to 
the  prosecution  of  his  claim  against  a 
third  person  for  the  unlawful  or  negli- 
gent use  of  his  property.  Of  course,  ex- 
trinsic evidence  of  the  intention  of  the 
testator  in  this  respect,  if  at  all  compe- 
tent, would  be  feebler  in  its  influence.  It  is 
unnecessary,  however,  to  pursue  this  di-^cus- 
sion,  as  the  testimony  does  not  extend  to  any 
declaration  of  the  testator,  as  to  his  motive 
or  purpose  in  the  devise ;  and  does  not  pro- 
ceed beyond  some  indefinite  understanding 
in  the  family  of  testator  after  his  death ; 
which  understanding  was  as  likely  to  be  pro- 
duced by  the  defendant  as  any  one  else.  Tlie 
second  exception  of  plaintiff  objecting  to 
the  proof  of  compensation,  is  sustained. 

The  third  exception  is  merely  formal,  ob- 
jecting to  the  omission  of  testimony  which 
was  supplied. 

The  question  still  remains  as  to  the  lia- 
bility of  the  defendant  for  the  loss  of  the 
three  slaves. 

The  plaintiff,  in  his  fourth  exception,  puts 
defendant's  liability  on  the  ground,  that  it 
was  an  "illegal  act  in  him  to  employ  these 
slaves  for  his  own  benefit  without  an  equiva- 
lent to  plaintiff,  and  at  a  risk  not  necessary 
for  plaintiff's  interest."  The  bill  contains 
no  express  suggestion  of  this  claim,  which 
turns  out  to  be  the  only  matter  of  dispute 
between  the  parties.  If  the  plaintiff  had 
proceeded,  frankly,  according  to  the  truth 
of  the  case,  to  charge  the  defendant  for  this 
injury  exclusively,  and  the  doctrine  of  the 
exception  be  well  founded,  the  case  would  not 
have  been  within  the  jurisdiction  of  this 
Court.  If  the  loss  resulted  from  the  illegal 
act  of  the  defendant,  the  proper  remedy  of 
the  plaintiff  would  be  trespass ;  and  if  the- 
loss  resulted  from  the  negligence  of  defend- 

*225 
ant,  then  case  would  be  *the  remedy.     Tliis 
Court,    to    avoid    multiplicity   of   suits,    may 


STREET  V.  LALRENS 


k'gitiiiiatoly  investipato  an<l  (l»»ci(h'  such  mat- 
ters, when  they  are  incidental  to  a  general 
necount  or  other  topic  of  tH|uital)le  cogni- 
sance: t»ut  when  they  stand  alone,  it  is  not 
the  i)rovin(e  of  Equity  to  give  damages.  It 
is  a  mistake,  however,  to  treat  the  act  of  the 
defendant  in  employing  these  slaves  in  his 
own  .service  as  an  illegal  act.  The  cases 
<|Uoted  in  nr_Minient  of  Wright  v.  (Jray.  2  Hay 
4»!4,  and  McDaniel  v.  Ematnu'l,  li  Rich.  4."(, 
where  i)ersons  were  held  to  strict  accniinta- 
hility  for  unauthorized  use  of  the  property 
of  others,  have  no  application.  The  dt'fend- 
nnt.  as  adniini.strator,  was  the  l»>gal  owner 
of  the  slaves  in  (luestlon,  and  he  ndght,  in 
his  di.scrttion.  have  employed  the  slaves  al- 
together in  his  own  service;  Incurrinir  of 
course  liahility  to  the  creditors  an<l  distribu- 
tees for  the  full  value  of  the  hire  of  the 
slaves  while  so  employed.  If  an  adminis- 
trator or  other  trustee  should  remove 
slaves  belonging  to  the  trust  from  their  prop- 
er employment,  for  the  sake  of  lucre,  this 
would  be  a  proper  case  for  charging  him 
with  hire  at  tlie  highest  estimate  of  witness- 
es, and  for  measuring  his  responsibility  in 
every  respect  with  .strictness:  still  we  could 
not  denounce  the  act  as  illegal,  however 
contrary  to  a  nice  sense  of  honor.  In  the 
present  case,  there  is  no  complaint  that  hire 
for  three  days  of  the  four  slaves  is  not  charg- 
ed against  the  administrator:  and  it  is  l>ut 
just  to  him  to  remark,  that  he  swears  in  his 
an.swer,  and  there  is  some  evidence  of  the 
fact,  that  he  had  several  times  allowed  his 
own  slaves  to  work  on  the  trust  estate  with- 
out compensation.  It  is  to  his  credit  too, 
that  his  management  generally  was  diligent 
and  successful. 

The  defendant,  if  liable  at  ail.  is  lialtle 
for  a  breach  of  his  trust,  in  not  managing 
the  estate  entrusted  to  him  with  the  care 
and  diligence  which  a  prudent  man  bestows 
on  his  own  affairs.  A  more  stringent  rule 
as  to  the  responsibility  of  trustees  would 
<lefeat  itself  by  deterring  thoughtful,  honest, 
and  prudent  men  from  engaging  in  the  dis- 
charge of  duties,  so  hazardous  as  well  as 
onerous.  Where  one  has  faithfully  endeav- 
<Hired  to  execute  a  trust,  it  would  bi>  neither 

•226 
reasonalile  nor  *e(|uitable  to  makt-  him  an 
insurer  against  losses  from  casualties  and 
misfortunes  which  ordinary  sagacity  and 
diligence  could  not  prevent.  llie  Court 
cannot  expect  trustees  to  take  more  care 
of  trust  estates  than  of  their  own.  Taveau 
v.  Hall,  1  McC.  Ell.  W2:  Massey  v.  Hamier, 
1  Jac.  and  W.  L'P.t:  .Jones  v.  lyi-wis,  '2  Ves. 
Sen.  240. 

In  this  ca.se,  the  property  lost  consisted  of 
slaves — chattels  that  have  intelligence  and 
will,  who  are  capable  by  their  own  acts  of 
defeating  a  high  degree  of  care  and  clrcum- 
sjiection  on  the  part  of  others.  Ferrymen  are 
held   by   our  law  to  the  strict   responsibility 


of  common  carriers;  yet  if  a  slave,  on  his 
pas.sage  in  a  ferry  Intat,  sliould  elude  the 
connnon  care  of  the  ferryman,  jumi»  over- 
board and  drown  himself,  the  owner  of  the 
ferry  would  not  be  liable.  Clark  ads.  Me- 
Domild.  4  .McC.  22;{.  So  here,  as  I  conclude 
that  the  slaves  were  destroyed  in  prosecu- 
tion of  a  wilful  act  on  their  !)art,  after  they 
had  left  the  employment  of  the  defendant, 
and  after  proper  <'aution  on  Ids  part,  I  c<»n- 
cur  with  the  .Master,  that  no  liability  on 
this  a<"Count  attaches  to  the  defendant.  The 
exception  is  overruled.  It  is  ordered  and  de- 
creed, that  the  bill  be  dismissed. 

The  plaintiff  apiH^aled  on  the  grounds 

1.  That  his  Honor  shoidd  have  sustained 
the  fourth  exception  to  the  .Master's  reimrt, 
and  decreed  the  defendant  liable  for  the  val- 
ue of  the  three  negroes  of  the  ndnor,  viz.. 
Class,  Ket  and  Amey:  and  their  wages  or 
interest ;  the  said  negro«'s  having  be<'n  re- 
move<l  from  the  nnnor's  plantation,  and  used 
at  a  distance  therefrom,  by  the  said  «lefend- 
ant  for  his  own  benefit,  and  having  Ihhmi 
lo.st  in  oi    by  reason   of  such   impro|H>r  use. 

2.  That  the  decree,  .so  far  as  it  overruletl 
the  fourth  exception  and  dismissed  the  bill. 
is  contrary  to  eiiuily,  aqd  ought  to  be  re- 
versed. 

Yeadon   &    .Macin'th,    fur   appellant. 
Magrath,  contra. 

♦227 

♦PER  CIRIA.M.  The  Court  concur  in  the 
judgment  nf  the  Chancellor.  The  decree  is 
alhrmed. 

Dr.VKlX.  I>AK»;A.\  mh.I  WARId.AW.CC, 
concurrinL.'. 

.I()1I.\ST(».\.  Ch..  absent  at  the  hearing. 
Decree  allirmed. 


5  Rich.  Eq.  227 

HENRY  T.    STREKT   and   Oth.rs  v.   ED- 
WARD  R.   LAlRENS  aixl  Others. 

(Charleston.      .Ian.   Ttiin,    l.S5.'{.) 

[i: quit II   C=>1-">1.| 

Constriictioii  >;iven  to  a  decree  <>f  the  Cir- 
cuit Ciiiirt  in  another  cause. 

I  Ed.  Note.— I'or  other  cases,  .'ioe  E(|intv,  C'tnt. 
Dig.  SS  104S-l(»r)l  ;    Dec.  Dig.  C=>4:n.l 
\i:<iuit!i    ©=>.".! ts.  I 

Wliirc  a  Master  in  Equity  is  ordered  by  the 
Court  to  iiiNcst  fluids  in  his  hands,  and  negle«'ts 
to  do  so.  his  sureties  for  the  term  diiriiig  which 
the  default,  in  neglecting  to  invest,  is  eotiunit- 
ted.  are  liable.  That  the  .Master,  by  re-ele<'tion. 
beeonies  his  own  successor — giving  new  bond 
with  other  sureties— does  not  discharge  them. 

I  Ed.    Note.— Cited    iu    Whitniire    v.    Langstou, 
lis.  C.  :\s\);    State  ex   ri-l.  Cau.sev  v.  Cau.sev, 

;•:{  s.  c.  ."MM.  7(;  s.  e.  tot. 

For    other    cases,    see    E<)uitv.    Cent.    Dig.    § 

st;;5;    Dec.  Dig.  c=3:v.ts.i 
[i:<juii!/  c=3;{os.] 

So,  also,  where  a  Master  eonunits  default 
in  not  depositin::  iimnev  in  I'lank.  as  iliriM-te<l 
bv   the   Act   of   1S40,   his  sureties   for   the   term 


0=9For  other  catjes  see  same  topic  aud  KEY-NL'.MUBK  lu  all  Key-Numborcd  Digests  and  Indexes 


91 


^227 


5  RICHARDSON'S  EQUITY  REPORTS 


during  which  the  default  is  committed,  are  lia- 
ble. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent. 
Dig.  §  S63  ;   Dec.  Dig.  (©=5^98.] 

[Equiiy  <®=339S.] 

The  sureties  of  a  Ma.ster  were  sought  to  be 
made  liable  for  the  default  of  the  Master  in 
not  investing  funds  of  a  certain  estate,  as  di- 
rected by  an  order  of  the  Court:— 1/eZd,  upon 
the  evidence,  that  certain  bonds,  payable  to 
the  Master,  were  not  in  fact  investments  for 
that  estate,  and  therefore  the  sureties  were  not 
exonerated— although,  during  a  subsequent  term 
of  the  same  Master,  the  bonds  were  paid  to  him, 
(and  the  money  wasted,)  as  belonging  to  that 
estate. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent. 
Dig.  §§  862,  863;    Dec.  Dig.   <®=398.] 

[Equity  <©=>39S.] 

A  Master  having  committed  default  in  not 
investing  funds,  his  sureties  were  charged  in- 
terest, with  annual  rests,  until  he  went  out  of 
office,  and  with  simple  interest  from  that  time. 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.  §  863;    Dec.  Dig.  <©=^398.] 

Before  Dargan,  Cb.,  at  Charleston,  July, 
1852. 

Edward  R.  Laurens  was  elected  Master 
in  Equity  for  Charleston  in  December,  18.36: 
he  was  re-elected  in  December,  1840:  again 
re-elected  in  December,  1844:  and  again  in 
December,  1848.  He  remained  in  office  until 
May,  1851,  when  he  resigned.  His  mother, 
Eliza  Laurens,  was   one  of   the  sureties  on 

*228 
his    *official    bonds   of   his    first   and    second 
terms.     She  died  in  1842,  leaving  a  will,  of 
which  he  was  the  executor. 

This  bill  was  filed  by  Henry  T.  Street,  and 
others,  heirs  of  Timothy  Street,  against  Ed- 
ward R.  Laurens,  as  executor  of  his  mother, 
John  Laurens,  Eliza  Laurens,  Henry  Laur- 
ens, and  John  R.  Laurens,  her  devisees,  to 
render  her  estate  accountable  for  certain 
funds  of  the  estate  of  Timothy  Street,  which 
came  into  the  hands  of  Edward  R.  Laurens 
as  Master,  prior  to  December  9,  1844,  when 
his  second  term  of  omce  expired. 

The  bill  was  taken  pro  confesso  against 
him.  The  other  defendants  answered,  admit- 
ting the  liability  of  the  estate  devised  to 
them  for  the  debts  of  Mrs.  Laurens,  but  de- 
nying knowledge  of  any  debt  due  by  her  on 
account  of  the  official  bonds  of  her  son. 

One  of  the  Masters,  Mr.  Tapper,  was  di- 
rected to  take  an  account  of  the  sums  owing 
by  Mrs.  Lawrence  to  the  complainants,  on 
the  bonds  to  which  she  was  a  party,  as  the 
surety  of  Edward  R.  Laurens ;  and  he  sub- 
mitted his  report,  dated  June  15,  1852,  as 
follows: 

"I  have  been  attended  by  the  solicitor  for 
the  complainants,  and  the  solicitors  for  the 
defendants;  and  having  heard  the  allegations 
of  the  said  parties,  and  their  proofs  thereon, 
I  have  taken  an  account  of  the  estate  of  the 
late  Timothy  Street,  which  came  into  the 
hands  of  Edward  R.  Laurens,  as  one  of  the 
Masters  of  this  Court,  and  not  accounted  for, 
during  the  official  terms  for  which  Mrs.  Eliza 


Laurens   was  bound  as  one  of  the  sureties 
of  the  said  Edward  R.  Laurens. 

"Mr.  Laurens  w-as  first  elected  to  the  of- 
fice of  Master  in  Equity,  in  1836,  and  on 
the  12tli  day  of  December,  in  that  year,  exe- 
cuted his  bond  in  the  penal  sum  of  thirty 
thousand  dollars  for  the  faithful  discharge  of 
the  duties  of  said  office.  In  1840  he  was  re- 
elected, and  on  the  12th  day  of  December  of 
that  year  executed  a  like  bond.  The  name 
of  Mrs.  EHza  Laurens  appears  as  a  surety 
on  both  of  these  bonds.  The  term  for  which 
the  latter  bond  was  given,  expired  on  the 
ninth  day  of  December,  1844,  when  upon  the 

*229 
third  election  of  Mr.  Laurens,  *a  new  bond 
was   executed,    to   which  Mrs.   Laurens   waa 
not  a  party. 

"For  any  default,  therefore,  occurring  be- 
tween the  date  of  the  first  bond,  to  wit,  the 
12th  December,  1836,  and  the  expiration  of 
the  second  term,  the  9th  December,  1844, 
Mrs.  Eliza  Laurens  was  liable  as  one  of  the 
sureties  of  Mr.  Laurens. 

"Timothy  Street,  the  father  of  the  com- 
plainants, died  in  the  year  1833,  intestate, 
leaving  a  considerable  estate  in  realty,  or 
which  he  was  seized,  as  to  part,  in  liis  own 
right,  and  as  to  other  portions,  as  tenant  in 
common,  with  Thaddeus  Street  anci  Daniel 
Boinest,  who  had  been  partners  in  trade,  and 
to  whom  administration  of  his  estate  was 
committed  after  his  death.  By  a  decree  of 
Chancellor  DeSaussiire  bearing  date  the  23d 
day  of  January,  1836,  and  made  in  a  cause 
then  pending  in  this  Court  between  the  said 
administrators  and  the  widow  and  children 
of  the  said  Timothy  Street,  for  a  division  of 
the  real  estate  of  the  said  intestate,  it  was 
ordered:  that  the  said  real  estate  be  sold; 
that  so  much  of  the  proceeds  of  said  sale  as 
belonged  to  the  distributees  of  Timothy 
Street,  be  paid  over  to  the  Master  of  this 
Court,  and  'that  the  said  Master  do  invest 
in  his  official  name  the  amount  coming  into 
his  hands  from  the  sales  aforesaid,  on  ac- 
count of  the  distributees  of  Timothy  Street, 
in  such  manner  as  may  be  agreed  on  by  him- 
self, and  the  administrators  of  Timothy 
Street,  to  be  held  for  the  use  of  the  legal 
distributees  of  Timothy  Street,  and  transfer- 
red to  the  parties  who  may  be  decided  to  be 
entitled  thereto.' 

"Thomas  O.  Elliott,  who,  at  the  time  of 
the  pendency  of  these  proceedings,  was  one 
of  the  Masters  of  this  Court,  received  under 
the  above  decree,  as  a  part  of  the  proceeds 
of  the  sales  of  the  real  estate,  belonging  to 
the  distributees  of  Timothy  Street,  a  bond 
of  Benjamin  Smith,  dated  27th  January, 
1836,  for  four  thousand  four  hundred  and 
fifty-five  dollars;  also,  in  cash,  four  hundred 
and  eleven  dollars.  The  ]pttev  sum  was  in- 
vested by  the  said  ''^'.dJj^-^  la  July.  1836,  in 
a  bond  of  M.  I.  Keith,  secured  by  a  mortgage 
of  a  pew  in  St.  Peter's  Chuch,  of  Cliarleston. 


92 


<gs»For  other  cases  see  same  topic  aud  KEY-IJUMBER  in  all  Key-Numbered  Digests  and  lnde.\es 


STREET  V.  LAUREN'S 


Both  of  these  Ixinds  were  transferred  by  Mr.  | 
♦230  1 

Elliott  to  his  siu-*tvss(ir,  Mr.  Laiirt'iis,  uimiu  1 
the  election  of  the  latter  in  December,  is'W.  j 
Upon  the  bond  of  Benjamin  Smith,  Mr.  Lau-  i 
rens  received,  from  the  year  ls.'{7  to  the  year 
1H40  inclusive,  the  annual  interest  accruing 
thereon;   and   on   the   10th   Kcitruary   of  the  I 
latter  year,   the  principal  of   the  said    bond 
in  full.     I  have  admitted   tlu-sc  receiiits,  by 
Mr.   Laurens,  as  proper  char;<cs  in  this  ac- 
count,   upon    the   evidence    of    B.    F.    Snuth. 
which  accompanies  my  report  in  the  case  of 
Thaddeus  Street,  et  al.  v.   An^'elique  Street 
et  al.,  filed  the  2d  July,  iS'il,  and   upon  in- 
spection of  the  original    bond,  with   the  ac- 
knowledgment  of   the   several    payments  en- 
dorsed by  Mr.  Laurens. 

"The  bond  of  M.  I.  Keith,  I  am  of  opinion, 
cannot  be  allowed  as  a  charge  against  the 
late  Master,  so  as  to  bind  tlie  estate  of  Mrs. 
Laurens.  Some  time  previous  to  1S4'J,  this 
bond  was  placed  by  Mr.  Laurens  in  the 
hands  of  the  late  CJeorge  B.  Eckhard,  for  col- 
lection;  on  the  4th  May,  1S42,  the  pew  in 
St.  Peter's  Church,  mortgaged  to  secure  the 
payment  of  this  bond,  was  sold  by  Master 
Gray,  but  the  proceeds  of  sale  (.$12G.l.'r»i  were 
not  paid  over  to  Master  Laurens  until  the 
15th  March,  1S45,  after  the  last  term  had 
expired,  for  which  Mrs.  Laurens  was  bound 
as  one  of  the  sureties  of  Mr.  Laurens.  To  se- 
cure the  balance  still  due  upon  this  bond, 
after  the  above  payment,  Mr.  Eckhard  re- 
ceived from  the  obligor.  i)robably  in  1S42. 
a  bond  of  James  Hamilton  and  D.  IL  Hamil- 
ton, conditioned  for  the  payment  of  a  sum 
considerably  exceeding  the  amount  of  Keith's 
bond,  for  which  it  was  su.^stituted.  The 
Hamiltons'  bond  was  not  paid  until  ISuO, 
six  years  after  the  termination  of  Mrs.  Laur- 
ens' liability  on  the  ofhcial  bonds  of  the 
late  Master. 

"In  1839,  Master  Laurens  received,  on  ac- 
count of  the  complainants,  from  the  sale  of 
certain  real  estate  under  the  decree  before 
referred  to,  a  bond  of  Henry  T.  Street  con- 
ditioned to  pay  six  thousand  two  hundred 
and  fifty  dollars,  also  a  lM)nd  of  George  B. 
Locke  for  !i!.j.41U.G7.  both  bearing  date  the 
first  day  of  April.  IS'Ut.  From  the  evidence 
appended  to  my  report  of  the  L'd  July.  is."il, 
befoi-e  referred  to,  and  from  the  original 
bonds  produced   before   me,   it   appears  that 

*231 
the  interest  arising  on  the  *bond  of  H.  T. 
Street  was  paid  annually  to  Mr.  Laurens,  up 
to  the  li4th  of  June.  l.s4:5.  wiien  the  principal 
was  paid  in  full.  It  al.so  ajtpears  that  the 
interest  was  regularly  paid  on  the  bond  of 
George  B.  LixUe.  to  the  1st  Ai)ril.  1S44,  the 
last  year  for  %vliich  Mrs.  Laurens  was  bound. 
I  have,  therefore,  allowed  as  proper  charges 
in  this  account,  the  nutneys  received  by  Mr. 
Laurens  on  the  bonds  of  Street  and  Locke, 
jtrevious  to  the  expiration  of  his  second  of- 
ficial term. 


"I'nder  the  decree  of  Chaufvllor  DeSaus- 
sure.  Mr.  Laurens  sold,  in  1S40.  a  house  and 
lot  in  l^ueen-street,  and  received  from  Daniel 
Bolnest.  the  purcha.ser.  his  bond  Itearlng  date 
the  'SJd  April.  1S40,  for  $4.5(M>.  being  the 
moiety  of  the  prrnveds  of  sai«l  sale  l.elonging 
to  the  c-«implainants.  as  distrii>utees  of  Tim- 
othy Stn-et ;  on  this  bond  Mr.  Laurens  re- 
ceived $.'n7..*r>,  on  the  I'Jd  April.  1S41.  and 
$ri.SS.40,  on  the  -jrSd  July,  1S4:{— tliese  pay- 
ments being  endorsed  In  the  handwriting  of 
the  late  Ma.ster  <»n  the  l>ack  of  the  original 
lM»nds  produced  before  me.  I  have  allowed 
them  as  charges  in  the  account. 

"The  defendants,  liy  their  solicitors.  l)ave 
suliniltt«'d  to  me  evideme  uiMin  whicli  they  re- 
ly to  sustain  the  following  credits,  claimed  by 
them  in  discharge  of  their  liability  u|ion  the 
account  as  established  by  the  proof  of  the 
conii»lainants. 

"(1.1 

1840,  Febniiiry  28,  onsh  pnid  by  Mr. 
Ijiiurcns  for  note  of  Tlnulihiis  St.«»'«'t 

at  12  montliH ?4.45r.  00 

'•In  Master  Laurens'  annual  report  of 
funds  for  the  year  ls41  and  1S42.  this  ere<lit 
appears  In  his  aci*ount  with  the  estate  «>f 
Street,  and  seems  to  have  been  vouch»*d  be- 
fore the  Chancellor.  The  investment  of 
funds,  by  the  Master,  in  promissory  notes, 
unsecured  by  mortgage  or  otherwise,  would 
not,  I  presume,  under  ordinary  circum- 
stances, receive  the  sanction  of  the  Court  ; 
in  this  case  the  order  of  Chancellor  DeSaus- 
sure  authorizes  the  investment  *)f  moneys 
received  by  the  Master  for  the  estate  i»f 
Street,  "in  such  manner  as  may  be  agreed  on 
by  the  Master,  and  the  adnnnistrators  of  Tim- 
othy Street.*  The  note  taken  by  Mr.  Laurens 
in    this    case,    was    the    nt>te    of   tlie    acting 

•232 
♦administrator  of  this  estate.  Hotb  the 
Master  and  administrator  nuist.  tlu'refore, 
have  agreed  to  the  investment.  In  allowing 
this  creilit.  I  have  been  infiuenced.  not  so 
much  by  the  foregoing  consider.Jtioii.  as  by 
the  fact,  that  Mr.  Street  paid  the  principal 
of  his  note  in  full  on  the  1st  March.  1S42. 
I  have  charged  Mr.  l^uirens  with  the  prin- 
ci|)al  of  this  note  on  the  said  day.  and  with 
the  interest  as  of  the  dates  when  it  fell  due. 
A  different  conclusion  as  to  this  credit  would 
probably  have  been  arrived  at.  had  the  al- 
lowance of  it  in  any  manner  changed  tlu'  ac- 
count, or  the  liability  of  the  parties  sought 
to  be  cbargi'd  by  these  pmceedings. 

"I -2.1 
1S41.  Jane  22.  Cash  pd  by 

Lanr<ns   for    $    <il<J  ■">•") 

State  (i  per  ct.  Stock 
at  105 $    fur,  :i2 

1841,  Die.  14,  Cash  p'd  by 
Laurens   for    '224  SS 

State  t!  per  ct.  Stock 

at    105 -SM;  12 

1S41.  Dee.  14,  Cash  p'd  by 

Laurens   for    517   Id 

State  ti  per  ct.  Stock 
at  105 542  9l5 

ifl, ■'•'>'  o.)    ^1.425  40 


*232 


5  RICHARDSON'S  EQUITY  REPORTS 


"From  the  Stock  Ledger  of  the  State 
Treasury  Office  it  appears  that,  at  the  above 
dates,  scrip  representing  State  six  per  cent, 
stock  (Fire  Loan)  for  the  above  three 
amounts  (the  two  first  redeemable,  in  ISGO, 
and  tlie  third,  in  1870,)  was  transferred  by 
Mrs.  Louisa  Ingraliara  to  "Edward  R.  Laurens, 
Master  in  Equity,  for  estate  of  Street ;'  this 
stock  remained  in  the  name  of  Mr.  Laurens 
for  this  estate  until  May,  1849,  when  it  was 
transferred  by  him  upon  the  books  of  the 
Treasury  Office  as  follows: 

To  Edward  R.  Laurens,  Master  in 
Equity,  for  Bailey  v.  Boyce 601  16 

To  Edward  R.  Laurens,  Master  in 
Equity,  for  Balthazar  &  Co 14  37 


the  two  last  credits  are  claimed,  was  selling 
at  $105 ;  the  price  alleged  to  have  been  paid 
by  Mr.  Laurens. 

"[4.] 
Casli  paid  by  Mr.  Laurens  for  $148.37 

City  6  per  cent,  at  110 157  70 

Cash  paid  by  Mr.  Laurens  for  City  5 

per  ct.  at  par 250  00 

Cash  paid  bv  INIr.  Laurens  for  City  5 

per  ct.  at  par 892  42 


615  55 

To  Edward  R.  Laurens,  blaster  in 
Equity,   for  Estate  of  Merritt 224  88 

To  Edward  R.  Laurens,  Piaster  in 
Equity,  for  Baltliazar  &  Co 434  04 

To  Edward  R.  Laurens,  Master  in 
Equity,  for  Estate  of  Merritt 64  06 


$1,357  53 
"It  is  clear,  from  the  date  of  the  foregoing 
*233 
statement,  that  al*though  the  estate  of 
Street  has  lost  the  above  stock  by  its  transfer 
to  other  estates  represented  by  the  late 
Master,  still  the  credit  claimed  upon  this  ac- 
count by  the  defendants  must  be  allowed. 
On  the  9th  day  of  December,  1844,  when  the 
lial)ility  of  Mrs.  Laurens  upon  the  bonds  of 
the  Master  ceased,  this  stock  was  held,  by 
Mr.  Laurens,  in  tiiist  for  the  distributees  of 
Street.  The  default  occurred  in  1849,  during 
a  term  subsequent  to  the  period  for  which 
Mrs.  Laurens  was  bound.  The  defendants, 
I  think,  are  entitled  to  the  benefits  of  the 
above  investments.  The  interest,  however, 
received  previous  to  December,  1844.  from 
this  stock,  is  a  charge  which  may  properly  be 
claimed  by  the  complainants,  and  I  have 
accordingly  allowed  it. 

"[3.] 
1842,  March  1,  Cash  paid  bv 

Mr.  Laurens  for    $4,500 

State     6     per     cent. 
Stock   at   105 $4,725  00 

"Proof  is  furnislied  by  the  certificate  of 
William  Laval.  State  Treasurer,  that  on  the 
above  day  Mr.  Laurens  invested  in  his  official 
name  for  the  estate  of  Street  $4,500  in  State 
6  per  cent,  stock.  In  May,  1845,  from  this 
stock  he  transferred  $2,000  to  the  estate  of 
Stoney.  In  January,  1848,  he  received  $833.- 
34,  that  being  the  one-third  redeemable  at 
that  time,  and  the  balance,  $1,666.66,  was 
taken  in  new  scrip.  In  May,  1849,  this  new 
scrip  was,  with  some  other  stocks,  divided  by 
Mr.  Laurens  between  the  cases  of  Kenderson 
V.  Henderson,  and  Boyce  v.  Boyce.  This 
credit,  for  the  reasons  assigned  in  determin- 
ing the  preceding  one,  must  also,  I  think,  be 
allowed.  The  first  default  here  arose  in  May, 
1845,  after  the  second  term  of  Mr.  Laurens 
had  expired.  I  have  inquired,  and  find  that 
State  6  per  cent,  stock,  at  the  dates  when 
94 


^234 


$1,142  42 


*"From  the  books  of  the  City  Treasurer,  it 
appears  that  City  6  per  cent,  stock  of  the  is- 
sue of  1838  and  18.39,  for  $157.70.  was 
transferred  to  Mr.  Laurens  for  the  estate  of 
Street,  in  October,  1844.  This  stock  remain- 
ed luichanged  in  the  hands  of  Mr.  Laurens 
until  his  resignation,  in  1851,  when  it  was 
turned  over  to  me  as  his  successor,  and  by 
me  transferred  to  the  distributees  of  T. 
Street.  In  April,  1844,  at  the  same  office, 
City  5  per  cent,  stock  of  the  issue  of  1824, 
for  $250,  was  placed  to  the  credit  of  Mr. 
Laurens  for  this  estate.  In  1846,  this  stock, 
being  then  redeemable  in  full,  was  paid  to 
Mr.  Laurens  by  the  City  Treasurer.  The 
dividend  book  of  this  office  shows  that  in 
October,  1842,  thei'e  was  also  standing  in 
the  name  of  the  late  Master,  for  the  estate  of 
Street,  City  5  per  cent,  stock  of  the  Issue  of 
1835  for  $454.85;  and  that  in  April.  1844. 
this  sum  was  increased  bj  other  purchases  to 
$892.42.  This  investment  continued  unchang- 
ed in  tlie  hands  of  Mr.  Laurens  after  Decem- 
ber, 1844.  Scrip  representing  $669.32  of  this 
stock  was  transferred  to  me  by  Mr.  Laurens, 
and  by  me  assigned  to  the  complainants.  I 
have  allowed  this  credit,  there  appearing  no 
default  in  respect  to  these  investments  dur- 
ing Mr.  Laurens'  first  and  second  terms. 
Two  quarters  interest  is  charged  as  received 
on  this  stock  in  1844. 

'•[5.] 

1.  1841,  January    19,    Cash    paid    by 

Mr.    Laurens    for    bond    of 

Mrs.  Eliza  Laurens $1,082  33 

2.  1842,  July    10,    Cash   paid   by    I\Ir. 

Laurens  for  bond  of  Mrs. 
Eliza  Laurens  for  $766.80, 
with  interest  from  14th 
Marcli,  1839    962  57 

3.  1843,  July    3,    Cash    paid    by    Mr. 

Laurens  for  bond  of  Mrs. 
Eliza  Laurens  for  $633.20, 
with  interest  from  14tli 
March,  1839    856  01 

4.  1843,  July      ,    Cash    paid    by    Mr. 

Laurens  for  bond  of  Mrs. 
Eliza   Laurens.... $2,207  .58 

5.  1843,  July,      ,    Cash    paid    by    Mr. 

Laurens  for  bond  of  Mrs. 
Eliza   Lauj'ens ...      635  OC 


Interest   from   19th   Janu- 
ary, 1841,  on $2,842  58  3,367  87 


"=235 


$6,268  78 


*"The  original  bonds  here  referred  to  have 
been  submitted  to  me.  They  are  all  signed 
Eliza  Laurens,  and  payable  to  "Edward  R. 
Laurens,  Master  in  Equity,  his  successors  iu 


STREET  V   LAUREN'S 


office,  and  assifins.'  The  dates  and  aiiioiiiits  I 
are  as  above  stated.  On  each  of  these  bonds  I 
t-here  is  this  acknowiedirineiit:  "Received 
payment  in  full  on  the  within  liond.  Edward  | 
R.  Laurens,  .Master  in  E<|ult.v.'  Tiie  follow-  ! 
lug  endorsements  ai>pear  on  the  back  of  these 
bonds : 

"On  1st  bond— 'inth  January,  1.S41.  Eliza 
Laurens  to  Master  iu  I"(iuity  for  Estate 
Street.  $1.0S-_>.:i;5.' 

"On  2d  bond— '14th  March,  1,S.30,  Mrs.  Eliza 
Laurens  to  Master  in  I^iuity.  bond  $700.^0.' 

"On  3d  bond— '14th  Mardi.  ls::!».  Mrs.  Eliza 
Laurens  to  Master  in  I'Jiuity  for  Warren  An- 
drew.s,  et  ux.  bond  .$(io."!.liO.'  Warren  An- 
drews, et  ux.  stricken  out. 

"On  4th  bond— 'inth  January.  Is41.  Eliza 
Laurens  to  Master  in  I-^iuity  for  Estate  Mc- 
Leod,  L'.liOT.aS."  Estate  of  .McLeod  stricken 
out,  and  'January.  1n4."c  for  Instate  .Street' 
added. 

"On  5th  bond— 'lilth  January.  1.S41.  Eliza 
Laurens  to  Master  in  Etiuity  for  Instate  IL  V. 
Holmes.  .$0.':).").' 

••Tt>  tix  upon  these  bonds  the  character  of 
investments  for  the  estate  of  Street,  the  de- 
fendants rely  upon  a  schedule  of  debts 
asainst  the  estate  of  Mrs.  Eliza  Laurens,  ren- 
dered, in  January,  1840.  to  tlu'  Ordinary  of 
Charleston  District,  by  Edward  IJ.  Laurens, 
e.xecutor  of  said  estate.  In  this  schedule  the 
above  bonds  are  rei)resented  to  be  held  by 
the  estate  of  Street,  and  the  testimony  of 
Mr.  Guenther  is  introduced  to  show  that 
when  this  statement  of  tlie  liabilities  of  Mrs. 
Laurens  was  prepared,  these  bonds  were  in 
the  Master's  othce.  where  they  had  been  since 
1S42.  There  is  nothing  upon  the  face  of  the 
bonds,  that  proves  them  to  have  been  invest- 
ments for  the  estate  of  Street.  They  furnish, 
In  themselves,  no  more  evidence  that  they 
ever  belonged  to  this  e.state,  than  to  any  other 
estate  in  the  Master's  olHce.  They  are  made 
payabh?  to  'Edward  R.  Laurens.  Master  in 
Equity,'  without  reference  to  the  persons 
beneficially  interested  in  them.  I'pon  the 
back  of  two  of  the.se  bonds,  the  words  are 
written    'for   estate   of   Street."      If   this    be 

*236 
♦sufficient  to  determine  that  they  belonged 
to  the  estate  of  Street,  then  of  the  remaining 
bonds  one  must  be  held  to  have  l)een  the 
property  of  the  "estate  of  Holmes,'  another  of 
"Warren  Andrews,  et  ux.,'  and  the  third,  hav- 
ing no  endorsement  upon  it.  to  «'ither.  or  to 
none  of  them.  It  does  not  appear  to  me  that 
these  bonds  were  taken  in  compliance  with 
the  Act  of  1S4(I.  which  directs  that  funds  in- 
vested by  the  Master  shall  be  invested  in  his 
official  name,  in  trust  for  the  persons  or  es- 
tates entitled  thereto.  Nor  does  it  appear 
that  these  Itonds  were  taken  by  the  Master 
with  the  concurrence  of  the  administrators 
of  the  estate  of  Street,  as  directed  by  the 
decree  of  Chancellor  DeSaussure :  nor  in  ac- 
cordance with  the  general  practice  of  this 
Court,  to  recpiire  other  security  than  the  per- 


sonal resjionsibility  of  the  oldigor.  From  the 
l>ooks  turned  over  to  me  by  my  predecessor, 
it  do»'s  not  appear  that  any  a<connt  was  kept 
by  him  witli  the  estate  of  Street:  and  the 
late  Master's  annual  reports  of  funds  to  the 
Court,  from  l.V{(J  to  ls44,  do  not  sliow  that 
the  bonds  of  Mrs.  Laurens  were  ever  held  by 
him  as  investments  for  the  e.state  of  Street. 
In  1S44  the  account  with  this  e.state  is  drop- 
ped from  tile  report  of  that  year,  and  does 
not  again  appear. in  any  subs«Mpient  report. 
Evidence  is  fundshed  from  the  books  of  the 
Hank  of  the  .*<tate.  that  at  the  several  dates, 
when  it  Is  alleged  the  investments  In  these 
bonds  were  made,  there  was  littU'  or  no  mon- 
ey In  this  Hank  to  the  credit  of  the  .■state  of 
Street.  Either  the  deposits  reipilred  l>y 
law  had  never  been  nmde,  or  the  funds  liad 
been  drawn  before  the  timts  when  these  In- 
ve.stments  are  claimed  to  have  lK»en  made. 
The  only  evidence  then,  which  goes  to  es- 
tablish that  these  five  bonds  of  Mrs.  Laurens 
were  ever  held  for  the  estate  of  Street  by  Mr. 
Laurens,  as  Master  in  Etpiity.  is  the  schedule 
of  debts  rendered  to  the  Ordinary  by  Mr. 
Laurens,  as  executor  of  the  estate  of  Mrs. 
Laurens.  The  aggregate  sum  of  the  debts 
stated  in  this  schedule  is  .$«il.!ill.l*.7 — much 
the  largest  portion  of  this  amount  is  made  uii 
of  bonds  of  Mrs.  Laurens  other  than  those 
put  down  to  the  estate  of  ."^tn-et.  A  consider- 
able number  of  these  bonds  are  designated  lu 

♦237 
the  schedule  as  belonging  to  es^tates  which, 
I  find,  were"  at  the  time  in  the  hands  of  the 
late  Master,  uniler  various  pro<-eedings  then 
pending  in  Court.  The  liooks  and  reports  of 
Edward  R.  Laurens  as  .Master— and  which 
contain  his  accounts  with  these  estates — do 
not  corroborate  his  return  as  executor,  in 
respect  to  these  bonds.  Of  the  eight  estates 
in  the  Master's  office,  to  which,  acconllng  to 
this  schedule.  Mrs.  Laurens  was  indebted  by 
bond,  not  one  of  them  is  charge«l  by  either 
the  books  or  reports  of  the  late  Master,  with 
the  purchase  on  their  acct)unt  of  these  .securi- 
ties. It  does  appear  to  me.  that  this  return 
to  the  Ordimiry  of  the  executor  of  Mrs. 
Laurens,  cainiot  deternnne  what  investments 
were  made  by  the  late  .Master  for  estates  en- 
trusted to  his  care  by  this  Court. 

"'An  account  of  the  receipts  antl  disburse- 
ments by  Mr.  Laurens,  as  executor  of  his 
mother's  estate,  vouched  before  the  Ordinary 
in  January.  1S47.  in  whiili  acc«>iuit  the  said 
estate  is  charged  with  !?7.('.sl.'^7.  allcLied  to 
have  been  paid  l)y  the  executor  in  .Fanuary, 
1S4G.  to  the  e.state  of  Street,  is  relietl  on  by 
the  defendants  to  show  that  the  money,  .suid 
to  have  been  invested  by  the  late  Master  for 
this  estate  in  the  ImmuIs  of  -Mrs.  Laurens,  was 
restored  to  tlie  estate  of  Strt-et  by  the  pay- 
ment of  these  bonds;  and  that.  If  the  funds 
were  misaiiplied  by  the  late  Master,  the  de- 
fault occurred  subsequent  to  this  payment  lu 
1S4().  and  conse(|uently  .-ifler  the  date  of 
Mrs.   Laureub'  liability   as  one  of  the   sure- 


*237 


5  RICHARDSON'S  EQUITY  REPORTS 


ties  on  tbe  ofRcial  bonds  of  tlie  said  Master. 
In  this  account  the  estate  of  Mrs.  Laurens  is 
credited  with  $37,000,  received  from  John 
Laurens,  as  the  price  of  Mepkin  Plantation. 
It  is,  however,  admitted,  that  John  Laurens 
paid  in  fact  only  $22,000  in  cash,  and  settled 
the  balance  by  assuming  to  pay  Mrs.  Laurens' 
bond  to  Sir  Claudius  Hunter,  trustee  of  Mrs. 
Henderson,  for  $15,000:  and  that,  with  the 
exception  of  this  last  sum,  the  amounts  cred- 
ited to  the  estate  of  Mrs.  Laurens  in  this  ac- 
count, were  actually  received  in  money  by 
Edward  R.  Laurens,  executor,  on  the  6th 
January,  1S46. 

"The  defendants,  by  their  solicitors,  have 
urged  before  me  that  the  fact,  that  the  estate 
of  Mrs.  Laurens  was  not  made  available  for 
the  payment  of  her  debts  until  1846,  and  the 

*238 
ad*ditional  fact,  that  by  a  provision  of  her 
will,  the  bulk  of  her  estate  was  to  be  kept 
together  until  her  grand-son,  John  Laurens, 
should  attain  his  majority,  which  he  did  in 
that  year,  are  circumstances  going  to  show 
the  inability  of  Mr.  Laurens,  as  executor,  to 
have  paid  these  bonds  before  the  time  stated 
in  his  account  to  the  Ordinary,  as  the  date 
of  their  liquidation.  To  this  the  complain- 
ants, by  their  solicitors,  oppose  the  principle 
of  law.  that  when  a  payee  and  the  legal  rep- 
resentative of  an  obligor  are  one  and  the 
same  person,  payment  of  the  debt  will  be 
presumed  one  year  after  the  death  of  the 
obligor.  This,  it  is  contended,  tixes  the  de- 
fault in  respect  to  the  money  invested  in 
these  bonds,  assuming  the  investment  to  have 
been  regular,  within  the  second  term  for 
which  Mrs.  Laurens  is  liable  as  a  surety  of 
the  late  Master,  to  wit,  in  1843,  one  year 
after  the  death  of  Mrs.  Laurens,  which  oc- 
curred in  1842,  and  one  year  before  the  ex- 
piration of  her  suretyship  in  1844.  It  is  not 
necessary  for  me  to  consider  these  questions, 
as  I  am  of  opinion  that  the  evidence  fur- 
nished by  the  account  of  the  executor  of  Mrs. 
Laurens  is  as  inadequate,  standing  alone,  to 
establish  the  fact  of  the  payment  of  these 
bonds,  as  of  their  ever  having  been  invest- 
ments for  the  estate  of  Street.  I  have  noth- 
ing before  me  which  .sustains  the  statement 
of  this  account,  that  these  bonds  were  paid 
to  the  estate  of  Street  by  the  executor  of 
Mrs.  Laurens.  The  receipts  endorsed  upon 
these  bonds  are  without  date,  and  they  are 
signed  by  the  late  Master,  without  reference 
to  the  estate  for  whose  benefit  the  money 
was  received.  There  is  no  entry  in  the  books 
turned  over  to  me  b.v  Mr.  Laurens,  or  any  in- 
timation in  his  annual  report  of  funds  to  the 
Court,  that  the  money  for  these  bonds  had 
been  received  by  him  as  Master  for  the  estate 
of  Street.  And  at  the  date  when  it  is  alleged 
that  these  bonds  were  paid,  it  is  evident, 
from  the  books  of  the  Bank,  as  well  as  from 
the  original  checks  which  have  been  exhibit- 
ed to  me,  that  Mr.  Laurens,  as  executor, 
drew  no  money  for  the  estate  of  Street,  from 

96 


the  account  kept  by  him  in  the  said  Bank 
with  the  estate  of  Laurens:  nor  deposited,  as 
Master  in   Equity,  any  funds  received  from 

*239 
the  estate  of  Laurens,  *to  the  credit  of  tbe 
account  kept  by  him  in  the  said  Bank  with 
the  estate  of  Street. 

"I  have  disallowed  the  five  bonds  of  Mrs. 
Laurens,  in  stating  the  account  between  the 
parties  to  this  cause. 

"6. — Commissions — one  per  cent,  on  the 
whole  amount  received  by  Mr.  Laurens  from 
1836  to  1844,  for  the  estate  of  Street. 

"I  have  allowed  this  credit. 

''In  stating  the  account  herewith  submit- 
ted, I  have  calculated  interest  to  the  9th  of 
December.  1844.  with  annual  rests,  according 
to  what  I  understand  to  be  the  rule  of  thi^ 
Court  in  cases  of  this  kind.  The  balance  on 
that  day  I  find  to  be  $11,490.37.  On  this  sum 
I  have  charged  compound  interest,  calculated 
at  half  yearly  periods  to  the  date  of  this  re- 
port, in  conformity  with  the  16th  section  of 
the  Act  of  1840,  defining  the  liabilities  of 
Master  in  Equity,  and  I  find  the  sum  so  as- 
certained against  the  estate  of  Eliza  Laurens 
to  be  ($19,271.85.)  nineteen  thousand  two  hun- 
dred and  seventy-one  dollars  eighty-five 
cents." 

The  cause  was  heard  upon  the  report,  and 
exceptions  thereto  by  the  defendants,  on 
7th  and  8th  July,  1852.  His  Honor  pro- 
nounced the  foUoAving  decree: 

Dargan,  Ch.  This  case  was  heard  on  the 
Master's  report  and  exceptions.  The  report 
is  so  fuU  and  clear,  that  it  will  be  necessary 
for  me  to  add  nothing  in  explanation  of  the 
facts,  and  very  little  in  illustration  of  the 
principles  by  which  the  decision  of  the  ques- 
tions made  should  be  governed. 

In  the  first  exception,  the  defendants,  John 
Laurens  and  Eliza  his  wife,  Henry  Laurens 
and  John  R.  Laurens,  who  are  legatees  un- 
der the  will  of  Mrs.  Eliza  Laurens,  deceased, 
contend  that  the  estate  of  the  testatrix,  (the 
said  Eliza  Laurens,)  to  which  they  are  now 
entitled  under  the  limitations  of  her  will, 
should  not  be  subjected  to  the  payment  of 
the  plaintiffs'  claims  arising  on  the  official 
defalcations  of  Edward  R.  Laurens  as  Master 
in  Equity,  because  they  say,  that  none  of  the 

*240 
♦defaults  and  devastavits  of  the  said  Edward 
R.  Laurens  in  reference  to  the  funds  of  the 
plaintiffs  in  his  hands,  occurred  during  those 
two  offic-lal  terms  of  the  said  Edward  R. 
Laurens,  for  and  during  which  the  said  tes- 
tatrix was  his  surety.  If  the  facts  upon 
which  the  exception  is  predicated  be  proved, 
it  must  of  course  be  sustained. 

Mr.  Laurens  was  four  times  elected  as 
Master  in  Equity  for  Charleston  district. 
His  mother,  Mrs.  Eliza  Laurens,  was  one  of 
his  sureties  on  his  official  bonds  for  his  first 
and  second  terms.  Her  liability  commenced 
on  the  12th  December,  1836.  and  ceased  on 
the  9th  December,  1844,  when  Mr.  Laurens, 


SnuCET  V.  LAURENS 


242 


having  l)f.'n  elec-tt^d  tlie  third  time,  sav.- 
another  hoiid  to  wliich  Mrs.  Eliza  Laurens 
Avas  not  a  paity.  lM>r  any  de\;istavits  whhh 
Mr.  Laurens  may  i)e  proved  to  jiave  oonnnit- 
led  "net ween  tlie  ilates  mentioned,  tlie  estate 
of  Mrs.  Eli/.a  Laurens  will  he  llahle. 

It  is  not  denied,  that  the  assets  of  the  es- 
tate of  Timothy  Street,  for  which  the  plain- 
tiffs seek  a   recovery  in  this  hill,   came  into 
the   hands    of    Mr.    Laurens   (hirin;:   Ids   first 
two  terms:    in  other  words,  during  the  time 
for  which  Mrs.  Laurens  was  hound  as  one  of 
his  sureties,     liut   it   is  contended,  that   his 
default  related  to  cash  received  hy  him,  and 
Hot   paid   to   the   rijrhtful   owner:    and   that, 
when  lie  was  elected  for  the  third  time  and 
«iualified,  he  heoame  dehtor  for  that  cash  to 
himself   as    his    own*  successor.      And,    upon 
the  principle,  that  where  the  rights  of  cred- 
itor and  the  ohli,i.'ations  of  a  dehtor,  of  payer 
and  payee.  <<imhine  in  the  same  person,  the 
debt  is  dlscharjjed,  it  is  contended,  that  these 
funds  of  the  estate  of  Timothy  Street,  though 
paid  to  Inm  before  that  time,   must  he  con- 
sidered  as   liaviiig   been   paid   hy   Inm.self  to 
himself,    at    the    commencement    of   his    last 
term,  and  the  liability  for  the  waste,  there- 
fore, thrown  upon  the  sureties  of  his  last  of- 
ficial bond.     I  think  I  have  fairly  stated  the 
argument,    and    it    would    be   a    sound    legal, 
proposition,  if  it  were  true,  that  Mr.  Lauren.s 
had  no  other  duty  to  discharge  in  regard  to 
the  funds  of  the  estate  of  Street,  than  simply 
to  receive  and  safely  keep  them,  and  had,  iii 

*241 
fact  so  kept  *them,  during  the  time  that  Mrs. 
Eliza   Laurens  was  his  surety.     Viuighan  v. 
Evans,  1  Hill  cii.  414;    Enicks  v.  Powell,  2 
Strob.  Eq.   lOij. 

But   the   rule    upon    wliich    the   exceptants 
rely,   is  .subject  to  modifications  and   excep- 
tions.    It  would  not  apply  to  a  case  where 
consequential     damages     resulted     from    the 
nonfeasance  or  misfeasance  of  an  act.  which 
the  otticial  duty  of  the  Master  reipiired  him 
to  perform:    as  not   taking  a   mortgage  and 
security    when   he  was  required ;    or   taking 
these  securities  in  so  negligent  or  defective 
a  manner  as  to  render  them  ineffectual  for 
the  purposes  intended.     In  these,  and  similar 
•  ases.    the    damages    resulting    in    one    term, 
would  not  be  considered  as  payable  to  him- 
self as  his  own  successor  in  his  succeeding 
term,    but    the    liability    would    attach    per- 
manently upon  the  sureties  of  the  Hrst  ofHcial 
bond.     And   so.   where   tlie   loss   has   resulted 
directly    from    the    act    of    the    Ma.ster ;     as 
where  the  fund  has  been   lost  by  liini   from 
carelessness,    or   at    play:     or   has    been    ap- 
I>lied  by  him  to  the  payment  of  his  own  debts, 
or  to  his  own  use  in  any  way.  or  was  other- 
wise misiipproiu-iated.     And  so.  also,  in  my 
judgment,  where  the  purpose  of  giving  great- 
er security  jiiid  prcMluctiveness  to  a  fund,  and 
removing   it    as    far   as   po.ssible    bevond    the 
eontrol   of  the   Master,    and    the   ha'zards   to 
which  It  might  be  exposed  in  his  hands,  the 
5  Rich. Eq.— 7 


'  general  law,  or  a  special  order  of  the  Court 
directs  him  to  make  a  particular  disposition 
i  of  the  fund,  which  he  .units  to  do,  and  loss 
I  results  directly,  or  indirectly;  the  liability 
I  must  be  referred  to  the  ollicial  bond  of  that 
I  term  during  which  the  default  was  commit- 
j  ted. 

During  the  first  offlcial  term  of  Edward  It. 
I  Laurens,    on   the  2nd    January.    l,s;{(i.   by   an 
onler   made    in    Street    A:    Hiijnest    v.    Street. 
I  conHrming  certain  sales  made  by  the  Master 
under  a  i)revious  order  of  the  Court,  tliat  of- 
I  ticer  was   directed   "to   invest.   In   his  ofHclal 
name,    the    amount    coming    Into    his    hands 
from  the   .sales   aforesaid   on   account   of  the 
distributees  of  Timothy  Street,  in  .such  man- 
ner as  may  be  agreed  on  by  himself  and  the 
administrators  of  Timothy  .stre«'t.  to  be  held 

*242 
for    the    use    of    the    'legal    distribnt.'cs    of 
Timothy  Street,  and  to  be  transferred  to  the 
I>arties    who   may   be   decided   to   be   entitled 
theretct. 

"And  it  is  further  ordered."  .says  the  rec- 
ord, "that  on  the  .sale  of  any  part  of  the 
residue  of  the  real  estate  in  the  bill  mention- 
ed, the  proceeds  thereof  be  partitioned  as 
follows,  viz:  one-half  thereof  to  Thaddeus 
Street,  and  the  remaining  half  to  the  dis- 
tributees of  Timothy  Street,  deceased,  to  be 
paid  to  the  Master  of  this  Court,  and  <lis- 
tributed  among  the  representatives  of  Tim- 
othy  Street  by  the  further  order  of  this 
Court." 

It  does  not  appear  that  there  was  any 
residue  of  real  estate  ever  sold,  or  that  an.v 
such  existed.  The  plaintiffs  .sc.>k  a  recover.V 
for  the  proceeds  of  no  other  sales  than  tho.se 
mentioned  in  the  clau.se  of  the  decree  first 
quoted.  For  the  pujri)oses  of  this  case, 
therefore,  the  clause  of  the  decree  last  .luot- 
ed  may  be  left  out  of  view. 

The  fund  for  the  payment  of  which  the 
Master's  report  subjects  the  estate  of  .Mrs. 
Eliza  Laurens  to  liability,  is  a  portion  of 
that  which  the  said  decree  requires  the 
Master  to  invest.  This  he  never  did;  un- 
less cvrtain  bonds  of  .Mrs.  Eliza  Laurens, 
mentioned  in  the  .second  exception,  be  con- 
sidered an  investment  under  the  i>rovisions 
of  the  decree. 

It  is  to  be  observed,  that  the  tlecree  not 
only  orders  tlu'  fund  to  be  invested  in  th*- 
Mast»'r's  ollicial  name,  for  the  use  of  the 
ilistributees  of  Timothy  Street,  but  directs 
that  th«'  securities  them.selves.  (not  the 
mone.v,)  shonhl  be  transferred  to  the  i.arties 
who  may  be  de.ided  to  be  entitled  thereto. 
If  the  duties  impo.sed  by  the  decree  upon 
the  .Master  had  been  performed,  the  fuml 
would  have  lu'en  safe.  He  could  not  have 
called  it  in  without  the  special  order  of  the 
Court.  If  he  had  Invested  it  in  public  se<-u- 
rities.  or  in  Bank  stock.s.  or  the  shares  of  joint 
stock  compaides.  the  trust  would  have  been 
blazoned  u|ion  the  certificates.  They  could 
not  have  been  transferred  without  the  tran.s- 

97 


*242 


5  RICHARDSON'S  EQUITY  REPORTS 


feree  receiving  them  with  notice  of  the  trust, 
and  thus  making  himself  liable  to  the  cestui 
que  trusts.  And  if  he  had  invested  them  in 
private  securities,  in  the  manner  prescribed 
by  the  decree,  the  same  result  would  have 

*243 
happened.  Thus,  *the  plaintiffs  have  lost  a 
portion  of  their  funds  in  the  hands  of  the 
late  Master,  (now  hopelessly  insolvent,)  di- 
rectly, in  consequence  of  his  omission  to  per- 
form a  reasonable  and  proper  duty  prescribed 
by  an  order  of  the  Court.  The  loss  results 
directly  from  the  default,  for  without  it,  the 
fund  would  have  been  safe.  The  loss  results 
from  the  default  as  clearly  as  in  a  case  where 
a  Master  omits  to  take  a  mortgage,  or  omits 
to  record  it,  or  to  take  sureties  to  a  bond 
for  the  purchase  money  of  property  sold  by 
him,  when  those  duties  are  required  of  him, 
and  loss  results  from  his  omission  to  perform 
them.  And  this  default  having  occurred  dur- 
ing his  first  term,  it  became,  I  think,  a  fixed 
liability  on  the  sureties  of  the  official  bond 
of  that  term.  It  is  not  one  of  those  cases 
in  which  his  liability  is  transferred  by  ope- 
ration of  law  from  the  Master  to  himself,  as 
his  own  successor,  and  to  the  discharge  of 
his  sureties  of  the  preceding  term.  There 
would  be  danger  in  carrying  this  rule  of 
transferring  liabilities  by  operation  of  law 
too  far.  If  applied  to  cases  like  the  present, 
it  would  have  the  effect,  where  the  same  per- 
,son  has  held  an  office  for  several  consecutive 
terms,  to  accumulate  the  liabilities  of  his 
whole  oflicial  career  upon  the  sureties  of  the 
official  bond  of  the  last  term  ;  thus  rendering 
the  security  of  the  public  against  the  con- 
sequences of  official  default  incomplete ;  to 
say  nothing  of  the  injustice  to  the  last  sure- 
ties by  the  operation  of  a  principle,  which 
must,  in  some  sense,  be  regarded  as  a  fiction 
of  the  law,  and  which  they  never  think  of 
when  they  become  bound.  I  think  it  is  suf- 
ficient, if  the  rule  be  applied  to  those  eases 
where  the  liability  of  the  officer  is  simply 
for  receiving  and  not  paying  over  money,  un- 
connected with  other  cireum.stances  of  de- 
fault, from  which  loss  proceeds.  I  have  no 
authority  or  precedent  for  carrying  it  fur- 
ther ;    and  I  will  not. 

There  is  another  view  of  the  question  aris- 
ing on  the  first  exception,  at  which  I  must 
now  glance.  The  Act  of  1840,  (11  Stat.  113.) 
requires  the  Masters  and  Commissioners  in 
Equity  to  deposite  in  Bank  all  money  receiv- 
ed  by  them  in  their  official  capacity,  when 

*244 
the  Court  does  not  otherwise  direct.  *The 
late  Master  did  deposite  in  Bank  the  wasted 
assets  of  the  estate  of  Timothy  Street.  But 
he  checked  it  all  out  again  to  the  last  cent, 
during  the  two  terms  for  which  Mrs.  Eliza 
Laurens  was  his  surety.  It  cannot  be  doubt- 
ed, that  the  Act  means,  when  the  Master  has 
deposited  a  fund,  that  he  should  let  it  re- 
main on  deposite.  It  would  be  the  merest 
trifling  to  say,  that  his  making  a  deposite  is 
98 


a  compliance  with  the  requisition  of  the  law. 
when  he  forthwith  withdraws  it  on  his  own 
private  check.  As  he  did  not  check  it  out  by 
the  order  of  the  Court  for  the  purpose  of  in- 
vestment, or  in  payment  of  the  parties  en- 
titled, he  must  have  checked  it  out  for  his 
own  private  uses.  The  manner  of  checking, 
as  to  the  amounts  and  dates,  also  leads  to 
this  conclusion.  If  the  fund  had  been  suffer- 
ed to  remain  on  deposite,  as  the  law  intend- 
ed, it  would  have  been  secure.  His  checking 
it  out,  without  justifiable  reasons,  or  an  at- 
tempt at  explanation,  was  an  application  to 
his  own,  or  improper  uses.  It  was  a  misap- 
propriation of  the  fund,  which,  occurring 
during  the  official  terms,  for  which  Mrs. 
Eliza  Laurens  was  responsible,  fixed  a  per- 
manent liability  on  her. 

If  the  provisions  of  the  Act  of  1840  were 
faithfully  observed,  questions  like  this  could 
never  arise.  It  would  greatly  enhance  the 
security  of  suitors  in  this  Court,  and  dimin- 
ish the  liability  of  sureties.  It  would  free 
the  fiscal  officer  of  the  Court  from  any  temp- 
tations to  an  abuse  of  his  trust.  And  it 
would  most  effectually  prevent  the  perplex- 
ing questions  which  arise  between  the  differ- 
ent sets  of  sureties  on  the  official  bond  of  a 
Master,  who  has  held  office  for  several  suc- 
ces.sive  terms. 

The  Master's  report  has  not  subjected  the 
estate  of  Mrs.  Laurens  to  any  greater  lia- 
bility than  would  be  warranted  by  the  fore- 
going opinion  of  the  Court.  And  the  fii'St 
exception  is  therefore  overruled. 

As  to  the  second  exception,  I  shall  add 
but  a  word  or  two  of  concurrence  in  what  the 
Master  has  said  in  his  report.  His  views  on 
the  subject  are  entirely  satisfactory.  I  think 
it  preposterous,  on  this  evidence,  to  set  up 
these  bonds  as  having  been  intended  as  an 
investment   of   the    funds    of   the    estate    of 

*245 

*Timothy  Street.  As  to  their  having  been  so 
charged,  in  the  settlement  of  the  estate  of 
Mrs.  Laurens,  and  as  to  the  fact  of  Edward/ 
R.  Laurens,  her  executor,  having  received 
credit  for  the  amount  of  these  bonds,  as  for 
so  much  money  received  by  him,  on  them, 
for  the  estate  of  Street,  I  think,  in  the  first 
place,  that  the  said  settlement,  as  evidence, 
was  inadmissible,  being  res  gesta  between 
other  parties  than  the  plaintiffs ;  and  in  the 
second  place,  if  admissible,  it  was  inconclu- 
sive.    The  second  exception  is  overruled. 

The  third  exception  is  also  overruled.  The 
most  rigid  rule  of  calculation  is  ai>plied, 
where  the  accounting  party  is  a  defaulter 
and  refuses  to  account.  I  think  the  mode  of 
computation  sufficiently  lenient  in  this  case. 

The  fourth  exception  is  sustained.  This 
is  not  a  case  which  comes  within  the  provi- 
sion of  the  Act  of  1840,  to  which  the  Master 
refers.  That  Act,  (Sec.  1.3,  p.  114.)  declares, 
"If  any  Master  or  Commissioner  in  Equity 
shall  be  ordered  by  the  Court  to  invest  the 
funds  in  his  hands,  and  the  accumulations 


STRKKT  V.  LAUKEXS 


«24S 


of  interost  thoroof.  whon  n^clvod  by  him.  as  t 
fast  as  refi'ived,  in  st«K"k  or  other  funds 
yielding  interest,  and  lie  sliall  n»';:le(t  to  do  I 
so,  he  and  his  sureties  shall  i)e  ehar;ieahle  | 
with  compound  interest  niton  all  such  sums,! 
to  he  calculated  at  half-yearly  periods,  from! 
the  time  when  such  sums,  anil  the  interest  i 
theret)n,  were  received,  respectively." 

In  this  case,  the  Master  was  ord»>red  to 
invest  the  fund,  hut  not  the  aeeunmlations  of 
interest.  It  is  clearly  not  a  ease  under  the 
Act,  who.se  provisions,  in  this  resiH'ct,  are 
hii;hly  penal.  I  am  not  to  extend  its  penal 
operation  hy  construction — parti<-ularly  in 
the  case  of  a  surety,  who  has  lu'en  j^uilty  of 
no  default,  and  whose  duty  is  oidy  to  respond 
to  the  defaults  of  her  principal.  Every  case 
of  payment  by  a  .surety  is  one  of  hardship. 
They  are  favored  in  Kinuty;  at  the  same 
time,  they  are  made  rigidly  to  respond  to  all 
just  and  fair  demands  auainst  their  princi- 
pal. All  that  the  provisi(uis  of  the  Act  of 
1S40   requires,   is   full    indemnity    lor   the   in- 

*246 
terest  upon  interest,  which   he  would   ♦have 
received,    if  the  accruintc   interest    had    lieen 
invested,  in  pursuance  of  the  order. 

In  this  case,  the  parties  entitled  to  the 
fund  will  be  fully  indemniHed,  if  they  receive 
the  fund  ordered  to  be  investi'd.  with  simple 
interest  thereon,  from  the  time  when  it 
.should  have  been  investecl.  The  opinion  of 
the  Court  is,  that  the  estate  of  Mrs.  Kliza 
Laurens  is  not  responsible  for  any  defalca- 
tions of  Edward  R.  Laurens,  after  the  ex- 
piration of  his  last  term  of  olHce,  for  which 
she  was  the  surety.  It  is  further  the  opin- 
ion of  the  Court,  that  the  estate  of  the  said 
Eliza  Laurens  is  only  to  be  charged  with  in- 
terest on  the  amount  of  the  indebtedness  of 
the  said  Edward  R.  Laurens,  at  the  expira- 
tion of  the  last  term  for  which  she,  the  said 
Eliza  Laurens,  was  his  surety,  with  simple 
interest  thereon  from  that  time  to  the  time  of 
payment.  It  is  so  ordered  and  decreed.  It  is 
further  ordered  and  decreed,  that  the  Mas- 
ter's report  be  recommitted,  and  made  Xo  con- 
form with  this  decree. 

The  defendants  aitpealed,  on  the  {^rounds: 

1.  The  decree  of  INJO  directs  the  Master  to 
invest  the  proceeds  of  the  liroad-street  house, 
and  the  I'iiKkney  and  Meetinj;  stn-et  lots. 
The  IMnckney  and  Meeting  street  lots  never 
came  to  the  hands  of  Mr.  Laurens.  The  pro 
ceeds  of  the  Rroad-street  house  came  to  liis 
hands,  and  were  invested.  So  that  the  lia- 
Itilityof  Mr.  Laurens  is  on  account  of  the  .sale 
of  the  East  Ray  and  Queen  street  property 
only,  which  form  part  of  what  the  deeree  of 
1S36  calls  the  residue.  Rut  there  is  no  direc- 
tion to  invest  the  jtroceeds  of  that  resi<lue; 
and  the  money  rect'ived  by  E.  R.  Laurens  was, 
in  contemjibition  of  law,  in  liis  hands,  when 
his  ollice  exjiired  on  the  9tl»  December.  1S44. 
and  was  transfern-d  to  the  responsibility  of 
his  snbseiiuent  sureties.  So  that  the  tleeree 
oujrht  to  have  been  in  favm*  of  the  defend- 


ants;   and  the  decree  in  favor  of  complain- 
ants is  found(>d  in  a  mistake  in  fact. 

-.  That  tlie  lx)nds  which  were  paid  out  of 
♦247 
Mrs.  Laurens's  ♦estati*.  to  the  Master,  in 
1S4(;.  (inght  to  stand  as  a  eredlt  against  any 
default  to  whleh  lier  estate  was  liable,  at 
the  time  of  her  decease. 

."{.  That  the  evldeiu-e  taken  by  the  Master 
Is  sufficient  to  raise  the  |iresuinptlon  that 
tliey  were  enteretl  Into  hy  Mrs.  Laurens  for 
the  express  purpose  of  covering  the  liabilities 
of  her  son  to  the  estate  of  StnH't,  or  to 
some  other  suitor:  and  it  would  not  nuike 
any  difference  whether  they  were  a|>plied  t«» 
one  suitor  or  aimther.  That  the  estjile  of 
Strei't  has  had  the  beiielit  of  them  so  far  as 
this,  that  (he  payment  <»f  Hiese  lK»nds  in 
1S4(>,  creates  a  demand  against  the  sureties 
who  were  responsible. 

4.  That  as  between  the  sureties  of  1S44 
and  the  prior  sureties,  the  surt-ties  ot  1M4 
are  in  the  same  situation  as  if  they  had 
be<-ome  the  sureties  of  a  new  Master,  who 
re'-eived  and  wasted  the  bonds  whidi  the 
estate  of  Mrs.  I^uirens  has  paid. 

^1.  That  notwithstanding  the  irregidarity  of 
Eihvartl  R.  Laurens  in  vesting  the  funds  of 
Street  in  the  bonds  of  Mrs.  Ijuirens,  payable 
to  the  Masti-r,  without  designating  the  par- 
ties benelicially  entitUnl,  the  succes.sor  of 
Mr.  Laurens  and  his  sureties  would  have 
been  lial)le  for  the  misapplication  of  them, 
if  such  successor,  being  a  different  person, 
had  received  them,  and  claimed  and  receiveil 
]iayment  for  them,  as  bonds  taken  for  the 
benefit  of  the  estate  of  Street. 

G.  That  in  every  view  of  the  subject,  the 
eipiities  of  the  legatees  of  Mrs.  Laurens  are 
t'Utitied  to  preference,  not  only  over  the  sure- 
ties of  the  bond  of  1M4.  but  over  the  creii- 
itors. 

7.  That  interest  should  be  '-harged  accord- 
ing to  the  rule  laid  down  in  Plxon  v.  Hunter, 
(.*>  Hill,  liOl.)  and  not  in  tlu>  manner  statin] 
in  the  Master's  report,  and  confirmed  by  the 
decree. 

I^esesne.  IVtigru,  for  appellants,  clt«'d 
Schnell  v.  Schnxler.  Rail.  Eq.  ;{.'U :  .loyner 
V.  Cooper,  2  I'.all.  20:\  •  liray  v.  Rrown,  1 
Rich.  ;;.".:!:  Act  1S40,  §  1(5.  liO,  li(J.  II  Stat. 
lOS;  Inited  States  v.  Ecford,  1  How.  I'oO : 
Raker  v.  Rreston.  (Jllmer,  '_'.*lli;  .Vrlington  v. 
Merrlcke,  2  Saund.  40.'! ;  So.  Ca.  Society  v. 
Johnson,  1  McC.  41 ;  People  v.  Janseu,  7 
Johns.  R.  :•..•{*_•. 

•248 

•Magralh,  .Menuiiinger,  contra,  cited  Field 
V.  I'elot,  McM.  Eq..  :!!>!);  Pratt  v.  Northam, 
5  .Ma.sou.  '•>."»;  Ra|ihael  v.  Roi>hm,  11  Ves. 
10(>:  Hi  Ves.  11'7:  7  John.s.  Ch.,  02.*];  1 
MK'..Ch.  L'-JO:  -J  McC.  Ch.  10.  I'O.-],  LMJo  ;  Hill 
ou  Trustees.  ;{74. 

The  opinion  of  the  Court  was  delivered  by 

I>AR«;AN'.  Ch.  Tlie  first  question  made 
under  the  appellants'  first  ground  of  appeal 

99 


*248 


5  RICHARDSON'S  EQUITY  REPORTS 


depends  upon  the  construcMon  of  the  decree 
of  1836,  in  the  case  of  Thaddeus  Street  and 
Daniel  Boinest,  against  the  widow  and  chil- 
dren of  Timothy  Street,  deer  a.  That  de- 
cree is  in  the  following  wort. 

"1.  The  report  of  the  Master  in  this  case 
having  been  read,  it  is  ordered  that  the  same 
be  confii-med.  It  is  further  ordered  and  de- 
creed, that  the  contract  for  the  sale  of  the 
house  and  lot  at  the  corner  of  East  Bay  and 
Broad  street,  in  the  proceedings  set  forth, 
be  confirmed,  and  that  the  Master,  on  com- 
pliance with  the  terms  of  sale,  do  execute 
titles  therefor  to  the  said  Benjamin  Smith. 

"2.  It  is  further  ordered  and  decreed,  that 
the  two  lots  in  Pinckney-street  and  the  two 
lots  in  Meeting-street  be  sold  by  Thaddeus 
Street,  either  at  public  or  private  sale,  with 
the  approbation  of  the  Master  of  this  Court, 
and  that  the  Master  do  execute  titles  there- 
for to  the  purchasers,  provided  he  approve 
tie  price  and  terms  of  sale  agreed  on. 

"3.  It  is  further  ordered,  that  the  two 
stores  on  East  Bay-street,  the  warehouse  in 
Gillon  street,  and  the  lot  and  dwelling  house 
in  Queen-street,  be  sold  by  Thaddeus  Street, 
at  such  time  hereafter  as  by  himself  and 
Mrs.  Street,  the  widow  of  Timothy  Street, 
may  be  deemed  expedient,  and  that  the  Mas- 
ter do  execute  titles  therefor  to  the  purchas- 
er, provided  he  approve  the  price  and  terms 
of  sale  agreed  on. 

"4.  It  is  further  ordered,  that  the  pro- 
ceeds of  the  sale  of  the  house  at  the  corner 
of  East  Bay  and  Broad  sti-eets  be  partitioned 
as  follows:  viz.  one  third  part  thereof  paid 
to  Thaddeus  Street,  one  third  part  thereof 
to  Daniel  Boinest,  and  the  remaining  third 
part  thereof  to  the  Master  of  this  Court,  for 

*249 
the  dis*tributees  of  Timothy  Street,  deceas- 
ed. That  the  proceeds  of  the  sales  of  the 
lots  in  Pinckney-street  be  also  partitioned 
etiually  between  Thaddeus  Street  and  the  dis- 
tributees of  Timothy  Street  and  that  the 
moiety  belonging  to  the  distributees  of  Tim- 
othy Street,  together  with  the  proceeds  of 
the  lots  in  Meeting-street,  be  paid  to  the 
Master  of  this  Court. 

"5.  It  is  further  ordered,  that  the  Master 
do  invest,  in  his  official  name,  the  amount 
coming  into  his  hands  from  the  sales  afore- 
said, on  account  of  the  distributees  of  Tim- 
othy Street,  in  such  manner  as  may  be 
agreed  on  by  himself  and  the  administrators 
of  Timothy  Street,  to  be  held  for  the  use  of 
the  legal  distributees  of  Timothy  Street,  and 
transferred  to  the  parties  wlio  may  be  de- 
cided to  be  entitled  thereto. 

"6.  And  it  is  further  ordered,  that  on  the 
sale  of  any  part  of  the  residue  of  the  real 
estate  in  bill  mentioned,  the  proceeds  thereof 
be  partitioned  as  follows:  viz.  one  half  there- 
of to  Thaddeus  Street,  and  the  remaining 
half  to  the  distributees  of  Timothy  Street, 
deceased,  to  be  paid  to  the  Master  of  this 
Court,  and  distributed  among  the  representa- 

100 


fives  of  Timothy  Street,  by  the  future  o:-Jer 
of  this  Court. 

(Signed)         Henry  W.  DeSaussure  " 

January  23.  1830. 

From  a  proper  interpretation  of  this  de- 
cree, does  it  appear  that  the  Master  was 
directed  to  invest  the  shares  of  the  heirs  of 
Timothy  Street  in  the  proceeds  of  all  the 
sales  ordered  in  the  decree? 

On  the  part  of  the  appellants,  it  is  con- 
tended, that  there  was  no  order  for  the  in- 
vestment of  the  proceeds  of  the  sale  of  the 
two  stores  on  East  Bay,  the  warehouse  in 
Gillon-street,  and  the  dwelling  house  in 
Queen-street.  To  sustain  this  view,  reference 
is  made  to  the  sixth  or  last  clause  of  the 
decree,  which,  it  is  said,  relates  only  to  the 
lots  which  have  been  mentioned  above ;  and 
this  clause  decrees  a  distribution,  and  orders 
the  shares  of  the  distributees  of  Timothy 
Street  to  be  paid  to  the  Master,  but  does  not 
order  an  investment. 

*250 

*It  was  for  the  share  of  the  heirs  of  Tim- 
othy Street  in  these  lots  that  the  defendant, 
Eliza  Laurens,  is  made  liable  by  the  Circuit 
decree.  And  the  argument  is,  that  as  E.  R. 
Laurens,  the  Master,  was  not  ordered  to  in- 
vest this  fund,  he  has  committed  no  default 
or  devastavit,  for  which  Eliza  Laurens,  as 
his  surety,  would  be  liable.  This,  1  think, 
would  be  giving  a  narrow  and  erroneous  con- 
struction to  the  decree.  The  first,  second  and 
third  clauses  direct  a  sale  of  all  the  real 
estate  belonging  to  the  parties  that  are  men- 
tioned or  described  in  the  pleadings.  And 
by  the  fifth  clause  it  is  "ordered,  that  the 
Master  do  invest,  in  his  oflicial  name,  the 
amount  coming  into  his  hands  from  the  sales 
aforesaid,  on  account  of  the  distributees  of 
Timothy  Street."  It  would  be  illogical,  and 
a  perversion  of  language,  to  say  that  the 
part  of  the  order  quoted,  which  directed  an 
investment,  did  not  relate  to  all  the  sales 
which  had  been  previously  ordered. 

If  this  be  the  true  construction,  it  is  ask- 
ed, for  what  purpose  was  the  sixth  clause 
intended?  This  question  admits  of  an  easy 
and  satisfactory  solution. 

An  attentive  consideration  of  the  decree 
will  show  that  its  objects  were  three-fold. 
The  first  object  was  to  order  a  sale ;  the 
second  was  to  efl^ect  a  disti'ibution ;  and  the 
third  was  to  provide  a  proper  investment 
and  security  of  the  share  of  the  heirs  of 
Timothy  Street,  who  were  infants.  The 
fourth  clause  directs  a  distribution  of  all  the 
lots  which  had  been  ordered  to  be  sold  in  the 
three  preceding  clauses,  except  the  two 
stores  on  East  Bay,  the  warehouse  in  Gillon- 
street,  and  the  dwelling  house  in  Queen- 
street.  This  is  followed  by  the  fifth  clause, 
which  orders  the  Master  to  invest,  in  his  offi- 
cial name,  the  amount  coming  into  his  liands 
from  the  sales  aforesaid,  (that  is,  the  sales 
which  had  been  previously  ordered.)  on  ac- 
count of  the  distributees  of  Timothy  Street. 


STKEKT  V.  LAURKXS 


This  Is  followea  liy  the  sixth  clause,  \vlii<li. 
witliout  iiKKlifviii:;  <»r  contrudiotiii^'  in  any 
maimer  the  incvinns  parts  of  the  decree, 
simply  decrees  a  distril,iitii»u  of  the  proceeds 
of  tlie  sales  of  tlu-  two  stores  on  East  Bay, 
the  warehouse  in  (Jillon-street,  and  the  dwel- 

♦251 
lins  house  in  *Queen-street,  which  had  not 
heen  done  in  any  previous  part  of  the  order. 
The  Court  is  of  the  opinion  that  the  decree 
of  18.30  admits  of  no  other  reasonable  or  con- 
sistent interpretation. 

Having  arrived  at  this  conclusion.  It 
follows,  that  l»y  the  terms  of  the  decree,  the 
Master  was  bound  to  invest  the  share  of  the 
heirs  of  Timothy  Street  in  the  pnxveds  of 
all  the  sales  ordered  hy  the  said  decree. 
This  he  has  not  done;  and  the  conse(iuence 
is,  that  the  shares  of  the  heirs  of  Timotliy 
Street  are  not  now  forthcoming,  having  been 
wasted  by  the  said  Master.  And  this  de- 
fault having  been  committed  within  those  of- 
ficial terms  for  which  Mrs.  Eliza  Laurens 
was  his  surety,  she  becomes  liable  to  the  dis- 
tributees of  Timothy  Street,  upon  the  princi- 
ples laid  down  in  the  Circuit  tlecree.  I  do 
not  know  that  I  could  make  these  principles 
any  clearer  than  I  have  in  that  decree.  Suf- 
fice it  to  say,  that  this  Court  fully  concurs 
in  the  views  that  I  have  therein  expressed. 
And,  in  fact,  they  were  not  controverted  on 
this  trial. 

But.  admitting  the  construction  of  the  de- 
cree of  1S,3G  contended  for  on  l)ehalf  of  the 
appellants,  and  that  the  Master  was  not 
ordered  to  invest  this  fund  by  that  decree, 
this  Court  is  of  the  opinion  that  the  Master 
committed  a  default,  in  not  depositing  the 
fund  in  Bank,  as  rerpiired  by  the  Act  of  1S40. 
And  this  default  having  been  committed 
during  those  official  terms  for  which  Mrs. 
Laurens  was  his  surety,  she  becomes,  on 
that  account,  liable.  The  master  did  depos- 
ite  the  finid  in  Bank,  in  his  official  name, 
for  the  estate  of  Street,  but  he  very  .soon  aft- 
erwards drew  it  all  out,  on  his  own  private 
checks.  This  course  of  the  Master,  to  de- 
posite  money  in  Bank,  and  to  draw  it  out 
again  on  his  own  private  check,  is  not  a  com- 
pliance with  the  provisions  of  the  Act  of 
1S40,  according  to  their  true  intendment. 
The  object  was  to  afford  .security  to  the  par- 
ties, whose  funds  were  in  the  keeiiing  of  the 
Ma.ster.  But  what  .'security  would  it  he  to 
deposite,  and  then  to  check  out  the  fund? 
The  Court  would  be  wanting  in  the  discharge 
of  its  duty,  if  a  Master  were  permitted,  by 
such  subterfuges  as  this,  to  evade  the  plain 
Intent  of  the  law. 

*252 
♦Furthermore:  Mr.  Laurens  not  only 
checked  out  the  funds  of  the  estate  of  TiuK)- 
thy  Street,  which  he  had  deposited,  but  lie 
misappropriated  them.  An  inspection  of 
his  Bank  account  ;iiid  other  evidence  re- 
ported by  the  i)reseMt  Master,  convince  us. 
that  he  not  only  ch(M.ked  out  tlie  fund,  but 


that,  in  cljecking  it  out.  he  applied  it  t«i  his 
own  private  use.     And  this  devastavit,  hav- 
ing   occurred    during   the    titlicial    terms    for 
wliicli    Mrs.    IvJiurens    was    his    surety,    that 
alone  wouhl  make  her  llalde.     For  it  Cannot 
be  presumed   that   he   paid   over   to   liis  suc- 
cessor,  (who   in   this   instance   was   liiniself,) 
a   fund   wliich   he  is  proved    to   have  misap- 
propriated, and  appli»Ml  to  his  own  use.  previ- 
ous to  tlie  ai»iMiintment   of  Ids  succes.sor.     I 
need  say  no  more  on  this  branch  of  the  case. 
The  second  ground  of  appeal  relates  to  tlie 
i>onds  of  Mrs.    Ijuirens   to   the   .Master.   (Fil- 
ward  U.  Uiureiis.)  the  amount  of  whitli.  the 
a|)jiellants    contend,    should    be    allowed,    as 
credits   on   the  claim  of  the  plaintlff.s.      For 
the  evidence  on  this  subject,  I  refer  to  Ma.s- 
ter  Tupper's    report,    wliere    it    is   given    in 
much  detail.     The  b<»na  fides  of  these  trans- 
actions is  very  «iuestionable.     There  are  not 
wanting  circumstances   to   warrant    the  sus- 
picion that  they  were  not  lntende<i  as  .securi- 
ties  for  any   estate    in   particular,    but   that 
tliey   were  designed   to  lie  applied   and    u.sed 
as   Mr.   Laurr'iis'  emergencies   ndght   re<iulre. 
The  consideration   of   the.se   lumds   does   not 
appear.      They    are    all    payai)le   to    E<lward 
R.    Laurens,   Master    in    Equity,    his    succes- 
sors in  office  or  assigns.     On  each  of  them  is 
endorsed  an  acknowledgment  of  paym-Mit   in 
full  by  Mr.  Laurens,  which  is  without  date. 
The  bonds  do  not  show   upon  tlu'ir  face  to 
what  estate  they  belong,  or  for  what  pun»o.se 
they   were  .given.      On    the    first    bond.    10th 
.January.    1.S41,    is   endorsed    "raiza    Laurens 
to   Master   in    Equity,    for   estate   of   Street, 
.'?1.0SL'..3;i."     On  the  second  l>ond.  dated   14th 
March.  1,S39.  is  en«lorsed   "Eliza   Laurens  to 
Master  in  Equity,  bond  for  $7«M;.so."  with  no 
indication  of  its  belonging  to  any  estate.     On 
tlie   third   Ixmd,   dated    14th   March.    ls:!0.    is 
endorsed   "Mrs.    Eliza    Laurens  to   .Master   in 
Equity,  for  Warren  Andrews  et  ux.  bond  for 

*253 
6.34..30."  The  words  "Warren  An*drews  «'t 
ux"  are  stricken  out.  and  there  is  no  further 
explanatitm.  On  the  fourth  bond,  dated  I'nii 
.January.  1S41.  is  endorsed  "Eliza  Ijiurens 
to  Master  in  i:<iuity.  for  estate  .)f  McLckI. 
$l.',207..").s."  The  words  "for  the  estate  of  .Mc- 
Leod "  are  strick«'n  out.  and  "January.  1,S4.'>, 
for  estate  Street,"  are  added.  On  tiie  fifth 
bond,  dat«Kl  10th  January.  1S41.  Is  endorsed 
"i:ilza  J^iurens  to  Master  In  Equity,  for  es- 
tate of  II.  I'.  Hohnes.  .f;(j;{5." 

Mr.  Laun-ns  was  the  executor  of  Eliza 
Ivaurens.  In  a  .settlement  of  her  estate,  he 
presented  th.'se  five  bonds  as  demands 
against  that  estate,  as  being  held  by  him  for 
the  estate  of  Street,  together  with  many 
other  bonds  of  a  similar  character,  belong- 
ing, as  was  stated,  to  other  estates,  amount- 
ing, in  the  aggregate,  to  .•?(!!. JUl.C.T.  For  all 
of  which,  it  .seems.  Mr.  Ivaurens.  as  executor, 
was  allowed  credit,  on  balaiuing  his  ac- 
counts. 

Under  these  circumstanc-es,  the  appellants 


5  RICHARDSON'S  EQUITY  REPORTS 


seek  to  set  up  the  amount  of  the  five  hoiids 
before  mentioned,  against  the  claims  of  the 
plaintiffs  pro  tanto.  It  is  admitted  that 
these  bonds  cannot  be  regarded  as  invest- 
ments for  the  estate  of  Street.  But  it  is  ar- 
gued, that  having  been  actually  paid  by  Mrs. 
Laurens  for  the  estate  of  Street,  to  Master 
Laurens,  as  his  own  successor,  and  after  the 
expiration  of  the  time  when  the  former  was 
bound  as  his  surety,  they  should  be  allowed 
as  payments,  though  they  might  not  be  al- 
lowable as  investments. 

If  they  were  not  intended  as  investments 
for  the  estate  of  Street,  then  their  payment 
or  non-payment  is  of  no  concern  to  that  es- 
tate. The  Court  perceives  no  sufficient  evi- 
dence to  connect  those  bonds  with  the  estate 
of  Street.  The  fact  that  Mr.  Laurens  was 
allowed  credit  for  the  amount  of  those  bonds, 
in  the  settlement  of  his  mother's  estate,  as 
due  to  the  estate  of  Street,  does  not  conclude 
the  plaintiffs  on  this  point.  They  were  not 
parties  to  those  proceedings.  Tliey  can  still 
deny,  and  do  deny,  that  they  had  any  con- 
cern or  Interest  in  those  bonds.  In  this  view 
of  the  case,  the  payment  or  non-payment  of 
the  bonds  becomes,  as  to  these  parties,  an 
Immaterial  fact.     I  will  not  enlarge  further 

*254 
upon  this   subject,   but  again   refer  to   *Mr. 
Tupper's  report.     This  Court  concurs,  as  the 
Circuit  Court  did,  in  the  views  therein  ex- 
pressed. 

Such  being  the  decision  of  this  Court  upon 
the  second  ground  of  appeal,  the  considera- 
tion of  the  other  grounds  of  appeal  becomes 
unimportant. 

It  is  ordered  and  decreed  that  the  Circuit 
decree  be  affirmed,  and  that  the  appeal  be 
dismissed. 

JOHNSTON,    DUNKIN   and    WARDLAW, 
CC,  concurred. 
Decree  affirmed. 


5  Rich.  Eq.  254 

CATHERINE  GIBSON  v.  LOUISA  F.  MAR- 
SHALL, T.  L.  ROGERS,  and  Others. 
(Charleston.     Jan.  Term,   1853.) 

[Dower  (S=>S2.] 

A  writ  for  the  admeasurement  of  dower,  is- 
sued from  the  Court  of  Equity,  should  direct 
the  commissioners  to  make  au  assif;iiment  of 
(lower,  or  an  assessment  in  lieu  of  it,  (in  the 
alternative,)  according  to  the  provisions  of  the 
Act  of  1786. 

[Ed.  Note.— Cited  in  Ilollev  v.  Glover,  36  S. 
C.  419,  15  S.  E.  605,  16  L.  R.  A.  776,  31  Am. 
St.  Rep.  SS3 ;  Frierson  v.  Jenkins,  75  S.  C. 
475,  55  S.  E.  890. 

For  other  cases,  see  Dower,  Cent.  Dig.  §  321 ; 
Dec.  Dig.  <S=S2.1 

[Doiver  <®=>99.1 

The  return  of  commissioners  in  dower,  like 
the  report  of  the  Master,  is  under  the  control 
of  the  Court:  it  is  intended  to  satisfy  the  con- 
science and   judicial  discretion   of  the  Chancel- 


lor ;  and  though  neither  corruption  nor  mis- 
feasance on  the  part  of  the  commissioners  be 
charged,  the  Court  may,  on  ex  parte  afhdavits, 
showing  error  or  mistake,  refuse  to  C(jnlirm  the 
return,  and  refer  it  to  the  Master,  to  take  evi- 
dence and  report  upon  the  facts. 

[Ed.  Note.— Cited  in  Gibson  v.  Marshall,  0 
Rich.  Eq.  215;  Mellir-hamp  v.  Seabrook,  2  S. 
C.  371;  Irwin  v.  Kr.Kjks.  19  S.  C.  102;  Fooshe 
V.   Merriwether,  20  S.   C  340. 

For  other  cases,  see  Dower,  Cent.  Dig.  §  347; 
Dec.  Dig.  <g=>99.1 

The  late  William  Gibson,  jun.,  died  pos- 
sessed of  real  and  personal  estate,  which,  by 
his  last  will,  he  devised  to  his  three  chil- 
dren, and  to  the  defendant,  Louisa  F.  ]Mar- 
shall.  He  made  no  provision  in  his  will  for 
his  widow,  who  is  the  complainant,  and  at 
the  time  of  his  death  was  living  with  him 
and  their  children  in  one  of  his  houses.  Soon 
after  his  death,  his  executors,  under  one  of 
the  provisions  of  the  will,  sold  the  real  es- 
tate, suliject  to  her  claim  of  dower,  (of  which 
the  purchasers  had  full  notice,)  and  the  de- 
fendants, Marshall  and  Rodgers,  became  the 
purchasers.    This  bill  was  fil«?d  by  his  widow, 

*255 
for  an  account  *of  the  rents,  and  for  an 
admeasurement  of  her  dower.  Upon  hearing 
of  the  case,  at  Charleston,  September,  1851, 
before  Dunkin,  Ch.,  the  following  decree  was 
made: 

Dunkin,  Ch.  It  is  ordered  and  decreed, 
that  a  writ  do  issue  for  the  admeasurement 
of  complainant's  dower  in  the  premises  de- 
scribed in  the  pleadings,  situate  in  Franklin- 
street  and  in  Smith-street,  respectively. 
That  the  writ  be  directed  to  Thos.  D.  Condy, 
David  Lopez,  C.  C.  Trumbo,  M.  McBride  and 
Thos.  Farr  Capers,  reciuiring  them,  or  a 
majority  of  them,  to  execute  the  said  writ, 
according  to  the  provisions  of  the  Act  of 
Assembly,  iu  such  case  made  and  provided, 
and  that  they  make  a  return  of  their  pro- 
ceedings in  the  premises,  under  their  hands 
and  seals,  as  therein  directed,  for  the  final 
judgment  and  determination  of  the  Court. 

The  complainant,  Catherine  B.  Gibson,  ap- 
pealed from  so  much  of  the  decree  as  direct- 
ed the  Commissioners  to  execute  the  writ  for 
the  admeastirement  of  dower  "according  to 
the  provisions  of  the  Act  of  Assembly  in 
such  case  made  and  provided,"  on  the 
grounds : 

1.  .Because  the  several  Acts  of  Assembly, 
in  relation  to  dower,  merely  give  the  dower- 
ess  an  additional  process  and  remedy,  if  she 
chooses  to  accept  their  provisions,  and  file 
her  petition  in  Common  Pleas;  but  without 
that,  do  not  deprive  her  of  any  right  she 
previotisly  had,  of  pursuing  her  remedy  by 
writ  of  dower  at  common  law,  or  by  bill  iu 
this  Court,  iu  which  case  the  admeasurement 
of  dower  is  governed  by  the  common  law, 
and  not  by  statute. 

2.  Because,  having  elected  to  proceed  in 
this   Court,   she   declines  to  accept   the   pro- 


<S=sFor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


102 


GIBSON   V.  MARSHALL 


*2oS 


visions  of  tlu>  statute  law,  aiul  is  entitled  i  very  integrity,  to  fall  shurt  of  their  whole 
to  have   her  tlower  admeasuretl  acrordinfily,  i  duty. 

and  eaniiot  he  conipelled  to  aerept  a  coninni-  ;  The  form  of  this  writ  is  smh  as  to  require 
tation  in  tuimey  under  the  statute,  which  she  the  C'omniissittners  to  make  an  aetual  ad- 
had  the  privilege  of  doing  by  petition  in  '  measurement  and  assignment  of  the  tUiwer 
Comniun  I'ieas.  without   more;   aind   by  swearing  to  execute 

*266  the   writ,    the   ('(imndsstoners   were   made   to 

♦The  case  was  not  rea<'hed  during  the  sit-  bind  ami  confine  themselves  to  the  specific 
ting  of  the  Appeal  I'ourt  in  Janimry,  isoi.  act  of  admeasurement:  and  It  may  Ix-.  that 
rending  the  appeal,  the  plaintifi'  sued  out  a  their  return  of  an  actual  assessment  has  fol- 
writ  of  dower,  reiiuiring  flu-  Connnissioners  l<>w»'d  from  tlie  limit  thus  set  to  their  powers, 
to  admeasure  and  assign  one-third  of  the  The  foruj  atlopted,  which  is  contrary  to 
lands  specifically  to  the  plaintiff,  for  lier  that  which  has  ever  prevailed  under  the  stat- 
dower,  without  any  reference  to  the  discre- I  ute,  is  sought  to  be  justified  by  what  ap- 
tion  of  the  Commissioners,  under  the  Act,  |  pears'  to  me  to  l»e  a  very  narrow  lonstruc- 
to  assess  a  sum  of  money  in  lieu  of  dower,  tion  of  its  provisions.  It  Is  said  that  it  re- 
if,  in  their  opinion,  the  lands  could  not  be  <iuires  a  writ  to  l>e  Issued,  commanding  the 
fairly  divided  without  manifest  disadvan-  Connnissiouers  to  admeasure  the  dower,  etc., 
tage.  For  this  defect,  a  motion  was  made  by  and  that  the  writ  must  go  forth  with  that 
the  (U'fendants,  at  .March  sittings,  is.'c'.  that  mandate  alone.  And  that,  although  the  stat- 
tlie  writ  Ite  set  aside.  The  motion  was  made  ute  pn»ceeds  to  empower  the  I'oninjissioners 
ln'fore  Johnston,  Ch.,  who  made  the  follow-  '  to  assess  a  sum  in  lieu  of  (h»wer,  in  case 
ing  ortler:  ,  they    cannot    admeasure    the    latter    without 

.Johnston,  Ch.  The  motion  now  made  bj-  tlisadvantage  to  some  of  the  parties,  this 
the  defendants  stands  upon  a  different  foot- 1  power  should  not  a|ipear  in  the  dire<tions 
ing    from    the   one    made   a    few    days    ago.    contained  in  the  writ. 

Then  it  was  moved  that  it  be  referred  to  one  j  The  nece.ssity  for  the  full  power  of  the 
of  the  Masters,  to  take  testimony,  whether  Comnussioners  (in  the  alternatives  contem- 
the  conclusions  to  which  the  Counnissioners  i)iated  by  the  A<*ti  being  set  forth,  by  way  of 
in  partition  had  come,  were  not  unreasonable  tlirections.  appears  from  the  fact  that  the 
and  unjust.  The  motion  was  refused,  be-  Conmiissioners  are  required  to  take  an  oath 
cause  it  proposed  to  transfer  the  fiuictions  '  to  e.\e<ute  the  writ.  If.  as  was  argued,  the 
properly  belonging  to  the  Commissioners  to  Connnissiouers,  though  sworn  t<»  admeasure 
the  Master.  !  the    dower,    are    at    liberty    to    notice    their 

The  present  motion  is  to  set  aside  the  writ,  power  under  the  statute  ni»t  to  admeasure  it. 
for  irregularities  and  iniperfections  upon  its  but  to  assess  a  sum  as  a  compensation  for  it, 
face,  calculated  to  influence  the  return  of  the  this  plainly  amounts  to  this,  that  the  Act 
(Commissioners.  contains    a    dispensation    to   them,    absolving 

The  order  of  Chancellor  Dunkin  was,  that  them  from  the  only  specific  act,  which,  it  is 
a  writ  issue,  for  the  admeasurement  of  the    said,  the  writ  can  properly  direct  them  to  do, 


|)Iaintiff's  dower,  inider  the  statute. («)  The 
lilaintiff,  on  that  occasion,  contended  that 
she  was  entitled  to  have  an  actual  assign- 
ment of  her  dower,  at  common  law,  and  not 
such  an  assignment,  or  an  assessment  in  lieu 
of  it,  (in  the  alternative,)  under  the  statute; 
and  an  appeal  was  taken  from  the  Chancel- 
l(jr's  <irder,  because  it  directed  the  proceeding 
U)  be  had  under  the  statute. 

The  form  ado|»ted  by  the  i)laintiff,  in  issu- 
ing the  writ  of  partition  under  the  order, 
was  such  as  to  give  her  all  the  advantages 


♦258 

and    which    ♦the    staliu»>    specifically    binds 
them   by  oath  to  do.     This  cannot   be. 

If  the  writ  is  Intended  to  leave  the  Com- 
missioners at  liberty  to  perform  their  whole 
duty — if  it  is  not  intended  to  entraii  an<l 
mislead  them  in  the  performance  of  it — let 
the  writ  go  forth  describing  their  duty  to 
them.  This  can  In  no  cn.se  do  any  barm: 
and  it  may  in  some  cases  obviate  mistakes 
and    injustice.      The    writ,    as    a    matter    of 


<he  would  have  possessed,  had  the  order  been    -^""""l  l'»iifti«c.  should  ct.nform  to  the  scope 

and   true  intention  of  the  statute:   and    not 


♦257 

granted  ♦her  for  which  she  contended:  or  if 
her  aiipeal  had  been  heard  and  sustained: 
and  I  think  the  writ  shoultl  be  recalh'd,  for 
this  irregularity. 

The  iiroper  form  of  the  writ  presents  a 
very  imiiortant  (piestit)n  tif  practi<'e,  because 
the  Commissioners  are  re(|uired  to  fake  an 
oath  to  execute  it,  according  to  its  mandates. 
If  these  be  limited,  so  as  to  set  forth  but  a 
part  of  their  duties,  the  necessary  conse- 
quence is.  that  they  are  comitelled,   by  their 


(a)  4  Stat.  742. 


be  re.strlct»>d  to  part  of  the  duties  it  intends 
to  aiutbori/.e  and  recpiire. 

Such,  as  I  have  s.iid  In-fore,  is  the  form  of 
writs  (tf  this  description  luTefofore:  and  a 
departure  from  it  should  not  be  en<'ouraged. 

It  is  ordered,  that  a  writ  be  franu'd  by 
Mr.  Tujiper.  one  of  the  .Masters,  In  conform- 
ity with  this  opinion:  and  Issued  to  five  Com- 
missioners, two  to  be  named  by  the  plainfifT. 
two  by  the  defendants  claiming  the  land, 
and  the  fifth  by  said  Master,  re(|uiring  them, 
or  a  majority  of  them,  to  I'xecute  said  writ. 
If  either  party,  after  notice,  refuses  or  neg- 


*258 


5  RICHARDSON'S  EQUITY  REPORTS 


lects  to  name  Commissioners,  tlie  said  Mas-  i 
ter  to  name  them  in  his  place.  ! 

It  is  further  ordered,  that  the  writ  in  par-  1 
tition,  heretofore  issued,  be  set  aside. 

The  injunction,  heretofore  ordered,  to  be 
continued  until  further  order.  And  as  it 
appears  that  the  plaintiff  has  a  decree,  en- 
titling her  to  have  her  dower  laid  off  and 
assessed,  the  security  required  for  the  said 
injunction,  in  the  previous  order,  is  limited 
to  the  amount  of  damages  and  costs  recov- 
ered against  the  plaintiff  at  law. 

In  the  order  of  Chancellor  Johnston  all 
parties  acquiesced. 

The  new  writ  thus  directed  was  issued  and 
executed.  The  Commissioners  made  their 
return,  meting  out  and  assigning  the  plain- 
tiff's dower  in  the  lot  in  Franklin-street,  and 
assessing  a  sum  of  money,  in  lieu  of  her 
dower,  in  the  lot  in  Smith-street.  As  to  the 
assessment  in  the  latter  lot,  the  parties  were 
satisfied;    but  the  defendant,   Marshall,  con- 

*259 
tested  the  return  as  to  the  lot  *in  Franklin- 
street,  and  submitted  afladavits,  showing  that 
the  portion  assigned  to  the  plaintiff  exceeded 
in  value  her  interest,  and  embraced  all  the 
houses  and  improvements,  and  left  a  part 
of  the  lot,  covered  by  water  and  mud,  for 
the  defendant's  share.  These  atfidavits,  while 
they  imputed  no  corrupt  motive  to  the  Com- 
missioners, exhibited  error  of  judgment,  as 
to  values,  in  distributing  the  lot. 

Upon  these  affidavits,  Chancellor  Dargan, 
at  July  sittings,  1852,  on  motion  of  defend- 
ant, INIarshall, 

Ordered  a  reference  to  one  of  the  Masters, 
to  take  evidence  and  report,  whether  the  ad- 
measurement made  by  the  Commissioners,  in 
assigning  the  plaintiff's  dower  in  the  lot  in 
Franklin-street,  was  not  contrary  to  the  Act 
of  1824,  illegal  and  inequitable. 

From  this  order  the  plaintiff"  also  appealed, 
objecting  to  the  reference  to  the  master  on 
ex  parte  aflfidavits;  and  further,  that  the 
affidavits  impute  "no  malpractice  or  error  of 
principle  to  the  Commissioners,"  and  nothing 
beyond  a  mijstake  in  valuation. 

Campbell,  for  appellant. 

Phillips,  contra. 

Payne  v.  Payne,  Dud.  Eq.  127;  Brown  v. 
Duncan,  4  McC.  346;  Wright  v.  Jennings,  1 
Bail.  280;  Lesesue  v.  Russell,  1  Bay,  459; 
McCreary  v.  Cloud,  2  Bail.  344;  Scott  v. 
Scott,  1  Bay,  506;  Hawkins  v.  Hall,  2  Bay, 
449 ;  Beaty  v.  Hearst,  1  McM.  33 ;  1  Des.  110, 
115;  Stock  V.  Parker,  2  McC.  Ch.  382;  David- 
son V.  Graves,  Bail.  Eq.  272;  Brown  v.  Cald- 
well, Sp.  Eq.  322 ;  and  Woodward  v.  Wood- 
ward, 2  Rich.  Eq.  23,  were  cited. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW,  Ch.  [Who,  after  stating  the 
facts,  and  the  proceedings  that  had  been 
had  in  the  cause,  proceeded  as  follows:]  It 
is  manifest  from  this  statement,  that  as  the 

104 


plaintiff  has  elected  to  execute  Chanci^lor 
Johnston's  decree,  by  issuing  her  writ  in  con- 
formity   thereto,    and    actually    accepting    a 

•■=260 
commutation  *for  her  dower  as  to  the  lot  in 
Smith-street,  she  has  little  cause  of  com- 
plaint as  to  Chancellor  Dunkin's  decretal  or- 
der. Still  she  may  technically  insist  upon 
her  grounds  of  appeal  from  this  order,  so  far 
as  the  lot  in  Franklin-street  is  invoived. 

The  question  of  procedure  is  important. 
The  express  enactments  of  the  Act  of  1786 
provide  merely  a  mode  of  obtaining  dower, 
or  its  equivalent,  in  the  Court  of  Common 
Pleas,  and  iiave  no  dii'ect  operation  on  the 
pre-existing  and  independent  jurisdicticm  and 
remedies  of  this  Court  on  the  subject.  It  was 
the  practice  of  this  Court,  before  the  Act  of 
1786,  to  compensate  widows  for  dower  by 
commutation  in  money.  [Miller  v.  Cape]  1 
Des.  110;  [Miller  v.  Miller,  Id.  Ill];  [Clifford 
v.  Clifford]  Id.  115.  The  value  of  the  dower 
in  money  was  then  ordinarily  ascertained  by 
the  Master,  on  reference  to  him  for  the  pur- 
pose: but  since  tlie  Act  of  1780.  the  Court 
has  usually  employed  the  instrumentality  of 
commissioners  provided  by  the  Act,  to  ascer- 
tain this  value.  Stock  v.  Parker,  2  McC.  Eq. 
382.  There  is  no  reasonable  objection  to  this 
adoption  of  new  machinery,  to  complete  an 
old  remedy.  On  the  contrary,  there  is  spe- 
cial propriety  in  making  the  procedure  uni- 
form in  both  Courts.  The  commissioners  are 
not  authorized  by  the  Act  to  assess  a  sum  of 
money  in  lieu  of  dower,  until  they  have  de- 
termined that  the  lands  can  not  be  fairly  di- 
vided without  manifest  disadvantage.  It  is 
clear,  that  this  Court,  from  the  earliest 
epoch  after  its  organization  of  which  we  have 
any  report,  pursued  a  procedure  in  execution 
of  the  principles  of  equity,  dift"erent,  in  some 
respects,  from  that  of  like  Courts  in  the  coun- 
try from  which  we  derive  most  of  our  insti- 
tutions: notwithstanding  the  Act  of  1721  re- 
quired this  Court  to  conform  generally  to  the 
usages  and  practices  of  the  Court  of  Chan- 
cery in  South  Britain.  In  no  other  instance, 
perhaps,  has  our  departure  from  the  English 
practice  been  so  great,  as  in  this  particular 
of  commuting  the  share  of  a  dowress,  or  of 
one  entitled  to  partition,  by  sale  of  the  prem- 
ises or  assessment,  into  its  monied  value,  in- 
stead of  making  specific  assignment.  Our 
practice,  however,  is  too  inveterate  and  ad- 
vantageous to  be  now  disturbed. 

The  Act  of  1791  authorizes  the  Court  to  sell 
*261 
the  premises  for  *partition,  only  in  cases  of 
intestacy,  yet  this  Court  is  in  the  constant 
practice,  departing  from  the  procedure  of  the 
Court  of  Chancery  in  England,  of  effecting 
partition  by  sale  in  cases  of  testacy.  Pell  v. 
Ball,  1  Rich.  Eq.  387.  No  Act  of  the  Assem- 
bly prescribes  the  term  for  advertisement  of 
the  sales  of  estates  made  by  this  Court,  yet 
we  habitually  conform  to  the  requisitions  of 
the  Sheriff's  Act  of  1839.    It  is  ordered  and 


nOYCE  V.  BOYCE 


*26o 


street,  be  s<»  iiKulitied  as  merely  to  require 
him  to  take  evideme  and  rf;>ort  uiuui  the 
facts  as  to  sucii  assi)^iuiieiit.  In  all  other  re- 
sptH-ts  the  decrees  are  alliniied.  and  the  a\)- 
l>eals  dismissed. 

lUNKlN  ami  1»AK(;a.\,  CC.  concurred. 

JOHNSTON.  Ch..  alj.seut  at  the  hearing. 
Appeals  disni.'ssed. 


decreed,    that    the    ajipeal    from    Cliancellor    dower  to  the  i.laintifT  in  the  lot  in  Franklin 
Dunkin's  decretal  order  be  dismissed. 

It  remains  to  consider  the  appeal  from 
Chancelltir  I)ar>,'an's  order,  refusing  to  con- 
tirm  the  return  of  the  coiumissioners.  and  di- 
recting a  reference  to  the  .Master  to  take  tes- 
timony as  to  the  in»H|uality  and  injustice  of 
the  specific  assignment  of  plaintiff's  dower  in 
the  lot  in  Franklin-street,  and  to  rei)ort  upon 
the  facts.  We  suppctse  that  in  this  Court, 
since  we  liave  sulistituted  conunissioners  for 
the  Master  as  our  agent  to  ascertain  tne  val- 
ue of  (lower  in  the  itrcmises.  the  return  of  the 
commissioners  is  under  our  sui»ervision  to  tlie 
same  extent  as  would  Ih'  the  report  of  the 
Master  in  such  ca.se.  In  rayn«'  v.  Tayne. 
Dud.  E(i.  IL'T.  the  Court  says:  -The  return 
of  the  commissioners  must  necessarily  be  un- 
der the  control  of  the  Court.  There  would  be 
great  defect  of  justice,  if  the  Court  had  not 
the  power  of  correcting  their  errors,  irregu- 
larities or  partialities.''  Even  in  the  Law 
Court,  notwithstanding  the  Act  of  ITSO  de- 
clares that  the  return  sliall  Im'  binding  and 
conclusive  upon  the  parties  interested,  it  is 
decided,  in  IJeaty  v.  Hearst.  1  M<M.  lill,  that 
•'there  is  no  douiit  that  a  Circuit  Judge  may 
withhold  conlirniation  of  suc-h  a  return,  either 
in  dower,  partition,  or  in  any  other  jiroceed- 
ing,  and  allow  further  time,  on  sucli  showing 
as  satisfies  him  that  there  has  been  error  or 
mistake,  or  any  departure  from  estaiilished 
legal  rules."  It  is  not  necessary  that  there 
should  be  any  corruption  or  misfeasance  on 
tlie  part  of  the  commissioners:  it  is  enough, 
to  set  aside  their  return,  that  tliey  have  mis- 
taken the  extent  and  value  of  the  interests 
or  shares  of  the  parties  concerned.  Their 
return  is  intended  to  satisfy  the  conscience 

*262 
and  judicial  discretion  of  tlie  Chancel*lor, 
and  any  circumstance  exhibiting  error  on 
their  part  may  justify  him  in  refraining  to  ; 
do  that  wliicli  seems  to  liim  to  be  inequitable. 
In  the  present  case,  we  have  not  before  us 
the  particular  affidavits  upiui  wliich  the 
Chancellor  acted  ;  but  we  have  no  reason  to 
doubt  that  his  judicial  discretion  in  the  mat- 
ter was  judiciously  exercisi-d.  It  was  an  act 
of  indulgence  to  the  plaintift",  to  refer  it  to 
the  Ma.ster,  to  take  evidence  on  the  point  of 
the  return  on  both  sides:  whereas,  the  Chaa- 
cellor  might  have  proceeded  to  act  definitive- 
ly upon  the  ex  i)arte  testimony. 

The  form  of  the  order  in  this  case,  probably 
prepared  by  counsel,  is  liable  to  some  just 
exception.  The  Act  of  ls:.'4  has  no  applini- 
tiou  to  the  case,  as  the  land  was  not  alienat- 
ed by  the  husband  of  demandant  during  cov- 
erture. So.  tt)o,  there  is  impropriety  in  the 
seeming  delegation  by  the  Chancellor  to  the 
Master,  to  judge  of  the  legality  and  eciuity  of 
the  conduct  of  fiie  comnnssioners.  in  assign- 
ing the  iilaintitrs  dower. 

It  is  ordered,  that  the  ord»'r  of  reference 
to   Master  Tupp»'r.  as   to   the  assignment   of 


5  Rich.  Eq.  *263 

♦JOHN  BOYCK.  Admr  v.  \V.  \V.   I'.(  )VCi: 
and  Otbens. 

(Cbarleston,      Jan.   Term,    lS5.*i.) 

1  Execution  €=>"-'^^. I 

Cndcr  a  bill-  to  iiiarshal  a.sscts.  filed  bv  an 
adniinisirator.  tli«-  estate,  real  and  personal,  of 
the  intestate  was  ..njer.d  to  be  sold  by  the 
Master,  ami  creditors  were  enjoined  fronl  pro- 
ceeding at  law.  A  cre<litor,  win.  Iiad  come  in 
and  proved  his  <lebt.  had  certain  lands  of  the 
intestate  levied  <in  an<l  sold  under  liis  ti.  fa.  at 
law,  aud  pinelia.sed  tlieni  hiin.seli.  .Near  eight 
years  afterwards,  a  supi.lenuiital  bill  was  tiled, 
to  set  aside  the  sale,  aud  it  was  .so  ordered: — 
Jhid,  that  defendant,  the  creditor,  must  ac- 
count for  rents  and  profits  from  the  time  of  Lis 
purchase. 

[VA.  .Note.— Cited  in  Scaife  v.  Thoai.sou,  ir> 
S.  C.  oUS;  Ilardiu  v.  Melton,  I'S  .S.  c.  -liS  4 
S.  K.  !SU5.  II  S.  1'..  4l';{. 

For  other  eases,  see  Execution.  Cent.  l>ig. 
§  8:i.j;    Dec.  L>ig.  «&=>:JSS.J 

{ExcctitorH  (1)1(1  Adiiiiiiiiitratoni   C==>47.'!,   474.] 

Where  a  bill  to  marshal  the  a.ssets  of  an  in- 
testate, is  filed,  any  creditor  who  comes  in  and 
proves  his  debt  under  the  Masters  notice,  be- 
comes a  jiarty  to  the  decree,  au  actor  in  the 
proceedings,  and  is  entitled  to  any  onier  to 
speed  the  cause  or  carry  tiie  dtrree  into  sueeess- 
fid  execution. 

lEd.  Note.— Cited  in  Westlield  v.  Westtield, 
i;5  S.  C.  4.S5. 

For  other  eases,  see  Executors  and  Admin- 
istrators, Cent.  Itig.  iiS  lltm  JtKJO;  L>ec.  Dig. 
<:=47;{,  474.1 

This  cau.se  was  first  In-ard  at  Cljarleston, 
March,  l.s.ji.  before  Wardlaw.  Ch..  who  made 
the  following  decrtH': 

>\  ardlaw.  Ch.  Of  the  volundnoiis  pleadings 
in  this  (iise.  a  brief  abstract  may  sutti<e  for 
the  tiuestions  now  presented  for  decision. 

The  plaintiff  filed  his  original  bill.  July  J, 
1S40,  alleging  that  the  iH«rsonal  ass«'ts  of  his 
iide.state  were  gn-afly  iiia(b><piate  to  the  pay- 
ment of  the  debts,  and  had  ln'cn  a|)plied  by 
him,  as  aumitiistrator,  towjirds  this  etid,  so 
far  as  In*  cmdd  proceed  safely — that  the  real 
estate  was  under  mortgages  to  a  large 
amount — that  (vrtain  creditors  had  (d)tained 
judgmetits  agaitist  lilm.  and  others  had  in- 
stltut«'d  and  threateinHl  suits — and  pr.'iying 
the  direction  and  aid  •>f  the  court,  in  the  ad- 
mlidstration  tifj  tlie  as.set.s.  ami  injumtloii 
against  cre«litors  fntm  procwding  elst-wliere 
for  the  recovery  of  their  debts.  Willj.-ini  W. 
Hoyce.   oniy  (i>  heir  with   plaiidiff  of  the  in- 


^=3Fur  other  cases  see  suuie  topic  aud  KliV-Nt.MbEK  lu  all  Kej-NunibereJ  Digests  and  ludexes 


105 


*263 


5  RICHARDSON'S  EQUITY  REPORTS 


testate,  the  judgment  creditors,  and  some  of 
the  mortgagees  of  the  realty,  were  made 
defendants.  On  July  14,  1840,  it  was  ordered 
by  the  Court,  that  the  plaintiff  account  before 
the  Master  for  the  administration  of  the 
estate  of  his  intestate— that  the  Master  take 
an  acc-ount  of  the  real  and  personal  estate  of 
the  intestate,  and  of  tlie  liens  thereon,  and 
report  as  to  the  most  ethcient  mode  of  dis- 
posing  of  the   same,   and  of  satisfying  the 

*264 
creditors,  in  the  *order  in  which  they  were 
entitled  to  payment  out  of  the  real  and  per- 
sonal assets— that  the  Master  call  in  the 
creditors,  by  advertisement  in  the  Gazettes, 
to  prove  their  demands  before  liim — and  that 
all  creditors  of  the  intestate,  whether  parties 
to  the  suit  or  not,  upon  notice  of  this  decree, 
forbear  and  be  restrained  and  enjoined  from 
pi-oceeding  at  Law,  or  in  Equity,  or  otherwise 
than  therein  provided,  for  the  recovery  of 
tlieir  debts ;  with  leave  to  creditors  to  apply 
for  the  suspension  or  moditication  of  the  or- 
der. On  July  25,  1840,  after  this  decree  for 
account  and  injunction,  and  with  notice  there- 
of, E.  P.  Starr,  for  Starr  &  Howland,  took 
judgment  in  the  City  Court  of  Cliarleston, 
against  the  administrator,  for  the  debt  of  the 
firm  against  the  intestate.  On  January  29. 
1841,  the  Master  made  a  report  upon  the  debts 
of  the  intestate,  and  among  these  included  the 
debt  of  Starr  &  Howland,  whicli  was  pro- 
duced to  liim  and  proved  by  the  attorney  who 
liad  conducted  said  suit  in  the  City  Court ; 
and  his  report  was  confirmed,  and  the  Master 
was  ordered  to  sell  the  real  and  personal  es- 
tate of  the  intestate,  and  apply  the  proceeds 
of  sale  to  the  payment  of  the  debts,  accord- 
ing to  their  legal  priority.  Various  reports 
were  afterwards  made  by  the  Master,  excus- 
ing the  non-execution  of  tlie  order  of  sale; 
and  other  directions  for  sale  were  given 
him  by  the  Court.  Afterwards  E.  P.  Starr 
procured  an  execution,  fieri  facias,  founded 
on  the  judgment  of  the  City  Court,  to  be 
levied  on  certain  lots  of  intestate,  and  on 
July  5,  1842,  after  explicit  notification  of  the 
decree  of  this  Court  for  account  and  injunc- 
tion, procured  these  lots  to  be  sold  by  the 
Sheriff,  and  purchased  the  same  for  the 
price  of  $80,. being  about  the  one  two  hundreth 
part  of  their  value,  took  possession  of  them, 
and  has  ever  since  received  the  rents  and  prof- 
Its.  On  April  29,  1850,  plaintiff  filed  his  sup- 
plemental bill  against  Starr  and  others,  re- 
citing the  proceedings  of  tlie  original  bill, 
and  excusing  his  acquiescence  in  Starr's  pos- 
session, by  the  statements  of  his  absence 
from  the  State,  and  his  trust  in  tlie  learning 
and  energy  of  his  counsel,  to  be  stimulated, 
as  he  supposed,  by  the  interested  oversight  of 
his  brother  and  co-heir,  and  praying,  among 

*265 
other    things,     that     Starr    should     *deliver 
possession  of  the  estate  purchased   by   him, 
and  account  for  the  rents  and  profits.    To  this 
bill  Starr  demurs,  on  the  ground  that  plain- 

106 


tiff,  as  administrator  of  the  goods,  chattels 
and  credits,  has  no  right  to  implead  him 
as  to  the  real  estate ;  and  pleads  that  he  is 
in  possession  of  tlie  lots  aforesaid  by  legal 
title,  namely,  by  purchase  of  tlie  whole  at 
Sheriff's  sale,  under  ti.  fa.,  and  by  purchase 
of  a  mortgage  of  one  portion  thereof,  and  that 
this  Court  lias  no  jurisdiction  to  try  the 
titles  to  lands.  The  case  comes  before  me 
upon  this  demurrer  and  tliis  plea.  I  have 
much  less  ditticulty  as  to  the  proper  judg- 
ment on  the  points  presented,  than  in  ex- 
pressing the  reason  for  the  judgment,  without 
indicating  opinions  on  matters  which  should 
be  reserved  for  future  adjudication.  It  is 
safer  that  my  reasoning  at  this  time  should 
be  in  brief,  perhaps  inconsequent,  than  that 
I  should  seem  to  prejudge  the  grave  matters 
in  the  case  which  remain  behind. 

1.  As  to  the  demurrer.  The  administra- 
tor with  us,  although  peculiarly  charged  with 
the  goods,  chattels  and  credits,  represents  to 
some  extent  the  real  estate  and  the  heirs: 
for  on  a  judgment  against  liim  the  laud  of 
the  intestate  may  be  sold,  as  in  fact  it  was  in 
the  present  case.  Under  the  operation  of  the 
statute  of  Geo.  2,  of  force  here,  lands  are 
liable,  equally  with  personalty,  for  the  debts 
of  the  deceased,  and  may  be  regarded  as 
legal  assets,  in  the  hands  of  the  administra- 
tor. In  England,  bills  of  conformity,  as  they 
are  called,  by  an  executor  or  administrator 
of  an  insolvent  estate,  for  tlie  directions  of 
the  Court,  in  the  administration  at  the 
assets,  are  not  very  usual,  nor  much  encour- 
aged, (Story  Eq.  §  544 ;  Brooks  v.  Reynolds, 
1  Bro.  Ch.  R.  183);  but  with  us,  from  tlie 
equal  liability  of  real  estates  for  debts,  and 
from  the  indisposition  of  Courts  to  spur 
creditors  in  tlie  race  for  diligence,  tliey  are 
common  and  favored.  Our  procedure  is  well 
justified  in  Thomson, v.  Palmer,  2  Rich.  Eq.  35. 
"Such  a  bill  is  not  known  to  the  Englisli 
practice ;  but  it  has  been  long  established 
among  us,  is  well  known  to  every  member 
of  the  profession,  and  is  too  wholesome  to  be 
abrogated.    Among  us.  the  real  estate  as  well 

*266 
as  the  personal  *estate,  is  liable  for  the 
debts  of  the  deceased;  but  no  order  for  the 
sale  of  the  former.  In  aid  of  assets,  can  be 
obtained,  except  in  this  Court.  It  is  mani- 
festly for  the  benefit  of  all  parties,  when  this 
is  necessary,  tliat  the  whole  of  the  funds 
should  be  brought  together,  and  all  the  credi- 
tors brought  in,  and  that  the  estate  should  be 
administered  in  one  suit.  This  practice  ad- 
ju.sts  conflicting  claims  without  prejudice 
to  the  trustee,  and  without  injury  to  any 
party,  and  prevents  unnecessary  litigation. 
Where  the  executor  files  such  a  bill,  the  prac- 
tice is  to  select  one  or  two  of  the  principal 
creditors  as  defendants ;  and  to  bring  in  the 
others  by  an  order.  None  of  them  need  an- 
swer except  when  specially  required,"  &c., 
"but  all  are  enjoined,  either  by  an  order,  or 
by  injunction  issued  in  conformity  to  an  or- 


BOYCE  V.  BOYCE 


*?«?8 


tier  ol.taiiu'd,  from  suing  elsewluTe.-  This  i  haviiij,'  been  read  and  r..nsideml :  it  is.  on 
extract  is  so  explirit,  and  so  convincing.  as|nj(ition  of  cnniplainaiif s  solicitor,  ordered 
to  supersede  the  necessity  of  much  reniarlv  and  decn-^'d,  tliat  tlie  purdiase  of  the  i)reni- 
npon  either  demurrer  or  plea.  In  the  i-ase  I  ises  in  Societ.v-street.  (descril>ed  in  the  plead- 
under  consideration,  the  administrator  hasjim,',t  l.y  Edwin  V.  Starr,  he  set  aside,  and 
exliihited  a  propj-r  case  against  lieirs  and  j  that  he  do  deliver  fortliwith  the  possession 
creditors,  for  the  administration  of  tlie  whole  I  of  the  same  to  .James  Tupper.  one  of  the 
estate    in    one   suit,    under    the   direction   oflMasters  of  this  Court;    and  tliat  lie.  Edwin 


this  Court. 

li.  Then  as  to  the  plea.  This  Court  does  not 
undertake  to  try  the  legal  title  to  lands, 
except  as  incidental  to  matters  of  eciultahle 
cognizance;  but  it  does  undertake  to  de- 
termine whether  the  legal  titln  has  bwn 
honestly  acciuired.  and  may  he  honestly  ex- 
erted. It  may  relieve  against  a  legal  title 
acquired  by  fraud,  accident  or  mistake;  or 
it  may  impress  ui)on  a  legal  pn»prietor, 
against  his  will,  under  eiiuitaljle  circumstanc- 
es, the  character  of  a  trustee;    or  It  mav  in- 


1*.  Starr,  account  In-fore  said  Master  for  the 
rents  and  jirotits  of  said  prendsi-s.  from  the 
time  of  his  purchase  and  taking  possession 
thereof. 

It  is  further  ordered  and  decre<'d.  that  the 
said  .Master  do  sell  at  public  auction  the  sai<l 
premises,  on  terms  to  be  tixed  by  his  tllsire- 
tion.  and  he  also  reinirt  upon  the  existing 
debts  of.   and   Ib-ns   upon,   the   intestate's  es- 

•268 

tat«',  and  how.  in  what  projiortloiis.  ♦and  In 

what   onler.    they    are   entitled    to   claim    the 


hibit  the  unconscientious  use  and  employment  i  pr<icee<ls  <>f  the  re-sale  and  of  the  rents  and 
of  any  legal  advantage.  Without  improperly 
<lwelling  on  the  circumstancvs  of  this  case, 
it  is  enough  to  say  that  there  is  such  sus- 
picion thrown  upon  the  transactions  of  the 
defendant.  Starr,  in  aciiuiring  his  title,  as 
to  justify  full  investigation.  A  plausible 
case  is  made  against  him.  retpiiring  explana- 
tion on  his  part,  of  liis  disregarding  the  de- 
cree of  this  Court,  which  should  have  bound 
him  as  it  did  others,  and  of  bis  buying  up. 
at  a  sacritice  that  startles  common  sense  and 
justice,  the  assets  which  tlie  Court   bad   un- 

*267 
(lertaken  to  adminis*ter.  In  the  answer  sup- 
jiorting  bis  plea,  he  denies  that  a  writ  of 
injunction  was  served  upon  him.  but  he  does 
nt)t  deny  notice  of  the  decree  for  account  and 
injunction ;  he  denies  that  lie  authorized 
bis  attorney  to  present  bis  demand  for  proof, 
before  the  ^Master,  but  he  d(»es  not  deny  his 
employment  of  this  attorney  to  collect  this 
demand,  with  general  authority  to  i)ursue 
any  mode  that  might  seem  proper,  in  bis  skill 
and  discretion;  nor  that  after  notice  lie 
acquiesced  in  the  particular  mode  of  collec- 
tion pursued  by  his  attorney.  The  bill,  .so 
far  as  it  is  not  contradicted  by  the  plea,  must 
lie  assumed  to  be  true,  in  judging  of  the 
validity  of  the  plea.  Mitf.  WO.  If  the  de- 
fendant cannot  be  protected  in  his  legal  title, 
be  is  liable,  as  a  matter  of  course,  fttr  rents 
and  i)rolits.  Martin  and  AValter  v.  Evans,  I 
Strob.  Eq.  ;{oO.  I  am  of  oiiinion  the  defend- 
ant must  answer  the  case  made  against  him. 
It  is  ordered  and  decreed,  that  the  demurrer 
and  plea  of  the  defendant.  E.  V.  Starr,  be 
overruled,  and  that  said  defendant  make  full 
answer,  aeeordingi  to  (be  practice  of  tills 
Court. 

At  March  sittings,  1852,  the  cause  was 
beard  liefoie  .Johnston,  Cli.,  who  made  the 
following  decree  : 

Johnston.  Ch.  This  case  coining  up  tUv  a 
bearing,  and  the  bill,  answers,  jirevious  or- 
ders aud  decrees,  as  also  the  report  of  the 
Master  and  the  testimony  taken  U-foie  him 


prohts. 

The  «lefendant.  Edwin  I*.  Starr,  ajipealcd 
from  so  much  of  his  Honor.  Chancellor  .John- 
ston's decree,  as  directs  the  a<-count  of  rents 
and  proJits  to  be  taken  from  the  time  of  the 
defendant,    Starr's   i>urcliase   and    possession. 

1.  Becau.se  the  account  of  n-nts  sli<iuld  not 
go  farther  ba<k  than  the  tiling  of  the  bill. 

2.  Because  the  account  of  rents  shoubl  not 
go  farther  back  than  four  years  prior  to  the 
filing  of  the  bill. 

I  For  subseijuent  opinion,  see  G  Kbh.  Ei]. 
302.] 

Memminger.  f(»r  appellant. 
Cunningham,  for  plaintiff. 
The  opinion  of  the  Court  was  delivered  by 

nrXKlX.  Cli.  The  defendant  has.  very 
properly,  made  no  ap])eal  from  .so  much  of 
the  decree,  heretofore  pronounced,  as  set 
aside  his  purcha.<e  of  the  itremi.ses  in  Society- 
street,  and  declared  him  llahle  for  the  rents 
and  profits.  But  it  is  insisted,  that  the  ac- 
count for  rents  and  profits  slunild  not  be  car- 
ried beyond  the  time  of  filing  the  bill.  or.  at 
farthest.  l>eyond  four  years  prior  thereto. 
(Jeiieraily,  it  cannot  be  questioned  that  a 
party  is  resi»onsible  for  the  use  of  property 
which  d(H's  not  l)elong  to  him,  and  of  which 
he  has  unlawfully  obtained  possesslcui.  On 
the  other  hand,  in  a<lministerlng  relief 
again.st  a  party  who  has  acted  under  Igno- 
rance or  mistake,  and  In  favor  of  a  party  who 
has  been  supine  or  negligent,  this  Court  ex- 
ercises a  dIscretliMi  in  relation  to  the  ac- 
count, which  is  necessjirlly  nuMlified  by  the 
circumstances.  The  rule  declannl  in  Row- 
land v.  Best.  2  McC.  Eq.  320.  has  been  re- 
jieatedly  recognized.  "It  Is  not  an  unccau- 
mon  case  for  a  party  who  lies  by  and  iK^rmits 
another  to  o<cupy  ami  enjoy  jtroperty  as  his 
own.  under  an  apparent  good  title,  which 
he  might  and  ought  to  have  brought  Into  dis- 
cussion miicli  earlier,  to  be  restricted  In  his 
demand  for  an  account  of  rents  and  profits, 
to  the  filing  of  the  bill,  or  four  years  before." 

107 


^'269 


5  RICHARDSON'S  EQUITY  REPORTS 


*269 

*The  argument  insists  tliat  tlie  defendant 
is  entitled  to  the  benefit  of  tliis  modification. 
The  ground,  upon  which  the  decrees  hereto- 
fore pronounced  the  defendant's  purchase  in- 
valid, was,  that  he  was  a  party  to  the  decree 
of  July  14,  1840,  and  that  his  subseiiuent  pro- 
ceedings in  the  City  Court  were  in  violation 
and  contempt  of  the  injunction  thereby  or- 
dered. His  possession,  therefore,  under  the 
Sheriff's  sale,  was  tortious  in  its  inception. 
But  it  is  said  there  was  laches.  It  appears 
to  the  Court  that  this  argument  proceeds 
from  a  misapprehension  of  the  character  of 
the  proceedings,  and  of  the  decretal  orders 
of  1840  and  1841.  The  bill  was  to  marshal 
the  assets,  real  and  personal.  "The  settled 
doctrine,"  says  Chancellor  Kent,  Thompson 
V.  Brown,  4  Johns.  Ch.,  643,  "is  that  the  de- 
cree to  account,  in  such  cases,  is  for  the  bene- 
fit of  all  the  creditors,  and  in  the  nature  of 
a  judgment  for  all.  All  are  entitled.  And 
from  the  date  of  such  decree  an  injunction 
will  be  granted  to  stay  all  proceedings  of  any 
of  the  creditors  at  law."  "The  establishment 
of  this  doctrine  and  practice,"  adds  he,  "is 
to  be  traced  back  to  the  decisions  of  Lord 
Hardwicke,  Lord  Camden  and  Lord  Thur- 
low."  The  decree,  therefore,  of  July,  1S40, 
was  for  the  benefit  of  all  the  creditors,  and 
in  the  nature  of  a  judgment  for  all.  Every 
creditor  who  came  in  and  proved  his  debt  un- 
der the  Master's  notice,  became  a  party  to 
the  decree,  an  actor  in  the  proceedings,  and 
was  entitled  to  move  for  any  order  to  speed 
the  cause,  or  carry  the  decree  into  successful 
execution.  It  has  been  definitively  settled 
that  the  defendant  presented  and  proved  his 
demand  under  the  decree,  and  became  there- 
by just  as  much  an  actor  in  the  cause  as 
the  original  complainant,  or  as  any  other 
creditor  situated  similarly  with  himself.  If 
the  estate  was  insolvent,  and  had  been  sur- 
rendered to  the  control  and  disposition  of  the 
Court,  it  might  well  be  expected  that  thence- 
forth the  creditors  would  be  most  diligent 
in  stimulating  the  action  of  the  Court..  If 
proceedings  under  the  decree  were  unrea- 
sonably protracted  or  suspended,  the  delay 
is  not  more  chargeable  upon  one  than  an- 
other of  those  who  were  entitled  to  ex]^edite 
them,  not  more  to  any  other  creditor  than  to 

*270 
the  *defendant:  and  it  is  not  unlikely  that 
the  irregular  proceedings  of  the  defendant, 
in  the  levy  and  sale  of  July,  1842,  may  have 
created  obstacles  in  canning  into  effect  the 
decretal  order  of  sale  made  by  the  Court, 
which  did  not  previously  exist. 

This  Court  perceives  no  error  in  the  decree 
of  the  Chancellor,  and  the  appeal  is  dis- 
missed. 

JOHNSTON,  DARGAN,   and  WARDLAW, 
CO.,  concurred. 
Appeal  dismissed. 


5  Rich.  Eq.  270 

W.  SIMONS  and  Wife  et  al.  v.  THE  SOUTH 

WESTERN    RAILROAD    BANK    and 

EDWARD  R.  LAURENS. 

(Charleston.      Jan.   Term,    1853.) 

ITrH.sf.s  <g=>357.1 

Where  a  Master  in  Equity  borrowed  money, 
and,  to  .st^cure  the  payment,  hypothecated  cer- 
tain certificates  of  stock  which  he  held  as  Mas- 
ter, and  in  trust — the  official  character  in  which 
he  held  the  stoek,  and  the  trust,  appearing  upon 
the  face  of  the  certificates — the  lender  was  de- 
creed to  deliver  up  the  certificates  to  the  par- 
ties entitled,  and  account  for  all  dividends  he 
may  have  received. 

[Ed.  Note. — Cited  in  Mathews  v.  Hevward,  2 
S.  C.  244  :  Webb  v.  Graniteville  Mfg.  Co.,  11 
S.  C.  401,  32  Am.  Rep.  479;  Salinas  v.  Pears- 
all,  24  S.  C.  184:  Rabb  v.  Flenuiken.  29  S. 
C.   285,   7   S.    E.   597. 

For  other  cases,  see  Trusts,  Cent.  Dig.  § 
546;    Dec.  Dig.  <S=>357.] 

Before  Dargan,  Ch.,  at  Charleston,  June, 
1852. 

Dargan,  Ch.  In  the  case  of  Jonathan  Lu- 
cas and  others,  against  William  Hume  and 
others,  by  a  decretal  order  of  the  Court, 
(March,  1840,)  Catharine  Simons,  then  Cath- 
arine Hume,  as  one  of  the  heirs  at  law  of 
Mrs.  Lydia  Lucas,  was  declared  to  be  entitled 
to  a  portion  of  the  proceeds  of  the  sale  of 
a  plantation  called  Middleburgh:  which 
place  was  then  ordered  to  be  sold  by  the 
Master,  on  certain  terms  therein  prescribed. 
The  same  decree  directed  a  distribution  of 
the  proceeds  of  the  sale  into  thirteen  parts, 
corresponding  with  the  number  of  the  heirs 
at  law  who  were  to  receive  the  same ;  and 
also  directed  their  shares  to  be  paid  to  them 

*271 
respectively.  In  regard  to  the  share  "^of 
Catharine  Hume,  (who  was  then  an  infant,) 
as  well  as  the  shares  of  the  other  infant  par- 
ties, the  same  decree  ordered  them  to  be  paid 
to  the  guardians  of  the  said  infant  parties, 
"if  they  have  such  guardians,  and  if  not,  to 
be  invested  by  the  Master  for  their  benefit 
respectively,  until  demanded  by  the  proper 
authority." 

In  pursuance  of  this  decree,  Middleburgh, 
on  the  6.th  April,  1840,  was  sold  by  Edward 
R.  Laurens,  then  one  of  the  Masters  in  Equi- 
ty, to  Jonathan  Lucas,  for  .$29,600.  The  sale 
was  duly  reported  and  confirmed.  The  share 
of  Catharine  Hume  in  the  cash  proceeds  of 
the  sale  was  $794.10,  which,  by  the  directions 
of  the  decree,  was  invested  by  the  said  Mas- 
ter in  5  per  cent,  stock  of  the  City  of  Charles- 
t<«i.  The  certificate  was  No.  124,  and  was  in 
the  name  of  "Edward  R.  Laurens.  Master  in 
Equity,  in  trust  for  Catliarine  Hume,  a  minor 
child  of  Catharine  Hume,  formerly  Lticas,  de- 
ceased, or  his  assigns,  for  $794.10  of  the  issue 
of   1835."  • 

The  share  of  Catharine  Hume  in  the  credit 
portion  of  the  sales,  afterwards  received  by 
the  said  Edward  R.  Laurens,  was  $4,837.06. 
Tliis  was  invested  by  him  in  a  certificate  of 


108 


©=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  aud  Indexes 


SIMONS  V.  SOUTHWESTERN'  RAILROAD  BANK 


*274 


State  n  per  (cut.  stock,  fur  .ST. 44 1.."."!,  lit'ariii;; 
date  the  10th  July,  1S47,  in  the  name  of  "Ed- 
ward li.  Laurens.  Master  in  Etjuity,  in  trust 
for  Lucas  and  Hume,  or  hi."  assi;.'ns." 

On  the  2stii  tKt..  1850,  Edward  R.  Laurens, 
being  pressed  for  money,  ne;;otiated  a  loan 
from  tlie  South  Western  Rail  RoatI  Rank  for 
$5.00().  which  he  secured  by  his  individual 
note,  and  a  liy|)othe(ation  of  the  two  eertiti- 
cates  above  described,  and  another  certifi- 
cate of  State  three  per  cents.,  which  stood  in 
his  name  as  trustee  for  Susan  Ran<lall. 

The  said  certificates  were  deposited  with 
the  Rank,  and  endorsed  in  blank  by  the  .said 
Edward  R,  Laurens.  The  note  of  Edward  R. 
Laurens  to  the  Raidv  was  renewed  several 
times,  and  the  last  renewal  remains  uniiaid, 
in  po.ssession  of  the  Rank.  On  tlie  l!»th  April, 
1S51,  the  Raidv.  wishin;^  to  sell  the  stock, 
filled  up  the  blank  assit;nnients  (endorssed  up- 
on the  certiticales)  in  favor  of  the  said  Rank; 

*272 

and,  to  be  better  able  to  make  a  sale  *there- 
of,  otTered  the  certificates  at  the  State  and 
City  Treasury,  to  be  transferred  in  the  name 
of  the  South  Western  Rail  Road  Rank.  Be- 
fore the  transfers  were  made,  the  State 
Treasurer  and  City  Treasurer  received  notice 
from  the  complainants,  and  from  the  sui'eties 
of  Edward  R.  Laurens'  oflicial  bond:  iu  con- 
sequence of  which  the  transfers  have  not 
been  made. 

Catharine  Hume  has  intermarried  with 
William  Simons,  and  C.  G.  Memminger  and 
Keating  L.  Simons  are  the  trustees  of  their 
marriage  settlement,  by  why.'li  the  fimd  in 
question  has  been  assigned  to  the  .--aid  trus- 
tees, in  trust  for  the  uses  of  the  marriage  set- 
tlement. And  the  said  Rank  having  refused 
to  deliver  up  the  said  certificates  of  stock, 
the  said  Simons  and  wife,  and  the  said  trus- 
tees, have  filed  this  bill  for  an  account 
against  the  said  I'.ank,  and  against  the  said 
Edward  R.  Laurens,  and  that  they  n)ay  be 
decreefl  to  deliver  up  the  said  certificates.  &c. 
Catharine  .'Simons  has  died  since  the  filing  ol 
the  hill  ;  but  both  the  legal  and  equitable  in- 
terest in  this  fniid  remain  in  p;nfii>>  before 
the  Court. 

Every  priiu  iiiie  of  eipiify  applicable  to  the 
subject  demands  that  the  South  Western  Rjiil 
Road  iiank  should  be  dt  creed  to  make  resti- 
tution. One  who  purchases  from  a  trustee, 
witli  notice  of  the  trust,  bc'omes  liim.self 
chargeable  with  the  equities  of  the  trust,  to 
the  extent  of  his  dealing,  if  the  truste<.''s  act 
is  a  violation,  or  an  abuse  of  the  trust.  In 
this  case,  the  Rank  nad  notice,  for  the  trust 
was  unmistakably  stamped  upon  the  face  of 
the  certificate's;  and  if  they  had  followed  up 
the  indications  thereby  afforded,  it  would 
have  led  to  the  most  conqilete  information  on 
the  subject,  and  sliown  them  the  utter  inca- 
pacity of  Laun-ns  to  .sell,  much  less  to  hy- 
pothecate for  his  own  use  the  certificates  of 
stock,  which  stood  in  his  name  for  the  benefit 


of  the  wards  of  the  Court.  The  morality 
of  the  tran.saction,  on  the  part  of  the  Rank,  I 
do  not  impugn;  but  certainly  there  was 
great  blindness.  They  were  deceived,  but. 
they  must  take  the  consequences.  If  Laurens 
were  to  l»e  considered  a  mere  trustee,  I  should 
consider  the  plaint ifls  entitled  to  relief. 
Rut  it  is  a  mistake  to  sui)pose  tlmt  a  Mas- 

♦273 

ter  in  Equity  is  a  "trustee  in  the  technical 
sense.  In  regard  to  the  assets  In  his  hands. 
He  is  a  mere  depositary.  He  has  no  right 
or  authority  to  make  Investments,  or  to  call 
in,  or  chang»'  tho.se  that  have  been  made, 
without  the  special  order  of  the  Court.  With- 
out such  authority,  he  has  no  right  to  nego- 
tiate, or  transfer  any  of  the  secuiities  that 
are  in  his  jKKs.session  or  under  his  control. 
Wlu're  bonds  or  other  securities  are  payable 
to  hiiu,  he  may  receive  the  money  when  due; 
and,  as  money  is  not  easily  identified,  his 
mi.sappropriation  of  it  ndght  be  without  rem- 
edy as  to  the  money  itself.  Yet  even  as  to  the 
cash  funds  in  bis  hands,  if  ndsappropriated, 
they  would  be  followed  in  the  hands  of  one. 
1  who,  in  taking  them,  was  aware  of  the  abuse 
j  of  the  official  trust. 

It   would   be   a    great    perversion   of   every 
principle  of  e(puty.   if  the  plaintifTs'   claims 
'  were  not  sustained. 

I  It  is  ordered  and  decreed,  that  the  defend- 
j  ant,  Edward  R.  Laurens,  do  account  for  and 
[  pay  over  to  the  plaintift's.  who  are  the  trus- 
I  tees  of  th&  marriage  settlement  of  William 
'  Simons  and  Catharine  Ins  wife,  all  the  mon- 
i  eys  which  have  come  into  his  hands,  as  late 
'  Master  in  Equity,  which  may  be  due  to  the 
said  Catharine  Simons,  from  the  estate  of 
Lydia  Lucas,  and  that  Master  Tupper  .state 
I  the  accounts. 

[      It    is    further   ordered    and    d»^creed,    that 
I  the  South  Western  Rail  Road  Rank  do  deliver 
I  up  to  the  said  trustees,  the  said  ••ertificate  of 
City  5  per  cent,  stoc-k,  and  the  .said  certificate 
j  of    State   .'{    per   cent,    stock,    mentioned   and 
described  in  the  plaintifTs'  bill;   and  that  they 
ac<'Oinit  f<u'  the  dividends  they  may  have  re- 
ceived  thereon,   (if  they   have   received  any;) 
and  that  all  transfers  and  assignments  of  the 
said  certificates  be  .set  aside  and  cancelled. 

It  is  further  ordered  and  decreed,  that 
j  the  defendants  pay  the  costs. 
1  The  South  Western  Rail  Road  Rank  ap- 
'  pealed,  anil  insisted,  that  these  defendants 
I  took  the  securities  mentioned  in  the  pleadings 
I  in  the  course  of  business,  as  security  for  a 

*274 
loan.     That  *being  purcluisers  for  a  valuable 
consideration,  ni)  decree  ought   to  have  been 
made  against  them. 

That  the  defendants  are  entitled  to  the  as- 
sistance of  this  Court,  to  recover  from  the 
sureties  of  Edward  R.  Laurens  the  amount 
advamed  by  them  on  the  said  securities,  if 
the  securities  themselves  are  adjudged  to  the 
complainants. 


*274 


5  RICHARDSON'S  EQUITY  RErORTS 


Hanckel,  Petigru,  for  appellants. 
Memminger,  contra. 

PER  CURIAM.  We  concur  in  the  decree 
of  the  Chancellor:  and  it  is  ordered  that  the 
same  be  affirmed,  and  the  appeal  dismissed. 

JOHNSTON,     DUNKIN      DARGAN     and 
WARDLAW,  CC,  concurring. 
Appeal  dismissed. 


J  Rich.  Eq.  274 

W.  M.  RIVERS,  Adrn'r,  v.  GREGG,  HAYDEN 
*      &  CO.  and  Others. 

(Charleston.     Jan.   Term,   1853.) 

[Infants  (g=>50.] 

An  infant  who  has  an  allowance,  from  the 
Court  or  any  other  source*  of  a  sum  sufficient 
to  provide  himself  with  necessaries  suitable  to 
his  fortune  and  condition,  is  not  liable,  ordina- 
rily, for  necessaries  supplied  on  credit. 

[bid.  Note. — Vor  other  cases,  see  Infants, 
Cent.  Dig.  §  114;    Dec.  Dig.   <©=>50.] 

[Infants  <©=5.50.] 

If  the  creditor  shows  that  the  amount  al- 
lowed him  had  been  wasted,  or  in  any  way  had 
been  lost  to  the  infant,  and  that  he  was  in 
actual  need  of  the  necessaries  supplied,  he 
would  be  liable — semble. 

I  Ed.  Note. — For  other  cases,  see  Infants, 
Cent.  Dig.  SS  114,  Ho.  117-127;  Dec.  Dig. 
<g=:350.] 

[Insurance  <®=^591.] 

Creditors  of  infant  taking  a  policy  of  in- 
surance on  the  life  of  infant,  and  with  his  con- 
sent— they  paying  the  premium  and  other  ex- 
penses— are  entitled,  on  the  death  of  the  infant, 
to  the  proceeds  of  the  policy,  to  the  extent  of 
their  debt;  whether  the  policy  be  taken  in  their 
names,  or  in  that  of  the  infant. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  §  1480 ;    Dec.  Dig.  <®=:5591.] 

Before  Dargan,  Ch.,  at  Charleston.  June, 
1852. 

Dargan,  Ch.  William  M.  Eddiugs  was  a 
young  man  of  large  expectancies.  He  pos- 
sessed an  absolute  and  indefeasible  estate, 
the  value  of  which  has  been  estimated  by  the 

*275 
Master  at  *thirty-five  or  forty  thousand  dol- 
lars. Thi.s  includes  the  accumulated  income 
of  the  defeasible  estate  to  which  he  was  con- 
ditionally entitled,  under  the  will  of  his 
grandfather,  William  Puddings;  which  said  in- 
come, by  a  decree  of  this  Court,  has  been  ad- 
judged, since  the  death  of  William  M.  Ed- 
dings,  to  belong  to  his  estate.(a)  In  addition 
to  this,  he  would  have  been  entitled,  if  he  had 
attained  the  age  of  21  years,  to  an  interest  in 
his  grandfather's  estate,  estimated  by  the 
Master  at  seventy-five  or  eighty  thousand  dol- 
lars. His  absolute  and  expectant  estate 
would,  therefore,  together,  have  amounted 
to  $110,000  or  $120,000.  His  vested  estate, 
exclusive  of  what  his  estate  will  receive  from 
the  decree  of  the  Court  on  account  of  the  in- 


(o)   Rivers  v.  Fripp,  4  Rich.  Eq.  270. 


come  of  his  conditional  legacy,  was  only 
about  $10,000.  He  was  born  on  the  22d  No- 
vember, 1830,  and  died  on  the  29th  November, 
1850.  On  his  death,  under  21  years,  the 
whole  of  his  conditional  estate  passed,  under 
the  limitations  of  his  grandfather's  will,  to 
his  only  surviving  brother,  without  Its  ever 
having  vested,  except  as  to  the  income,  in 
William  M.  Eddings. 

In  March,  1840,  his  mother,  Mrs.  ]Mary 
Eddings.  (now  Mrs.  Hughes,)  was  appointed 
liy  the  Court  of  Equity  the  guardian  of  his 
person  and  estate.  From  1840  to  1846,  his 
guardian  received  from  the  executor,  John 
A.  Fripp,  the  sum  of  five  hundred  dollars 
per  annum  for  his  education  and  support. 
Her  accounts  had  been  regularly  returned 
and  vouched.  In  1846,  by  an  order  of  this 
Court,  his  allowance  was  increased  to  $1,000. 
This  allowance  continued  until  1848.  when 
William  M.  Eddings  was  married.  On  that 
event,  his  allowance,  by  an  order  of  the 
Court,  was  increased  to  $2,500  dollars,  which 
was  ordered  to  be  paid  to  him,  and  not  to 
his  guardian.  His  wife  was  also  possessed 
of  an  estate,  which,  on  her  marriage,  was  set- 
tled on  her,  for  her  separate  use,  the  income 
of  which  was  between  six  and  seven  hun- 
dred dollars.  This  income  went  to  the  sup- 
port of  the  family.     The  allowance  ordered 

*276 
to  be  i)aid  to  William  *M.  Eddings,  which 
was  intended  for  the  support  of  himself  and 
family,  added  to  the  income  from  his  wdfe's 
estate,  made  an  aggregate  of  $3,100  or  $3,200 
per  annum.  He  had  two  children,  one  of 
whom  died  before  him.  He  left  a  widow 
and  one  child,  who  survived  him  three 
months.    The  widow  still  survives. 

On  the  23d  August,  1851,  an  order  was 
made,  referring  this  case  to  the  Master,  with 
leave  to  report  any  special  matter.  The 
Master  was  also  ordered  to  publish  a  notice 
in  one  of  the  city  papers,  requiring  all  the 
creditors  of  the  estate  to  present  and  prove 
their  demands  before  the  said  Master,  on  or 
before  the  first  September  next  ensuing.  The 
accounts  of  the  administrator  of  Williaui 
M.  Eddings  were  also  referred  to  the  Master, 
and  the  said  administrator  was  ordered  to 
pay  to  the  Master  anj  funds  belonging  to  the 
estate  that  had,  or  might  thereafter,  come 
into  Ills  hands. 

The  Master  now  submits  his  report  upon 
the  matters  referred.  He  states  that  the 
administrator  has  rendered  his  account,  and 
that  the  same  has  been  legally  vouched.  He 
finds  a  balance  due  the  estate  by  the  ad- 
ministrator, of  $4,104.37.  No  exception  hav- 
ing been  taken  to  this  part  of  the  report, 
it  is  ordered  that  the  said  report,  in  this 
respect,  be  confirmed,  and  become  the  decree 
of  this  Court. 

In  the  same  report,  the  Master  also  sub- 
mits a  statement  of  the  claims  of  the  credi- 
tors presented    before  him,   and   of  the  evi- 


110 


@=»For  other  cases  see  same  topic  and  KEY -NUMBER  in  all  Key-Numbered  Digests  and  Inde.xes 


IIINKIIS   v.  (JKKGU,  11AVI>1:X  &.  CO. 


^2Tlt 


dence  by  which  they  were  suiiported.  The 
Master,  in  his  report,  has  diseriiiiiiiated  be- 
tween what  he  considers  necessaries,  suit- 
able to  the  fortune  and  condition  of  tlie  in- 
testate, and  mere  waste  and  e.\travaKan<*e: 
rejectliifr  tlie  latter  and  allowing;  the  former. 
The  creditors,  whose  claims  liave  l>een  re- 
jected, have  severally  filed  exceptions  to  the 
report,  contendiiif,'  that  the  reji-ctinl  items  of 
their  accounts,  ou;;ht  to  have  been  allowed 
as  necessaries.  I  think  the  Master  has  al- 
lowed enouf:;h  as  necessaries,  in  any  point 
of  view  in  whidi  the  <'ase  may  be  considered. 
And  for  this  reason,  all  tiie  exceptions  tiled 
by  the  creditors  are  overruled. 

*277 

*But  the  complainant  (the  administrator 
with  the  will  annexed  of  William  M.  Ed- 
dings)  has  also  fded  exceptions  to  the  report, 
in  which  he  disimtes  the  rii^ht  of  the  credi- 
tors (under  the  circumstances)  to  <-laini  any 
thing  as  necessaries.  And  this  brings  up  a 
very  important  (piestion — a  cpiestion  which 
must  be  of  deep  concern  to  parents  and 
guardians,  and  to  that  interesting  class  of 
the  eonniiunity,  who,  on  account  of  their  ten- 
der years  and  niH>d  of  protection,  the  Court 
of  Equity  has  under  its  own  pe<uliar  guard- 
ianship and  care. 

To  show  the  great  importance  and  neces- 
sity of  this  i)rotection,  I  need  not  travel  out 
<»f  the  facts  of  this  case  to  present  a  strik- 
ing illustration.  Under  the  pulilished  order 
to  prove  their  debts  before  tlie  .Master,  cred- 
itors have  presented  demands  against  the 
intestate's  estate  to  the  enormous  amount 
of  $14,20.1,  all.  or  a  very  large  part  of  which, 
was  contracted  within  the  last  four  years 
of  his  life,  and  princiiially  witnin  the  last 
two  years.  Add  to  this,  aliout  .$!).()(»()  for 
money  actually  received  by  the  intestate,  on 
account  of  his  allowance,  and  on  ac<ount 
of  the  income  of  his  wife's  estate,  all  of 
which  came  into  his  hands,  and  was  con- 
sumed, and  the  aggregate  is  aboiit  .$L';{,000. 
Thus  we  lind  this  infant,  who.se  person  and 
estate  were  under  the  protection  and  guard- 
ianship of  the  Court  of  Equity,  whose  estate 
in  i)ossession  was  oidy  .$l().(Mt(>.  and  whose  in- 
defeasible estate,  eventually  realiz«'d.  was 
only  $.".r).00<».  living,  for  the  last  four  years 
of  his  life,  at  the  extravagant  and  wa.steful 
rate  of  nearly  six  thousand  dollars  per  an- 
num. And  this  yet  does  not  present  a  per- 
fect view  of  his  extravagance:  for.  as  has 
already  been  observed,  the  principal  part  of 
tlie  debts  was  accunndated  within  the  last 
two  years  of  his  life,  when  his  allowance  was 
at  its  maximum,  and  when  lie  also  enjoyed 
the  iiKom*'  of  his  wife's  estate.  He  must 
have  exjiended.  after  his  marriage,  seven  or 
eight  thousand  dollars  per  aninim.  I  was 
desirous  to  have  gone  accurately  into  this 
calculation;  but  the  .Master's  report,  and  the 
docunu'iits  and  evidence  submitted  with  it, 
did  not  afford  the  data. 

When  the  Cliancellor,  by  his  order,  graut- 


I  •278 

'  tnl  this  infant,  out  of  *hls  estate,  an  allow- 
1  ance  of  $l.tHK)  iier  annum,  and  after  his 
I  marriage  increa.sed  it  to  $l.',.'j(M)  per  ainium, 
J  di<l  he  base  his  decree  uiion  what,  from  the 
evidence  before  liim,  lie  sui»ptt.sed  was  neces- 
sary for  the  support  and  maintenance  of 
himself  and  family,  according  to  his  fortun-^ 
and  position?  If  not.  how  futile  was  the 
I)relindnary  imjuiry  as  to  what  were  his 
prospects  and  fortune?  Did  he  grant  liim 
the  annual  .$2.r>(X)  for  and  in  lieu  of  neces- 
saries; or  di<l  he  mean  that  he  should  re- 
ceive his  allowance,  and  be  arnuMi  with  au- 
tli(u-ity  to  contract  debts,  and  charge  his 
estat«'  with  the  payment  of  double  that  sum 
in  the  way  of  necessaries?  If  this  latter 
principle  is  to  prevail,  then  I  undertake  to 
.say  that  the  protection  which  this  Court 
affords  to  the  estates  of  infants  is  a  bitter 
mockery. 

The  general  rule  certainly  is,  tliat  an  in- 
fant is  bound  Iiy  his  contract  for  neces- 
saries. I?ut  tln-re  are  exceptions  equally 
clear  aiul  well  settled.  Necessaries,  when 
the  term  is  ai)plie(l  to  an  infant,  are  those 
things  that  are  conducive  and  fairly  pn»per 
for  his  comfortable  support  and  education, 
according  to  his  fortune  and  rank.  So  that 
what  would  be  considered  ne«-es.sary  in  one 
case  would  not  be  so  regarded  in  another. 
The  rule  is  entirely  relative  in  its  oper.-ition. 
Hut  what  are  neces.saries?  .Meat,  lodging, 
clothing  !Uid  education,  if  the  means  admit 
of  it,  certainly  fall  within  the  detinition. 
To  which  may  be  added,  in  case  of  marriage, 
the  support  of  wife,  chililren  and  .servants. 
All  is  relative,  and  is  regulated  by  circum- 
stances. I?ut  if  an  infant  is  furnished  with 
tlu'se  tilings  by  his  parent  or  guardian,  then 
the  same  articles,  to  the  same  or  a  less 
amount,  supplied  by  another  under  contract, 
are  not  necessary  to  him.  To  another,  not  so 
supidied.  they  would  be  necessary.  Tlie 
same  remarks  apply,  with  equal  propriety 
and  force,  where  the  infant  is  supplied  b.v 
parent  or  guardian,  or  by  this  Court,  with 
money  to  furnish  himself  with  neces.saries. 
In  some  cases,  circumstances  make  it  proji- 
er,  and  imperatively  demand,  that  the  in- 
fants should  liav»>  tiie  disbursement  of  his 
allowance  himself.  In  the  case  of  marriage 
and  house-keeping,  the  perpetually  recurring 
wants  and  exigencies  of  the  family  render  it 

•279 
impossi*ble  that  the  guardian  should  always 
be  called  on  to  supervise  the  disburst'inent 
of  the  fund  allowed  to  the  infant.  <>r  if, 
being  a  youth  of  fortuiu',  he  is  .sent  upon 
his  travels  in  foreign  lands,  or  even  in  Ids 
own  country,  the  guardian  cannot  look  to 
the  ex|teiiditure  t)f  the  money.  It  is  neces- 
sarily entrusted  to  his  own  keeping.  The 
brother  of  the  (h'ceased  is  now  abroad,  on 
his  Euroiiean  travels.  Previous  to  his  de- 
parture, an  application  was  made  to  this 
Court  lor  a  proiier  allowance  to  defray  his 

111 


*279 


5  RICHARDSON'S  EQUITY  REPORTS 


traveling  expenses.  The  Court,  upon  due 
consideration,  made  an  order  for  what  was 
supposed  to  be  a  proper  allowance,  refer- 
ence being  had  to  the  amount  of  his  for- 
tune. Suppose  this  young  gentleman  should 
expend  his  allowance,  and,  in  addition, 
should  contract  debts  to  the  same  amount, 
for  articles  that,  prima  facie,  would  be  re- 
garded as  necessaries !  Could  these  claims 
be  supported,  on  its  being  shown  that  the 
infant  had  an  allowance  that  was  amply 
sufficient  to  defray  all  his  necessary  and 
proper  expenses?     I  suppose  not. 

He  who  deals  with  an  infant  is  presumed 
to  know  of  his  infancy.  He  is  bound,  at  his 
own  peril,  to  make  the  inquiry.  It  makes 
no  difference  whether  the  inquiries  result  in 
correct  information,  or  the  reverse.  It  is  no 
excuse,  if  he  honestly  supposed,  from  his 
appearance  or  other  circumstances,  that  the 
infant  was  an  adult.  Tlie  protection  of  this 
defenceless  class  of  persons  would  be  very 
Inadequate,  if  this  principle  is  not  further 
extended.  The  only  safe  rule,  for  the  securi- 
ty of  infants  and  their  estates,  is,  that  he 
who  credits  the  infant  for  necessaries,  should 
be  bound  to  know  whether  the  infant  has 
been  supplied  with  a  sufficient  amount  of 
those  articles  by  the  parent  or  guardian,  or 
from  some  other  source.  The  consequence,  if 
any  other  rule  than  this  pi'evails,  would  be, 
that  an  infant's  estate  might  be  made  liable 
for  double  the  amount  of  necessaries  that 
were  necessary  for  him. 

I  will  not  say  that  an  infant,  after  being 
supplied  with  necessaries,  or  a  proper  allow- 
ance in  cash  to  procure  them,  may  not,  un- 
der some  circumstances,  be  liable  on  a  con- 
tract for  necessaries.     Suppose,  for  example, 

*280 
after  being  furnished  with  all  things  *neces- 
sary  for  him,  he  should  give  them  away,  or 
sell  them,  or  waste  the  proceeds  in  riot  and 
debauchery.  Or  suppose,  that  after  having 
placed  in  his  hands,  in  money,  an  allowance 
sufficient  for  all  his  wants,  he  should  be 
robbed  of  it,  or  should  lose  it  by  accident, 
or  at  games  of  chance.  Then  the  infant 
would  be  reduced  to  want  for  the  means  of 
bare  subsistence.  Must  he  starve  with  a 
plenty  in  his  coffers?  Would  he  not  be  bound 
by  a  contract  for  necessaries  under  these 
circumstances?  This  is  stating  the  strongest 
imaginable  case  against  the  rule.  But  its 
wisdom  is  still  manifest.  In  a  case  like  that 
supposed,  I  would  say  that  the  infant  would 
be  bound.  But  I  would  further  say,  that  the 
party  who  alleged  this  extraordinary  state  of 
facts  must  prove  them.  In  other  words,  when 
it  is  shown  that  an  infant  is  supplied  with 
necessaries  by  his  parent  or  guardian,  or 
with  funds  amply  sufficient  to  procure  them, 
the  presumption  of  law  and  of  reason  must 
be,  that  he  does  not  stand  in  need  of  credit, 
to  obtain  what  is  necessary  for  him.  And 
after  this  prima  fade  showing,  he  who  alleg- 
es that,  notwithstanding  this,  the  infant  was 

112 


in  a  state  of  destitution,  must  take  upon  him- 
self the  burthen  of  proving  the  allegation. 
If  he  does  this  in  a  satisfactoi-y  manner,  hi.^ 
claim  should  be  allowed.  But  even  then,  it 
should  be  limited  to  bare  necessaries,  and 
should  not  be  allowed  to  embrace  articles 
of  luxury,  which  would  otherwise  be  suita- 
ble to  the  infant's  fortune  and  condition  in 
life. 

To  illustrate  these  views  further,  I  will 
advert  to  what  I  suppose  would  be  the  course 
which  a  ca.se  like  this  might  take  in  a  Court 
of  Law.  The  plaintiff  brings  his  action  of 
as.sumpsit  for  goods,  wares,  &c.  The  affirma- 
tive is  with  him.  He  must  i>rove  his  demand 
to  be  entitled  to  recover.  The  defendant, 
however,  has  pleaded  infancy.  This  admits 
the  account,  and  rests  the  defence  upon  the 
affirmation  of  a  fact,  which  the  defendant  is 
l:ound  to  prove.  If  to  this  plea  the  plaintiff 
has  replied,  that  the  demand  was  for  neces- 
saries suitable  to  the  defendant's  f(jrtune 
and  condition  in  life,  the  burthen  of  proof 
is  again  shifted.  The  plaintiff  must  prove 
his   replication.     This   he   does   by  showing, 

*281 
for  example,  that  the  accoimt  is  for  *board, 
clothing,  education,  &c.  On  this  proof  he 
would  be  entitled  to  recover.  But  if  the  de- 
fendant has  rejoined,  that  the  articles  fur- 
nished were  not  necessary  to  him,  because 
he  was  furnished  with  the  same  articles  by 
his  parent  or  guardian,  here  the  proof  of  all 
the  facts  stated  in  the  previous  pleadings 
would  become  unnecessary.  The  defendant 
would  be  bound  to  prove  his  rejoinder.  But 
if  the  plaintiff  has  filed  a  sur-rejoinder,  al- 
leging, that  although  the  infant  defendant 
was  furnished  with  support  and  maintenance, 
or  the  means  of  procuring  it,  by  his  parent 
or  guardian,  yet,  that  by  the  defendant's 
improvidence  or  misfortune,  he  had  wasted 
or  lost  his  means,  so  that  he  was  reduced  to 
a  state  of  destitution,  and  the  articles  fur- 
ni.shed  by  the  plaintiff  were  thus  become 
necessary  for  the  infant,  here,  the  affirmative 
is  again  shifted,  and  the  onus  is  with  the 
plaintiff.  In  this  Court,  happily,  special 
pleading  never  prevailed.  But  what  is  valua- 
ble and  subservient  to  the  ends  of  justice, 
in  the  philosophy  of  that  system,  is  applied 
here  in  practice  in  a  short  hand  way ;  though 
this  Court  never  suft'ers  itself  to  be  baffled 
by  its  subtleties  or  entangled  in  its  techni- 
calities. 

In  a  case  like  that  before  me,  it  is  not  suf- 
ficient for  the  ci-editor  of  an  infant,  for  the 
purpose  of  obviating  the  objection  that  the 
infant  was  furnished  with  necessaries,  or  the 
means  of  procuring  them,  by  his  parent  or 
guardian,  or  from  other  source,  to  argue  hy- 
pothetically,  that  the  infant,  notwith.stand- 
ing,  might  have  been  in  a  state  of  destitution, 
which  rendered  the  articles  furnished  by  the 
plaintiff"  neces.sary  for  him.  In  a  Court  of 
Equity,  as  in  a  Court  of  Law,  he  must  state 
the  fact  affirmatively,  and  prove  it  positively. 


RIVERS  V.  GREGG,  HAYDEN  &  CO. 


»284 


Tho  ronolusion  is,  that  an  infant  wlio  is 
furnishod  with  neocssarifs,  or  the  means  in 
{•ash  of  procuring  them.  Ity  his  parent  or 
guardian,  or  from  any  otlier  soijrce.  Is,  prima 
facie,  not  liable  for  necessaries  supi»lie«l  by 
a  stranger  or  tradesman  on  a  credit;  and 
that  the  party  whci  seeks  to  evade  the  opera- 
tion of  the  rule,  and  bring  his  claim  under  an 
exception,  must  prove  the  destitution  and 
necessities   of  the  infant.     And   I   persuade 

♦282 
myself  *that  the  mo.st  specious  objection  to 
the  rule  has  been  sufliciently  answered. 

I  was  pressed  in  the  argument  at  the  liar 
with  a  recent  Engli.sh  decision,  which,  I  ad- 
mit, is  directly  to  the  point,  and  opposed  to 
my  own  conclusion  in  this  ca.se.  Rut  for  this 
decision,  I  should  not  have  deemed  it  neces- 
sary, or  incumbent  upon  me,  to  elaborate  my 
views  ui>on  the  subject  at  such  great  length. 
The  decision  cited,  though  not  binding  upon 
me,  is  entitled  to  great  respect.  The  case 
is  that  of  Burghart  v.  Hall.  4  M.  and  W.  71^7. 
In  this  case,  the  infant  had  an  allowance  of 
£500  per  annum,  besides  his  pay  as  Captain 
in  the  (Juards.  Lord  Lyndhurst  had  directed 
an  issue  to  be  tried  by  a  jury.  Lord  Abinger, 
in  «-harging  the  jury,  had  laid  it  down,  that 
a  tradesman  would  not  l)e  at  liberty  to  fur- 
nish necessaries  to  an  infant,  when  he  might 
have  known,  if  he  had  made  the  proper  in- 
(luiries,  that  the  infant  was  supplied  with  an 
income  for  his  own  support.  Sir  L.  Shadwell 
had  expressed  the  .same  opinion,  in  a  case 
against  the  same  party.  Mortara  v.  Hall,  6 
Sim.  465.  In  Rurghart  v.  Hall,  the  Court  of 
Exche(iuer  granted  a  new  trial,  on  the  ground 
of  misdirection  of  the  presiding  .Judge,  with 
the  full  concurrence  of  Lord  Abinger,  who 
retracted  his  former  opinion,  and  alleged  that 
he  had  l)een  convinced  by  the  argument  of 
Mr.  Earle,  the  counsel  for  the  plaintiff.  Lord 
Abinger.  who  delivered  the  judgment  of  the 
Court,  stated  the  law  to  be.  that  an  infant 
is  capalile,  not  only  of  entering  into  a  con- 
tract for  necessaries,  for  ready  money,  but  al- 
so into  any  reasonable  contract  for  necessa- 
ries on  a  credit,  though  he  has  an  income  of 
his  own,  and  an  allowance  that  was  amply 
sutlicient  for  his  support.  I  must  l>e  permit- 
ted to  say.  that  the  argmnent  of  Mr.  Karle, 
though  ingenious,  has  failed  to  convince  me; 
and  I  prefer  the  tirst,  and.  in  my  opinion,  the 
better  judgment  of  his  I>ordship. 

Lord   Lyndhurst,   deeming  the  decision   In 
this  case  authoritative  upon  him,  implicitly 
followed  it,  without  any  further  argument  or 
precedent,  and  gave  a  decree  accordingly. 
♦283 

♦I  find  no  case  that  goes  this  length.  In 
McPherson  on  Infancy,  507,  it  is  laid  down 
that,  "where  the  plaintiff  has  succeeded  In 
showing  that  the  supplies,  in  resi»ect  of 
which  the  action  is  lirought,  were  siutable  in 
themselves  to  tlie  age  and  station  of  the  de- 
fendant;  the  latter  may  show  that  he  was 
supplied,  no  matter  from  what  quarter,  with 

5  Rich. Eq.— 8 


necessaries  suitable  to  his  situation;  and 
in  such  a  case,  a  tradesman  cannot  ri'Oover 
for  any  further  supply."  See  Rainliridge  v. 
Pickering.  12  W.  Rl.  i.^liS.  And  it  has  fre- 
ijuently  been  held,  tluit  a  person  furnishing 
necessaries  to  an  infant,  under  tliese  and  the 
like  circumstances,  is  bound  to  make  innuiry 
wiiether  the  infant  l»e  not  otherwise  suiiplied. 
Co<.k  V.  Deatnn,  .3  Car.  &  I'.  114:  Story  v. 
Terry.  4  lb.  .'jL'ti;    Ford  v.  Eothergil.  1  Esp.  L'l. 

In  the  case  last  cited.  It  was  held  by  Lord 
Ki'iiyon  to  be  incumbent  on  a  tradesman,  be- 
fore he  gives  criKlit  to  an  infant  for  what 
nuiy  prima  facie  be  considered  as  necessaries, 
to  make  incpiiry  whether  he  Is  not  provided 
ity  his  friends.  •\nd  In  Story  v.  IVrry,  It 
was  decided  by  I.rord  Tenterden,  that  a 
tradesman  trusts  an  infant  for  nit-essarles 
at  his  own  peril,  and  that  lie  caimot  recover, 
if  it  turns  out  that  the  infant  has  been  oth- 
erwise supplied. 

In  a  more  recent  case,  Rurghart  v.  Auger- 
stein,  G  Car.  &  P.  ti'JO.  it  was  ruled,  that, 
where  an  action  was  lirought  against  an  in- 
fant for  necessaries,  it  was  competent  for 
him  to  prove  that  he  had  been  supplied  with 
the  sjime  articles  (clothes)  from  other  trades- 
men besides  the  plaintiff;  and  if  the  proof 
be  that  the  defendant  had  been  previously 
so  sup|)lied,  the  plaintiff  could  not  recover, 
although  the  defendant  had  not  paid  the  i>ri- 
or  bills. 

To  the  .same  effect  are  the  cases  upon  this 
subject,  uecliled  by  the  Courts  of  South-Caro- 
lina. In  Connolly  ads.  Hull.  :>  M<-C.  0  (15 
Am.  Dec.  G12],  it  was  held,  upon  what  was 
considered  "a  well  settled  principle,  that  an 
infant  who  lives  with  and  is  properly  main- 
tained by  her  parents,  caimot  bind  herself 
to  a  stranger  for  neces.><aries.'  And  the 
Court  proceeds  to  observe,  "whether  the 
mother,  in  this  instance,  was  able,  and  did 
maintain  her  daughters  in  a  manner  suitable 

♦284 
to  their  condition,  did  not  appear;  but  ♦it 
ought  to  be  presumed,  until  the  contrary  be 
proved."  In  Edwards  v.  Higgins,  2  McC.  Eq. 
21.  it  was  ruled,  that  an  infant  is  not  bound 
for  necessaries,  where  he  has  a  "natural  or 
legal  guardian  to  provide  them." 

It  is  a  fallacy  to  suppose  that  a  distinc- 
tion can  be  drawn  between  the  case  where  an 
infant  is  actually  suppliiMl  with  the  neces- 
saries themselves,  and  that  where  he  receives 
an  allowance  under  an  order  of  the  Court, 
which  he  is  to  disburse  hini.'^elf,  in  their  pur- 
chase. If  it  be  urged  that  the  Infant  may 
waste  or  ndsapply  his  allowance,  and  thus 
be  reduced  to  a  state  of  destitution,  that 
would  require  his  ueces.sary  wants  to  be  oth- 
erwise supplied,  it  is  obvioiis  that  the  argu- 
nu'ut  applies  with  etpial  force  to  the  case 
where  the  infant  Is  supitlied  with  the  neces- 
sary articles  for  his  use  and  c»)nsumption. 
These  he  may  sell,  give  away  or  waste,  so 
that  it  may  become  necessary  that  he  should 
have  more,  to  save  him  from  nakedness  and 

113 


284 


5  RICHARDSON'S  EQUITY  REPORTS 


starvation.  The  party  who  alleges  such  state 
of  destitution,  as  a  justification  for  giving 
credit  to  an  infant  who  is  otherwise  amply 
provided  for,  must  take  upon  himself  the 
burthen  of  proving  it.  And  if  he  succeeds 
in  this,  he  will  have  such  relief  as  is  proper 
under  the  circumstances.  But  until  such  a 
state  of  destitution  is  made  to  appear,  it 
must  be  presumed  that  an  infant  who  has 
an  ample  allowance  in  cash,  does  not  need 
to  be  supplied  with  necessaries  on  credit. 

To  test  this  question  still  further:  If  the 
guardian  had  paid  these  accounts,  would 
she  liave  been  allowed  to  charge  them  against 
her  ward's  estate?  It  is  a  waste  of  time  to 
ask  the  question. 

No  guardian  has  the  right,  without  the  per- 
mission of  the  Court,  or  without  special  cir- 
cumstances of  necessity,  to  transcend  the  in- 
come of  his  ward's  estate,  in  expeuditux'es 
for  his  benefit.  And  the  Court,  in  decreeing 
allowance,  always  has  reference  to  the  same 
general  rule,  from  which  it  never  departs, 
unless  under  special  circumstances.  And  yet, 
it  is  contended  that  this  rule  may  be  violated 
by  tradesmen,  for  their  own  profit  and  specu- 
lation.    The  truth   is,   that   these   claimants 

*285 
did  trust  *this  unhappy  youth  at  their  own 
risk.  They  knew  that  they  would  be  paid 
if  he  lived,  and  came  to  his  inheritance. 
They,  for  a  consideration,  doubtless,  resolv- 
ed to  take  the  hazard.  That  this  is  the  case, 
is  shown  by  the  fact  that  two  of  them, 
whose  claims  are  the  largest,  insured  the  in- 
fant's life  in  an  amount  sufficient,  in  one 
case,  to  save  them  from  loss,  and  in  the  oth- 
er to  pay  half  the  debt. 

I  think  that  the  claims  of  these  creditors 
.should  nut  be  allowed,  for  the  foregoing  rea- 
sons. And  I  further  think,  that  they  are  en- 
titled to  no  commiseration.  There  are  some 
unhappy  circumstances  connected  with  the 
case.  There  is  but  little  doubt  that  the  ill- 
fated  youth  was  brought  to  an  untimely 
grave,  by  the  improper  and  unbounded  cred- 
it which  was  extended  to  him  by  these  per- 
sons, and  others,  for  their  own  profit.  E. 
W.  Mathews,  Esq.  bears  the  following  mel- 
ancholy testimony.  He  says,  "that  William 
Eddings,  the  minor,  was  his  nephew.  He 
and  the  mother  and  grandfather  of  Mr. 
Eddings  used  every  effort  to  keep  him  at 
school  during  his  minority ;  but  the  large 
credit  he  obtained  placed  him  beyond  the 
control  of  his  guardian  and  friends.  His 
mothijr  even  refused  him  money  to  return 
from  school,  and  he  had  to  borrow  the  same 
to  do  so.  From  his  knowledge  of  the  circum- 
stances of  the  case,  he  firmly  believes  that 
the  system  of  credit  extended  to  his  nephew 
was  the  cause  of  his  ruin  and  early  death ; 
and  that  such  is  also  the  opinion  of  the  moth- 
er of  Mr.  Eddings.  Mr.  Inkling's  mother  used 
all  her  endeavors  to  check  this  system  of 
'jredit.  by  refusing  to  pay  a  number  of  bills."' 

These   creditors  now    come   here   for   paj- 


ment.  They  extended  every  facility  to  the 
inexperienced  and  infatuated  victim  of  pleas- 
ure. They  afforded  the  stimulus  to  his  brief, 
giddy  and  fatal  career.  They  turned  a  deaf 
ear  to  the  remonstrances  of  his  friends.  The 
tears  and  entreaties  of  his  mother  were  un- 
availing. It  would  be  a  gross  perversion  of 
justice  to  allow  these  claims.  It  is  ordered 
and  decreed,  that  the  exception  of  the  plain- 
tiff to  the  master's  report  be  sustained,  and 
that  the  whole  of  the  claims  of  creditors  re- 
ported uiwn  by  the  Master  be  rejected. 
*286 

*There  are  other  matters  in  this  case 
which  I  must  now  decide.  The  plaintiff's 
testator,  William  M.  Eddings,  in  his  life- 
time, contracted  a  debt  with  the  defendants, 
Gregg,  Hayden  &  Co.,  who  were  jewellers, 
to  the  amount  of  about  $2,400,  for  goods  and 
wares  in  their  line  of  business.  For  the  pur- 
pose, they  say,  "of  giving  greater  security 
to  their  claim  against  the  said  Wm.  M.  Edd- 
ings," they,  the  said  Gregg,  Hayden  &  Co., 
with  the  assent  of  William  M.  Eddings,  ef- 
fected an  insurance  on  his  life,  with  a  Bos- 
ton Insurance  Company.  The  policy  was  for 
the  term  of  four  years,  and  the  sum  of  ?2,- 
500.  It  bore  date  the  13th  Oct.,  1848.  The 
premium  on  the  policy,  amounting  to  $58, 
was  paid  by  Gregg,  Hayden  &  Co.  It  was 
negotiated  in  the  name  of  William  M.  Edd- 
ings, who,  in  pursuance  of  a  previous  agree- 
ment, assigned  the  policy  to  Gregg,  Hayden 
&  Co.  The  premium  was  charged  in  their 
books  against  Eddings,  but  no  part  of  it  has 
ever  been  paid  by  him,  or  his  legal  represen- 
tative. Since  the  death  of  Eddings,  Gregg, 
Hayden  &  Co.  have  received  from  the  Insur- 
ance Company  $2,500,  with  the  consent  of 
the  administrator,  and  under  an  agreement 
with  him,  that  the  said  sum  of  $2,500  shall 
be  held  by  them,  subject  to  the  order  of  this 
Court  in  the  premises.  They  claim  only  so 
much  of  the  nett  proceeds  of  the  said  policy 
as  will  be  sufficient  to  satisfy  their  demands 
against  William  M.  Eddings,  and  offer  to  pay 
over  the  balance  to  the  administrator.  If 
they  retain  the  nett  proceeds  of  the  policy 
they  have  been  overpaid. 

The  defendants,  Edgerton  &  Richards,  al- 
so having  demands  against  William  M.  Edd- 
ings, to  the  amount  of  $4,531.71,  effected  an 
insurance  upon  his  life,  for  the  same  pur- 
poses as  in  the  case  of  Gregg,  Hayden  &  Co., 
in  the  New-York  Life  Insurance  Company, 
for  the  sum  of  $2,000.  The  policy  was  dated 
the  15th  March,  1847.  It  was  taken  in  the 
name  of  Edgerton  &  Richards,  who  paid  out 
of  their  own  funds  the  premium  and  ex- 
penses for  four  years.  It  was  all  done  with 
the  knowledge  and  consent  of  William  M. 
Eddings.  After  his  death,  they  received  from 
the  life  Insurance  Company  of  New-York 
the  sum  of  $1,983.87,  according  to  the  terms 

*287 
and  condition  of  the  *policy.     They  paid,  in 
the  way   of  premium,   etc.,   during  the  four 
years,  the  sum  of  $103.     The  nett  proceeds 


REED  V.  VIDAIi 


•289 


of  the   policy    wore   $1,880.871^ — a    sum    uot 
.sulticit'Ut  to  pay  one-half  of  their  claim. 

The  administrator  claims  the  whole  uett 
jiroceeds  of  both  these  policies,  as  Ix^lon^iiit? 
to  the  estate  of  William  M.  Eddings.  I  have 
come  to  a  different  conclusion.  I  think  that 
these  parties,  havin;;  nejiotiated  these  poli- 
<ies  at  their  own  expense,  and  for  their  own 
lienetit  and  security,  are  fairly  entitled  to 
have  the  nett  i)roc«c(ls  ai)plied  in  the  way 
iiitendi'd,  namely,  as  payments  upon  their 
claims  against  Eddin>;s.  They  were  obvi- 
nusly  intended  as  collateral  .securities.  A 
third  party,  who  is  sui  juris,  ujay  become 
b(tund  for  the  debt  of  an  infant,  thoufjh  the 
infant  should  be  dischartjed.  And  I  ap!»re- 
hend  it  would  make  no  difference  whether 
the  third  party  were  a  coriioration  or  a  nat- 
ural person.  If  the  creditor  of  an  infant, 
for  a  consideration  paid  by  himself,  obtains 
ii  guaranty  of  the  infant's  debt  from  a  third 
party.  I  see  no  reason  why  such  third  party 
should  not  be  bound,  nor  why  the  creditor 
should  not  have  the  benefit  of  his  bargain. 
This  I  think  is  the  true  nature  of  the  trans- 
iiction.  The  infant  certainly  is  not  entitled 
to  the  funds  thence  arising.  This  would  be 
to  give  him  the  whole  of  the  creditor's  goods, 
nn  the  plea  of  infancy,  and.  as  a  premium  on 
the  plea,  the  whole  proceeds  of  the  policies. 

It  is  ordered  and  decreed,  that  the  excep- 
tion of  Gregg,  Ilayden  &  Co.  to  the  Master's 
report  on  this  point  be  sustained;  that  the 
claim  of  the  said  Gregg.  Ilayden  &  Co. 
against  Wm.  M.  Eddings  he  paid  out  of  the 
nett  proceeds  of  the  policy  received  by  them, 
with  interest  on  their  claim  till  they  received 
payment  from  the  said  Life  Insurance  Com- 
pany; and  that  they  pay  over  the  balance, 
if  any,  to  the  administrator  of  William  M. 
Eddings,  which  they  have  offered  to  do  in 
their  answer. 

It  is  further  ordered  and  decreed,  that  the 
exception  to  the  Master's  report  of  Edgerton 
iV  Kichards.  which  relates  to  the  proceeds  of 
the  policy  of  Insurance  received  by  them,  be 
sustained,    and    that    the    said    Edgerton    & 

*288 
Kichards  be  allowed  to  *n'tain  the  proceeds 
(if  tile  said  iMilicy,  as  a  payment  on  their  ac- 
count against  the  said  William  M.  Eddings. 

it  is  further  ordered  and  decreed,  that  tin; 
.Master's  report  be  conformed  to  this  decree. 

It  is  further  ordered  and  decreed,  that  all 
the  parties  in  this  cause  jiay  each  his  own 
costs;  except  the  administrator  with  the  will 
annexed  of  William  M.  Eddings,  whose  costs 
shall  he  charged  upon  the  estate. 

Apjieals  were  taken  by  the  pl.iintilT  and 
the  defendants,  on  all  the  disputed  (piestions 
decided  by  the  decree. 

Cooper,  for  plaintiff. 

Porter,  for  Gregg,  Ilayden  &  Co. 

B.  J.   Whaley.  for  Gravely  and  others. 

Wm.  Whaley,  for  McKenzie  and  others. 

The  opinion  of  the  Court  was  delivered  by 


DAUGAN,  Ch.  The  appellants  have  press- 
ed their  case  upon  the  attention  of  the  Court, 
with  an  ardent,  but  a  commendable  and  deco- 
rous zeal.  Much  ability  and  research  have 
been  di-splayed  in  the  argument  of  the  cause. 
I  have  uot,  however,  been  shaken  in  the  con- 
clusions which  1  fornu'd  on  the  Circuit  trial, 
and  which  I  have  expressed  in  the  Circuit 
decree.  In  that  decree,  I  have  gone  so  fully 
into  the  consideration  of  the  cpiestions  made 
on  this  appeal,  that  it  seems  to  me  unneces- 
sary to  say  more  on  the  present  occasion.  I 
will  add  but  a  few  words. 

In  my  sununary  of  the  South-Carolina  de- 
cision.s,  I  omitted  to  mention  tlie  case  of 
.T(Ujes  &  Danfortli  v.  Colviu.  1  McM.  14.  This 
was  a  very  similar  case  to  that  of  Hull  v. 
Connolly.  ;j  McC.  6  [15  Am.  Dec.  012],  cited 
in  the  decree. 

It  seems  to  me  that  the  language  of  Lord 
Kenyon,  in  Marshall  v.  Rutton,  8  T.  R.  545, 
is  not  at  all  inapplicable  to  a  case  like  this. 
That  was  an  action  of  assumpsit  for  neces- 
sary supplies,  furnished  to  the  defendant  by 
the  plaintiff.  The  defendant  was  a  married 
woman,  living  apart  from  her  husband,  under 
a  niutiial  agreement  for  separation.     Hy  this 

*289 
deed,  a  *(>omplete  sejiarate  maintenan<-e.  suit- 
able to  her  rank  and  condition,  was  secured 
to  the  wife.  The  question  was.  whether  she 
was  liable  on  her  contracts.  And  his  Lord- 
.ship.  holding  that  she  was  not.  observes: 
"A  wife  living  apart  from  her  husband,  who 
has  property  secured  to  lier  separate  use, 
must  apply  that  property  to  her  support  as 
her  occasions  may  call  for  it.  And  if  those 
who  know  her  condition,  without  requiring 
immediate  payment,  give  her  criHlit,  they 
have  no  greater  reastin  to  complain  of  not 
being  able  to  sue  her,  than  others,  who  have 
nothing  to  contide  in  but  the  honor  of  those 
whom  they  trust." 

It  is  ordered  and  decreed,  that  the  ajtpeals 
be  dismissed,  and  the  Circuit  decree  be  af- 
firmed. 

DUNKIN,  and  WAKDLAW,  CC,  con- 
curred. 

Decree  affirmed. 


5  Rich.  Eq.  289 

SAMUEL   P.    KEE1>   v.   JAMES   VIDAL. 

(Charleston.     Jan.  Term,  ISoy.'i 

[Specific   I'erfoinianrr  (£=>7!).l 

Contract  in  writing,  by  which  defendant 
agrot'd  to  repair  plaiiuiff's  steiun  saw  mill, 
buildings,  fenc<'s,  etc.,  and  i)laintiff  to  sell  to  de- 
fendant, as  soon  as  the  repairs  were  tinisiied, 
one  undivided  moiety  of  the  j)remises  on  wiiich 
the  mill  was  situated:  idaintiff  and  defendant 
tlien  to  form  a  partiiersliij),  to  work  tlie  mill  for 
one  year,  at  tiie  end  of  wliicli  time,  it"  jilaintiff 
chose  to  retire,  fiefendant  was  to  pay  him  for 
the  premises  a  fixed  sum;  but  if  plaintiff  did 
not  choose  to  retire,  tiie  iiartnersiiip  was  to 
continue  for  five  years: — held,  that  this  was  not 


>For  other  cases  see  same  topic  autl  KEY-NUMBER  iu  ail  Key-Numbered  Digests  and  Indexes 


115 


*2S9 


5  RICHARDSON'S  EQUITY  REPORTS 


a  proper  case  for  the  exercise  of  the  jurisdiction 
of  tlie  Court,  to  enforce  the  specific  performance 
of  contracts ;  and  phiintiff's  bill  for  that  pur- 
pose dismissed. 

I  Ed.  Note. — For  other  cases,  see  Specific  Per- 
formance, Cent.  Dig.  §  189;    Dec.  Dig.  <g==79.] 

Before  Dargan,  Ch.,  at  Charleston,  Juue, 
1852. 

The  bill,  in  this  case,  was  for  the  specific 
performance  of  a  contract.  His  Honor  dis- 
missed the  bill,  and  the  plaintiff  appealed. 

E.  DeTreville,  for  appellant. 
Campbell,  contra. 

*290 
*The  opinion  of  the  Court  was  delivered  bj' 

DARGAN,  Ch.  This  is  a  bill  for  the  spe- 
cific performance  of  a  contract.  The  plain- 
tiff was  seized  and  possessed  of  a  tract  or  lot 
of  land,  in  or  near  the  town  of  Beaufort,  on 
which  there  was  a  steam  saw  mill,  which 
was  in  a  dilapidated  condition.  He  entered 
into  a  written  contract  with  the  defendant, 
for  the  repair  of  this  mill.  The  terms  of  the 
contract  were,  that  the  defendant  should,  at 
his  own  expense,  and  within  six  months,  "put 
in  two  new  boilers,  repair  the  buildings, 
fences,  mill-pond  and  dam,  and  rail-way  as 
far  as  the  street  leading  over  the  public 
causeway,  build  a  new  brick  chimney  and 
fire  places  to  the  said  steam  saw  mill,  and 
put  all  parts  of  the  machinery  and  buildings 
of  the  said  steam  saw  mill  in  perfect  work- 
ing order.  In  consideration  of  which,"  as 
soon  as  the  said  repairs  were  completed,  the 
plaintiff  agreed  to  sell,  and  convey  to  the 
defendant  in  fee,  an  undivided  moiety  of  the 
premises  on  which  the  mill  was  situated. 
And  it  was  further  agreed  between  the  par- 
ties, that  they  were  to  work  the  said  mill  at 
their  joint  expense,  and  for  their  joint  bene- 
fit, under  the  partnership  name  of  Reed  &; 
Vidal.  This  partnership  was  to  continue  for 
the  space  of  one  year;  at  the  expiration  of 
which  time,  if  Reed  was  disposed  to  retire 
from  the  partnership,  he  had  the  privilege  of 
doing  so.  In  case  he  chose  to  retire,  the  de- 
fendant was  to  pay  him,  for  his  Interest  in 
the  premises,  the  sum  of  two  thousand  dol- 
lars, in  certain  prescribed  instalments.  But 
if  Reed  was  not  disposed  to  retire,  the  part- 
nership Avas  to  continue  for  five  years.  This 
agreement  was  executed  on  the  31st  I\Iay,  A. 
D.  1847. 

The  plaintiff,  after  various  attempts  to 
induce  the  defendant  to  commence  his  work 
In  the  repairs  of  the  mill,  and  after  several 
prolongations  of  the  time,  during  which  the 
defendant  was  to  complete  the  execution  of 
the  work,  filed  his  bill  in  this  Court,  for  a 
specific  performance  of  the  contract. 

The  case  was  heard  at  Juue  Term,  1852. 
The  presiding  Chancellor,  (Dargan,)  was  of 
the  opinion  that  the  bill  could  not  be  sus- 
tained; that  it  was  not  a  case  in  which  this 
Court    could,    with    propriety,    interpose    its 


*291 
jurisdiction,  for  the  purpose  *of  giving  re- 
lief in  the  manner  sought  by  the  bill;  that 
the  enforcement  of  a  decree  for  a  specific 
performance  of  a  contract  of  this  character 
would  be  attended  with  great  difiiculties  and 
embarrasssments,  if  it  would  not  be  entirely 
impracticable ;  and  that  it  was  a  case  pe- 
culiarly proper  for  a  Court  of  Law,  and  a 
trial  by  jury.  The  plaintiff's  bill  was  dis- 
missed with  costs. 

This  is  an  appeal  from  the  Circuit  decree, 
on  various  grounds,  the  substance  of  which 
is,  that  the  Court  should  have  retained  the 
bill,  and  given  the  plaintiff  the  relief  for 
which  he  asks. 

This  Court  concurs  in  the  Circuit  decree. 
The  appeal  is  dismissed,  and  the  Circuit  de- 
cree affirmed. 

JOHNSTON,    DUNKIN   and   WARDLAW, 

UC,  concurred. 
Decree  atfirmed. 


5  Rich.  Eq.  291 

W.  J.  SMITH  et  al.  v.  GEORGE  W.  BROWN 
et   al. 

(Charleston.     Jan.  Term,  1853.) 

[Landlord    and    Tenant    <g=5l57 ;     Trusts    <©=> 
274.] 
Tenant  of  trustee  not  allowed  compensation, 
from  the  corpus  of  the  estate,  for  improvements 
put  upon  the  premises. 

[Ed.  Note. — For  other  cases,  see  Landlord  and 
Tenant,  Cent.  Dig.  §  59.3;  Dec.  Dig.  <S=5l57; 
Trusts,   Cent.   Dig.   §  390;    Dec.  Dig.   <©==274.] 

[Trusts  (©=:>201.1 

Trust  property  was  sold,  and  bonds  for  the 
purchase  money  given  to  the  Master,  and  as- 
signed to  the  trustee:  the  purchaser  made  pay- 
ments to  the  cestui  que  trust  for  life,  without 
the  consent  of  the  trustee:  the  payments  were 
allowed  to  the  extent,  only,  that  the  cestui  que 
trust  would  have  been  entitled  to  receive  them 
from  the  trustee,  had  they  been  made  to  him, 
as   they  should  have  been. 

[Ed.  Note. — For  other  cases,  see  Trusts,  Cent. 
Dig.  §  270;    Dec.  Dig.  <S=»201.] 

Before  Dunkin,  Ch.,  at  Charleston,  June, 
1851. 

Dunkin,  Ch.  This  cause  was  heard  on  the 
report  of  the  Master.  In  order  to  under- 
stand the  exceptions,  a  brief  statement  will 
be  necessary,  which  can  be  enlarged  or  cor- 
rected by  reference  to  the  pleadings,  and  the 
evidence  which  is  reported. 

The  property  called  Gibbes'  Wharf,  in- 
*292 
eluding  two  slaves,  *Tom  and  Pompey.  at- 
tached to  the  Wharf,  formerly  belonged  to 
two  brothers,  George  Gibbes  and  James 
Gibbes.  In  1835,  George  Gibbes  conveyed  his 
moiety  to  a  trustee,  for  the  benefit  of  the 
children  of  his  brother,  Paul  C.  Gibbes.  The 
deed  provides,  that  upon  certain  conditions, 
(which  were  complied  with,)  "the  trustee 
should  semi-annually  pay  over  to  Catharine 


116 


®;:=3For  other  cases  see  same  topic  and  KEY-NUMBER  ia  all  Key-Numbered  Digests  and  Indexes 


SMITH   V.  BRuW  N 


*294 


Gil.bt's."  (the  wi.l.iw  of  I'mil  ('.  (;ilil)t's.  and 
tlu'  iiiotln-r  (if  his  chilflren.)  "as  h)n^'  as  she 
shimld  (((iitiiiiH'  i>   \vi(h)\v.  and  until  all   the 
childrt'ii   sliuuhl  di»'.  or  th«'  youn^'est  attain 
twenty-one  years  «(f  ajje.  the  whole  nett   in- 
come of  the  ino|.erty.   to  be  ai>i)lied  by  her 
to  the  support  of  herself  and  chihlren.  as  she 
might  deem  expedient."     On  the  (ith  October, 
1841.  the  <oiui)lainant,  William  J.  Smith,  be- 
came th»'  sulistituted  trustee  under  this  deed. 
In   January.   1X4.!,   William   .1.    Smith,   the 
trustee,  and  .Tames  (iil)l)es,  (who  owned  the 
other  moiety  of  the  wharf,)  united  in  a  lease 
of  the  premises  to  the  defendant,  (Jeoru'e  W. 
Brown,  for  one  year,  at  the  rent  of  .^"i.noo  per 
annum— payable  1st.  .July  aiul  1st  .lanuary — 
tf)  each  a  moiety.    The  lease  also  included  the 
nise  of  the  two  slaves  attached  to  the  wharf. 
By  the  stipulations  of  the  lease,  the  negroes 
were  to  be  fed  and  clad,  the  taxes  paid,  and 
the  prenuses  repaired,  and  kept  in  repair,  nt 
the  expense  of  the  lessoi-s;    a  lease,  to  the 
s.ime  ettect.  had  been  made  between  the  same 
parties  in  the  year  1842.     Before  the  close  of 
the  year  1843.  James  Gibln-s  made  a  lease  of 
his    moiety    to    the    defendant,    George    W. 
Brown,   for  five  years,  on   the  same   terms; 
but  the  complainant  refused  to  unite  in  this 
lease,  and.  at  the  expiration  of  the  lease  of 
1S4."..  he  attempted  to  enter  upon  his  moiety 
of  the  premises.    This  led  to  much  litigation, 
to  the  particulars  of  which  reference  is  made 
in  the  case  of  (Jibbes  v.  Smith.  2  Rich.  Kq. 
l-'il.    The  ol)ject  of  that  suit  was,  to  have  the 
complainant    removed   from   the    trust,    prin- 
cipally on  tiie  ground,  that  he  declined  to  re- 
new the  lease  for  five  years,  (though  reciuest- 
ed  by  Mrs.  Catharine  (iibbes,  the  comi)laiuant 
in  that  proc»'eding.)  and  had  refused  to  au- 
thorize her  to  receive  the  rent  of  the  premis- 

*293 
es  from  the  lessee,  and  *had  brought  an  ac- 
tion against  the  defendant.  (J.  W.  Brown,  for 
moneys  which  had  been  paid  to  her.  The 
cau.se  was  ln-artl  in  February.  1S4.J,  and  the 
bill  was  dismissed — the  Court  remarking 
that,  by  the  provisions  of  the  trust  deed,  the 
management  of  the  property  was  connnitted 
solely  to  the  trustee,  who  was  to  receive  the 
rents,  and.  .-ifter  the  necessary  deductions,  to 
pay  the  surplus  to  the  complainant,  for  the 
purposes  specyied.  That  the  trustee  was  di- 
rected to  lease  the  itremises.  or  such  part  as 
he  tiiought  imijier,  and  <lirect  such  re|»airs 
and  improvements  as  he  might  tliink  neces- 
sary. That  all  this  was  left  to  his  discre- 
tion, and  not  to  that  of  the  complainant,  .Mrs. 
<iibbes.  who  had  only  to  receive  from  the 
trustee,  semi-annually,  the  nett  proceeds  of 
the  estate.  On  an  aitjieal  taken,  this  decree 
was  altirnu'd  in  January.  1S4<). 

It  seems,  that  James  (Jibbes  had  died  In 
November,  1844.  intestate,  leaving,  as  his 
heirs  at  law.  his  si.ster.  Caroline  L.  Brown, 
wife  of  the  deft'udant,  and  the  children  of 
I'aul  C.  (Jibbes.  a  deci-ased  brother.  Inder 
certain  proceedings   in   partition,   the  entire 


preraise.s  hereinbefore  mentioned  were  order- 
ed to  be  sold  by  the  Master,  in  April,  1846. 
Tliey  were  accordingly  sold,  on  the  23d  April. 
ix4«i.  and  Idd  off  by  the  defendant.  George  W. 
Brown,  for  the  sum  of  tifty-eight  thousand 
dollars.  The  Masters  re|)ort  of  sales  was 
condrmed  by  Chancellor  Johnston,  on  the  3d 
July.  ]S4»;.  Tl»e  order  further  directed,  inter 
alia,  that  one  umiety  of  the  iuo<eeds  of  the 
.sale  should  be  paid  or  transferreil  "to  Wil- 
liam J.  Sndth,  trustee,  to  be  held  and  apidied 
to  the  u.ses  and  trusts  declare<l  by  the  deed  of 
George  Glblx-s  to  M.  I'.  Walsh,  recited  in  the 
pleadings."  After  certain  other  directions, 
not  important  in  the  present  inq'uiry,  the  de- 
cretal order  concludes  as  follows!  "It  is 
further  ordered  that,  inasmuch  as  all  par- 
ties are  before  the  court,  the  Master  take  an 
account  of  the  rents  due  to  the  said  W.  J. 
Smith,  trustee,  by  the  .said  (Jeorge  W.  Brown, 
and  of  all  just  allowan<-es  against  the  same; 
and  also,  that  he  state  the  account  between 
the  trustee  and  Mrs.  Catharine  Gibbes,  and 
report  as  to  tiie  proper  investment  to  be  made 
of  the  trust  fund." 

•294 
♦The  bonds  executed  by  the  defendant. 
George  W.  Brown,  to  the  Master,  on  the  2:]d 
April,  1846,  were  payable  in  one,  two  and 
three  years,  with  interest  from  the  date.  On 
the  3d  May,  1848,  proceedings  were  institut- 
ed to  foreclose  the  mortgage  executed  by  the 
defendant,  to  secure  the  payment  of  these 
bonds.  The  report  of  the  Master,  tiled  14th 
March,  INol,  iturports  to  be  a  statement  of 
the  amount  due  on  these  bonds,  under  a  de- 
cretal order  of  reference.  One  of  the.se  bonds, 
conditioned  for  .?21,,s;33,  iiad  lieen  a.ssigned  to 
W.  J.  Smith,  trustee,  under  Chancellor  John- 
stons  order  of  3d  July,  1846;  another,  for 
•1:8.733.34.  had  been  assigned  to  W.  J.  Smith, 
as  guardian  of  the  nunor  children  of  I'aul  C. 
Gibbes.  deceased;  and  a  third,  for  ."!;2.18;j.31, 
to  Richard  M.  Butler,  who  had  married  a 
daughter  of  Paul  C.  Gibbes,  deceased. 

No  exception  is  taken  as  to  the  amounts 
reported  by  the  Master  to  be  due  on  the  two 
latter  bonds :  but  exceptions  are  tiled  on  both 
sides,  as  to  the  statement  of  the  bond  a.ssign- 
ed to  AV.  J.  Smith,  trustee.  Tho.se  of  the 
comjilainant  will  be  tirst  considere<l.  The 
bond  is  dated  23d  Aprii.  1S46,  and  the  first 
instalment  (':j)  was  due  tm  the  2.3(1  April. 
1847.  On  the  latter  day.  the  Master  credits 
the  defendant  with  the  sum  of  $3,093.57  as 
"the  balance  due  (J.  W.  Brown,  for  his  ac- 
count with  the  wharf  to  1st  .March,  1.S40." 
and  ?21().r»4,  being  the  interest  on  that  sum 
for  one  year— aggregate  .'<3,310.11.  It  will  l)e 
remarked,  that  the  allowance  of  this  credit 
of  .'i;3.(l'. >:!.."( 7  is  a  diminution  of  the  capital  of 
the  trust  estatb  to  that  amount.  It  was  con- 
tended, that  it  was  an  expenditure  for  per- 
manent improvements  made  on  the  proix-rty. 
Tills  Court  has.  on  more  than  one  occasion, 
withheld  its  sanction  from  this  mode  of  im- 
proving a  man  out  of  his  estate,  without  his 

117 


*294 


5  RICHARDSON'S  EQUITY  REPORTS 


consent.  Under  the  stipulations  of  the  lease,  , 
the  premises  were  to  be  kept  in  repair,  taxes 
to  be  paid.  etc..  and.  if  done  by  tlie  lessee, 
might  be  deducted  from  the  rent,  which  was 
to  be  semi-annually  paid  to  the  trustee,  who, 
by  the  deed  of  1835.  was  to  pay  the  "nett 
proceeds,  after  deducting  all  charges  and  ex- 
penses, to  Mrs.  Catharine  Gibbes.  for  tlie  sup- 

*295 
port  of  her.self  and  the  main*tenance  and 
education  of  the  children ;"  but  it  is  an  ex- 
press stipulation  of  the  lease,  that  tlie  lessee, 
George  W.  Brown,  "shall  neitlier  make,  nor 
suffer  to  be  made,  any  alterations  or  addi- 
tions therein,  without  the  consent  of  the 
trustee,  for  that  purpose,  in  writing,  first 
had  and  obtained.''  It  was  very  properly 
said,  that  if  these  were  valuable  improve- 
ments, the  rent  should  have  been  proportion- 
ately increased ;  but  no  authority  was  shown 
for  these  expenditiires,  and  the  Court  can 
perceive  no  warrant  for  making  this  deduc- 
tion from  the  bond  of  the  defendant.  The 
•complainant's  second  exception  is  sustained. 
This  also  disposes  of  the  defendant's  first 
exception. 

The  first  exception  of  the  complainant  may 
Le  considered  with  the  second,  third  and 
fourth  exceptions  of  the  defendant.  All  the 
ditticulty  arising  out  of  these  exceptions  is 
attributable  to  the  determination  of  the  de- 
fendant to  usurp  the  authority  of  the  trustee. 
Both  by  the  condition  of  his  bond,  and  the 
opinion  of  the  Court  in  Gibbes  v.  Smith,  he 
was  informed  to  whom  his  payments  were  to 
be  made;  certainly,  after  January,  1S46,  the 
defendant  was  aware  that  the  trustee,  and 
he  alone,  was  to  judge  of  the  nett  proceeds  of 
the  income  to  be  paid  to  Mrs.  Gibbes.  It  was 
specially  provided  by  the  trust  deed,  that  all 
the  expenses  and  charges  incurred  in  the 
management  of  the  trust  should  be  first  de- 
ducted, and  then,  that  the  nett  income  should 
I  e  semi-annually  paid  by  him  to  Mrs.  Gibbes, 
for  the  purposes  specified.  It  was  desirable, 
for  obvious  reasons,  that  she  should  know 
wuat  income  she  had  to  expend,  and  also,  that 
it  should  be  paid  to  her  in  the  mode  prescrib- 
ed by  the  deed.  The  Master  reports,  that  the 
annual  income  payable  to  Mrs.  Gibbes,  after 
the  sale,  was  $1,223.07;  but  the  defendant, 
instead  of  paying  to  the  trustee,  undertook  to 
pay  :Mrs.  Gibbes,  from  23d  April,  1846.  to  23d 
April,  1848,  the  sum  of  $3,742.44,  nearly  the 
income  to  which  she  was  entitled  in  three 
years — thus  leaving  no  income  properly  pay- 
able to  her  for  the  third  year.  In  the  trustee, 
this  would  have  been  an  abuse  of  his  trust. 
But  the  defendant  not  only  claims  credit  for 
them,  as  if    the  payments  were  made  to  the 

*296 
trustee,  but  he  claims  interest  *on  the  whole, 
from  the  time  of  payment,  including  interest 
on  the  excess.  Prior  to  the  decree  of  1S45-G, 
it  might  be  said  that  the  defendant  acted 
under  misapprehension,  and  that  he  should 
be  subrogated  to  the  rights  of  Mrs.  Gibbes ; 
iiS 


but,  after  that  time,  he  was  fully  apprised  of 
the  course  he  siiould  pursue,  and,  if  he  en- 
counters ditficulties,  they  are  of  his  own 
seeking.  He  had  no  concern  in  the  transac- 
tions between  Mrs.  Gibbes  and  the  trustee; 
and  the  effect  of  his  interference  is  only  to 
render  comi)licated  a  very  simple  transaction. 
His  plain  duty  was,  to  pay  the  bond  to  the 
Master,  or  his  assignee — and,  in  ascertaining 
the  amount  due,  payments  thus  made  should 
alone  be  allowed.  These  exceptions  of  the 
defendant  are  overruled,  and  the  complain- 
ant's  first  exception  sustained. 

The  remarks  before  made  are  illustrated 
by  a  consideration  of  the  Gth,  7th  and  Stli 
exceptions  of  the  defendant.  It  has  been 
hei'etofore  stated,  that  prior  to  the  sale  of  the 
premises,  in  April.  1846,  there  was  a  litiga- 
tion as  to  the  rent  due  for  the  premises.  In 
the  decretal  order  of  July,  1846,  provision  is 
made  for  taking  an  account  of  the  rent  due 
to  the  trustee  by  George  W.  Brown,  after  all 
just  allowances;  and  also  directing  the  Mas- 
ter to  state  the  account  between  the  trustee 
and  Mrs.  Gibbes.  The  exceptions  to  be  now 
considered,  relate  to  this  account  between  toe 
trustee  and  Mrs.  Gibbes,  as  reported  by  the 
Master.  There  had  been  three  successive 
trustees  under  the  deed  of  1835.  to  wit:  M.  P. 
Walsh,  \Yilliam  Smith,  sen.,  and  W.  J.  Smith, 
the  complainant ;  the  last  named  having  be- 
come trustee  in  October,  1841 ;  no  account 
was  ordered  in  relation  to  tiie  former  trus- 
tees, nor  were  they  parties  to  the  proceed- 
ings. The  only  account  to  be  taken  was  in 
relation  to  the  present  trustee.  It  will  be 
remembered,  that  difficulties  had  arisen  be- 
tween him  and  Mrs.  Gibbes  in  the  latter  part 
of  1843,  both  in  reference  to  the  renewal  of 
the  lease  and  the  payment  of  rent  by  CJeorge 
W.  Bi'own,  the  lessee,  to  her.  The  trustee, 
at  the  expiration  of  the  lease,  attempted  to 
enter  on  his  moiety  of  the  premises,  and  also 
instituted  a  suit  at  law,  against  the  defend- 
ant, for  the  rent  due.     No  rent  was  received 

*297 
by  the  com*plainant  from  the  trust  estate; 
but  he  was  subjected  to  expenses  for  the 
trust  estate — such  as  State  and  City  taxes 
for  1844,  1845  and  1846,  professional  advice, 
and  other  disbursements,  amounting,  between 
November,  1843,  and  July,  1846.  when  the  ac- 
count was  ordered  to  be  taken,  to  eight  hun- 
dred and  four  dollars  and  fifty-two  cents, 
($804.52.)  according  to  the  account  reported 
by  the  Master,  rejecting  the  disbursements  of 
Wm.  Smith,  sen.,  which  form  no  part  of  the 
case.  This  sum  was  a  proper  charge  upon 
the  income,  and  should  be  deducted  from  any 
rent  found  at  that  time  to  be  due,  and  from 
any  subsequently  accrued  income,  if  the  rent 
then  due  was  insutficient.  The  Master's 
statement  of  the  account  should  be  thus  mod- 
ified. But  .subsequent  to  the  sale,  and  the 
order  of  July,  1846,  the  defendant  had  noth- 
ing to  do  with  the  after  transactions  between 
the  trustee  and  Mrs.  Gibbes.    He  had  only  to 


SMITH  Vi  BROWN 


♦300 


pay  tlio  (U'bt  which  he  oontrat'tod  with  the 
^liisItT  for  till'  piiniiase  of  the  property,  aud 
ii[)ou  the  terms  of  the  purchase.  It  is  inani- 
f«'sr,  that,  if  lie  departed  from  this,  and 
undertook  to  make  arranj,'emeiits  with  Mrs. 
ratharlne  (lihhes,  he  must  settle  with  iier  for 
.•sUch  advancements  as  he  thou^'ht  proper  to 
make: — for  instance,  hetween  April,  1S47,  and 
April,  1S48,  .she  was  entitled  to  receive,  at 
nit)st.  .S1.L'L':>.09 — probably  much  less.  The  de- 
fendant paid  to  her,  in  tiiat  time,  .$1,91<!.7.") — 
certainly,  this  could  not  be  allowed  as  a  pay- 
ment on  ids  bond,  for  it  was  about  .$7(M)  more 
than,  in  any  view,  Mrs.  Gibl>es  was  entitled 
to  receive.  But  as  between  Mrs.  (Jibbcs  and 
the  defendant,  it  was  a  voluntary  payment 
on  his  part,  she  had,  therefore,  good  reason 
lo  supiiose  that  she  was  entitled  to  receive 
lids  amount,  as  the  income  due  to  her,  and 
jirram.'e  her  expenditures  accordingly.  How- 
far  .shall  she  refund  to  the  defendant?  And 
nuist  .she  not  onlj'  refund,  but  with  interest? 
The  same  remark  is  applicable  to  the  follow- 
ing year,  during  which  the  defendant  paid 
Mrs.  tJibbes  $1,!S25.()U  when  her  income  cer- 
tainly did  not  exceed  $l,22;i.07.  The  trustee 
would  have  no  authority  to  make  any  such 
payment,  thus  annually  encroaching  upon  the 

*298 

<'apital  of  *the  estate.  It  seems,  that,  in 
1S49.  Mrs.  Gibbes  was  again  married,  and, 
by  the  terms  of  the  deed  of  18.35.  she  was 
entitled  thenceforth,  to  only  a  fixed  income 
of  seven  hundred  aud  eighty  dollars.  It  ap- 
pears to  the  Court,  that  the  adjustment  be- 
tween the  defendant  aud  Mrs.  Gibbes  may 
j-e<iuire  that  it  should  be  made  upon  different 
principles  from  those  that  would  apply  to 
ii  settlement  between  the  defendant  and  the 
trustee,  or  between  the  trustee  and  Mrs. 
(Jibbes.  The  defendant  should  be  re«piired 
to  pay  his  bond,  according  to  the  stipulations 
therein  contained,  and  the  equitable  adjust- 
ment between  him  and  Mrs.  Gibbes  should  be 
ascertained  and  fixed  upon  pleadings  framed 
between  them  for  that  purpose.  I.<?t  the  Mas- 
ter correct  his  statement  of  the  amount  due 
on  the  bonds  given  for  the  purchase  of  the 
mortgaged  premises,  as  herein  indicated. 

The  remaining  exceptions  of  the  defendant 
are  overruled. 

The  modification  of  tiie  report  hereinbefore 
directed  is  merely  ministerial,  and  does  not 
re<iuire  a  further  reference.  It  is  ordered 
and  decreed  that,  unless  the  amount  due  ou 
the  ixtnds  given  for  the  mortgaged  premises, 
togetluT  with  the  interest  thereon,  be  paid 
on  or  lu'fin'c  the  first  day  of  February  next, 
the  mortgaged  premises  be  sold  at  such  time, 
and  ujion  sucii  terms,  as  may  be  fixed  by  an 
order  hereafter  to  be  submitted  for  that  pur- 
IKJse.  It  is  further  ordered  ami  decreed,  that 
the  defendant,  (ieorge  W.  I?rown,  pay  to  the 
complainant  the  sum  of  five  hundred  and 
nineteen  dollars  and  thirty-.seven  cents,  with 
'merest  from   2.".d  January,  1851,   as  recom- 


mended   ill    schedule    (C.)    of    the    Master's 
report. 
The  defendant  appealed,   on  the  grounds: 

1.  That  the  credit  of  $;5,(«>:5  allowed  the  de- 
fendant by  the  rei»ort,  should  i»e  allowed  as 
a  charge  on  the  capital  of  the  trust  fund. 

Hecjtn.se  this  sum  was  exi»ende<l  in  ueces- 
.sary  permanent  improvements  to  the  wharf, 
which  improvements  were  contemiihited  by 
William    Smith,   sen.,   the  trustee,  when   the 

•299 
wharf   ♦was  originally   leased   to  defendant, 
and  was  ac<puesred  in  by  him  and  his  .suc- 
cessor, W.  J.  Smith,  as  shown  by  the  testi- 
mony reported  to  the  Court. 

Because,  the  allowance  of  the  credit  Is 
not,  in  fait,  a  diminution  of  the  capital  of 
the  trust  estate,  in  as  much  as  the  improve- 
ments, for  which  it  is  allowed,  were  necessary 
to  make  the  wharf  yield  rent,  and  enhanced 
the  value  of  the  property  l>eyond  the  amount 
of  said  credits,  as  shown  by  the  testimony 
reported  to  the  Court. 

2.  That  the  payments  made  by  the  defend- 
ant directly  to  the  cestui  que  trust,  Mrs. 
Gibbes,  allowed  by  the  report,  and  disallow- 
ed by  the  decree,  should  be  sustained:  be- 
cause, the  said  payments,  as  shown  by  the  re- 
port, do  not  trench  upon  the  capital,  nor  in- 
terfere with  any  claims  of  the  trustee 
against  the  income. 

That  Mrs.  Gibbes  had  full  power  to  receive 
her  income  as  she  pleased,  or  to  assign  it  for 
valuable  consideration;  and  Mr.  Brown,  by 
paying  her  income  to  her,  was  substituted  to 
her  rights  by  her  expre.ss  consent. 

That  an  account  having  been  ordered  be- 
tween the  trustee  aud  Mrs.  Gibbes,  Mr. 
Brown  has  a  right  to  have  that  account 
taken. 

Petigru,  Lesesne,  for  appellant.  , 
Memminger  and  Jervey.  contra. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW,  Ch.  This  Court  is  satisfied 
with  the  conclusion  of  the  Chancellor  to  re- 
ject the  claim  of  Mr.  Brown  for  comi>ensa- 
tion,  frOm  the  corpus  of  the  estate,  for  im- 
provements put  upon  the  premises  while  in 
his  pos.session.  The  claim  of  this  defendant, 
for  compensation  for  improvements,  is  weak- 
er than  similar  claims,  which  have  been  re- 
jected, in  the  cases  of  Thurston  v.  Ditkinson, 
li  Rich.  Eq.  'Ml  i40  Am.  Dec.  .5(5],  and  of  Cor- 
bett  V.  Laurens,  Ms.  Charleston.  Jan.  1852 
15  Rich.  E(i.  .-{Ol]. 

The  remaining  ground  of  a|>peal  concern.*! 
the  disallowance  of  the  i)ayments  made  by 
Brown  to  Mrs.  Gibbes,  the  tenant  for  life, 
after  his  purchase  of  the  wharf.     In  this  re- 

♦300 
spect,  too,  we  ♦are  content  with  the  general 
conclusion  of  the  Chancellor;  Imt  we  think 
the  defendant.  Bntwn,  is  entitled  to  credit  for 
such  payments  to  Mrs.  Gibbes.  the  cestui  que 
trust  for  life,  as  did  not  exceed  her  interest 

119 


:o 


5  RICHARDSON'S  EQUITY  REPORTS 


in  the  proceeds  of  sale,  after  deduiting  the 
expenditures  and  conniiissions  of  the  trustee. 
Brown  was  contumacious  in  payinj?  directly 
to  the  beneficiary,  after  the  decree  of  this 
Court,  aftirniing  the  right  of  the  trustee  to 
control  the  expenditure  of  the  fund,  and  we 
are  little  oisposed  to  encourage  such  con- 
tumacy; still,  it  is  not  just  that  the  beneficia- 
ry should  be  twice  paid,  nor  that  the  trustee 
should  retain  the  fund  for  his  own  emolu- 
ment. The  case  is  to  be  treated  as  if  Brown 
had  paid  the  money  to  the  trustee,  and  the 
trustee  had  paid  it  over  to  the  beneficiary. 
Brown  is  entitled  to  be  subrogated  to  the 
rights  of  tlie  beneficiary,  without  disparage- 
ment of  the  rights  of  the  trustee;  and  it  is 
adjudged  that  the  payments  by  Brown  to 
Mrs.  Gibbes  shall  be  allowed,  to  the  extent 
of  her  nett  income,  after  all  proper  allowanc- 
es to  the  trustee. 

The  extent  of  the  trustee's  expenditures  is 
ascertained,  and  the  amount  of  liis  commis- 
sions, if  he  claims  them,  is  of  easy  calcula- 
tion. So,  too,  the  nett  income  of  Mrs.  Gibbes, 
which  may  be  covered  by  Brown's  payments, 
is  simply  a  matter  of  figures,  not  requiring 
additional  evidence.  The  whole  correction  of 
the  Master's  report,  which  we  have  directed 
by  this  opinion,  is  ministerial,  and  not  re- 
quiring a  new  reference. 

It  is  ordered  and  decreed,  that  the  Mas- 
ter conform  his  report  to  the  opinions  here- 
inbefore expressed,  and  that,  unless  the  de- 
fendant, Brown,  pay  the  amount  due  on  his 
bonds  for  the  mortgaged  premises,  with  the 
interest  tliereon,  before  the  first  .Monday  of 
March  next,  that  Master  Gray  do  sell,  on  the 
day  last  mentioned,  the  mortgaged  premises 
for  cash,  or  upon  sucli  credit,  with  interest 
from  tlie  day  of  sale,  as  those  beneficially 
interested  in  the  mortgage  may  direct.  In 
all  other  particulars,  the  Circuit  decree  is 
affirmed,  and  the  appeal  is  dismissed. 

DUNKIN  and  DAR(iAN,  CC,  concurred. 

JOHNSTON.  Ch.,  absent  at  the  hearing. 
Decree  modified. 


5  Rich.  Eq.  *30l 

*ELIZABETH   CORBETT   v.   M. 
ENS  and  Others. 


H.   LAUR- 


(Charleston.     Jan.  Term,  1S53.) 

[Life  Estates  <©=17.1 

A  tenant  for  life,  who  puts  improvements 
on  the  land,  is  not,  as  a  general  rule,  entitled 
to  compensation   from  the   remainder-men. 

[Ed.  Note.— Cited  in  Smith  v.  Brown,  5  Rich. 
Eq  29S);  Scaife  v.  Thomson,  15  S.  C.  368; 
Buck,  Hefflebower  &  Neer  v.  Martin,  21  S.  C. 
593,  53  Am.  Rep.  702;  Sutton  v.  Sutton,  26 
S  C  39  IS  E.  19;  Shumate  v.  Harb-'n,  35 
S*  C.  529,  530,  15  S.  E.  270;  Trimmier  v. 
Darden,  61  S.  C.  233,  39  S.  E.  373. 

For  other  cases,  see  Life  Estates,  Cent.  Dig. 
§  38:    Dec.  Dig.  <©=>17.1 


[Wills  <S=614.] 

Testator  devised  lands  to  trustees,  for  the 
use  of  J.  II.  for  life,  with  contingent  remain- 
der to  her  surviving  issue :  then  declaring  his 
"jnteut  and  purpose"  that  E.  H.  should  hold 
the  land  devised  to  her  "on  similar  and  corre- 
spondent uses  and  trusts,"  in  order  "to  effectu- 
ate his  intent  and  purpose,"  he  devised  lands  to 
the  same  trustees,  "in  trust  for  the  use  of 
!•].  II.  for  life ;  and  on  her  decease,  then  in 
trust  for  the  use  of  the  lawful  issue  of  E.  II., 
to  be  equally  divided  among  them,  share  and 
share  alike  :  and  if  it  so  happen  on  the  death 
of  E.  H.,  she  leave  no  issue  then  alive,  to  take 
the  said  estate,  then  in  trust  for  the  use  of  J. 
II.  and  S.  R..  their  heirs  and  assigns  for  ever:" 
—Held,  that  E.  II.  took  an  estate  for  hfe.  with 
contingent  remainder  to  her  surviving  issue. 

I  Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §  1402;    Dec.  Dig.  <®=614.] 

[^yills  (S=498,  531.] 

lichl.  further,  that  all  the  descendants  of 
E.  H..  grand-children  as  well  as  children,  were 
embraced  by  the  term  issue,  and  took  per  capita. 

[Ed.   Note.— Cited  in  Rembert  v,  Vetoe,  89  S. 
C.  210,  71  S.  E.  959. 

For  other  cases,  see  Wills,  Cent.  Dig.  §§  1088, 
1148;    Dec.   Dig.   (®=>498.  531.] 

[Tenancii  in  Common  <g=28.] 

Where  one  tenant  in  common  is  in  posses- 
sion f)f  the  premises,  the  right  of  his  co-tenant 
to  an  account  of  the  rents  and  profits,  is  barred 
by  the  statute  of  limitations,  except  for  the  last 
tour  years  before  the  tiling  of  the  bill. 

[Ed.  Note. — Cited  in  Scaife  v.  Thomson,  15 
S.  C.  343. 

For  other  cases,  see  Tenancy  in  Common, 
Cent.   Dig.  §  82;    Dec.   Dig.   <©=328.] 

Before  Dunkin,  Ch.,  at  Charleston,  June, 
1851. 

This  case  will  be  understood  from  the  Cir- 
cuit decree,  and  the  decrees  of  tlie  Court  of 
Appeals.     The  Circuit  decree  is  a.s  follows: 

Dunkin.  Cli.  It  is  proposed  first  to  con- 
sider the  claims  of  the  complainant  in  re- 
lation to  the  plantation  called  Farmfield,  sit- 
uate on  the  eastern  branch  of  Cooper  river, 
in  St.  John's  Berkley,  and  the  tract  of  five 
hundred  acres  of  land  in  St.  Thomas'  parish. 
In  the  codicil  to  the  will  of  John  Harleston, 
the  great-grandfather  of  the  complainant, 
executed  5th  Sept..  1793,  it  is.  among  other 
things,  provided  as  follows :  "And  as  for  the 
plantation  called  Farmfield,  and  the  five 
hundred  acre  tract  situated  in  St.  Thomais' 
parish,  I  do  hereby  devise  the  same  to  my 
friends  William,  Edward  and  Nicholas  Har- 
leston, and  their  heirs  and  assigns,  on  the 
trusts  and  for  the  uses  hereinafter  set  forth : 
that  is  to  say.  in  trust  to  and  for  the  use  of 
my  said  daughter.  Elizabeth  Harleston,  dur- 
ing her  life :  and  on  her  decease,  then  in 
trust  for  the  use  of  the  lawful  issue  of  my 
said   daughter,    Elizabeth,   to    be  equally   dl- 

*302 
vided  among  them,  *share  and  share  alike: 
and  if  it  should  so  happen  that,  on  the  death 
of  my  said  daughter,  she  leave  no  issue  then 
alive  to  take  the  said  estate,  then  in  trust 
for  the  use  of  my  daughters,  Jane  Harleston 
and  Sarah  Read,  their  heirs  and  assigns  for 
ever." 


120 


(©=3For  other  case^  see  same  topic  and  KEY-.\U.MBER  in  all  Key-Numbered  Digests  and  Indexes 


CORBETT  V.  LALRENS 


*304 


In  May.  17t».',  Kllzaboth  Ilarleston  intiT- 
luarried  with  Thomas  Corbett.  and  departed 
tliis  life  on  17th  September,  1S.17.  Her  hus- 
l)an(l.  Thomas  Corhett,  survived  her.  and 
died  in  July.  IS'iO.  There  were  nine  eliildreii 
of  tht'  marria.ire.  Of  these,  Tlionias.  the  eld- 
est, died  i!Oth  July,  1S012,  an  infant  of  tender 
years;  John  Ilarleston,  one  of  the  defend- 
ants, was  born  tith  I-'eI)ruary.  17!)1>;  Richard, 
the  father  of  the  complainant,  was  Ixirn  17th 
September.  ISOl.  and  died  ir)th  NovemluT, 
ISsl';":  Elizabeth  Ilarleston  died  liHd  June, 
1S04.  eleven  months  old;  Margaret  Ilarles- 
Inii.  line  of  the  defendants,  was  born  7tli 
.]u\u\  \sm:  Thonuis  ('.  ("orlM'tt  was  born 
Mth  July,  ].«<07,  and  died,  uiuiianied  and  in- 
testate. 2i!th  June,  lS4f);  Eli/.alM'th  Sarah 
died  llith  September,  ISIO,  ajied  eighteen 
months;  Jose|ih  was  born  I'^th  March,  isll, 
and  died  four  days  afterwards ;  Jane  died 
li4th  Septend)er.  1817,  ajied  about  eighteen 
months.  Richard  Corbett  Laurens,  one  of 
the  defendants,  is  the  son  of  Marj^aret  Ilar- 
le.ston,  and  he  and  the  complainant  are 
jirand-children  of  Elizabeth  Corbett. 

In  the  case  of  Rutledge  v.  Rutledge,  Dud. 
Eq.  201,  the  Court  have  fixed  the  construc- 
tion to  be  given  to  this  clause  of  the  testa- 
tor's will,  in  reference  to  the  rights  of  the 
issue  of  the  marriage.  It  is  true,  the  ques- 
tion did  not  arise  on  the  will  of  John  Ilarles- 
ton; but  it  is  impossible  to  distinguish  the 
language  used  from  that  on  which  tiie  ju- 
dicial interpretation  was  there  declared. 
And  this  seems  to  have  l>een  the  conviction 
of  the  counsel,  as  no  attempt  was  made  at 
the  hearing  to  distinguish  the  ca.se,  or  to 
<luestion  the  inference  to  be  deduced  from 
that  decision.  Two  points  were  adjudicated : 
First,  that  the  children  took  vested  interests, 
as  they  were  successively  born,  subject  to 
open  and  let  in  subsequent  issue,  in  proiX)r- 
tion  to  their  numbers;  and.  second,  that  the 
*303  I 

grand-children    are  entitled   to   *take.    under  | 
the    description    of    issue,    etiually    with    the 
cliUdreu.    the    immeiliate    issue    of    the    mar- i 
riagt'.  i 

According  to  these  principl(>s.  jit  the  death 
of  Elizj'.beth  Corbett,  in  September,  is;57, 
EarmHeld  and  the  tract  of  land  in  St.  Thom- 
as' were  distributable,  in  the  first  place,  into 
elev«<n  e(|ual  shares,  of  whicii  the  complain- 
ant was  entitled,  in  her  own  right,  to  one 
sliare.  and  each  of  the  defendants,  John  II. 
Corbett.  Margaret  II.  Laurens,  and  Richard 
<".  Laurens,  to  one  .><hare  in  their  own  rights, 
respectively,  as  issue  of  Ellzalx'th  Corbett, 
tleceased.  Thomas  C.  Corbett  (son  of  Tiiom- 
as)  was  also  entitled  to  one  share:  and  of 
the  remaining  six  shares,  the  heirs  at  law 
of  the  six  predeceased  children  of  Elizal)eth 
<'orbett.  deceased,  were  entitled  to  one  share 
5or  each  child  so  deceased.  I'nder  the  Act  of 
1797.  Tlnunas  CorlH'tt.  the  fatlier.  was  en- 
titled to  a  proportion  of  the  share  of  such  of 
lii>  ibildren   as  had   died   without   Lssue  and 


intestate:  and  he  subsequently  became  en- 
titled, ecpially  with  the  complainant,  and  the 
defendants,  Margaret  II.  Laurens  and  John 
II.  Corbett,  to  the  Interest  of  his  deceased 
.<on,  Thomas  C.  Corbett.  The  several  sulxii- 
vlsions  can  lx»  mor«>  accurately  ascertained  by 
the  proper  officer  of  the  Court. 

In  Se|)tember,  1K.37,  the  comi>lainant  be- 
came entitled  to  one  eleventh  of  the  estate 
in  her  own  right,  and  to  two-thirds  of  what- 
ever Interest  had  vested  In  her  father.  Rich- 
ard Corhett.  at  the  time  of  his  death,  in  Xo- 
veml>er.  ls*J.">,  and  she,  sultsecpiently.  to  wit. 
on  the  2(ith  .tune,  1N4(;,  Ix'came  entitled  to 
one-fourth  of  the  interest  (»f  her  deceased 
uncle,  Thomas  C.  Coriiett.  The  liill  prays  an 
account  of  the  rents  and  profits,  from  the 
time  of  the  accrual  of  the  right  of  possession. 
This  account  Is  resi.sted  by  John  II.  Corbett 
and  .Margaret  II.  I^aurens.  tlie  defendants, 
and  who  are  also  the  personal  representa- 
tives, as  w«'ll  as  sole  legatees  and  devisees  of 
their  deceased  father.  Thomas  C(U-bett.  They 
rely,  in  the  first  place,  on  the  statute  of  limi- 
tations. It  appears  from  the  evidence,  that 
the  complainant,  at  the  time  of  her  father's 
death,  was  only  eight  months  old,  having 
Ix^en  born  10th  March,  lS'2'j.     She  was  about 

*304 
twelve  ♦years  old  when  her  grandmother 
died,  in  SeptemlxM-,  l.s:]7.  and  she  did  not 
become  of  age  until  10th  March,  lS4t5.  Her 
grandfather  died  in  July,  Is.lO,  and  this  bill 
was  preferred  on  thi-  '_'7th  Novemlier,  is.">0. 

The  statutes  of  limitations  do  not,  in  terms, 
apply  to  proceedings  in  Chancery;  but  this 
Court  recognizes  the  provisions  of  the  stat- 
utes, as  it  is  sometimes  snkl,  in  analogy  to 
the  statutes,  and,  at  others,  in  ol>ediejue  to 
the  statutes.  See  Snuth  v.  Smith,  McM.  Eq. 
12(5.  There  are  many  cases,  however,  and 
classes  of  cases,  in  which  Chancery  refuses 
to  recognize  the  plea,  or  pernut  it  to  Ix'  inter- 
jtosed,  although,  at  law,  it  would  afTord  an 
effectual  bar  to  the  action.  Rut  it  is  believed 
that  file  books  afford  no  precedent  for  apply- 
ing the  Itar  of  the  statute  to  a  proceeding  in 
Equity,  when  the  statute  would  l)e  nt)  bar  at 
Law  f(U-  the  same  cause  of  action.  The  Act 
of  17NS  (")  Stat.  77)  allows  to  ix'rsons  under 
twenty-one  years  of  age  five  years  after  at- 
taining majority  to  prosecute  their  right  or 
title  to  lands.  And  the  Act  of  1791,  (Id.  170,) 
aiiolishing  the  action  of  ejt>ctment.  provides 
that  file  method  of  trying  the  title  to  lands 
(U-  teiienu-nts  in  this  State,  shall  W  by  action 
of  trespass,  in  which  the  jury,  by  the  same 
verdict,  may  find  for  the  plaint  iff  not  only 
file  land,  but  award  danniges  for  tlie  mesne 
profits,  and  judgment  shall  lu'  entered  upon 
sucli  verdict,  as  well  for  the  damages  as  for 
the  recovery  of  the  land.  If  this  were  mere- 
ly an  action  of  trespass  to  try  fifle.  the  com- 
plainant would  not  lie  barred  at  Law  until 
10th  Ma  nil.  1S.~)L  and  these  proceedings 
were  instituted  some  montiis  Ix^fore  that 
time.     In   her  action   at   Law,  she  would  be 

121 


304 


5  RICHARDSON'S  EQUITY  REPORTS 


entitled  to  recover  not  only  the  land,  but 
damages  for  the  mesne  profits,  as  they  might 
be  awarded  by  the  jury.  The  statute  would 
be  no  bar.  But  both  the  defendants  and  the 
testator  were  tenants  in  common  with  the 
complainant,  and  it  would  be  difficult,  if  not 
impracticable,  for  the  complainant  to  have 
adequate  relief,  except  in  this  Court.  In  ad- 
ministering this  relief.  Equity  is  well  satis- 
fied to  follow  the  Law,  and  to  regard  the 
rights  of  the  complainant  as  unaffected  by 
the  statute  of  limitations. 
*305 

*Such  would  be  the  judgment  of  the  Court, 
if,  from  the  time  of  Elizabeth  Corbetfs 
death,  in  1837,  her  husband,  Thomas  Corbett, 
deceased,  should  be  regarded  as  a  mere  tres- 
passer. But  this  view  would  be  equally  un- 
just to  him  and  to  the  complainant.  He  was 
a  tenant  in  common  with  her  and  in  right 
of  his  pre-deceased  children,  was  entitled  to 
community  of  possession  with  the  other  par- 
ties interested.  An  account  of  the  mesne 
profits  is  merely  an  Incident  to  the  recovery 
of  the  freehold.  And  it  seems  to  be  very 
well  settled,  that  the  statute  of  limitations 
is  inapplicable  between  tenants  in  common. 
The  possession  of  one  is  the  iiossession  of  all. 
There  are  exceptions  to  this  general  rule.  But 
it  may  be  affirmed  that  a  tenant  in  common 
can  never  avail  himself  of  the  statute  of  lim- 
itations, to  bar  the  claim  of  his  co-tenant, 
until  his  exclusive  possession  has  been  so  long, 
and  under  such  circumstances,  as  would  war- 
rant the  presumption  of  an  ouster,  or,  at 
least,  until  he  has  committed  some  distinct 
and  overt  act,  which  would  constitute  him 
a  trespasser.  See  Willison  v.  Watkins.  3 
Peters,  51  [7  L.  Ed.  59G],  and  the  authorities 
there  cited.  The  general  principle  was  fully 
recognized  in  Snowden  v.  Pope.  Rice,  Eq. 
174.  where  the  plea  of  the  statute  was  held 
to  be  no  bar  to  the  claim  of  a  codistributee, 
and  not  only  partition  was  ordered,  but  an 
account  of  the  intermediate  profits,  while 
the  property  was  in  possession  of  the  de- 
fendant. 

The  remaining  objection  of  the  defendants 
relates  rather  to  the  measure  of  accountabil- 
ity, or  the  principle  on  which  the  account 
should  be  taken,  than  to  the  obligation  to 
render  an  account.  It  is  said,  that  from  the 
decease  of  liis  wife  in  1837,  until  his  own 
death  in  1850,  the  testator  acted  under  the 
impression  that,  according  to  the  true  con- 
struction of  John  Harleston's  will,  he  was 
entitled  to  tlie  enjoyment  of  the  premises 
during  his  life,  and  that  "no  contrary  opin- 
ion was  ever  intimated  to  him  by  complain- 
ant's mother,  or  by  any  other  person,  and 
that,  inasmuch  as  he  continued  in  peaceable 
possession  of  the  plantation,  and  managed 
the  same  as  his  own,  and  received  to  his 
own  use  the  crops  thereof,  without  any  claim 

*306 
*made,  or  notice  on  the  part  of  the  complain- 
ant, or  her  mother,  it  would  be  inequitable 
122 


to  liold  him,  or  his  representatives,  to  any 
account  for  the  rents  of  the  said  plantation.'^ 
It  is  most  probable  that  the  testator  lived 
and  died  under  the  impression  that  his  rights 
were  similar  to  those  of  Dr.  Read,  who  had 
married  the  eldest  daughter  of  Col.  John 
Ilarleston.  The  original  will  had  given  an 
absolute  estate  to  his  three  daughters.  On 
the  marriage  of  Mrs.  Rutledge,  he  thought 
proper  to  modify  his  will,  and  to  provide  for 
their  respective  issue.  In  the  event  that 
Dr.  Read  or  Mr.  Edward  Rutledge  survived 
their  respective  wives,  such  survivor  had 
also  a  life  estate.  But  at  the  date  of  the 
codicil,  and  also  at  the  death  of  the  testator, 
his  daughter,  IClizabeth,  was  yet  unmarried. 
By  his  will,  she  had  an  absolute  estate  in  the 
plantation  devised.  The  codicil  declares  that 
the  plantation  shall  be  held,  not  absolutely, 
but  subject  to  uses  and  trusts  similar  to 
those  directed  in  relation  to  his  daughter 
Jane,  to  effectuate  which  intent  and  purpose 
the  estates  are  devised  to  trustees,  and  the 
uses  declared.  Farmhold,  &e..  was  to  be 
held  "for  the  use  of  his  daughter  Elizabeth, 
Ilarleston,  during  her  life,  and,  on  her  de- 
cease, then  in  trust  for  the  use  of  the  law- 
ful issue  of  his  said  daughter,  to  be  equally 
divided,  &c. ;  but  if  it  should  so  happen,  that, 
on  the  death  of  his  daughter,  she  leave  no 
issue  then  alive,  to  take  the  said  estate,  then 
in  trust  for  his  daughters,  Sarah  and  Jane,"' 
absolutely.  The  general  purpose  of  the  tes- 
tator, as  declared  in  the  codicil,  was  to  cut 
down  the  fee  given  to  his  daughters  to  a  life 
estate,  with  remainder  to  their  issue  respec- 
tively. This  is  fully  accomplished.  Kno\\  ing 
and  approving  of  the  alliance  of  his  two 
daughters,  he  thought  proper  to  make  a  con- 
tingent provision  for  their  respective  hus- 
bands. Why  he  did  not  make  the  same  pro- 
vision in  the  event  of  the  marriage  of  his 
daughter  Elizabeth,  the  Court  is  not  at  lib- 
erty to  inquire,  or  to  speculate.  The  province 
of  the  Court  is  very  properly  confined  to  the 
construction  of  that  which  is  written.  The 
testator  has  made  no  such  provision.  Nor 
does  it  appear  to  the  Court  that  there  is  any 
such    inconsistency    or    ambiguity    as    would 

*307 
warrant  a  judicial  *doubt  as  to  the  intention 
of  the  testator.  It  c^n  only  be  said,  that  if 
the  testator's  daughter,  Elizabeth,  had  been 
then  married,  he  would  have  made  the  same 
provision  for  her  husband  as  he  did  for  Dr. 
Read  and  Mr.  Rutledge.  But,  when  the 
testator  subseciuently  declares  distinctly  the 
uses  and  trusts  under  which  Elizalieth's  es- 
tate is  to  be  held,  he  gives  construction  to  the 
former  terms  used — '"similar"  and  "cori'e- 
spondenf — and  shows  that  they  are  to  be 
"similar  and  correspondent,"  according  to- 
the  existing  .state  of  things.  Any  otlier 
construction  would  be  to  make  a  will  for  the 
testator  which  he  did  not  make,  and  may 
not  have  thought  proper  to  make  for  him- 
self.    Perhaps  the   Court   has  dwelt  longer 


CORBETT  V.  T.AL' REN'S 


»309 


than  was  necessary  on  this  point,  as  it  was 
rather  sn>.'},'estt'(l  than  pressetl  in  the  ars^u- 
nient  at  tlie  hearing.  Tiien,  in  wliat  manner, 
and  to  what  extent,  is  this  erroneous  iniitres- 
sion  of  tl\e  defendants'  te.stator  to  affect  the 
rights  of  his  co-tenants?  And.  in  tliis  in- 
«iuiry.  it  is  iiuportant  to  distinguish  between 
the  rights  of  the  complainant,  and  those  of 
her  mother,  wlio  is  one  of  tlie  <lefendants. 
In  Green  v.  Riddle.  8  Wheat.  tiO  |.j  L.  Ed. 
r)47],  it  is  stated  to  l)e  the  general  rule  of 
the  Englisli  Chancery,  to  allow  an  account 
of  rents  and  profits,  in  all  cases,  from  the 
title  accrued,  provided  it  did  not  exceed  six 
years,  luiless  under  special  circumstances. 
This  princiiile  has  been  repeatedly  recogin/.ed 
in  South-Carolina.  One  of  the  exceptions  is 
thus  stated  by  the  Chanci'llor,  in  Rowland  v. 
Best,  2  MeC.  Eq.  .".'JO:  "It  is  not  an  uncom- 
mon case  for  a  party,  who  lies  by  and  per- 
nii*-s  another  to  occui)y  and  enjoy  jiroperty 
iis  his  own.  under  an  apparent  good  title, 
which  he  nnght,  and  ought  to  have  brought 
into  discussion  much  earlier,  to  be  restricted, 
in  his  demand  for  an  account  of  rents  and 
jirotits,  to  the  tiling  of  the  bill,  or  four  years 
before."  So  far  as  the  complainant  is  con- 
cerned, it  is  ditticult  to  conceive  in  what  the 
principle  of  this  exception  will  avail  the  de- 
fendants. She  was  left  without  a  father,  iu 
early  infancy.  Her  mother  was  comparative- 
ly a  stranger  to^he  family ;  and  to  her 
paternal  grandfather  slie  would  naturally 
look,  both  for  infornmtion  in  regard  to  her 
rights,  and   for  active  efforts,   if  such  were 

*308 
necessary,  *in  maintaining  them.  Aicnrding 
to  tlie  testimony,  she  had,  at  her  grand- 
mother's death,  iu  1.S37,  derived  no  estate 
from  her  fatlier.  While  still  a  minor,  to 
wit:  in  June,  1S42,  her  luicle  applied  to  him 
in  lier  behalf.  The  correspomlence  between 
them  was  submitted  to  the  Court.  From  the 
evidence  of  both  the  witnesses,  it  is  very 
iipparent  that  the  complainant  was  then  en- 
tirely ignorant  of  her  rights,  and  probably  of 
the  instrument  from  which  they  were  deriv- 
ed. It  is  not  less  certain,  that  no  light  was 
shed  upon  the  subject,  in  the  comnnniication 
with  her  grandfather.  Knowing,  as  he  well 
knew,  the  existence  of  John  Ilarleston's  will, 
whatever  construction  he  may  have  given  it, 
liow  can  it  be  nuiintained  that  he  was  per- 
mitted by  the  complainant  to  occupy,  as  his 
own,  property,  the  title  to  which  she  might, 
and  ought  to  have  brought  into  discussion 
much  earlier.  Rut  laches  is  never  imputed 
to  an  infant.  And  so  it  was  recently  held  by 
the  Court,  in  a  very  hard  case  against  a 
Itona  tide  purchaser  without  notice,  who  had 
b»>en  in  undisturlMvl  possession  for  lift  ecu 
years.  In  Woodward  v.  Clarke.  4  Strob.  Eq. 
1(!7.  it  was  ruled  in  the  Circuit  Court,  on  the 
:iulbority  of  Lahiffe  v.  Smart  11  Raib'y.  19li] 
Ibiit  Hie  minority  of  one  of  the  co-tenants 
protected  the  others  from  the  bar  of  the 
statute,  and  partition  was  ordered.     It  was 


'  also  decreed  that,  under  the  circumstances, 

I  the  account  for  rents  and  profits  should  be 

I  restricted  to  the  time  of  filing  the  bill.     On 

api>eal  from  this  decree,  so  much  of  it  was 

atfirmed  as  <-onfined  the  account  of  the  adults 

i  to  the  time  of  liling  the  bill ;    the  Court  de- 

[  daring,  tliat  "the  disability  of  a  co-itlaintiff 

I  could  afford  them  no  advantage  in  tlie  claim 

for  rents  and  profits;"  but  "the  account  of 

the  minor  was  extended  to  the  period  when 

her  right    accrui'd,"   and   the   Circuit   decree 

was  ordered   to  be  .so  nKMlifitnl.     The  Court 

is  of  opinion  that  the  coniplainant  is  entitltnl 

to  an  account  of  the  rents  and  itrotits  from 

;  the   decea.se   of    her    grandmother,    Eli/.ab«'th 

1  Corlu'tt,  in  September,  1KJ7,  or  rather  from 

[  the  end  of  that  year. 

Tlie  defendant,   Mary  Oorbett,   is  entitled 
to  one-third  of  the  interest  of  her  decea.^^ed 
husband.  Ivichard  Corl)ett.    She  has  interpos- 
ed  no  (laim  at   any  time,  and   ndw  sul)niits 
I  ♦309 

her  rights  to  ♦the  judgment  of  the  Court.  It 
seems,  therefore,  only  neces.sary  to  declare 
that,  in  making  the  partition  of  Farmtield 
and  the  five  liundre<l  acre  tract,  one-third  of 
the  interest  of  Richard  Corljett,  deceased, 
should  be  set  off  to  lier. 

Thomas  C.  Corbett,  the  uncle  of  the  com- 
plainant, reside<I  with  his  father  until  the 
death  of  the  former,  in  June,  ls4t!.  It  Is  to 
be  presumed  that  he  was  .satisfied  in  rela- 
tion to  his  interest  in  the  rents  and  profits 
from  the  time  of  his  mother's  death.  The 
complainant's  account  of  rents  and  protit^, 
as  derived  from  her  uncle's  interest  in  the 
freeluild.  must  be  confined  to  the  i»eriod  of 
his  decease,  and  thenceforwanL 

The  sul»ject  next  to  be  ctuisidered  is  the 
comiilainant's  riglit  in  tlie  two  lots  of  hiud 
on  Ilarlcston  (Jreeu,  fronting  .southwardly 
un  Montiigue-street,  running  in  d«*pth  to 
Rull-street,  and  joining  other  lands  formerly 
belonging  to  John  Ilarlcston,  on  the  corner. 
Under  the  marriage  settlement  set  forth  in 
the  pleadings,  the  complainant,  on  the  death 
of  her  grandfather,  Thomas  Corbett,  iu  July, 
1S.')0,  became  entitled,  as  the  representative 
of  her  deceased  father,  to  one-third  of  the 
said  premi.si's  as  tenant  in  couinion  with  the 
defendant.^  John  Ilarlcston  Corbett  and  Mar- 
garet Ilarlcston  Laurens.  Ry  the  same  «leed, 
tifty-three  slaves  were  settled  to  the  same 
uses.  The  bill  claims  partition  and  account. 
The  rights  of  the  complainant,  under  the 
marriage  settlement,  are  not  controverte<l  by 
the  (U'fcndants.  Rut  in  relation  to  the  two 
lots  of  land,  running  from  .Montague  to  Rull- 
street,  on  Ilarlcston  Green,  the  defendauts 
say  that  their  late  father  erected  then«ou  "a 
valuable  three  story  dwelling  house,  and  oth- 
er out-bulblings,  at  his  own  «'X|H>nse,  and 
from  his  own  means,  and  occupied  the  same 
as  his  own  property  for  the  last  twenty 
years:"  and  they  "submit  that  the  estate  of 
rhetr  father  shall  be  allowed  the  value  of 
the  imiirovements  made  by  him  iu  any  par- 

123 


*309 


5  RICHARDSON'S  EQUITY  REPORTS 


tition  to  be  had."  They  insist  that  "a  por- 
tion of  the  real  estate,  in  its  uniuiproved 
state,  shall  be  assigned  in  severalty  to  the 
complainant,  leaving  to  those  claiming  un- 
der Thomas  Corbett  that  portion  upon  which 
his  improvements  stand." 
*310 
*If  Thomas  Corbett  had  been  tenant  in 
common  of  the  premises,  it  has  been  settled 
that  he  would  not  he  entitled  to  compensa- 
tion from  his  co-tenants,  in  partition  of  the 
premises.  It  was  so  ruled  in  Thurston  v. 
Dickinson,  2  Rich.  Eq.  317  [46  Am.  Dec.  56], 
which  has  been  followed  in  several  other 
cases.  Nor,  if  he  had  supposed  himself  ex- 
clusive owner  of  the  premises,  would  he  be 
entitled  to  compensation  for  the  enhanced 
value  which  his  improvements  had  given  to 
them,  except  so  far  as  to  diminish  his  ac- 
count for  the  rents  and  profits  to  that  extent. 
The  subject  was  fully  considered  in  Green 
V.  Biddle,  already  cited.  It  was  there  ruled 
that  the  value  of  the  improvements  can  never 
be  set  up  as  a  substantial  demand,  but  only 
as  a  set  off  against  the  rents  and  profits ; 
that  beyond  this  a  bona  fide  occupant,  who 
supposes  hiuiself  the  rightful  proprietor,  can- 
not sustain  a  claim  for  the  value  of  his  im- 
provements. It  was  further  held,  that  the 
bona  fides  of  his  possession  ceases  so  soon 
as  he  has  notice  of  the  adverse  title.  These 
conclusions  are  founded  upon  the  principle 
that  the  recovery  of  a  man's  land  should  not 
be  clogged  by  conditions  and  restrictions, 
which  might  materially  diminish  the  value 
of  the  right ;  still  the  application  of  the  rule 
has  sometimes  operated  great  hardship  Loth 
upon  the  tenant  in  common  and  upon  the 
lioua  fide  possessor,  or  purchaser.  But  if  a 
person  l^nowingly  and  with  his  eyes  open, 
erect  buildings  upon  the  property  of  a  stran- 
ger, the  loss  of  the  buildings  would  entitle 
him  neither  to  compensation,  nor  sympathy. 
If  they  were  erected  on  the  property  of 
his  child,  they  would  be  regarded  as  a  gra- 
tuity. But,  when  the  parent  has  a  life  es- 
tate in  unimproved  city  lands,  to  which  his 
children  are  entitled  to  a  remainder  in  fee, 
he  consults  his  own  enlightened  self-interest 
scarcely  less  than  the  future  benefit  of  his 
offspring,  by  the  erection  of  such  valuable 
improvements  as  add  to  his  income,  or  con- 
tribute to  his  comfort  and  convenience.  The 
testator,  with  his  family,  enjoyed  the  use  of 
his  improvements  for  more  than  twenty 
years.  There  is  no  ground  to  suppose  that  he 
misappi-ehended  his  rights,  or  those  of  his 
children,     under     the    marriage     settlement. 

*311 
Nor  is  there  any  evidence  that  *he  contemp- 
lated compensation  from  his  children  for  the 
improved  value  which  his  outlay  had  im- 
parted to  the  premises.  The  silence  of  the 
testator's  will  in  reference  to  any  such  claim, 
is  not  without  influence.  He  marks  the  dis- 
tinction between  "the  settled  estate"  of 
which  the  premises  on  Bull-street  constituted 
a  part,  and  "his  private  estate."     The  latter 

124 


he  devised  exclusively  to  his  son  and  daugh- 
ter, and,  as  a  reason  for  "not  mentioning" 
the  complainant  in  his  will,  states  that  "she 
will  inherit  her  share  of  the  settled  estate, 
and  will  receive  from  her  mother's  family  an 
equivalent  equal  to  what  his  children  would 
get  from  his  private  estate."  Did  the  testa- 
tor mean  that  his  private  -estate  consisted 
in  part  of  valuable  improvements  which  he 
had  erected  on  the  settled  estate?  Taking 
the  whole  will  together,  it  would  seem  suffi- 
ciently clear  that  the  testator  proposed  to 
give  to  the  defendants  the  whole  of  his  pri- 
vate estate,  as  distinguished  from  the  settled 
estate,  "of  which  he  was  then  possessed,  or 
might  thereafter  possess,"  and  that  he  rec- 
ognized the  right  of  his  grand-daughter  (the 
conqdainant)  to  her  share  of  the  settled  es- 
tate, as  it  then  stood,  as  a  part  of  her  inheri- 
tance. But,  whatever  may  have  been  the 
views  of  the  testator,  the  Court  is  of  the 
opinion  that  such  were  the  rights  of  the  com- 
plainant upon  established  principles  of  this 
Court.  An  account  must  be  taken  of  the  rent 
of  the  premises,  and  of  the  hire  of  such  of 
the  slaves  as  were  not  engaged  in  agricul- 
tural purposes  from  the  death  of  the  testa- 
tor in  July,  1S50,  and  of  such  as  were  en- 
gaged in  agricultural  employments  from  the 
expiration  of  the  year,  according  to  the  pro- 
visions of  the  Act  of  Assembly. 

It  is  not  understood  that  any  difference 
of  opinion  exists  as  to  the  rights  of  the  com- 
plainant under  the  will  of  her  great  grand- 
mother, Elizabeth  Corbett,  deceased.  In  the 
moiety  of  the  tract  of  four  hundred  and 
three  acres,  adjoining  the  Bossis  tract,  her 
interest  is  precisely  the  same  as  it  had  been 
declared  in  the  Farmfield  tract,  except  that 
her  account  of  rents  and  profits  must  com- 
mence at  the  close  of  the  year  in  which  her 
grandfather,  Thomas  Corbett,  departed  this 
life. 

*312 

*The  bequest  of  the  personalty  is  to  Eliza- 
beth Corbett  and  Thomas  Corbett,  "to  be 
held,  possessed,  &c.,  by  them,  jointly,  dur- 
ing their  joint  lives,  and,  upon  the  death  of 
either  of  them,  by  the  survivor,  during  his  or 
her  life,  and  upon  the  death  of  such  survivor, 
then  to  the  future,  as  well  as  the  present  is- 
sue of  the  said  Eliza  and"  Thomas,  equally 
to  be  divided  among  them  if  more  than  one.'' 

The  testatrix  died  about  January,  1805. 
Two  of  the  children  of  Eliza  and  Thomas 
Corbett,  to  wit,  Thomas,  who  died  29th  July, 
1802,  and  Elizabeth  Harleston,  who  died 
22d  June,  1804,  do  not  fall  within  the  de- 
scription of  the  testatrix's  will,  and  conse- 
quently, as  was  determined  in  Rutledge  and 
Rutledge,  took  no  interest  in  this  bequest. 
\Yith  this  modification,  the  rule  declared  in 
relation  to  the  devise  of  Farmfield,  under 
the  will  of  John  Harleston,  is  applicable  to 
this  bequest.  A  reference  must  be  had  to  fix 
the  several  dates  accurately,  and  report  the 
rights  of  the  parties  according  to  the  princi- 
ples herein  stated. 


COR15ETT  V.  LAURENS 


♦315 


It  i-;  (ii(k'ivd  and  dciiveil,  that  a  writ  of 
liartition  issuo  to  divide  the  plantation  rail- 
ed Farnititdd,  and  tlu'  tract  of  land  in  St.  j 
Tlidinas'  parisli,  ainonj;  the  prirtit's,  in  tlu' 
lH()l)orti<tns  to  he  reported  Ity  the  Master,  on 
tlie  principles  hereinhefore  declared,  and  also 
to  divi<le  the  premises  extendiu;;  from  Hull 
to  Montairue-street.  and  the  neu'roes  specified 
in  the  marria.ue  settlement,  with  their  issue, 
into  three  e(iual  parts;  one  part  thereof  to 
he  assiiined  to  the  complainant,  and  oih*  part 
to  each  of  the  defendants,  John  Ilarleston 
Torhett  and  Marj^aret  Ilarleston  Lann'us,  to 
be  held  hy  them  respectively,  in  severalty; 
also,  to  divide  the  moiety  of  the  four  hun- 
dred and  three  acre  tract,  adjoininj;  the 
Kichmond  and  Farnifield  plantations,  and 
the  iiersonalty  derived  under  the  will  of 
Klizaheth  Ilarleston,  deceased,  anion?;  the 
parties  interested,  accordint,'  to  the  report  of 
the  Master,  to  he  made  on  the  princijdes 
hciciu  declared.  And  if.  in  the  jud^rment  of 
the  Connnissioners.  partition  cannot  he  ad- 
vantageously made  of  any  part  of  the  prem- 
i.ses  above  described,  then  that  they  make  a 

*313 
special    return   in    regard    tt>   the   *same,   ac- 
cording to  the  directions  of  the  Act  of  As- 
sembly in  such  case  made  and  provided. 

It  is  further  ordered  and  decreed,  that  it 
be  referred  to  one  of  the  Masters  of  this 
Court,  to  state  an  account  of  the  rents  and 
l)rotits  of  the  real  estate,  also  of  the  hire  and 
use  of  the  slaves,  upon  the  principles  of  this 
decree,  and  that  he  have  leave  to  report  any 
si)ecial  matter. 

The  defendants,  John  11.  Corbett  and  Mar- 
garet II.  Laurens,  appealed  on  the  grounds: 
1.  Because  the  statute  of  limitations  is  a 
bar  to  the  account  claimed  of  rents  and  prof- 
its by  the  complainant,  for  more  than  four 
years  from  the  tiling  of  the  bill. 

1'.  Because,  under  the  circumstances  of 
this  case,  no  account  for  rents  and  proHts 
should  be  allowed  before  the  tiling  of  this 
bill,  or  at  least  before  the  death  of  Thomas 
Corbett,  .sen. 

li.  Because  the  lots  embraced  in  the  set- 
tlement of  Thomas  Corbett  and  wife,  are  cap- 
able of  just  partition  by  metes  and  bounds; 
that  the  larger  [jortion  thereof  are  unimprov- 
ed, and  of  more  value  than  the  lot  which  has 
been  improved,  and  that  in  making  iiartition 
among  the  remaindermen,  a  portion  of  the 
unimproved  lots  should  be  assigned  to  the 
complainant  as  her  share,  and  the  lot  with 
the  imjirovements  made  by  the  testator, 
should  be  assigned  to  his  son  and  daughter  as 
devisees,  at  their  rateable  value,  as  unim- 
]troved  lots  of  land. 

4.  Because  the  complainant  is  not  entitled 
to  any  account  of  the  rent  of  the  dwelling 
linnse. 

.">.  ISecnnse,  uiiiler  the  said  codicil.  Kli/a- 
beth  Corbett  took  either  an  estate  in  fee 
conditional,  or  an  estate  for  life,  with  a  con- 
tingent remainder  to  her  issue  surviving  her; 


that  in  the  first  case.  Thomas  Corbett  would 
have  lu'en  entitled  to  hold  the  estate  for  life 
rv3  tenant  by  the  curtesy:  and  in  the  latter, 
nctne  of  the  i.ssue  could  take  who  died  in  the 
life  time  of  Elizabeth  Corbett. 

The  defendant.  Mary  Corbett,  also  appeal- 
ed, on  the  ground,  that  she  was  entitled  to 
rents  and  profits  from  the  time  her  title  ac- 
crued. 

Memmiuger,  Flagg.  for  John  II.  Corbett 
•314 
and  Margaret  II.  *Laurens.  cited  Stee<lman 
v.  Weeks,  2  Strob.  Eq.  115;  1  Story,  Di.  § 
055,  et  seq. ;  1  Madd.  Ch.  73:  Townshend  v. 
Townslu'ud,  1  Co.\.  2S;  1  Bro.  Ch.  H.  .".0: 
Williman  v.  Holmes,  4  Rich.  E41.  475:  Burle- 
.s<in  v.  Bowman.  1  Rich.  Eq.  Ill:  Je.sson  v. 
Wright,  2  I'.ligh.  1;  Doe  v.  I'.urnsall.  G  T. 
R.  :;0:  li  Jarm.  on  Wills,  li77,  I'sO ;  Doe  v. 
Api)lin,  0  T.  R.  SL' ;  Doe  v.  Cooper.  1  East. 
221;  Tate  v.  Clark,  1  Beav.  10<>;  1  Bl.  Com. 
120;  1  Ilarg.  L.  Tr.  Itil ;  2  Jarm.  on  Wills. 
24(5. 

Macbeth,  for  Mary  Corbett,  cited  Dornu-r 
V.  Fortescue.  3  Atk.  124:  2  Atk.  2S2 ; 
Townsend  v.  Ash,  3  Atk.  3:50:  Doe  v.  Elvey. 
4  Ea.st,  314. 

Betigru.  for  appellees,  cited  B.ackhouse  v. 
Wells,  1  Eq.  Abr.  1S4,  pi.  27;  Fearne.  152. 
(0th  ed. ;)  2  Story.  Eq.  §  4S7 :  Horry  v. 
Glover,  2  Hill.  Ch.  515;  Snowden  v.  Evans. 
Rice.  Eq.  174;  Myers  v.  Ander.son,  1  Strob. 
Ell.  344 ;   Wheeler  v.  Home.  Willes.  208. 

The  appeal  was  heard  in  January.  1S52. 
and  the^ following  opinion  of  the  Court  was 
delivered  by 

WARDLAW,  Ch.  Two  of  the  defendants, 
the  devisees  and  surviving  children  of  Thom- 
as Corbett,  in  their  appeal,  claiui  compensa- 
tion for  the  valuable  buildings  erectt^l  by 
hiu),  on  the  lot  on  Ilarleston  (ireen.  (hiring 
his  life  estate  therein.  The  reasoning  of  the 
Circuit  decree  Is  very  strong,  that  if  the  tes- 
tator had  any  equitable  right  to  such  com- 
pensation, he  has  not  assigned  it  by  his  will 
to  these  defendants;  but.  waiving  this  ob- 
jection, we  are  concluded  by  the  course  of 
adjudication  In  this  State,  from  admitting 
the  claim  of  a  tenant  for  life  to  be  reim- 
bursed for  his  improvements  of  the  estate. 

It  is  unjust,  that  one  shall  be  enriched  at 
the  expense  and  to  the  wrong  of  another ; 
and  Courts  of  Equity  el.sewhere,  pursuing 
this  maxim,  have  allowed,  to  some  extent, 
the  benefit  of  his  imjirovements.  to  a  tenant 
in  conunon,  or  other  joint  owner,  who  has  im- 
proved the  joint  estate,  under  the  honest 
conviction  of  exclusive  ownership  in  himsdf, 
or  under  other  circumstances  eipmlly  strong 
in   natural  eipnty.     Such   relief  is  extended 

*315 
only   *wbere  the  refusal  of  it  would  operate 
as    a     frauil.    or    unconscientious    hardship, 
upctn    the    inquoving    co-tenant.      He    is    not 

125 


•^315 


5  RICHARDSON'S  EQUITY  REPORTS 


wniiised  in  any  just  sense,  if  detriment  to 
himself  be  occasioned  by  liis  own  folly  and 
wilfulness.  If  he  be  cognizant  of  tlie  rights 
of  his  co-tenants,  he  may  either  contract 
■with  them  concerning  prop(Jsed  improve- 
ments, or  by  easy  process  of  partition,  he 
may  obtain  his  share  in  severalty ;  and  if 
he  neither  so  contracts  nor  severs,  before  ex- 
l)endilig  his  money  in  improvements,  he  must 
either  reckon  that  liis  proportion  of  tlie  es- 
tate will  justify  the  outlay  upon  the  vphole, 
or  intend  a  gratuity  to  the  other  owners. 
To  reimburse  the  improving  tenant  in  com- 
mon, to  the  extent  of  the  cost  of  the  improve- 
ments to  himself,  would  enable  one  of  prod- 
igality and  capricious  taste  to  deprive  liis 
fellows  in  the  tenure  of  all  shares  in  the 
common  estate,  by  subjecting  them  to  debts 
for  structures  and  innovations  that  were 
valueless  and  distasteful.  It  is  scarcely  less 
objectionable  to  allow  to  an  improving  ten- 
ant in  common,  by  general  rule,  reimburse- 
ment to  tlie  extent  of  the  market  value  im- 
parted by  his  improvements  to  the  estate; 
for  the  commercial  value  does  not  constitute 
the  whole  value  of  an  estate.  Some  changes 
might  increase  the  price  an  estate  would 
liring  at  auction,  which  would  greatly  dis- 
parage it  in  the  estimation  of  some  of  the 
joint  owners:  such  as  the  removal  of  a  mon- 
umental ruin  for  the  erection  of  a  shop.  One 
who  does  not  wisli  to  sell  his  undivided 
share  of  an  estate,  can  hardly  be  compelled, 
consistently  with  equity,  to  pay  for  improve- 
ments, so  called,  that  are  offensive  to  his 
taste,  or  to  his  ancestral  and  patriotic  pride, 
or  dis]>roportionate  to  his  means.  Without 
further  pursuing  tliis  train  of  remark,  it  is 
enough  to  say,  that  our  cases  have  settled 
the  question  against  the  right  of  an  im- 
liroving  tenant  in  common,  to  the  exclusive 
benefit  of  his  improvements.  Hancock  v. 
Day.  McM.  Eq.  69  [36  Am.  Dec.  293;  Id., 
McM.  Eq.]  298;  Thompson  v.  Bostick.  Id. 
75 ;  Holt  &  Kerr  v.  Robertson,  Id.  475 ;  Del- 
lett  V.  AVhitner,  Chev.  Eq.  213;  Thurston  v. 
Dickinson.  2  Rich.  Eq.  317  [46  Am.  Dec.  56]. 
The  equity  of  a  tenant  for  life  against  re- 
maindermen for  tlie  Iienefit  of  his  improve- 

*316 
ments.  is  inferior  to  that  of  a  tenant  in  *com- 
mon  in  like  case.  The  tenant  for  life  is  ex- 
clusively entitled  to  the  enjoyment  of  the 
estate  for  an  indefinite  term  of  time,  as 
measured  by  the  calendar,  always  long  in 
his  anticipation ;  and  as  to  him  the  inter- 
ference is  more  natural  that  he  intends  his 
improvements  for  his  personal  use.  He  is  not 
interested  in  the  inheritance,  and  has  little 
pretension  to  anticipate  the  interests  or  the 
wishes  of  his  successors.  He  is  an  Implied 
trustee  for  the  remaindermen,  and  by  general 
rule  in  Eipiity,  trustees  are  not  entitled  to  the 
profits  of  their  management  of  the  trust  es- 
tate. His  estate  is  not  unfrequently  given, 
rather  for  the  preservation  of  the  rights  of  the 
remaindermen,  than  for  his  own  enjoyment. 
126 


^^^lere  a  bounty  to  him  is  clearly  inten(hMl.  it  is 
commonly  no  moi-e  than  the  enjoyment  of  the 
estate,  in  the  existing  condition,  at  the  time 
of  the  gift,  or  in  a  progressive  condition  con- 
templated by  the  donor  at  the  time  of  the 
gift.  Courts  of  E(iuity  in  England,  which 
admit  tliis  equity  as  to  improvements  more 
liberally  than  we  do  between  tenants  in  com- 
mon, have  not  recognized  the  claim  of  a 
tenant  for  life  to  compensation  for  improve- 
ments, except  in  the  case  where  he  has  gone 
on  to  finish  improvements  permanently  bene- 
ficial to  the  estate,  whicli  were  begun  by  the 
donor.  Hibbert  v.  Cook,  1  Sim.  &  Stu.  552. 
The  doctrine,  as  limited,  seems  to  be  approv- 
ed in  Ex  parte  Palmer,  2  Hill,  Eq.  217. 
There,  an  allowance  was  made  to  an  execu- 
tor for  improvements  put  by  him  on  an  unim- 
proved lot  in  the  city  of  Charleston,  which 
by  subsequent  marriage  with  the  widow  of 
testator,  he  acquired  for  life ;  but  the  gener- 
al rule  against  such  allowance  to  a  tenant 
for  life  is  expressly  stated.  Tliis,  as  a  gen- 
eral rule,  is  not  unconscientious ;  and  in 
cases  which  may  seem  to  be  proper  excep- 
tions to  its  operation,  as  in  a  gift  for  life  of 
wild  lands,  in  such  terms  as  clearly  import 
an  intended  bounty  to  tlie  tenant  for  life, 
which  cannot  be  enjoyed  in  the  existing  con- 
dition of  the  subject,  the  tenant  may  obtain, 
by  timely  application  to  this  Court,  either 
a  sale  of  the  whole  estate,  so  that  he  may 
enjoy  the  income,  or  authority  to  make  im- 
provements permanently  beneficial ;  and  he 
suffers  from  lii.s  own  wilfulness,  if  he  pro- 
ceed upon  his  own  notions  of  improvement, 

*317 
without  asking   *aid  or  advice.     The  Court 
may  sanction  what  it  would  have  previously 
authorized,  but  it  encourages  no  experiments 
upon  its  power  of  retroactive  relief. 

The  inference  of  gratuity,  rather  than 
charge,  is  made  against  the  heady  improver, 
who  disdains  to  consult  in  advance  his  suc- 
cessors in  interest,  or  the  Court  which  may 
provide  for  their  rights  and  their  wishes. 
In  the  present  case,  the  improvements  were 
made  by  a  father  on  land  to  which  liis  chil- 
dren were  entitled  after  nis  life,  and  as  he 
in  his  life  time  made  no  claim  for  a  debt  on 
account  thereof,  it  is  fitly  presumed  that  he 
intended  his  improvements  as  an  advance- 
ment. 

Under  the  Act  of  1791,  tlie  Commissioners 
to  whom  the  writ  of  partition  is  directed, 
have  authority  to  make  specific  division  of 
tlie  premises,  or  to  assign  the  whole  to  one 
or  more  of  the  parties  in  interest,  as  well  as 
to  recommend  a  sale.  In  a  proper  case,  this 
Court  might  instruct  the  Commissioners  to 
assign  to  the  parties,  respectively,  such  parts 
of  the  estate  as  would  best  accommodate 
them,  and  be  of  most  value  to  them,  with 
reference  to  their  several  positions  to  the 
property  before  partition.  Storey  v.  John- 
son. 1  You.  and  Col.  538,  2  Y.  and  C.  586. 
But  in  the  present  case,  we  decline  to  inter- 


(■(•ki;i;tt  v.  lal  ki:\s 


32a 


fere  with  flie  diseretion  of  the  Coiuiiiissioners 
l»y  instruct  ions  in  julvanee.  as  wt-  do  not  see 
that  tlie  survivin},'  cliiklren  of  Tlionias  Cor- 
bett  have  any  superior  elaiuis  to  liis  iuiprove- 
luents,  to  tlie  dauyliter  of  liis  deceased  son. 

The  defenihints"  liftli  ground  of  appeal  rais- 
es the  (luestion.  whether  under  tiie  <odii-il  to 
tlie  will  of  Jolm  llarleston.  Mrs.  Kli/alteth 
Corliett  took  an  estate  in  fee  conditional  in 
Farnilield  anil  tlu'  tract  in  St.  Thomas' 
parish,  with  the  incident  of  an  estate  for 
life  I)y  the  curtesy  in  her  surviviuf,'  husliand. 
On  this  (piestlon,  this  Court  has  not  yet  at- 
tained a  satisfactory  conclusion  :  and  this 
I)art  of  flu>  case  is  reserved  for  future  jud)^- 
nient. 

If  this  ([uestion  he  resolved  in  favor  of  the 
defendants,  the  parties  to  take  the  lands,  and 
the  shares  in  which  they  will  take,  may  he 
different  from  tliose  declared  in  the  (Mrtuit 
decree.      In    that    event,   too.   the   claims   for 

*318 
rents  and  profits  by  the  plaintitT  *and  hy  the 
defendant.  Mary  Corbett,  would  extend  to 
the  time  only  since  Thomas  Corbett's  death: 
and  of  course,  there  would  be  no  room  for 
the  application  of  the  statute  of  limitations. 
It  is  difticult  to  see.  in  the  facts  of  this 
case,  anythinii  which  should  limit  the  demand 
of  Mary  Corbett  for  rents  and  profits,  from 
the  accrual  of  her  ri^iht,  any  more  than  that 
of  the  plaintiff",  unless  it  be  by  the  statute  of 
limitations.  If  by  our  ultimate  determina- 
tion, the  claim  for  rents  and  profits  by  the 
plaintitT  and  Mary  Corbett.  shall  reach  be- 
yond the  death  of  Thomas  Corbett.  the  term 
of  the  bar  of  the  statute  of  limitations  will 
become  an  impiutant  inquiry.  We  are  at 
present  inclined  to  the  conclusion,  that,  as  a 
general  rule,  the  claim  for  rents  and  profits 
is  a  i)ersonal  demand,  a  debt  not  by  specialty. 
and  is  barred  by  the  term  which  would  bar 
the  suits  for  an  analogous  claim  at  law, 
account,  assumpsit,  and  debt  on  simple  con- 
tract. But  it  is  doubtful  whether  this  rule 
applies  to  the  cases  of  tenants  in  conunon. 
At  common  law.  if  one  tenant  in  connnon  take 
the  whole  profits,  his  co-tenants  have  no 
remedy  against  him.  Litt.  Sec.  IVSA,  and  Co. 
Mtt.  liO.  liy  27tn  section  of  4  and  5  Anne, 
c.  l(i.  an  action  of  account  is  given  to  a  ten- 
ant in  conunon  iigainst  his  co-tenant,  who  has 
received  more  than  his  just  share  or  propor- 
tion of  the  profits  ;  but  this  remedy  extends 
only  to  the  actual  receipt  of  rents  and  profits, 
and  not  to  the  case  where  the  tenant  in  com- 
mon is  in  the  occupation  and  enjoyment  of 
the  premises.  Wheeler  v.  Ilorne,  Willes.  I'Os. 
It  is  clear  that  the  statute  of  limitations  does 
not  run  as  to  the  title  to  the  lands  themselves, 
in  favor  of  the  tenant  in  conunon  in  pos.ses- 
sion.  without  actual  ouster,  against  his  co- 
tenaiits :  and  we  reserve  our  opinion,  whether 
the  incidental  claim  for  profits  is  governed 
hy  the  same  i)rin(iple.  We  decide  nothing  as 
to  jxiints  which  may  lie  sujierseded  by  our 
final     judgment    uii     the    question,     whether 


Thomas  Corbett  had  an  estate  for  life  by  the 
curtesy. 

It  is  ordered  and  decreed,  that  the  Circuit 
decree  be  aflirnied.  and  the  appeal  be  dis- 
mls.sed,  so  far  as  the  partition  of  the  lots  ou 
llarleston  (Jreen  is  concerned.  In  otlier  re- 
spects, the  tpiestions  made  by  the  aiipeal  are 
reserved  for  jiidgnient. 

DL'XKIX  and  l)AIt<;A.\.  CC..  concurred. 
•319 

•At  this  Term,  .lanuary.  ls."»:;.  the  oiiinion 
of  the  Court  upon  the  iiue>tions  reserved 
was  delivered  by 

WAUIM.AW,  Ch.  This  <ase  was  heard  at 
the  last  sitting  of  this  Court,  and  an  opiidou 
was  then  pronoumed.  afhrndng  the  Circuit 
decree,  and  disnussing  the  appeal,  so  far  as 
the  iiartition  of  the  lots  on  llarleston  (Jreen 
was  involved,  and  reserving  our  judgment 
on  the  other  tpiestions  nnide  by  the  apiieal. 
The  points  reserved  depend  upon  the  con- 
struction of  the  cttdicil  to  the  will  of  John 
llarleston.  devising  the  plantati»»n.  I'arm- 
tield.  and  a  tract  of  land  in  the  parish  of  St. 
Thomas,  in  trust  for  his  daughter  Klizabeth. 

When  the  codicil  was  executed,  the  im- 
mediate fanuly  of  the  testator  consisted  of  u 
wife  and  thret'  daughters — Sarah,  the  wife  of 
William  Head.  Jane,  atiianced.  with  his  ap- 
probation, to  I'xlward  lUitledge.  and  Eliza- 
beth, under  no  contract  or  engagement  of 
marriage.  liy  his  will,  the  testator  had  de- 
vised to  his  daughters,  in  fee  simple  absolute, 
the  same  lands  which  are  settUnl  upon  the 
daughters,  respectively,  by  the  codicil. 

Besides  other  provisions,  not  affecting  this 
litigation,  this  codicil  contains  the  following 
devises:  "And  it  is  further  my  will  and 
ph'asure,  and  I  do  hereby  direct,  that  the 
tract  of  land  i-jilled  Richmontl."  &c.,  •'devi.sed 
to  my  daughter  Jane  llarleston.  by  my  said 
will,  shall  be  htdd  by  my  friends  William, 
Kdward  and  Nicholas  llarleston:  and  I  do 
hereby  devi.se  the  said  land  to  them,  and  to 
their  heirs  and  assigns,  in  trust  to  and  for 
the  use  and  benetit  of  my  said  daughter. 
Jane  and  of  the  said  Kilward  Kutle<lge.  Jn 
the  event  of  the  said  marriage  taking  i»lar(\ 
during  their  joint  lives:  and  on  the  ilejith  of 
eitluM"  of  them,  then  in  trust  for  the  survivor, 
during  his  or  her  life:  and  on  the  death  of 
both,  then  in  tru.st  for  any  lawful  issue  which 
the  said  Jane  may  leave  alive,  to  be  e<iually 
divided  among  them,  if  more  than  one.  share 
and  share  alike,  in  fee  sinqile:  saving  and  re- 
serviiig  to  my  wife.  Klizabeth,  her  life  «»state, 
residence,  and  right  to  plant  with  her  negroes, 
as  given  by  my  will,  in  the  house  and  jilanta- 
tions  of  Richmond  and   I'.iiiMtifld  :    but  if  it 

♦320 
should  so  happen,  that  on  the  death  of  ♦both 
the  .said  Jane  and  Ivlward.  there  should  be 
no  lawful  issue  of  the  said  Jane  then  alive, 
to  take  the  said  estate,  agreeably  to  this  will, 
then  in  trust,  that  the  said  tracts  of  land  be 

127 


*320 


5  RICHARDSON'S  EQUITY  REPORTS 


equally  divided  between  my  daughters,  Sarah ' 
Read  "and  Elizabeth  Ilarleston,  their  heirs 
and  assigns  forever.  It  is  further  my  will, 
and  I  do  hereby  direct,  that  the  plantation 
called  Rice  Hope,  which  I  have  devised  to 
my  daughter  Sarah  Read,  and  the  plantation 
called  Farmfield,  with  the  live  hundred  acre 
tract  in  St.  Thomas'  parish,  which  I  have  de- 
vised to  my  daughter  Elizabeth  Harleston, 
shall  be  held  on  trust,  and  to  uses  similar 
to  and  correspondent  with  those  I  have  di- 
rected in  the  preceeding  clause,  respecting 
the  Richmond  place  I  have  devised  to  my 
daughter  Jane.  To  effectuate  which  intent 
and.  purpose,  I  "do  hereby  devise  the  said 
tract  of  land,  called  Rice  Hope,  and  the  said 
plantation,  called  Farmheld,  and  the  five 
hundred  acre  tract  in  St.  Thomas'  parish, 
to  my  friends  William,  Edward  and  Nicholas 
Harleston,  and  their  heirs  and  assigns,  in 
trust  to  and  for  the  following  uses  and  pur- 
poses: that  is  to  say,  as  for  the  plantation 
Rice  Hope,  in  trust  to  and  for  the  use  of  my 
daughter  Sarah,  and  her  husband.  Dr.  Wil- 
liam Read,  during  their  joint  lives:  and  on 
the  death  of  either  of  them,  then  in  trust 
for  the  use  of  the  survivor,  during  his  or  her 
life:  and  on  his  or  her  decease,  then  in  trust 
for  the  use  of  any  lawful  issue  of  the  said 
Sarah,  to  be  equally  divided  among  them, 
if  more  than  one,  in  fee  sinq)le:  but  if  it 
.should  so  happen,  that  on  the  death  of  the 
survivor  of  the  said  Sarah  and  William  Read, 
there  should  be  no  lawful  issue  of  the  said 
Sarah  alive,  to  take  the  said  estate,  agree- 
ably to  this  will,  then  in  trust,  that  the  said 
tract  of  land  be  equally  divided  between  my 
daughters,  Jane  Harleston  and  Elizabeth 
Harleston.  their  heirs  and  assigns  for  ever. 
And  as  for  the  plantation  called  Farmfield, 
and  the  live  hundred  acre  tract  situated  in 
St.  Thomas'  parish,  I  do  hereby  devise  the 
same  to  my  friends  William,  Edward  and 
Nicholas  Harleston,  and  their  heirs  and  a.s- 
signs.  on  the  trusts  and  for  the  uses  herein- 
after set  forth:  that  is  to  say,  in  trust  to  and 
for  the  use  of  my  said   daughter,   Elizabeth 

*321 
Harleston,  during  her  life:  *and  on  her  de- 
cease, then  in  trust  for  the  use  of  the  lawful 
issue  of  my  said  daughter  Elizabeth,  to  be 
equally  divided  among  them,  share  and  share 
alike:  and  if  it  should  so  happen,  that  on 
the  death  of  my  said  daughter,  she  leave  no 
issue  then  alive  to  take  the  said  estate,  then 
in  trust  for  the  use  of  my  daughters,  Jane 
Harleston  and  Sarah  Read,  their  heirs  and 
assigns  forever." 

Elizabeth  Harleston,  the  devisee  of  the 
lands  which  are  the  subject  of  this  suit,  after 
the  death  of  her  father,  became  the  wife  of 
Thomas  Corbett  and  the  mother  of  nine  chil- 
dren. She  died  September  17,  1837,  and  her 
issue  then  surviving  were  three  children, 
John  H.,  Margaret  H.  and  Thomas,  and  two 
grandchildren,  Richard  C.  Laurens,  son  of  de- 
fendant, Margaret  H.,  and  Elizabetli  Corbett, 

128 


the  plaintiff.  Of  the  six  children  of  the  said 
Elizabeth  Harleston,  who  pre-deceased  her, 
namely,  Thomas,  Richard,  Elizabeth,  Eliza- 
beth Sarah,  Joseph  and  John,  all  died  in- 
fants, intestate  and  uumari'ied,  except  Rich- 
ard, who  attained  full  age,  and  died  leaving 
one  child,  the  plaintiff,  and  a  widow,  the  de- 
fendant, Mary  Corbett.  Of  the  issue  that 
survived  Elizabeth  Harleston,  Thomas,  sec- 
ond son  of  that  name,  died  in  1846,  unmar- 
ried and  intestate,  leaving  his  father,  his 
brother,  John  H.,  his  sister,  Margaret  H., 
and  his  niece,  the  plaintiff,  equal  distributees 
of  his  estate.  Thomas  Corbett,  the  father, 
continued  in  possession  of  the  lands  devised 
to  his  wife  until  his  death,  in  July,  1850, 
This  bill  was  filed  Nov.  27,  1850,  amongst 
other  things,  for  partition  of  the  lands  de- 
vised to  Elizabeth  Harleston,  and  an  account 
of  the  rents  and  profits.  The  plaintiff'  at- 
tained full  age,  March  10,  1846,  more  than 
four  years  before  the  death  of  her  grandfa- 
ther. The  extent  of  the  plaintiff"'s  title  to  re- 
lief in  this  matter  depends  upon  the  con- 
struction of  the  codicil  above  recited,  as  to 
her  share  in  the  lands,  and  also  upon  the 
operation  of  the  statute  of  limitations,  as  to 
her  share  of  the  rents  and  profits. 

First,  as  to  the  plaintiff's  share  in  the 
lands.  It  is  adjudged  in  the  Circuit  decree, 
upon  the  authority  of  Rutledge  v.  Rutledge, 
Dud.  Eq.  201,  that  the  children  of  Elizabeth 

*322 
ixarleston,  *as  they  were  successively  born, 
took  vested  interests,  opening  to  let  in  sub- 
sequent issue,  and  of  course  diminishing  in 
proportion  as  the  issue  increased:  and  that 
all  descendants  took  equally  with  children, 
under  the  description  of  issue.  The  defend- 
ants insist,  by  their  fifth  ground  of  appeal, 
that  the  said  Elizabeth  Harleston  either  took 
an  estate  in  fee  conditional,  with  the  incident 
of  an  estate  for  life  in  her  surviving  husband, 
by  the  curtesy:  or  an  estate  for  life,  with 
contingent  remainder  to  her  surviving  issue, 
in  exclusion  of  her  issue  that  died  in  her  life 
time. 

It  is  a  general  rule,  in  the  interpretation  of 
a  written  instrument,  that  the  construction 
be  made  from  all  its  parts,  so  as  to  give,  if 
reasonauie,  a  consistency  to  the  whole  instru- 
ment, and  avoid  discordance  in  its  parts. 
One  part  helps  to  expound  another;  and,  in 
ascertaining  the  meaning  of  any  clause,  we 
should  consider  the  whole  context.  In  this 
codicil,  the  testator  explicitly  declares  his 
purpose,  that  the  lands  respectively  devised 
to  his  daughters,  Sarah  and  Elizabeth,  "shall 
be  held  on  trusts  and  to  uses  similar  to  and 
correspondent  with  those"  created  in  the 
preceding  clause,  respecting  the  devise  of 
Richmond  to  Jane.  The  meaning  of  this  dec- 
laration of  purpose,  by  itself,  seems  plain, 
that  the  three  daughters  should  have  the 
same  interest,  enjoy  their  several  estates, 
with  such  change,  only,  as  the  variety  in 
their  condition  required.    Elizabeth  was  not 


CORHKTT  V.  LAURENS 


married,  like  Sarali,  nor  afliaiued,  witli  tlie 
approbation  of  tlie  test«ti>r,  like  Jane,  and 
slie  niijiht  never  marry,  witli  or  witliout  such 
approliatioii.  No  eontins-'eiit  estate,  by  sur- 
vivorsliip,  in  Klizalietli's  lutiir*'  husband, 
ivhouUl  b«'  implied,  under  such  cirtumstames: 
esi)ecially  when  the  t»'statur,  in  undertaking 
ttt  repeat  the  declaration  of  his  purposes, 
OJnits  provision,  in  her  case,  for  such  surviv- 
inj;  husband.  The  same  motive  whlcii  induc- 
ed the  testator  to  omit  provision  for  the  fu- 
ture and  unknown  husband  of  Kli/.abeth,  tlie 
uncertainty  of  his  suitability,  would  operate 
on  testator  to  prevent  accretion  to  the  Inis- 
liand's  interests  by  the  death  of  issue  in  the 
life  time  of  tlie  wile.     We  may  lmaj,'inc  mo- 

•323 
fives  Ml  a  test.itor  lor  ;i  nmrc  strict  ♦settle- 
ment upon  the  is-sue  of  an  uiiasccrtalni'd  hus- 
band of  his  dau;,'hter,  but  wc  shoidd  not 
naturally  exi)ect  that  he  would  !.;ive  to  such 
issue  estates  that  nd^ht  enure  to  increa.sed 
advantajre  of  such  husband,  beyond  the  con- 
tintrent  rights  of  husbands,  known  and  ap- 
proved. Yet  such  would  he  the  result,  in  this 
«ase,  of  holding  that  the  issue,  as  they  came 
into  beins:,  took  vested  interests,  liable  to  he 
transmitted,  if  they  died  intestate,  to  the  fa- 
ther and  other  distrmutei's. 

I>y  the  careful  provision  of  the  testator  for 
cross  remainders  amonj;  his  dauL'hters,  in 
case  any  of  them  died  without  surviving 
issue,  we  may  see  his  general  intent  to  pro- 
duce eiiuality  anion;;  his  dau;:hters  and  their 
.surviving'  issue.  Hut  the  lan;j;ua^'e  of  the  tes- 
tator, in  the  limitations  over,  d(>serves  to  be 
carefully  considered.  In  every  instance,  the 
gift  over  is  in  case  the  particular  le^;atee 
leave  no  issue  alive,  at  her  death,  to  take  the 
estate.  I  a^'iee  to  the  doctrine  of  Whitworth 
V.  Stuckey.  1  Rich.  Eq.  404.  that  the  terms 
cmi)loyed  in  the  «ift  ctver.  if  tletinini;  issue 
within  tJie  rules  as  to  peritetuity,  do  not  nec- 
essarily import  ri'striction  into  the  direct 
gift  to  issue,  so  far  as  real  estate  is  embrac- 
ed. I  may  say  fur  myself,  without  connuit- 
ting  my  iirethren,  or  intending  to  impair  the 
authority  of  the  cases  upon  Hell's  will,  and 
those  following  the  same  ilecision,  that  I  am 
not  satislicd  with  the  reasoning  that,  even  in 
n'lation  to  personalty,  if  the  limitation  over, 
on  the  failure  of  issue,  he  good,  the  issue 
necessarily  take  as  piirchasers.  Chancellor 
Johnston,  however,  in  the  case  of  Hay  v. 
Hay  [.■>  Rich.  K<i.  .'1^41,  has  given  .satisfactory 
reasons  for  some  dilference  of  f«u-ce  in  the  re- 
tlex  oiteration  of  the  terms  in  the  gift  over, 
when  applied  t<»  the  dilTerent  subjects  of 
realty  and  pei-sonalty.  Still,  I  apprehend  the 
true  doctrine  to  be,  that  the  <-onstruction  of 
any  iiartlcular  clause  is  to  be  made  from  tlie 
whole  instrunu>nt,  and  that  the  lindtatiou 
over  is  to  be  treated  as  other  portions  of  the 
c<mtext.  If  there  be  a  contluence  in  expres- 
sion of  meaidng,  or  pertim-nt  reference  in  the 
terms  of  gift  over  to  the  terms  of  direct  gift 
to  the  issue,  the  language  of  the  gift  over 

5RKH.Ey.— y 


:  may  iiroperly  satisfy  us  of  the  intention  of 
!  the  donor  in  using  the  phrase  issue  in  the 
I  •324 

1  "gift  to  issue.  The  terms  of  the  gift  over,  as 
I  other  iHirtiiUis  «)f  the  context,  are  referential 
;  and  expository  In  relation  to  any  particular 
I  clause,  and  not  ah.solutely  controlling.  In  the 
present  ca.se,  the  de.scrlpthiii  of  Issue  In  the 
gift  over  aids  us  In  the  construction,  as  to 
the  Issue  entitled  to  take  by  dlr»'ct  ulft.  The 
estate  Is  to  go  to  others,  if  the  tenant  for 
life,  at  her  death,  "leave  no  Issue  then  alive, 
to  take  the  .said  estate."  This' .strongly  liull- 
cates  the  pur|)o.se  of  the  ti'stator,  tluit  the 
Issue  to  take  the  estate  was  the  Issue  alive 
at  the  death  of  his  daughter.  Kll/.abeth.  This 
purpo.se  Is  expresst'd  with  more  pleonasm  In 
relation  to  the  other  two  daughters,  the 
words  "agret'ably  to  this  will"  being  addetl 
to  the  deserlption  of  Issue  to  take  the  estate: 
but  the  meaidng  is  the  same. 

Much  of  th«'  <ll(li<ulty  of  this  case  arises 
from  the  prolixity  of  convi'yanclng  which  was 
usual  at  tlu'  date  of  this  codicil.  The  testa- 
tor, having  created  certain  trusts  as  to  the 
Jands  devLsetl  to  his  daughter  Jane,  and  ex- 
pres.sed  his  purpo.se  that  his  other  two  daugh- 
ters should  hold  their  lands  un  similar  and 
correspond«'nt  trusts  and  uses,  undertakes  "to 
effectuate  his  intent  and  purito.se"  by  rei»eat- 
ing  and  specifying  the  trusts  as  to  the  devi.ses 
to  his  dausrl'.ters  Sarah  and  Klizal>eth.  It  Is 
beyond  dispute,  that  under  the  devise  to 
Jane  she  t(»ok  an  estate  for  life,  with  con- 
tingent remainder  to  her  surviving  issue,  a 
contingent  estate,  on  his  survivorship,  to  Ed- 
ward Rutledge  for  life,  being  Interposed; 
and  Sarah  and  Eli/.alK'th  were  Intended  to 
take  similar  and  correspondent  estates.  Hut 
the  testator,  or  his  scrivener,  in  the  gifts  to 
the  i.ssue  of  the  latter  two  daughters,  omit- 
ted the  (lualifying  words,  which  the  ilaughter 
may  "leave  alive  at  her  death."  to  be  sup- 
plied by  the  context. 

We  are  «)f  opinion  that  Elizabeth  Harles- 
ton,  under  the  codicil  to  the  will  of  her  fa- 
ther, took  an  estate  for  life,  with  contingent 
remainder  to  her  surviving  Issue,  In  exclu- 
sion of  pre-«leceasetl  issue. 

It  is  clear,  upon  the  authorith's  cited  in 
Rutledge  v.  Ruthnlge,  without  need  of  refer- 
ence to  t)ther  cases,  that  all  the  descendants 
of  Elizabeth   Ilarlesfon.   whether   in   the  tirst 

•325 
or  a  'more  remote  d»'gree.  take  the  remain- 
der In  the  estates  limited  after  her  life,  per 
capita. 

It  Is  proper  to  remark.  eonferMing  the  case 
of  Rutledge  v.  Rutledge,  as  atTectlng  the  con- 
struction of  the  <'odlcll  under  consideration, 
that  that  case  was  upon  a  marriage  .settle- 
ment, and  that  under  marriage  settlemeuts, 
the  rea.sonable  and  the  settled  construction  Is 
to  vest  estates  In  the  Issue,  as  purchasers,  at 
the  earll«»st  point  of  time.  Heshles.  there  was 
no  sucn  distinct  refereme.  In  the  context  of 
the  instrument  there  const  rueil,  to  surviving 


*325 


5  RICHARDSON'S  EQUITY  REPORTS 


the  mother,  qualifjing  the  sense  in  which  the 
term  issue  was  used,  as  we  find  in  tlie  pres- 
ent case. 

The  result  of  our  construction  is,  that  the 
plaintiff  is  entitled  to  one-fifth  of  the  lands 
devised  to  her  grandmother,  Elizabeth  Har- 
leston,  as  issue  surviving  at  the  death  of  said 
Elizabeth,  and  to  one-fourth  of  another  fifth, 
as  distributee  of  her  uncle  Thomas.  Mary 
Corbett,  the  defendant,  has  no  lot  or  part  in 
the  matter.  This  conclusion  supersedes  the 
necessity  of  considering  the  difficult  question, 
whether  tenancy  by  the  curtesy  is  an  incident 
of  a  fee  conditional. 

The  further  question  reserved,  is  as  to  the 
operation  of  the  statute  of  limitations  upon 
the  plaintiff's  demand  for  rents  and  profits. 
It  is  the  settled  law  of  this  State,  that  one 
tenant  in  common,  in  exclusive  occupation  of 
the  estate  and  pernancy  of  the  profits,  is 
liable  to  account  to  his  co-tenants,  for  their 
shares  of  the  rents  and  profits.  By  the  com- 
mon law,  co-tenants  have  no  remedy  against 
a  tenant  in  common,  who  takes  the  whole 
profits.  The  statute  of  4  and  5  Anne,  c.  16,  § 
27,  gave  an  action  of  accoinit  to  a  tenant  in 
common,  against  his  co-tenant,  who  had  re- 
ceived more  than  his  share  of  the  rents ;  but 
the  Court  of  Law  restricted  the  remedy  of  the 
statute  to  the  actual  receipt  of  rents,  and 
denied  relief,  in  the  case  of  exclusive  occu- 
pation of  the  common  estate,  where  there 
was  no  actual  receipt  of  rents.  Wheeler  v. 
Home,  Willes,  208.  This  Court,  however, 
afforded  relief  to  co-tenants,  where  one  of  the 
tenants  in  common  was  in  the  exclusive  oc- 
cupation of  more  tlian  his  share  of  the  prem- 
ises, without  receipt  of  rents  in  money,  or 

*326 
*its  equivalent.  It  seems  to  be  just,  that 
while  we  afford  relief  to  tenants  in  connuon, 
beyond  the  operation  of  the  statute  of  Anne, 
we  should  hold  the  additional  beneficiaries  to 
the  same  bar  as  those  within  the  express 
terms  of  the  statute.  Our  Act  of  limitations 
bars  an  account  not  presented  by  suit  at  Law 
within  four  years,  and  account  for  rents  and 
profits  is  within  the  scope  of  its  general  terms. 
In  the  well  considered  case  of  Wagstaff  v. 
Smith,  4  Ired.  Eq.  1,  tlie  claim  for  rents  and 
profits,  made  by  bill  in  Equity,  of  a  tenant  in 
common,  against  his  co-tenant,  in  possession 
of  the  premises,  was  held  to  be  restricted  by 
the  statute  of  limitations  applicable  to  ac- 
count: and  we  are  content  to  follow  such 
respectable  authority.  We  are  of  opinion 
that  the  statute  of  limitations  bars  the  plain- 
tiff's right  to  an  account  of  the  rents  and 
profits,  except  for  the  last  four  years  before 
the  filing  of  her  bill. 

It  is  ordered  and  decreed,  that  a  writ 
of  partition  be  issued,  to  divide  the  planta- 
tion, Farmfield,  and  the  tract  of  land  in  St. 
Thomas'  parish,  among  the  parties,  according 
to  the  principles  of  this  decree. 

It  is  also  ordered,  that  one  of  the  Masters 


of  this  Court  take  an  account  of  the  rents 
and  profits  of  said  lands,  according  to  the 
opinions  herein  expressed. 

It  is  further  ordered  and  decreed,  that  the 
Circuit  decree  be  modified,  as  herein  indicat- 
ed, and,  in  all  other  particulars,  be  affirmed. 

JOHNSTON,  DUNKIN,  and  DARGAN,  CC, 

concurred. 
Decree  modified. 


5  Rich.  Eq.  *327 

*ADELAIDE  GIBBES,  Ex'x,  v.  GIBBES  L. 

ELLIOTT  and  JULIET  G.  ELLIOTT. 

(Charleston.     Jan.   Term,   1853.) 

[Equitij  <©=:5419.] 

A  motion  made  before  the  Circuit  Court  for 
Charleston,  after  the  Court  had  been  in  session 
several  weeks,  to  set  aside  an  order  pro  con- 
fesso,  refused — the  defendant,  making  the  mo- 
tion, having  in  no  particular  complied  with  the 
35th  rule  of  Court. 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent, 
Dig.  SjS   972-985;    Dec.  Dig.  <@x=3419.] 

[Equity  €=>336.] 

A  party  against  whom  a  bill  has  been  taken 
pro  confesso,  not  being  entitled  to  introduce 
evidence  in  defence,  as  if  he  had  pleaded  or 
answered  to  the  bill,  is  not  entitled  to  require 
the  production  of  title  deeds. 

I  Ed.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.  §  677;    Dec.  Dig.  <g=>336.] 

[Equitij  (©=419.] 

Upon  a  motion  to  set  aside  an  order  pro 
confesso,  it  may  be  imposed  as  a  condition,  that 
the  testimony  of  certain  witnesses  taken  be- 
fore the  Master,  without  notice,  should  be  read 
— the  defendant  to  have  the  right  to  produce 
them  and  treat  them  as  plaintiffs  witnesses. 

LEd.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.  «!§  972-985;    Dec.  Dig.  <S=^419.] 

[Wiu.i  cs^mi.] 

Testatrix  devised  to  G.  E.  "aU  that  lot  ly- 
ing and  being  at  the  corner  of  St.  Philip  and 
George-streets,  being  on  St.  Philip-street  151% 
feet,  and  on  George-street  57  feet ;  also,  that 
lot  being  and  lying  next  to  the  aforesaid  lot, 
fronting  on  George-street  57  feet,  and  151% 
in  depth  ;"  the  rest  and  residue  of  her  estate, 
real  and  personal,  she  devised  and  bequeathed 
to  her  four  children,  G.  E.  being  one  ;  testatrix 
owned  but  one  lot  at  the  corner  of  St.  Philip 
and  George-streets,  which  fronted  151%  feet 
on  the  former,  and  was  in  depth  171  feet  on  the 
latter: — Held,  that  the  devise  to  G.  E.  did  not 
carry  the  whole  lot,  but  only  two-thirds  there- 
of, next  to  St.  Philip-street,  to  be  cut  off  in 
two  lots,  each  fronting  57  feet  on  George-street ; 
and  that  the  remaining  third  part  passed  under 
the  residuary  clause. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  §  1221;   Dec.  Dig.  <g=>561.] 

[Equity  ©=517.] 

The  Court  of  Equity  has  no  authority,  in 
general,  to  try  questions  of  title  to  lands,  where 
the  parties  claim  by  distinct  titles  ;  but  where 
the  whole  dispute  is  upon  the  construction  of  a 
will,  or  other  written  instrument,  under  which 
both  parties  claim,  the  Court  has  jurisdiction 
to  determine  the  rights  of  the  parties. 

[Ed.  Note. — Cited  in  Albergottie  v.  Chaplin, 
10  Rich.  Eq.  4.33;  Reams  v.  Spann,  28  S.  C. 
533,  6  S.  E.  325:  Hunt  v.  Gower.  80  S.  C.  83, 
61  S.  E.  218.  128  Am.  St.  Rep.  862  ;  Jenkins 
V.  Jenkins,  83  S.  C.  544,  65  S.  E.  736. 

For  other  cases,  see  Equity,  Cent.  Dig.  § 
39;    Dec.  Dig.  <S==>17.] 


130 


^=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


GIBBES  V.  KLLIOTT 


♦330 


Before  Johnston,  Ch.,  at  Charleston,  Fel>- 
ruary,  1852. 

This  case  will  be  umlerstootl,  fnuu  the 
full  statement  contained  in  the  oiiinlou  deliv- 
ered in  the  Court  of  Appeals. 

Hunt,  for  apiiellant. 

Fhif^g.  Mennuinp'r.  <ontra. 

The  oiilnidii  of  tlie  Court  was  dflivcred  by 

\V.VK1»L.\\V,  Vh.  This  al)peal  of  the  de- 
fendant. <;ilil>es  L.  i:ili(.tt.  controverts  deci- 
sions of  the  Chancellor  at  two  separate 
staples  of  the  ca.se,  and  the  consideration  of 
it  may  he  conveniently  divitled  in  reference 
to  tiiese  sta},'es.  The  bill  was  filed  Septem- 
ber 2.'].  ls.")l.  and  on  the  ne.\t  day,  B.  F.  Hunt 

*328 
&  Son,  *Soliiit(irs  of  the  Court,  endorsed 
upon  the  suliiMcna  that  tliey  appeared  for  the 
defenoant.  On  Xovendier  lU.  1S51,  the  bill 
was  ordered  to  be  taken  pro  confesso.  On  14 
and  20  February,  l8o2,  the  testimony  of  cer- 
tain witnesses  was  taken  by  the  Master,  at 
the  instance  of  the  plaintiff,  without  notice 
to  the  defendant  or  ins  .solicitors.  On  March 
2,  is~)'2.  during  the  sitting  of  the  Court,  which 
began  on  the  tirst  Monday  of  Felu-uary,  Mr. 
Hunt,  in  behalf  of  defendant,  moved  to  set 
aside  the  order  pro  confesso.  and  for  leave 
to  lile  an  answer ;  and  also  moved,  that 
plaintiff  be  compelled  to  produce  the  title 
deeds  of  the  lot  at  the  corner  of  Ceorge  and 
St.  Philip-streets.  These  motions  being  op- 
posed by  the  counsel  of  the  plaintitf.  were 
refused  by  the  Chancellor.  Thereupon.  Mr. 
Hunt  serveil  the  Chancellor  with  grounds  of 
appeal,  and  a  statement  of  facts  preti.xed, 
which  perhaps  in  substance,  but  in  form  al- 
together different,  are  repeated  in  tiie  print- 
ed brief.  On  March  4.  lsr)2.  the  Chancellor 
made  the  following  ri'port  on  tliese  grounds, 
which,  in  violation  of  the  rule  of  Court,  is 
omitted  from  the  brief: 

'•The  annexed  notice  of  appeal  has  been 
served  ou  me ;  and  the  .statement  of  facts 
which  it  contains  is  so  inaccurate,  as  to  ren- 
der a  report,  on  my  part,  necessary.  Mr. 
Hunt,  made  a  motion,  on  the  2d  of  March, 
1S52,  (the  Court  having  bitMi  in  .session  from 
early  in  February,)  to  set  aside  an  order  i)ro 
i'onfesso.  and  for  leave  to  tile  an  answer  in 
this  cause.  The  motion  was  not  reduced  to 
writing. 

"It  was  objected  to  by  .Mr.  ^b'mn^nger.  un- 
less it  were  made  a  condition,  that  the  testi- 
mony of  some  witnes.ses  winch  bad  been  tak- 
en, sliould  be  allowed  to  stand;  at  tiie  same 
time  consenting,  that  Mr.  Hunt's  client  might 
produce  the  witnesses  and  exandne  them 
further,  or  cross-e.xandne  tlicm   on  his  part. 

"Mr.  Hunt  resisted  the  condition,  and  in- 
sisted on  his  motion  as  matter  of  right. 
The  Court  d<'<i(U'd,  tiiat  he  hail  no  such  right 
under  the  rule  of  Court:    tliat  tlu-  tondition 

*329 
was  reasonable,  *aud  if  .Mr.  Hunt  would  take  [ 


Ids  motion  on  tliat  condition,  he  was  at  liber- 
ty to  do  so.     He  declined  this  offer. 

"There  was  not  a  word  said  by  the  Court 
by  way  of  re<|uiring  the  <ondltion  to  api»ear 
as  granted  upon  his  motion. 

"He  then  made  a  verbal  motion,  that  the 
plaintiff  be  ri-^piirtHl  to  deposit  su<b  title 
dr«'ds  as  were  in  lier  possession.  Mr.  .Mem- 
minger  reslsteti  it  on  the  grounds: 
j  "That  he  had  n'«vlveil  no  notice  of  the 
I  motion.  It  apiieared.  and  was  adndtted. 
(though  at  tirst,  .Mr.  Hunt  as.s».rted  noiice.i 
that  no  notice  had  been  given: 

"That  Mr.  H.s  client  had  not  apiH-annl 
to  the  suit: 

"That  ilefendant  was  in  contempt  for  non- 
appearance, and  for  not  answering,  and  wa.s 
not  entitled  to  move,  or  be  ln'ard  In  the 
cause: 

"That  he  was  not  entifliMl  to  offer  evidence, 
(under  the  rule  of  Court,*  having  neither 
plea  nor  answ«M'  to  sup|iort  by  it. 

"The  Court  waived  the  (piestion  of  non- 
a|ipearance.  intimating  an  opinion,  however, 
that  hl.>  appearance,  though  not  re::ular.  was 
good.  It  also  waived  the  (lue.stion  of  c«-)n- 
tempt;  but  it  ruled,  that,  under  the  rule  of 
Court,  the  defendant  was  not  entitled  to  his 
motittn.  That,  under  the  rule,  he  was  only 
entitled  to  be  heard  upon  such  objections  as 
he  could  have  urged,  if  he  had  denuirrtHj  to 
the  bill;  and  was  not  entitled  to  introdu«.v 
evidence  in  defence,  without  laying  a  fouiala- 
tion  for  it  by  plea  or  answer;  and  that 
the  only  possible  use  he  could  have  for  the 
deeds,  was  to  make  them  the  basis  of  evi- 
dence; and  that,  if  the  deeds  were  material 
to  his  interests,  he  should  show  the  fact  by 
allidavit. 

"Further  than  this.  I  di>  not  recognize  the 
correctness  of  the  statement  of  the  facts, 
made  In  the  grounds  of  api»eal." 

It  is  stated,  and  not  <lisputed,  that  the 
draft  of  an  answer,  not  signed  nor  sworn  to, 
was  left  with  the  Register,  before  the  sitting 
of  the  Court ;  but  it  was  not  an  answer  at 
the  time  of  the  aiiiilication  to  tile  it,  and  be- 
came an  answer  liy  the  jurat  of  the  defend- 
ant on  the  Nth  of  .March,  six  days  after  the 
aiii)lication. 

Tile  r»'asoning  of  the  Chancellor's  ri'i»ort 
•330 
is  entirely  satlsfac*tory  to  this  Court,  but 
from  respect  to  the  earnestness  with  which 
the  appeal  on  this  point  has  been  pres.sed. 
sonie  observations  may  be  adde<l.  The  rule 
of  Court  35,  exiire.ssly  re«|uires.  that  the 
motion  to  set  aside  an  order  pro  confe.sso 
and  tile  an  answer,  should  be  made  on  the 
first  day  of  the  sitting  of  the  Court  ensuing 
the  order,  after  written  notice,  of  ten  days 
before  the  sitting,  of  the  propos^nl  motion, 
and  that  the  defendant  at  the  time  of  the 
motion  shall  have  filed,  tiiat  i.s.  liave  de- 
posited with  the  Uegisler  for  tiling,  or  shall 
then  produce,  a  full  and  explicit  answer  or 
plea.     The  mover  in  the  present  instance,  was 

131 


*330 


5  RICHARDSON'S  EQUITY  REPORTS 


faulty  in  all  these  particulars.  He  had  not 
given  the  prescribed  notice  of  his  motion  ;  he 
did  not  make  his  motion  on  the  first  day  of 
the  sitting,  and  he  produced  no  answer  with 
a  jurat  at  the  time  of  his  motion.  To  speak 
of  his  right  to  file  an  answer  under  such 
circumstances,  is  idle  talk.  It  may  he,  that 
upon  affidavit,  that  he  was  prevented  from 
coming  within  the  terms  of  the  rule  by  acci- 
dent, mistake  or  surprise,  the  Court  might 
have  placed  him  in  the  same  position  as  if 
he  had  made  the  motion  on  the  first  day  of 
the  sitting,  after  notice ;  but  no  such  affida- 
vit was  made.  If  he  had  given  the  required 
notice,  and  made  his  motion  on  the  first 
day  of  the  term,  still  by  the  rule  referred 
to,  he  mu.st  "submit  to  any  further  condi- 
tions tli^  Court  may  impose."  An  appellate 
tribunal  should  overrule  an  exercise  of  ju- 
dicial discretion  by  a  Judge,  in  the  first  in- 
stance, only  in  case  of  gross  abuse  of  dis- 
cretion. In  this  case,  we  think  the  dis- 
cretion was  judiciously  exercised;  if  indeed, 
the  Chancellor  had  any  discretion  to  over- 
rule the  resistance  to  an  irregular  motion. 
The  condition  insisted  upon  by  the  counsel 
of  the  plaintiff  to  the  motion  proposed,  that 
the  plaintiff  should  not  be  at  the  expcmse 
of  producing  again  at  the  trial,  witnesses 
examined  before  the  Master,  even  if  irregu- 
larly examined,  although  the  defendant 
might  produce  them,  and  treat  them  as  plain- 
tiff's witnesses,  was  altogether  reasonable. 
The  Court,  in  admitting  the  reasonableness 
of  this  condition,  determined  nothing  as  to 
the  competency  or  effect  of  this  testimony, 
which  was  then  unheard.  It  turned  out,  that 
at    the    hearing,    the    Chancellor    placed    no 

*331 
♦reliance  whatever  upon  this  testimony,  most 
of  it  being  incompetent,  and  all  of  it  insuffi- 
cient. At  the  hearing,  the  counsel  of  the 
plaintiff  repeated  the  offer  to  allow  the  de- 
fendant, although  he  was  only  entitled  by 
the  rule  of  Court,  to  take  advantage  of  any 
matter  which  would  have  been  good  cause 
of  demurrer,  to  offer  any  evidence  whatso- 
ever ;  but  he  offered  no  evidence.  The  de- 
fendant suffered  no  detriment  from  not  fil- 
ing the  answer,  for  we,  perceive,  upon  perus- 
ing it,  that  it  contains  nothing  in  bar  of  the 
suit,  and  is  merely  argumentative.  If  au- 
thority be  needed  for  the  ruling  of  the  Chan- 
cellor, it  may  be  found  in  Foote  v.  Van 
Ranst,  1  Hill  Eq.  1S5,  where  the  analogous 
question  as  to  the  time  of  filing  exceptions 
under  the  26th  rule,  is  explicitly  determined. 
It  is  worthy  of  remark  in  this  case,  that 
while  the  appellant  complains  of  departure 
from  the  regular  procedure  of  the  Court, 
he  directly  infringes  the  53d  rule  of  the 
Court  in  the  mode  of  stating  his  complaint 
in  this  appeal,  inasmuch  as  his  brief  does 
not  contain  the  whole  decree  appealed  from, 
nor  the  report  of  the  Chancellor  on  the 
grounds  of  appeal.  It  is  also  curious,  that, 
while  he  vehemently  resists  the  introduction 
of    testimony,    irregular   in    the    single   iJur- 

132 


[  ticular  that  notice  of  the  examination  of  the 
witnesses  was  not  given  to  him,  he  treats  as 
matter  of  right  his  motion  to  set  aside  the 
order  pro  coufesso,  although  notice  of  that 
motion  to  the  adverse  party,  expressly  re- 
quix'ed,   was  not  given. 

The  case  was  heard  on  the  merits,  on  the 
5  and  8  of  March,  1852;  and  at  the  hearing, 
the  defendant  was  permitted  to  offer  any  evi- 
dence in  his  possession,  and  to  argue  fully 
the  whole  case.  The  matter  decided,  in- 
volved in  this  appeal,  is  upon  the  construc- 
tion of  the  following  clauses  of  the  will  of 
the  testatrix:  "Item.  I  give  absolutely  to 
my  son.  Dr.  G.  L.  Elliott,  to  him  and  his 
assigns  forever,  all  that  lot  of  land,  with 
the  dwelling  house,  buildings,  and  the  ap- 
purtenances thereof,  lying  and  being  at  the 
corner  of  St.  rhilip  and  George-streets,  being 
on  St.  Philip-street  151 1/^  feet,  and  on 
George-street  57  feet ;    also,  that  lot  of  land 

*332 

being  and  lying  next  to  the  aforesaid  *lot, 
fronting  on  George-street  57  feet,  and  151^2 
in  depth."  "Item.  I  give,  devise  and  be- 
queath all  and  singular  the  rest  and  residue 
of  my  whole  estate,  real  and  personal,  &c., 
to  my  four  children,  Adelaide  Gibbes,  Bar- 
nard S.  Elliott,  Juliet  G.  Elliott,  and  Gibbes 
L.  Elliott,  their  heirs,  executors  and  admin- 
istrators and  assigns,  absolutely  and  ^orever, 
equally,  and  share  and  share  alike."  Bar- 
nard S.  Elliott  died  after  the  death  of  tes- 
tatrix, intestate,  and  without  wife  or  issue, 
leaving  his  brothers  and  sisters,  the  parties 
to  this  suit,  the  distributees  of  his  estate.  In 
the  will  of  testatrix  there  is  minute  specifica- 
tion of  the  property  devised  and  bequeathed; 
but  much  of  her  estate,  including  fifty-seven 
slaves,  is  left  to  pass  under  the  residuary 
clause  of  her  will.  Upon  a  survey  of  the 
lot  owned  by  testatrix,  at  the  corner  of  St. 
Philip  and  George-streets,  made  by  R.  Q. 
Pinckney,  and  supported  by  his  testimony  in 
this  case,  it  appears  that  the  whole  lot  is 
divisible  into  three  parcels  of  57  feet  each, 
fronting  on  George-street.  It  is  conced- 
ed, and  the  title  deeds  of  the  lot,  if  produced 
on  the  defendant's  motion,  could  have  prov- 
ed no  more,  that  before  the  division  prescrib- 
ed in  the  will,  the  lots  were  described  as 
fronting  on  St.  Philip-street.  But  it  is  un- 
questionable, that  the  testatrix,  in  her  will, 
might  establish  and  designate  any  division 
of  the  lot  new  or  old,  among  the  objects  of 
her  bounty,  according  to  her  caprice.  It 
further  appears  by  Mr.  Pinckney 's  survey, 
that  a  front  of  57  feet  on  George-street,  run- 
ning in  depth  151%  feet  on  St.  I'hilip-street, 
on  the  corner  of  George  and  St.  Philip- 
streets,  will  not  include  by  16  feet  the  whole 
of  the  buildings  appurtenant  to  that  parcel ; 
but  that  two  lots  of  57  feet  each,  fronting 
on  George-street,  will  include  all  the  build- 
ings, and  leave  another  uncovered  lot  of 
57  feet  front  on  George-street.  There  might 
be  some  difficulty  in  settling  the  extent  of  the 


ABRAHAMS  V.  COLE 


several  devises  to  tl»e  defeiulant,  if  these  [ 
devises  were  to  two  persons ;  liut  wlieii  we  j 
find  that  tw(»  panels,  includiii};  all  the  build- 
iiifis  and  appurtenances,  are  j;iven  to  one 
person,  the  defendant,  and  that  an  aliiiuot 
parcel  is  left  out  of  the  devise,  we  are  re- 
lieved   from    the    necessity    of    determining 

»333 
between  the  devises  of  tlie  separate  ♦parcels. 
It  is  manifest,  however,  from  this  separation 
of  parcels  in  tiie  devise  to  the  defendant, 
that  the  testatrix  had  made,  or  contemplated, 
a  division  of  this  lot,  differing;  from  the 
original  state  of  the  suliject  when  conveyed 
to  her. 

It  is  argued,  that  tiie  devise  to  the  defend- 
ant must  carry  the  whole  lot.  inasmuch  as 
the  terms  of  it,  otherwise  large  enough, 
are  restrictt'd  only  in  reference  to  contents; 
course  and  distance  being  the  feeblest  means 
of  location.  It  is  oitvious.  however,  that  if 
testatrix  inteiidiHl  to  give  the  whole  of  this 
IJroperty  to  defendant,  there  was  no  need 
of  any  divisiou  into  parcels,  and  that  her 
purpo.se  would  be  simply  and  naturally  ex- 
pressed in  a  single  clause  describing  the 
whole.  In  deterndning  the  location  of  a  sub- 
ject granted  or  devised,  course  and  distance 
have  usually  subordinate  intluence  in  the 
judgment,  but  they  may  be  altsolutely  con- 
trolling. As  if  a  grantor  convey  100  acres 
and  no  more,  as  a  specific  portion  of  a  larg- 
er lot.  In  the  present  instance,  the  testa- 
trix, by  her  will,  divides  the  lot  into  parcels 
fronting  on  (Jeorge-street.  and  gives  portions 
to  the  defendant  by  exact  and  linuted  meas- 
urement in  feet.  The  devise  to  the  defend- 
ant of  the  second  parcel,  as  "fronting  on 
George-street  ~u  feet  and  151  Vi  feet  in 
depth,"  demonstrates  the  division  by  testa- 
trix into  parcels  fronting  on  George-street, 
and  thus  fixes  the  location,  if  it  were  other- 
wise doubtful,  of  the  first  parcel  devised. 
Suppose  the  devise  of  this  second  parcel  had 
been  to  a  «lifferent  person  than  the  defend- 
ant, the  devisee  of  the  first  parcel,  it  could 
not  be  pretended  that  the  defendant,  inider 
the  construction  of  the  first  devise  to  him, 
could  skip  over  the  .second  parcel  and  claim 
the  third;  and  yet  the  construction  of  the 
will  nnist  be  the  same,  whether  the  devises 
were  to  the  same  person  or  to  di.stinct  per- 
sons. It  is  equally  clear,  that  the  devl.se 
of  the  .second  lot,  so  exactly  described  by 
measurement,  does  not  carry  the  third; 
especially,  when  we  consider  that  the  re- 
siduary clause  of  the  will  covered  so  large 
a  portion  of  the  estate. 

It  is  further  urged,  that  this  Court  has 
no  jurisdiction  to  deterndne  where  Is  the 
freehold  of  the  third  part  of  this  tract,  In- 

•334 
asmuch  *as  tlu'  defendant  claims  the  whole, 
and    acknowledges    no    tenancy    in    connuon 
with  the  other  parties  to  tlie  suit.     Magna 
Charta,    and   the   Constitution   of  the   State, 


are  pressed  upon  us.  It  is  true,  that  thii> 
Court  has  no  authority,  in  general,  to  try 
ipu'stions  of  title  to  lands,  where  the  par- 
ties claim  by  di.stinct  titles;  but  in  this 
case,  all  the  parties  claim  from  the  testa- 
trix, acknowle<luing  her  title,  and  the  whole 
dispute  is  as  tt)  the  construction  of  her  will. 
It  has  never  lieen  disputed,  that  this  Court 
has  jurisdiction  to  determine  rights  of  par- 
ties in  lands,  dependent  on  the  construction 
of  wills  or  other  written  instrument.s,  and 
where  there  was  no  fact  to  be  .settled  by  a 
jury  of  the  vicinage.  If  the  ca.se  were  in 
the  Court  of  Law.  it  would  be  adjudgeu,  as 
to  doctrine,  by  the  Judge,  and  not  by  the 
jury.  Hut  it  is  not  p»'rceived,  that  any  ac- 
tion could  be  maintaineil.  in  the  Court  of 
Law,  t<»  try  titles  between  tenants  in  com- 
mon. This  Court  by  its  organization,  has 
not  the  breakwater  against  unpopularity  af- 
forded by  a  jury,  and  counsel  with  much 
impunity  from  puldic  opinion  inveiirh  against 
usurpation  and  exceeding  of  jurisdiction  by 
Chancellors;  but  we  must  endeavor,  so  long 
as  the  polity  of  the  State  continues  the  ex- 
isting judicial  establishment,  to  admiidster 
the  jurisdiction  confided  to  us.  without  bias 
from  obloquy. 

It  is  ordered  and  decreed,  that  the  decree 
be  affirmed,  and  the  appeal  be  disniis.sed. 

JOHNSTON,  DUNKIN  and  DARGAN,  CC, 

concurred. 

Decree  affirmed. 


5  Rich.  Eq. 'ass 

♦ALEXANDER   II.  ABRAHAMS   v.   JAMES 
P.   COLE   and   Others. 

(Cliarloston.     Jan.   Term,   1853.) 

[Injunction  ®=>44.] 

Where,  pnidiiig  suit  against  him,  a  di'litor 
removed  with  his  property  (slaves*  beyond  tho 
limits  of  the  State,  and  after  recovery  of  judg- 
ment, and  aft<r  plaintilTs  execution  had  lost 
its  active  energy,  tlie  slaves  were  bmuglit  back 
into  tlie  State:— //(/(/.  tliat  plaintiff  could  sus- 
tain a  1)111  to  prevent  the  renioviil  of  the  slaves 
until  lie  could  revive  his  execution. 

I  Ed.  Note. — For  other  cases,  see  Injunction, 
Cent.  Dig.  S  1>- :    Dec.  Dig.  C=44.J 

[Fraudulent    Conrciianccs    C=--<>.] 

When  a  jiost-nuptial  marriage  settlement  is 
void,  as  to  creditors,  for  want  of  registration, 
a  creilitfir,  seeking  satisfaction  out  of  tiie  prop- 
erty, may  jiroceed  as  if  no  siicii  deed  existed. 

I  Ed.  Note.— Eor  other  ca.s«'«.  see  Fraudulent 
Convevauees,  Cent.  Dig.  S  U5S;  Dec.  Dig.  ®=» 
'JliC.l 

Before  Johnston,  Ch..  at  Charlest<m, 
•March.  1S5_'. 

Joseph  E.  Cole,  then  a  resident  of  Beau- 
fort District,  executi'd,  .March  L',  is.".l*.  a  post- 
nuptial marriage  setthMueiit.  by  widch  he 
conveyed  to  Thomas  Talbird,  the  elder,  his 
distributive  .share  of  his  father's  estate,  (aft- 
erwards  ascertaine<l    to   consist   of   negroes.) 


C=>For  other  cases  see  same  topic  and  KEY-NU.MbEH  In  aU  Key-Numbered  Uluesis  aad  Indexes 


133 


*335 


5  RICHARDSON'S  EQUITY  REPORTS 


in  trust,  "for  his  wife  and  lier  children, 
should  there  be  any,  to  be  equally  divided  at 
liis  death" — reserving  to  himself  "the  riglit 
to  the  income,  or  to  the  possession,  the  one  or 
the  other,  during  his  natural  life."  This 
deed  was  recorded,  May  T,  1832,  in  the 
Register's  office  for  Beaufort,  but  was  never 
recorded  in  the  Secretary  of  State's  office. 
Tn  November,  1836,  the  plaintiff  filed  a  bill 
in  the  Court  of  Equity  for  Beaufort,  against 
Joseph  E.  Cole,  for  dissolution  of  a  copart- 
nership then  existing  between  them,  and  for 
account;  and  in  May,  1841,  obtained  a  de- 
cree against  him  for  $3,000,  besides  interest 
and  costs.  Execution  upon  the  decree  was 
lodged,  May  28,  1841.  Pending  the  proceed- 
ings upon  plaintiff's  bill — to  wit,  in  1830  or 
1837 — Joseph  E.  Cole  removed,  with  the  ne- 
groes embraced  in  the  settlement  of  1832,  to 
Alabama,  where  he  died,  June  10,  1841.  The 
negroes  were  not  returned  by  his  administra- 
tor, as  part  of  his  estate,  but  were  removed, 
shortly  after  his  death,  to  Texas,  by  James 
P.  Cole,  who  acted  as  the  agent  of  the  trus- 
tee, who  resided  in  Beaufort.  The  estate  of 
Joseph  E.  Cole  was  declared  to  be  insolvent, 
and  the  plaintiff  received  froin  the  adminis- 
trator in  Alabama  about  $1,300,  his  ratable 
share  of  tlie  assets. 

*336 

*In  1843,  the  trustee,  Thomas  Talbird,  the 
elder,  died,  and  his  son  and  executor,  Thom- 
as Talbird,  the  younger,  assumed  to  act  as 
trustee.  At  the  deatli  of  Joseph  E.  Cole,  tlie 
cestui  que  trusts,  under  the  settlement,  were 
his  two  infant  children — his  wife  liaving  pre- 
deceased him.  Their  residence  was  in  Beau- 
fort. In  September,  1848,  the  negroes  were 
sent  by  James  P.  Cole  to  South-Carolina,  and 
they  were  hired  out  in  Charleston  by  Ed- 
mund R.  and  Joseph  B.  Cheesborough,  tlie 
agents  of  the  trustee,  Thomas  Talbird,  the 
younger. 

In  January,  1851,  the  plaintiff",  having  dis- 
covered that  the  negroes  were  in  Ciiarleston, 
induced  his  friend,  Jacob  Cohen,  to  apply 
for  letters  of  administration  on  the  estate  of 
Joseph  E.  Cole,  and,  as  his  execution  had 
lost  its  active  energy,  he  filed  this  bill 
against  James  P.  Cole,  Thomas  Talbird,  the 
lyounger,  and  Edmund  R.  and  Joseph  B. 
Cheesborough,  for  account ;  for  an  injunc- 
tion to  restrain  defendants  from  removing  or 
selling  tlie  negroes ;  and  for  general  relief. 
The  bill  was  afterwards  amended,  by  making 
tlie  two  infant  children  of  Joseph  E.  Cole, 
and  Jacob  Cohen,  who,  in  the  mean  time, 
had  become  his  administrator,  parties. 

Johnston,  Ch.  It  is  unnecessary  to  make 
a  statement  of  this  case.  The  whole  case  is 
set  forth  in  the  pleadings  and  evidence  in 
writing.  I  shall  proceed  directly  to  the  de- 
livery of  the  judgment  of  the  Court. 

There  is  strong  ground  to  infer,  from  the 
testimony  of  William  Barinwell,  that  tlie 
deed  was  executed  by  Joseph  E.  Cole  while 
134 


he  was  deeply  indebted.  But  there  is  no 
necessity  to  inquire  into  the  existeu'-e  of  that 
fact,  or,  if  it  existed,  iiow  far  it  tended  to 
vitiate  the  deed,  as  against  the  plaintiff", 
Abrahams.  It  is  sufficient  that  the  deed  is 
a  marriage  settlement,  according  to  the  case 
of  Sibely  v.  Tutt,  (IMcM.  Eq.  320,)  and  as 
such  void,  as  against  creditors,  for  the  want 
of  a  schedule,  and  particularly  for  the  want 
of  registration,  as  required  by  the  statute  of 
1823.  (6  Stat.  213,  482.) 
*337 

*It  is  said,  however,  that  the  plaintiff  is 
barred  of  the  remedy  he  seeks,  because  he  did 
not  proceed,  within  the  statutory  period,  to 
set  the  deed  aside. 

It  may  admit  of  doubt  whether  he  is  bar- 
red, even  if  he  were  now  seeking  a  decree  to 
cancel  this  instrument.  The  statute  of  limi- 
tations is  a  bar  only  in  the  forums  of  this 
State.  It  cannot  run,  unless  the  party  has  an 
opportunity  for  an  eft'ectual  proceeding  in 
our  own  Courts.  It  may  be  doubted  whether 
the  absence  of  James  P.  Cole,  who  was  in  cus- 
tody of  the  slaves  in  foreign  parts,  did  not 
preclude  an  eft"eetual  proceeding.  The  pres- 
ence of  Talbird,  the  trustee,  in  the  State,  was 
not  of  itself  sufficient  to  sustain  a  bill  to  set 
aside  the  deed.  It  would  have  been  neces- 
sary for  the  plaintiff  to  bring  before  the 
Court  both  parties  to  the  deed — both  the 
grantor  and  the  grantee.  But  the  grantor 
was  dead,  and,  until  lately,  had  no  personal 
representative  within  the  jurisdiction.  Could 
the  statute  run  until  Cohen  took  out  letters"? 
The  statute  does  not  run  when  the  suit  is  to 
bear  against  an  individual  who  is  dead,  until 
there  is  a  representative  to  be  sued ;  and  I 
suppose,  that  when  the  suit  must  necessarily 
embrace  a  deceased  person,  as  one  of  several 
defendants,  the  statute  is  equally  inoperative, 
until  a  representative  of  that  individual  ex- 
ists. 

But  if  a  suit  for  the  purpose  of  cancelling 
the  deed  would  be  barred,  does  it  necessarily 
follow,  if  the  plaintiff"  has  another  remedy, 
that  that  remedy  is  also  barred?  The  con- 
trary would  seem  to  be  reasonable,  and  not 
without  authority.  Cholmondeley  v.  Clinton, 
2  Meriv.  201. 

The  statute  of  1S23  makes  the  conveyance 
absolutely  void,  as  against  creditors.  But, 
says  Chancellor  Harper,  in  Fripp  v.  Talbird, 
(1  Hill,  Eq.  143,)  "when  it  is  said  that  a  deed, 
good  between  the  parties,  is  void  as  to  credi- 
tors, there  is,  perhaps,  a  want  of  exact  pre- 
cision in  the  language.  They  may  treat  it  as 
void.  They  are  not  compelled  to  institute 
any  legal  proceedings  to  avoid  it,  but  may 
seize  the  property  as  if  there  were  no  deed. 
But.  until  they  do  seize  the  property,  the  deed 
I'emains  perfectly  good." 
*338 

*It  is  clear,  that  no  length  of  possession  of 
the  negroes,  out  of  the  State,  would  have  any 
eff'ect  as  against  the  plaintift"s  fi.  fa.  When- 
ever they  were  brought  within  its  limits,  the 


AllUAHAMS   V.  CUI.E 


*340 


lien  of  the  execution  attached  upon  theiu,  as' 
was  Ions;  ago  decided  iu  one  of  our  rei)orted 
law  cases.  I 

If  the  phiintilT's  execution  had  iteen  levi-  : 
able,  VIS  well  as  liindinj;,  when  he  discoveretl  [ 
the  ne^'i-oes.  wliich  had  returned  in  Sept  em- , 
her.  1N4S.  lie  mi;.'lit  have  levied  nii  them.  Hut  | 
when  he  found  out  that  tlie  ne;;roes  were' 
here,  his  exec-ution  had  lost  its  active  energy.  I 
His  hill  was  tiled  to  prevent  tlieir  lieins 
eloijiued,  (in  suhstance.  to  preserve  the  prop- 
erty,) until  he  could  renew  his  H.  fa. 

It  is  proper  ti>  reniarU.  (init  in  one  of  our 
cases,   something,'   is  said   apimrently   eontra- 
dictory  to  Chancellor  Harper's  assertion  of  a 
creditor's  rijrht  to  avoid  a  trust  deed  hy  levy- 
ing on  tlie  iirojierty.      I   cannot  thiidv,  how- 
ever,  that    though    a    creditor    he   obliged    to 
forego  a  direct  levy,  and  be  obliged  to  come 
here  to  have  the  benetit  of  a   lien  land  of  a  ] 
levy,  that,  tlu'refore.  we  are  to  divest  him  of, 
all  the  advantages  he  would   liiive  had  from 
his  execution,  if  he  had  levied  it.     Our  inter-' 
ference  with  his  legal  right  should  not  |>rejn-| 
dice  him,  but  we  slionbl  allow  him  the  benetit  I 
of  all  the  rights  he  would  have  had,  hail  we  j 
not  interfered.     Our  interposition   is  to   pro-  ] 
tect  the  projierty  of  cestui  que  tnists.  but  not  I 
to  fnistrate  the  just  rights,  or  frustrate  the] 
remedies,  of  creditors. 

So  much  upon  the  merits  of  the  case.  As 
to  .Tames  P.  Cole,  he  has  not  been  i)roperly 
made  a  party.  He  is  not  within  the  jurisdic- 
tion, nor  is  he  interested  in  or  chargeable 
with  the  custody  of  the  negroes  since  they 
came  here.  He  has  no  agent  here,  nor  has  be 
had  any  agency  In  the  suit.  It  is  therefore 
ordered,  that  the  bill  be  disnnssed.  as  to  him. 

It  is  decreed,  that  the  slaves  (except  Maria, 
to  whom  the  plaintiff  has  made  out  no  case) 
lie  delivered  up.  to  be  sold,  in  satisfaction  of 
the  i>laintiff' s  debt,  referred  to  in  the  bill,  and 
of  the  costs  in  this  c;ise. 

If  the  plaintiff  desires  an  account  of  hire, 
♦  339 
let  him  go  before  *one  of  the  Masters:  I  sup- 
l)ose  he  will  be  entitled  to  the  balance  of  hire 
unexiieiided  by  the  trustee.  Hut  I  reserve 
the  point,  and  leave  it  to  be  made  before  the 
Master,  and  so  come  up  upon  exceptions  to 
the  Master's  report. 

The  defendants  appealed  on  the  following 
grounds: 

1.  Hecause  his  Honor  ought  to  have  de- 
creed upon  the  case  made  by  the  pleadings 
and  evidence,  that  the  defendants  had  nv- 
(luired  a  right  by  possession  to  the  negroes 
named  in  the  bill;  and  that  they  were  no 
longer  subject  to  the  debts  of  .Toseph  K.  Cole. 

li.  Hecause,  although  there  was  no  adndn- 
i.stration  on  the  estate  of  .loseph  10.  Cole,  in 
this  State,  until  after  the  tiling  of  the  com- 
plainant's bill,  yet  such  administr.ition  was 
not  neces.sary  to  give  to  the  defendants'  pos- 
session of  the  said  negroes  an  adverse  char- 
acter; but  necessary  only  to  enabh-  the  com- 
plainant to  show  that  his  decree  had  not  been 
satisfied,  and  to  revive  it ;    and  it  was  there- 


fore his  duty  to  cause  adndulstration  to  be 
taken  out. 

.'{.  Hecause  the  trustee,  llionjas  Talblrd. 
sen.,  during  his  life,  and  his  ex»HUtor  after 
his  death,  as  well  as  James  V.  Cole,  the  ad- 
ndidstrator  in  Alabama,  had  each,  by  his 
pos.ses.sion  of  the  negroes.  mad«'  himself  liable 
as  executor  <le  son  tort,  of  .loseph  K.  Ctile, 
and  might  have  l»e«»n  sued,  in  that  chanu'ter. 
in  this  .State,  notwithstanding  the  pro|»erty 
was  out  of  the  State. 

4.  H«'<'ause  the  rluht  of  the  ci^mplainant  to 
revive  his  decree,  and.  under  his  execution,  t<» 
levy  on  the  property  of  .Joseph  K.  Cule.  Is  not 
deide<l ;  but  it  Is  submitted  that  the  negroes 
in  dispute,  having  been  carrUnl  out  of  the 
State  by  .loseph  K.  Cole.  l>efore  the  ••omplain- 
ant  obtained  his  decree,  were  never  subject  to 
the  lien  of  the  exei-ution;  and  when  bnaight 
back,  eiirht  years  after  the  death  of  the  said 
.loseph  K.  Cole,  the  infant  (h'femlants  had.  by 
the  possession  of  their  trustees,  even  thou^rh 
it  ndght  have  conum-nced  in  fraud,  acipiln-d 
a  statutory  title,  as  au'Jiinst  all  the  world. 
•340 

*.">.  Hecause  it  is  not  i>refeniled  by  the  com- 
plainant that  he  was  not  apprised  of  the  exe- 
cution of  the  <lee<l  by  .Joseph  K.  <'nle.  at  the 
time,  or  shortly  after  Its  ex«H-ution;  or  that 
he  was  not  informed  of  ins  removal  with  his 
))n)perty  to  Alabama,  and  of  his  death,  at  the 
time  it  liappeiied.  or  that  he  was  ignorant 
that  the  truste*'.  who  held  possession  «>f  the 
negroes  for  the  defendants,  and  the  ch'fend- 
ants  themselves,  were  living  in  the  town  of 
Heaufort,  in-  this  State,  at  the  <leath  of  the 
said  .Toseiih  K.  Ci>le.  and  so  always  ctmtinued 
to  live,  without  interruption. 

When-fore.  It  is  humbly  submitted,  tlnit 
complainant  ought  to  have  file«l  his  bill,  to 
subject  the  spedtic  property  of  .Joseph  K. 
Cole  to  the  payment  of  the  decr»^',  within 
four  years  after  the  dejith  of  the  said  .J<>s«'i>h 
E.  Cole. 

6.  Because,  if  the  c<implainant  has  tne 
right  to  subject  the  negroes  in  dispute  to  the 
I)ayment  of  his  decree,  he  <-ertainly  has  iu> 
right  to  any  accoinit  of  tlieir  hire  and  waires 
from  the  trustee;  It  is  tiierefore  submitted 
that  the  decree  is  erroneous,  in  dlre«.tlut;  such 
account  to  be  taken. 

Trevllle.  for  appellants. 
Campbell.  ct»ntra. 

The  opinion  of  the  Court  was  delivered  by 

.lollNSTdN.  (  h.  llien"  is  no  mistaking 
the  i;ri>nnd  ui»on  whbh  the  d»'cree  Is  foundeil. 
The  bill  is  frameil  with  the  sole  object  of  sub- 
jecting the  negroes,  which  were  brought  into 
tills  State  In  1S4S.  to  the  lien  of  the  plaintiff's 
execution  against  .Joseph  K.  Cole.  The  plain- 
tiff had  (ibtained  his  Judgment  ^igalnst  hi.s 
debtor,  and  hail  hnlged  his  executicm;  hut, 
pending  the  suit,  the  iiroperty  liad  lu'en  re- 
move<l  to  Alabama,  ami  there  was  nothing 
within  the  jurisdb-tlon  out  of  whl«-h  the  mon- 
ey could   l>e  made.     When   the  proiterty   was 

135 


*340 


5  RICHARDSON'S  EQUITY  REPORTS 


brought  back,  in  1848,  for  the  first  time  the 
lien  of  the  execution  attached  upon  it,  if  it 
was  Joseph  E.  Cole's  property ;  but,  as  the 
execution  had  lost  its  active  energy,  and  the 

*341 
property  was  liable  to  be  eloigned,  *it  was 
necessary  for  the  plaintiff  to  come  here,  to 
prevent  its  removal,  until  he  could  renew  his 
execution  according  to  the  statute  of  1827. 

This  is  the  whole  case  upon  which  the  de- 
cree is  founded ;  and  it  would  be  a  very  sim- 
ple one,  if  tlie  debtor  had  never  alienated  the 
property.  Independently  of  that  circum- 
stance, there  could  be  no  doubt  the  Court 
would  be  bound  to  lend  its  aid  for  the  pres- 
ervation of  the  property,  to  answer  to  the 
execution. 

The  property,  however,  had  been  alien- 
ated; but  the  alienation  was  ineffectual,  in- 
asmuch as  it  was  made  by  way  of  post-nup- 
tial settlement,  and  the  instrument  had  not 
been  duly  registered.  It  was  void  against 
the  creditor,  for  want  of  registration.  This 
point  being  decided,  the  plaintiff"  was  entitled 
to  his  decree,  as  if  no  such  settlement  had 
been  made. 

It  was  not  necessary  to  inquire  whether 
the  plaintiff  was  barred  of  his  remedy,  to 
set  the  conveyance  aside:  because,  in  fact, 
he  needed  no  such  remedy.  Nor  did  the  bill 
seek  to  set  the  instrument  aside.  All  that 
is  said  in  the  decree  upon  that  subject,  and 
upon  the  subject  of  the  parties  necessary  to 
such  a  proceeding,  and  the  operation  of  the 
statute,  as  affecting  that  remedy,  is  merely 
speculative  ;  and  intended  to  meet  arguments 
made  at  the  hearing;  the  counsel  having 
supposed  that,  in  addition  to  the  remedy 
which  his  bill  specifically  prays,  he  might 
have  been  entitled,  under  the  general  prayer, 
to  have  the  deed  set  aside  and  cancelled. 

We  are  satisfied  that  the  decree  is  right, 
in  aiding  the  plaintiff"  to  the  lien  of  his  exe- 
cution ;  which  is  the  only  point  decided : 
and  it  is  ordered  that  the  decree  be  affirmed, 
and  the  appeal  dismissed. 

DUNKIN,  DARGAN  and  WARDLAW,  CC, 

concurred. 

Decree  affirmed. 


5  Rich.  Eq.  *342 

*THE    CHARLESTON    INSURANCE    AND 

TRUST  COMPANY  v.  ED^YxiRD 

SEBRING  and  Othere. 

(Charleston.     Jan.   Term,   1853.) 

[Corporations  <S=>320.] 

Bill  filed  by  a  stockholder  again.st  the  Presi- 
dent and  Directors  of  a  banking  corporation,  to 
compel  them  to  re-transfer  to  the  Bank  certain 
shares  in  the  stock  of  the  Bank,  which  the  Bank 
itself  had  owned,  and  which  the  defendants  had 
sold  and  purchased  themselves,  at  less,  it  was 
alleged,  than  the  market  value: — Held,  that  the 


corporation  .should  have  been  made  a  party  to 
the  bill. 

fEd.  Note. — For  other  cases,  see  Corporations, 
Cent.  Dig.   S  1429;    Dec.  Dig.  <S=332U.J 

[Corporations  <S=>1.] 

[Cited  in  Ex  parte  Trustees  of  Greenville 
Academies,  7  Rich.  Eq.  481,  to  the  point  that 
a  corporation  is  a  single  artificial  person  and 
has  but  one  will,  expressed  by  resolution  of  the 
majority. 1 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent.  Dig.  §§  1,  3-6;    Dec.   Dig.  0=»1.] 

Before  Dunkin,  Ch.,  at  Charleston,  June^ 
1851. 

Dunkin,  Ch.  The  State  Bank  is  an  institu- 
tion with  a  capital  of  one  million  of  dollars, 
divided  into  ten  thou^^and  shares,  of  one 
hundred  dollars  each.  The  complainants  are 
stockholders  of  this  institution,  to  the  extent 
of  two  hinidred  and  ninety-four  shares.  The 
allegations  of  the  bill  are,  that  the  business 
of  the  State  Bank  is  transacted  by  a  Presi- 
dent and  Directors — twelve  Directors  being 
annually  chosen  by  the  stockholders,  and  the 
President  being  selected  by  the  Directors, 
from  their  own  body ;  that,  after  the  annual 
election  in  July,  18.50,  the  Board  con.sisted  of 
Edward  Sebring,  President,  and  James  H. 
Ladson,  H.  A.  DeSaussure,  George  M.  Coffin, 
John  E.  Cay,  H.  S.  Hayden,  E.  ^Y.  Bancroft, 
Geo.  Gibl)on,  M.  P.  Matheson,  S.  P.  Ripley, 
Robt.  Mure,  and  Thomas  Trout ;  that  the 
State  Bank  had  been,  some  time  previously, 
the  owners  of  two  thousand  three  hundred 
shares  of  their  own  stock — that,  from  vari- 
ous causes,  the  stock  of  the  State  Bank  had 
depreciated  from  the  par  value,  but  that,  in 
July,  1850.  it  had  become  a  desirable  invest- 
ment and  the  market  value  was  above  par; 
that,  at  a  meeting  of  the  Board,  held  in 
July,  1850,  the  President  and  Directors  of  the 
said  State  Bank,  or  such  of  them  as  were 
present  at  the  meeting,  and  who  were  will- 
ing to  unite  in  the  same,  by  a  resolution 
among  themselves,  did  agree,  that  they 
would,  in  certain  proportions,  determiuea  by 
and  among  themselves,  become  the  purchas- 
ers of  the  two  thousand  three  hundred  of 
the  shares  of  the  stock   held  by   the  Bank, 

*343 
and  that  *it  should  be  taken  at  .$100  per 
share,  or  the  par  value  of  the  same ;  that 
"the  President  and  all  the  Directors  assent- 
ed to  this  sale  to  themselves,  as  individuals, 
with  the  exception,  so  far  as  complainants 
are  Informed,  of  James  H.  Ladson,  George 
M.  Coffin,  and  H.  A.  DeSaussure,  who,  as 
complainants  are  informed,  were  absent,  or 
declined  to  participate  in  the  same" — that 
the  agreement  has  been  carried  into  effect 
by  a  transfer  of  the  stock.  The  complain- 
ants insist  that  the  President  and  Directors 
had  no  right  to  purchase  for  themselves,  pri- 
vately, the  property  of  which  they  were 
possessed  as  trustees  for  the  stockholders, 
and  at  less  than  the  market  value  of  the 
stock.    The  prayer  of  the  bill  is,  that  the  de- 


136 


®==>For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


CHARLESTON  INSURANCE  AND  TRUST  CO.  v.  SEBRING 


»n4> 


femlants  may  answer  as  to  tlie  all»'^'e<l  a^'ret'-  ) 
iiu'iit,  «.V:c..  and  which  of  them  imnhaseil.  ami 
wliat  numlier  of  shares  each  retelved.  &c., 
and  "that  the  imrehases  so  made  shall  be 
cancelled,  and  the  President  ami  directors 
.so  purchasinf:  he  decreed  to  deliver  hack  to 
tile  State  liank  the  shares  so  purchased  by 
them,  and  account  for  the  dividends  which 
they  have  received;  and.  In  ca.se  the  sluires 
cannot  be  transferred  back  to  the  State 
Bank,  that  the  said  Tresident  and  Directors 
may  be  decreed  to  account  to  the  complain- 
ants, for  their  interest  or  jiroiiortion  in  the 
shares  so  purchased,  and  he  »lecreed  to  pay 
to  the  complainants  such  tlamajies  as  they 
have  sustained  h.v  reason  of  the  premises," 
and  for  jieneral  relief.  Suliinena  is  also 
prayed  ay:ainst  all  the  individuals  hereinbe- 
fore named — hut  no  process  Is  prayed  auainst 
the  State  liank.  nor  is  that  Institution,  in 
any  way,  a  party  to  the  procccdint;s. 

The  bill  was  tiled  on  the  .'M  F»'l»ruary.  is.')l. 
James  II.  I.adson.  (Jeor;;e  M.  Cotlin,  and  II. 
A.  DeSaussure  have  demurred  to  the  bill.  It 
is  not  su;r«ested  that  ibey  were  present  at 
the  nieetinj;  in  July  ;  but.  on  the  contrary,  It 
is  set  forth  that  they  neither  assented  to  the 
sale  nor  particiiiated  in  it,  and  no  relief  is 
souRht  against  either  of  them.  A  discovery 
is  only  sou^rht  from  those  who  were  iiarties 
to  the  ajireement,  or  particii)ated  in  the  re- 
sult of  the  sale.  The  demurrer  must  there- 
fore be  sustained. 

*344 

♦The  defendants,  Robert  Mure  and  E.  W. 
Bancroft,  were  absent  when  they  were  elect- 
ed, in  July,  isno — had  no  knowledge,  or  con- 
cern, in  relation  to  the  transactions  about 
which  complaint  is  made  and  did  not  re- 
turn to  Charleston  until  .some  time  after  thej  ! 
had  been  consunuuatcd.  As  to  these  defend-  | 
ants,  the  bill  must  stand  disnnssed.  I 

The  other  defendants  have  answered  fully.  | 
The  principal  answer,  of  Edward  Sebrinj,'  ' 
and  others,  submits  that,  as  the  prayer  is,  ^ 
that  "the  defendants  should  be  decreed  to  de- 
liver back  to  the  State  Hank  the  shares  i)ur- 
chased,  and  account  for  the  dividends  re- 
ceived," that  institution  should  be  made  a 
party  to  the  proceedings,  and  they  insist  on 
the  want  of  such  party,  in  the  same  maimer 
as  if  they  had  demurred  for  that  <au,se.  This 
presents  a  preliminary  inquiry  for  adjudica- 
tion. The  bill  assumes  that  the  defentlants 
were  agents  of  the  State  Hank,  for  the  sale 
of  the  two  thousand  three  hundred  shares 
which  belonged  to  the  institution,  and  that 
the  transfer  or  sale,  which  they  had  made, 
was  a  breach  of  tlu'ir  duty,  and  should  In- 
set aside  and  cancelled,  and  the  stock  be  re- 
transferred  to  the  State  Hank.  The  com- 
plainants proceed  on  the  well  established 
prin<iple,  that  a  sale  of  this  character  is 
voidable,  at  the  instance  of  the  |)rincipal,  or 
cestui  (lue  trust.  On  the  other  hand.  It  <an- 
iiot  be  doubted  that  It  is  at  the  option  of  the 
princliial  to  acquiesce  in  the  sale,  as  advan- 


tageous to  himself,  or  to  set  it  aside.  Nor 
Is  it  less  clear,  that  the  principal,  or  cestui 
que  trust,  in  this  case,  is  tlu*  incorporated  in- 
stitution called  the  "State  Hank." 

The  prayer  of  the  bill  is,  (and  could  only 
Im*,»  that  the  defendants  may  re-transfer  to 
the  State  Hank:  but  this  necessarily  implies 
a  rescission  of  the  contract,  and  that,  conse- 
quently, the  State  Hank  should  refund  to  the 
defendants  the  jiar  value  of  the  stock,  at 
which  It  wais  jiurcbased.  The  hnpiiry  Is  not, 
whether  this  would  be  an  advantageous  ar- 
rangement for  the  Institution;  but  can  the 
Court  nuike  such  decree,  or  pro.secute  such 
hHjulry,  in  a  proceinling  to  which  the  State 
Hank  is  no  party?     It   is  true,  the  dllliculty 

•346 
lies  deeper.  The  ."-Jtati'  Hank  'Is  composed  of 
the  stockholders  In  that  lnstit\ition.  They 
appoint  their  agents  for  ccmducting  the  busi- 
ness of  the  Hank,  and  remove  them  at  pleas- 
ure. This  is  done  by  a  majority  of  the  stock- 
holders, who  have  also  the  right  to  do  any 
act,  within  the  limits  of  the  charter,  which 
they  may  conceive  beneticial  to  the  institution. 
A  mint»rity  may  not  concur,  or  may  be  dls- 
satlstiitl.  but.  In  the  absence  of  fraud,  collu- 
sion, or  other  abuse,  on  the  part  of  the  stock- 
holders, the  will  of  the  majority  must  be  re- 
garded as  the  act  of  the  institution  Itself. 
See  Foss  v.  Ilarbottle,  2  Hare,  VM;  Mozley 
V.  Alston,  1  I'bil.  71K).  and  Lord  v.  Copi>er 
Miidng  Conqiany,  L!  I'hll    740. 

The  (timplainants  are  merely  .shareholders 
In  tlu'  incorporation,  and  it  is  unhnportant, 
in  discussing  their  rights,  whether  they  hold 
one  share  or  three  hundred  shares.  Nor  Is 
it  imi)ortant  whether  the  subject  matter  of 
comi>laint  was  stock  improperly  sold,  and  jiur- 
chased  by  the  I'resident.  «tr  a  banking  hou.se. 
which  had  belonged  to  himsi'lf.  and  which  he 
had  sold  to  the  Institution.  (Jenerally.  none 
but  toe  itank  could  inqu-acb  the  transaction, 
and  although  an  individual  stockhobler  may, 
perhaiis.  present  a  case  which  would  «'ntltle 
him  to  a  hearing,  the  incorporated  institution, 
as  smb.  must  be  a  party  to  the  proce«'dlngs. 
In  anticipation  of  the  possible  jutlgment  of 
the  Court  upon  this  objectiiMi  of  the  defen<l- 
ants,  a  motion  was  subndtted  by  the  com- 
plainants, that.  In  that  event,  they  should  have 
leave  to  amend  th«'  pleadings,  by  nuiking  the 
Slate  Hank  a  party  thereto.  As  the  objec- 
tion was  not  taken  at  the  threshold,  and  this 
Is,  necessarily,  very  much  a  matter  of  «ll.scre- 
tion.  the  Court  is  unwilling  to  dejtrlve  the 
conqilainants  of  any  advantage  which  sm-h 
amendment  nniy  be  sujiiiosctl  to  afTord  them. 

.\s  to  the  defendants,  James  H.  Lad.son. 
(u'orgt'  -M.  Collin,  and  II.  .\.  I»eSaussnre,.and 
also,  as  to  tlu'  defendants.  Robert  .Mure  and 
E.  W.  Bancroft,  it  is  ordered  and  difretnl 
that  the  bill  be  dismissed. 

It  Is  further  ordere«l,  that  the  complain- 
ants have  leave  to  amend  their  pleadings, 
by  making  the  State  Bank  a  party  thereto, 
in  such  maimer  as  they  may  be  advLsed. 

137 


*346 


5  RICHARDSON'S  EQUITY  REPORTS 


*346  I 

*The  complainants  appealed  on  the  grounds: 

1.  Because  tbe  case  made  in  the  bill,  and 
supported  bj^  the  testimony,  entitled  the  com- 
plainants to  relief. 

2.  Because  it  was  not  necessary,  for  the 
purposes  of  this  suit  that  the  State  Bank 
should  be  made  a  party. 

3.  Because,  if  the  State  Bank,  in  this  case, 
is  a  necessary  party,  the  rights  of  individual 
stockholders  of  the  Bank  are  to  be  determin- 
ed, not  by  the  established  laws  of  the  land, 
but  the  power  of  a  majority:  and  while  such 
a  rule  may  be  recognized  in  relation  to  the 
ordinary  matters  of  the  Bank,  it  cannot  be 
applied  to  a  case  where  the  Directors  acted 
in  opposition  to  the  established  principles 
which  govern  all  who  act  in  a  tiduciary  ca- 
pacity, and  which  had  no  proper  connection 
with  their  duties  as  officers  of  the  State 
Bank,  but  was,  in  fact,  an  admitted  violation 
of  the  same. 

4.  Because  the  Chancellor  erred  in  dis- 
missing the  bill,  as  to  the  tive  defendants, 
Messrs.  DeSaussure,  Ladson,  Coffin,  Mure 
and  Bancroft. 

5.  Because  the  decree  is  unsupported  by 
the  evidence  and  the  law  applicable  to  the 
case. 

Magrath,  McCready,  for  appellants. 
DeSaussure,   Petigru,   Memminger,    contra. 

The  opinion  of  the  Court  was  delivered  by 

DAKGAN,  Ch.  It  is  necessary  to  add  but 
little  to  what  has  been  said  in  the  Circuit 
decree. 

A  corporation  is  an  artiticial  person,  the 
creature  of  the  law,  and  manifesting  its  ex- 
istence only  by  the  exercise,  after  a  prescrib- 
ed form,  of  certain  franchises  and  functions 
given  to  it  by  law.  Or,  as  defined  by  Chief 
Justice  Marshall,  in  the  case  of  Dartmoutli 
College  V.  Woodward.  4  Wheat.  6;!(>  [4  L.  Ed. 
629],  it  "is  an  artificial  being,  invisible,  in- 
tangible, and  existing  only  in  contemplation 
of  law."  In  the  Providence  Bank  v.  Billings, 
4  Peters,  514  [7  L.  Ed.  939],  it  is  said  by  the 
same  eminent  Judge,  that,  "the  great  object 
of  an  incorporation  is  to  bestow  the  charac- 

*347 
ter    and    *properties    of    individuality    on    a 
collective  and  changing  body  of  men." 

A  corporation  aggregate  is  but  one  person, 
having  the  same  unity  in  its  corporate  charac- 
ter and  existence  as  a  natural  person.  How- 
ever numerous  they  may  be,  the  will  and  in- 
dividuality of  the  corporators  are  lost  or 
merged  in  the  will  and  individuality  of  the 
whole.  A  corporation  can  have  but  one 
will,  and  that  will  can  only  be  manifested  by 
the  potential  and  uncontrollable  voice  of  the 
majority.  It  has,  and  can  have,  from  the 
nature  of  things,  no  other  mode  of  action. 

As  long,  therefore,  as  a  corporation  con- 
tines  itself,  in  the  management  of  its  affairs, 
within  the  limits  of  its  chartered  powers,  and 

138 


commits  no  fraud  upon  the  rights  of  the  in- 
dividual corporators,  (facts  which  are  not 
alleged  in  this  case,)  it  is  idle,  and  it  is  in- 
consistent, to  talk  of  the  rights  of  individual 
members  of  the  corporation,  as  distinct  from, 
or  opposed  to  those  of  the  corporation  itself. 
In  ca,se  that  the  corporation  should  commit 
a  fraud  upon  the  rights  of  individual  mem- 
bers, the  Court  of  Equity  would  take  cog- 
nizance of  the  transaction,  and  would  afford 
its  protection  and  relief,  as  in  any  other  case 
of  fraud ;  and  upon  the  principles  applicable 
to  frauds  generally. 

The  Directors  of  an  incorporated  company 
are  not  technically  trustees:  they  are  the 
agents  of  the  company,  and,  so  far  as  the 
doctrines  which  prevail  in  this  Court,  in  ref- 
erence to  trusts,  are  applicable  to  the  rela- 
tions of  principal  and  agent,  the  same  would 
be  enforced  against  the  Directors,  in  favor  of 
the  Corporation.  I  am  at  a  loss  to  perceive 
any  difference  as  to  the  duties  and  liabilities 
of  the  agents  of  a  natural  person,  and  the 
agents  of  that  artificial  or  political  body, 
known  as  a  corporation. 

Tlie  Directors  are  the  agents,  not  of  the 
natural  persons,  or  individual  members  com- 
posing it,  but  of  the  corporation:  that  is  to 
say.  of  all  the  corporators,  in  their  associated 
and  corporate  character.  If  the  agents  com- 
mit default — if  they  embezzle,  become  'ndebt- 
ed,  or  liable  for  mismanagement,  or  neglect — 
no    action   would    lie   in   this,    or   any  other 

*348 
Court,  in  behalf  of  indi*vidual  corporators, 
for  their  supposed  aliquot  part  of  the  amount 
embezzled,  or  of  the  damages  resulting  from 
the  default.  But  such  defaulting  agents 
would  be  responsible  to  their  principal  alone, 
which  is  the  corporation.  And  the  action 
must  be  in  the  name  of  the  corporation. 

When,  in  this  case,  the  Directors  of  the 
State  Bank,  having  in  charge  the  shares  of 
stock  belonging  to  the  company,  with  author- 
ity to  sell,  sold  the  said  shares  to  themselves, 
at  less  than  their  marketable  value,  I  do  not 
hesitate  to  say  that  they  did  a  very  improper 
act.  It  was  a  breach  of  trust.  I  do  not  wish 
to  be  understood  to  say  that  it  was  a  wilfully 
corrupt  breach  of  trust.  Yet  it  was  a  dev- 
astavit, for  which  this  Court  would  make 
them  liable.  The  same  principles  would  be 
enforced  against  them,  as  would  be  enforced 
against  trustees,  under  like  cii'cumstances. 
They  would  be  compelled  to  re-assign  the 
stock,  or  to  account  for  the  profits  which  they 
had  realized  in  the  tx'ansaction,  at  the  option 
of  the  aggrieved  party. 

But  who  is  the  aggrieved  party?  Who  is 
the  principal?  These  questions  are  already 
answered.  A  principal,  who  is  a  natural  i)er- 
son,  might  not  choose  to  contend  in  law  for 
his  exti-eme  rights,  against  a  defaulting 
agent.  Just  so  of  a  corporation.  The  conduct 
of  the  defaulter  might  be  looked  upon  with 
a  lenient  eye,  on  account  of  past  fidelity  and 
services ;    or  he  may  have  made  restitution, 


FOX  V.  FORD 


»8ol 


or  a  coniproniiso ;  or  the  amount  to  be  re- 
covered liy  action  uii},'lit  not  l>e  thoU},'ht  worth 
the  cost  and  tronlile  of  the  pursuit.  Certain- 
ly, a  '-orporation  has  tlie  ]»o\vcr  of  exercising 
its  discretion  in  sucli  matters — and  the  ex- 
ercise of  its  discretion  would  lie  conclnslve 
upon  the  Individual  coritorators.  Can  it 
be  doubted  that  the  corporation  would  have 
the  rij:ht  to  conllrm  to  tin*  Directors  the  il- 
lepil  sale  of  the  stock,  which  they  made  to 
themselves. 

For  a  small  constituent  of  this  bankluR 
corporation  to  brliif;  their  suit  against  the 
agents  of  the  corporation,  without  making 
the  latter  a  party,  for  tludr  supiK)scd  share 
of  the  loss  which  resulted  from  the  ille;:al 
sale  of  stock  shares.  Is  not  warranted  by  i»rin- 
'iple  or  authority.     The  Cin-ult  decree,  wlth- 

*349 
out  adjudj,'*inf;  the  case  upon  Its  merits,  or- 
ders the  corporation,  as  the  State  Hank  of 
South-Carolina,  to  be  made  a  party.  This 
Court  is  satisfied  with  the  decree.  The  ap- 
peal is  dismissed,  and  the  Circuit  decree  is 
atlirmcd. 

Id.NKIX  and  WAKl  >I.A\V,  r(\,  concurred. 

.KULXSTON.  Cli.,  alisent  at  the  hearing. 
Appeal  dismissed. 


5  Rich.  Eq.  349 

WILLIAM  FOX  and  Wifr,  .  t  al.  v.  MORTON 
FORI),  et  al. 

(Charleston.      Jan.   Term,   1853.) 

|/'>7»//(/  <2=>."{7S.l 

Wiicrr,  in  cases  of  ddwer.  injiuictioii  to  stay 
waste,  or  of  partition,  tlie  litlf  to  the  bind  is 
involved,  tiie  approved  practice  of  tlie  Court  is, 
not  to  determine  upon  the  title,  but  to  leave, 
or  send,  tluit  matter  to  a  jury,  by  directing 
an  action  at  law,  or  oideiinj;  an  issue. 
[Ed.  Note.— Cited   in   1  )u   Tout  v.  Du  Bos,  oo 

s.  c.  ;«)!».  11  s.  E.  iot;;. 

For  other  cases,  see  Equity.  Cent.  Dig.  §  T'JD; 
Dec.  Dig.  €=378.] 


Before  Dargan,  Ch.,  at  Colleton.  February, 
1852. 

Bill  to  set  aside  a  deed  of  gift  of  two 
slaves  and  a  tract  of  land,  and  for  partition. 
His  Honor  sustained  the  prayer  of  the  Idll, 
and  Christian  Rumph,  one  of  the  defeudauts, 
appealed. 

Carii.  for  appellant. 
Tracy,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DCNKIX,  Ch.  The  principal  obji'ct  of  this 
MM  was  to  set  aside  f<ir  fraud,  a  de»'tl  of  gift  of 
a  tract  of  land  and  two  slaves,  from  Mary 
Fofd.  deceased,  to  her  son.  (one  of  the  defend- 


ants.) Morton  Ford.    The  deed  bears  date  No- 
vember 4,  1848,  aud  was  recorded  iu  the  office- 

•350 
of  tlie  Regl.ster  of  Mesne  Conveyances  'for 
Colleton  district,  on  the  ITth  of  February. 
lN4'.t.  Mary  Ford  «lhHl  during  the  month  of 
Feliruary,  ls41t.  Her  son.  Morton  Ftu-d.  re- 
mained In  possession  until  4th  Novend»er, 
lsr»().  when  the  land  was  sold  as  his  projK'rty 
by  the  sheriff  of  Colleton  dlstrut.  under  exe- 
cutions against  him.  and  iiurchaseil  by  the 
defendant.  Christian  Rumph.  who  holds  the 
conveyance  from  the  sheriff.  The  complain- 
ants are  two  of  the  heirs  at  law  of  Mary 
F<»rd.  deceased,  antl  tl>ey  pray  that  the  (htnl 
from  Mary  Ford  may  Ik-  set  asUle;  that  the 
two  slaves  nniy  be  hebl  part  of  her  estate, 
and  that  a  writ  of  partition  naty  issue  to 
divide  the  lanil.  The  bill  Is  taken  pro  «on- 
fesso  against  Morton  Ford.  But  the  other 
defendant.  C.  Rumph,  denies  all  knowletlge 
of  the  fraud.  If  any  existed,  or  any  notice  of 
complainants'  claim,  and  Insl.sts  on  his  ex- 
clusive right  to  the  buul  under  tlie  purcliase 
from   tlie  sheriff. 

By  the  decree  of  the  Circuit  Court,  th»» 
deed  was  set  aside,  the  defendant.  .Mtirton 
Ford.  <irdered.  to  account  for  the  slaves  and 
their  hire;  and  a  writ  of  partition  of  the 
land  was  dlrect«'d  to  Issue.  From  this  de- 
cree, the  defen<lant,  Christian  Rumph,  alone- 
has  appealed. 

In  considering  the  case  of  this  defen«lant, 
the  Court  deems  It  uiuiecessary  to  review  the 
evidence,  or  to  express  any  opinion  upon  the 
Inference  deduced  from  It.  The  defendant  Is 
In  possession  of  a  tra<t  of  land.  t<»  which  he 
claims  to  holil  an  exchislve  title  as  his  free- 
hold. No  tidiu'iary  relation  exists,  or  is- 
charged  to  exist,  between  the  c<Mnplaiiiant» 
and  himself.  As  no  bill  will  lie  for  the  po.s- 
sesslon  of  lanils.  so  where  the  Court  has  ju- 
risdiction of  the  subject  matter,  as  In  cases 
of  dower,  of  Injunction  to  stay  waste,  or  of 
partition,  and  the  title  to  the  land  Is  in- 
volved, it  is  the  ai>proved  practice  of  this 
Court  not  to  determine  upon  the  title,  but  to 
leave  or  send  that  matter  to  a  jury,  liy  di- 
recting an  action  at  law,  or  ordering  an  is- 
sue. 1  Story.  Ivi.  §  "•_'.  The  suliject  is  fully 
discussed  by  Sir  William  (Jrant.  In  .Tones  v. 
.Tones.  3  Merlv.  HJl. 

It  Is  orderetl  and  decreed,  that  an  issue  at 
law.  In  the  nature  of  an  action  to  try  title,  be 

•361 
made  tip  between  the  complainants  'and  the 
defendant.  <'lirlstlan  Rumph.  In  whbh  the 
complalniints  shall  be  the  plaint lITs.  and  the 
del'endai\t.  C.  Rumph.  shall  admit  ouster; 
that  tbe  issue  be  tried  In  the  Court  of  C«>iu- 
mon  I'leas  for  Cidb'ton  district,  and  that  the 
presiding  .Tmlge  1h»  resiH'ctfully  re<|uested  to 
certify  the  venilct  to  tbe  Court  of  Chancery 
for  said  district,  at  the  sittings  next  there- 
after: ami  it  is  finally  ord«'re»l  and  de<-reed, 
that  so  much  of  the  Circuit  decree  as  affi'cts 


©=jFur  other  cases  set-  same  topic  aud  KKV-.VLl.MUliK  iu  all  Key -Numbered  Digests  and  ludexei 


13» 


*351 


5  RICHARDSON'S  EQUITY  REPORTS 


the  claim  of  the  defendant,  Christian  Rumph, 
be  set  aside. 

DARGAN   and    WARDLAW,    CC,    concur- 
red, 

JOHNSTON,  Ch.,  absent  at  the  hearing. 
Issue  ordered. 


5  Rich.  Eq.  351 

AUSTIN   PASLAY   and    Others   v.   ROBERT 
MARTIN. 

(Charleston.      Jan.    Term,    1853.) 

[Equity  <g=>378;    Jury  <@=>13.] 

On  a  bill  for  the  specific  delivery  of  slaves, 
the  Court  is  not  bound  to  refer  the  question 
of  title,  where  it  is  disputed,  to  the  Law  Court: 
It  can  determine  the  question  of  title  itself. 

[Ed.  Note.— Cited  in  Leaphart  v.  Leaphart,  1 
S.  O.  208. 

For  other  cases,  see  Equity,  Cent.  Dig.  §  799  ; 
Dec.  Dig.  <S=»37S;  Jury,  Cent.  Dig.  §  42;  Dec. 
Dig.  <g=»13.] 

Before  Johnston,  Ch.,  at  Charleston,  Feb- 
ruary, 1852. 

This  cause  came  up  for  a  hearing  on  the 
bill,  answer  and  report  of  Master  Tupper, 
with  the  testimony,  as  taken  by  him. 

The  following  is  a  statement  of  the  facts: 

On  December  2,  1837,  Daniel  Cook  convey- 
ed, by  bill  of  sale,  five  negro  slaves,  to  wit : 
Randall,  Joe,  Jerry,  Ellen  and  Elsey,  to  Jesse 
R.  Gary,  in  consideration  of  the  sum  of  $4,- 
237.  At  the  same  time  an  agreement  in 
writing  was  made  between  Cook  and  Gary, 
by  which  the  negroes  were  hired  to  Cook  at 
the  rate  of  fifty  dollars  per  month. 

Gary  afterwards,  to  wit,  in  February,  1838, 
*352 
conveyed  the  *negroes  to  Austin  Paslay,  for 
the  sum  of  $4,200.  For  the  said  amount, 
Austin  Paslay  gave  his  note.  Oil  this  note 
there  were  two  credits,  one  on  May  10,  1838, 
for  $1,200,  and  one  on  August  22,  1839,  for 
$332.34.  Subsequently  the  note  passed  into 
the  possession  of  Paslay,  and  was  exhibited 
by  him  in  evidence. 

On  February  7,  1838,  Austin  Paslay,  in 
consideration  of  five  dollars,  and  his  love 
and  affection  for  his  sister,  Hannah  H.  Cook, 
and  her  children,  sold  and  delivered  the  said 
negroes  to  Elizabeth  Bird,  her  executors,  ad- 
ministrators and  assigns,  to  have  and  to  hold 
the  said  negroes  upon  the  following  trusts, 
to  wit:  "to  and  for  the  use  of  Hannah  H. 
Cook,  the  wife  of  Daniel  Cook,  of  Charleston, 
and  the  heirs  of  her  body  now  living :  not 
to  be  liable  for  the  present  or  future  debts  of 
the  said  Daniel  Cook,  or  any  other  person, 
during  the  minority  of  the  said  children  of 
Daniel  and  Hannah  H.  Cook ;  and  further 
in  trust,  to  permit  and  allow  the  said  Han- 
nah H.  Cook  and  her  children  to  enjoy  the 
use  and  services  of  the  said  slaves,  subject, 
however,  to  the  aforesaid  trusts  during  the 


minority  of  each  and  every  of  the  said  chil- 
dren." 

In  an  ex  parte  case  in  the  Court  of  Equity 
for  Charleston  district,  wherein  the  said  Han- 
nah H.  Cook  and  her  children  were  peti- 
tioners, the  original  deed  of  trust  was  filed 
on  September  8,  1843.  as  an  exhibit ;  and  it 
still  remained  there,  according  to  the  certifi- 
cate of  the  Register.  Neither  of  the  afore- 
said bills  of  sale  were  recorded  in  the  Secre- 
tary of  State's  offit-e,  and  the  trust  deed  was 
not  recorded  there  till  September,  18.51. 

The  negroes  were  received  by  Mrs.  Cook 
and  her  children,  according  to  the  limitations 
of  the  trust  deed,  and  were  hired  out  for 
their  benefit.  The  man  Randall  was  general- 
ly used  as  a  cook  at  the  Victoria  Hotel,  of 
which  Cook  was  the  keeper,  and  where  Cook, 
and  his  wife  and  children,  lived  together. 

Daniel  Cook  died  before  Hannah,  his  wife; 
and  the  negro,  Randall,  continued  to  be  em- 
ployed at  the  hotel.  Mrs.  Cook  died  some 
time  in  18.50.  and  the  negroes  continued  to 
pay  their  wages  to  the  complainants. 

On  September  20,  1851,  Robert  Martin,  the 
*353 
defendant,  caused  *the  negroes  to  be  levied 
on.  and  lodged  in  the  jail  of  Charleston  dis- 
trict, claiming  the  property  in  them  by  virtue 
of  a  bill  of  sale,  executed  by  Daniel  Cook, 
on'  the  27th  of  October,  1848,  to  John  C. 
Simons,  for  $1,000.  This  hill  of  sale  was 
recorded  in  the  office  of  the  Secretary  of 
State  at  Charleston,  October  27,  1848,  and  by 
the  said  Simons  assigned  to  the  defendant, 
September  17,  1851.  The  defendant  admitted 
that  he  paid  less  than  the  maket  value,  and 
alleged  that  he  was  induced  to  make  the  pur- 
chase with  a  view  to  secure  an  old  debt  due 
him  by  Daniel  Cook,  in  his  life  time. 

Two  days  after  the  defendant  levied  on 
the  negroes,  to  wit:  on  September  23,  1851, 
the  complainants  filed  their  bill,  having  in 
the  meantime,  as  admitted  by  the  defendant's 
answer,  demanded  the  negroes,  praying  a 
specific  delivery  of  the  negroes,  and  an  ac- 
count of  hire  and  expenses. 

On  January  15,  18-52.  on  motion  of  the 
complainants'  solicitor,  and  with  the  con- 
sent of  the  defendant.  Chancellor  Wardlaw 
granted  an  order  for  the  sale  of  these  ne- 
groes, of  which  the  following  is  the  last 
clause:  "This  order  to  be  without  prej- 
udice to  the  rights  of  the  parties,  and  upon 
Wie  express  understanding  that  all  further 
litigation  shall  proceed,  and  lie  determined, 
as  if  the  matter  in  litigation  (precisely)  were 
the  negroes  in  specie,  and  not  money." 

Johnston,  Ch.  The  defendant  urges  that  the 
Court  has  lost  jurisdiction  of  the  cause,  by 
reason  of  the  order  of  sale.  The  rule  is  too 
well  settled,  to  be  now  denied,  that  where 
the  Court  has  original  jurisdiction,  no  sub- 
sequent change  in  the  nature  of  the  property 
will  take  it  away.  Th?  vexations  of  a  tedious 
suit  mav  alienate  the  affections  of  the  master 


140 


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DAXNER  V.  TRESCOT 


•356 


from  his  slave:  humanity  to  tlii>  slavt-.  wiiu 
has  been  unjustly  imprisoiuHl.  may  frt'e  the 
master  to  consent  to  liis  sale,  in  order  to  re- 
lieve the  slave. 

The  defendant  insists,  tliat  tlie  title  to  the 
negroes  should  lie  tried  at  law.  Where  this 
Court  has  jurisdiction  in  cases  of  this  nature, 
it  has  plenary  jurisdiction,  and  can  decide 
every  (luestion,  indudintj  that  of  title.  In 
no   case   for  the   specific   delivery    of  slave.s 

•354 
*that  I  know  of,  has  the  Court  considered  It- 
self under  the  necessity  of  throwint;  the  trial 
of  title  uiion  the  Court  of  Law;  nor  is  there 
a  preci'dent  for  such  a  proceeding  in  the 
:in:il(>;rous  cases  of  practice. 

Lssues  are  ordered  on  matters  of  fact,  at 
tlie  discretion  of  the  Chancellor,  and  to  re- 
lieve his  mind:  no  party,  in  general,  has  a 
right  to  demand  them.  In  this  ni.se,  I  have 
no  doubts,  which  would  induce  me  to  refer 
the  facts  to  a  jury. 

It  is  therefore  ordered,  that  the  M;ist»'r  do 
pay  over  to  the  heirs  of  the  iiody  of  Hannah 
H.  Cook,  living  at  the  time  of  the  deed  from 
Austin  Taslay  to  Elizalieth  Bird,  trustee,  the 
funds  arising  from  the  sale  of  the  said  ne- 
groes, under  the  order  of  Chancellor  Ward- 
law,  dated  lijth  .January,  is'ii'.  share  and 
share  alike,  in  the  following  manner,  to  wit: 

1.  To  .Tames  Robert  Cook,  one-tifth  ; 

2.  To  Mrs.  Eliza  Wood,  one-fifth  : 

.3.  To  the  children  of  Nuliilia  lilewer,  late 
Cook,  share  and  share  alike,  one-tifth  : 

4.  To  r)orothy  Frances  Nopie,  one-tifth  : 

5.  To  Elizabeth  A.  Avery,  late  Cook,  one- 
fifth. 

The  complainant.  Hannah  H.  Cook,  was 
born  after  the  7th  of  February,  l.S.'^S.  and  is 
not  entitled  under  the  deed. 

And  is  further  ordered,  that  the  defendant 
do  account  iipon  reference  before  the  said 
Master,  for  the  hire  of  tlie  said  slaves.  Uan- 
dall.  .Terry  and  .Toe.  from  the  time  that  he 
had  them  levied  on  and  conhned  in  the  jail 
of  this  district  to  the  date  of  this  dei-ree,  and 
for  their  l)oard  and  expenses  while  in  jail, 
which  liave  lieen  paid  by  Master  Tupper,  and 
which  should  be  made  g<Hid  to  liiui  by  defend- 
ant. And  it  is  further  ordered,  that  the  said 
defendant  do  j)ay  the  costs. 

The  defendant  apytealed,  on  the  ground.s: 

1.  liecause  the  defendant  was  entitled  to 
a  trial  at  law  to  .settle  the  (luestion  of  title 
to  the  negHK-s  in  dis|)ute,  and  the  Chancellor 
should  have  so  decreed. 

1*.  Hecause.  the  Court  having  refused  a 
♦355 
trial  at  law,  and  de*cided  the  issue  raised 
by  the  pleadings  upon  that  point,  the  »le- 
fendant  was  then  entitled  to  ;»n  order  of 
reference  to  take  testimony  as  to  the  title, 
and  should  not  have  bt>en  forced  to  trial 
ui»on  the  complainants'  testimony  alone,  tak- 
en by  the  Master  1  etOre  liearing  uiion  bill 
and  answer. 


o.  Recau.se  the  evidence  was  Insufficient 
to  set  aside  the  defendant's  title,  and  es- 
tablish the  complainants',  and  there  is  error 
in  tlie  ditree,  ordering  the  defendant  to  ac- 
count for  wages  after  the  Master  took  pt>s- 
.sesslon  of  the  negroes  by  order  of  Court,  and 
on  motion  of  coiuplainant.s. 

Canipl)ell.  for  appellant. 
William  Whaley.  contra. 

The  judgment  (»f  the  Court  was  announced 
by 

lU  NKI.\.  Ch.  This  appeal  was  submitted 
on  the  brief.  .<o  far  as  tlu'  Court  can  jutlge 
from  the  statement  of  facts  appearing  in  the 
Chancellor's  decree,  and  the  brief  furnished 
to  the  Court,  his  judgment  is  well  sustained 
by  the  reasons  which  he  has  presented.  The 
decree  Is  therefore  alliruietl.  and  the  api>eal 
dlsmisseil. 

I>.\K<;.\.\  iiiHl  WAUld.AW.  ( 'C.  concurred. 

.ToilNS'lH)\,  Ch.,  absent  at  the  hearing. 
Decree   attiriued. 


5  Rich.  Eq.  'aoe 

♦SARAH   P.   I>A\.\ER   v.    WILLT.VM  H. 
TRESCOT. 

(Charleston.     .Ian.   T.rm.    1S.">3.) 

ITnitts  C=14().| 

Cinivt  yaiHf  of  land  to  "II.  F.  and  his  heirs; 
to  the  use  of  the  said  II.  F.  and  his  heirs;  in 
trust  for  the  use  of  S.  I'.,  during  the  term  of 
her  natural  life;  and  after  her  death,  then  iu 
trust  to  ami  for  the  right  heirs  of  her.  the  said 
8.  P..  their  heirs  and  assigns  for  ever:"— //(/(/, 
that  S.  P..  the  cestui  que  trust,  took  an  estate 
absolute  and  in  fee. 

I  Ed.  Note.— Cited  in  Poston  v.  Midlniid  Tim- 
ber Co..  7(i  S.  C.  .■>!>.  ."<;  S.  E.  '>W.  Clark  v. 
Neves,  if.  S.  C.  4ss.  .",7  S.  E.  (il4,  IL'  L.  R.  A. 
(N.  S.l  2US:  Williams  v.  (iause,  Ki  S.  C.  I'Ufi, 
«5  S.  E.  241. 

For  other  cases,  see  Trusts.  Cent.  Dig.  S  ISO; 
Dec.   Diu.   <2=>140.] 

Refore  Dargan.  Ch..  at  Charleston,  .lune, 
1>C)2. 

The  Ciniiit  decree  is  as  follows: 

Dargan.  Ch.  This  is  a  bill  for  the  specific 
performance  of  an  executory  contract,  for 
the  sale  of  a  house  and  lot  in  the  town  of 
Reaufort.  Ry  a  written  contract,  dated  the 
2«.)tli  of  April.  A.  D.  is.ll.  the  plainfifT  under- 
took to  convey  to  the  defendant  th»'  property 
in  question,  and  to  make  him  go(Ml  titles; 
and  the  latter  agreed  to  pay  to  th«>  plaint  iff 
the  sum  of  sl.\  tlnmsand  doUiirs,  in  different 
instalments,  not  necessary  liere  to  be  par- 
ticularly brought  to  notice.  The  ])laiiitiff 
aveiN  her  readiness  to  comply  with  tlie  con- 
ditions on  her  part,  and  the  defendant  having 
refused  to  perform,  this  bill  was  tih'd. 

The  defendant,  in  hi.s  answer,  alleges,  as 
the  groun<l  of  his  defenc*'  against  the  jira.ver 
of   the   bill,    that    the   plaintiff   is    unaiiie   to 


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141 


*356 


5  RICHARDSON'S  EQUITY  REPORTS 


execute  to  him  good  and  sufficient  titles  in 
fee  simple,  which,  according  to  the  true  con- 
struction of  the  agreement,  she  Avas  bound  to 
execute.  The  plaintiff  derived  title  from  her 
late  husband,  N.  J.  Dauner,  who,  by  a  deed 
bearing  date  the  29th  day  of  April,  1847, 
conveyed  the  lot  to  Henry  Fuller  in  fee,  in 
trust,  however,  for  uses  that  are  therein 
declared,  in  the  following  language:  "to  have 
and  to  hold,  all  and  singular,  the  premises 
before  mentioned,  unto  the  said  Doctor 
Henry  Fuller  and  his  heirs;  to  the  use  of 
the  said  Dr.  Henry  Fuller  and  his  heirs: 
in  trust,  nevertheless,  for  the  sole,  separate 
and  only  use  of  the  said  Sarah  P.  Danner, 
during  the  term  of  her  natural  life ;  so  that 
the  same  shall  in  no  manner  be  liable  to  my 
debts,  contracts  or  engagements;  and  after 
her  death,  should  the  said  Sarah  P.  Danner 

*357 
survive  me,  the  said  N.  .1.  Danner,  *and  only 
in  that  event,  then  in  trust  to  and  for  the 
right  heirs  of  her,  the  said  Sarah  P.  Danner, 
their  heirs  and  assigns  forever.  But  should 
I,  the  said  N.  J.  Danner,  survive  her,  the  said 
Sarah  P.  Danner,  then  in  trast,  to  hold  the 
aforesaid  premises  to  the  only  use  and  be- 
hoof of  me,  the  said  N.  J.  Danner,  my  heii'S 
and  assigns,  forever." 

The  plaintiff  has  survived  her  husband, 
N.  J.  Danner,  and  in  order  to  determine 
whether  she  is  entitled  to  have  a  decree 
against  the  defendant  for  a  specific  perform- 
ance of  the  contract,  it  will  be  necessary  to 
see  whether  she  is  now  vested  with  a  fee 
simple  estate  in  the  premises  which  she  has 
undertaken  to  convey. 

The  contingent  estate  in  fee,  reserved  to 
the  husband  in  the  event  of  his  survivorship, 
is  gone,  the  condition  on  which  it  was  to 
take  effect  not  having  happened.  It  can  now 
never  happen,  and  is  not  in  the  way.  So 
that  the  deed,  as  to  the  question  before  the 
Court,  nmst  be  construed  upon  the  words 
giving  to  Mrs.  Danner  an  estate  for  life, 
"and  after  her  death,"  "to  and  for  the  right 
heirs  of  her,  the  said  Sarah  P.  Danner,  their 
heirs  and  assigns  forever."  And  the  dis- 
cussion will  more  particularly  turn  upon  the 
effect  of  the  last  words  of  the  preceding  sen- 
tence, which  I  have  placed  in  italics.  What 
effect  have  these  words  that  are  superadded 
to  the  previous  words  of  limitation?  Strike 
them  out,  and  the  defendant  himself  would 
admit  that  the  estate  of  the  husband,  limited 
upon  his  survivorship,  having  failed,  Mrs. 
Danner  would  now  take  the  fee  under  the 
rule  in  Shelley's  case.  But  the  defendant  in- 
sists, that,  by  the  force  and  effect  of  the 
superadded  words  of  limitation,  "the  right 
heirs"  of  Mrs.  Danner  will  be  entitled  to  take 
at  her  death,  as  purchasers ;  or,  in  other 
words,  that  ]Mrs.  Danner  is  only  entitled  to  a 
life  estate,  with  remainder  in  fee  to  her 
own  right  heirs. 

The  reason  of  this  construction  rests  upon 
the  ground  that  the  donor,  by  indicating  an 

142 


intention  to  create  a  new  stock  of  inherit- 
ance, the  "propositus"  of  whicli  should  be, 
not  Mrs.  Danner,  but  her  "right  heirs,"  has 

*358 
shown  that  he  did  not  use  *the  word  "heirs" 
in  its  general  and  technical  sense ;  but  to 
describe  a  class  of  persons  who  should  be 
entitled  to  take  at  the  death  of  Mrs.  Dan- 
•ler.  I  assent  to  the  doctrine,  when  the 
subject  matter  of  the  gift  is  personal  estate. 
I  assent  to  it,  however,  with  this  qualifica- 
tion: that  the  superadded  words  of  limita- 
tion must  be  after  a  gift  to  the  heirs  of  the 
body,  or  the  issue,  and  not  after  a  limitation 
to  one  and  his  heirs  generally.  I  am  aware 
of  no  case,  English  or  American,  where 
even  in  reference  to  personal  property,  this 
idea  of  cutting  down  what  would  otherwise 
be  a  fee,  by  superadded  words  of  limitation, 
indicating  an  intent  to  create  a  new  stock, 
has  ever  been  applied  in  a  case  where  the 
gift  to  the  first  taker  was  to  him  and  hi.s 
heirs  general. 

With  this  qualification,  I  think  the  doc- 
trine well  sustained  when  applicalile  to  per- 
sonal property.  It  received  an  early  recogni- 
tion in  Dott  V.  Willson,  1  Bay,  457.  It  was 
affirmed  with  great  solemnity  in  Lemacks 
V.  Glover,  1  Rich.  Eq.  141,  by  the  Court  of 
Errors.  Myers  v.  Anderson,  1  Strob.  Eq. 
344  [47  Am.  Dec.  537],  was  decided  upon  its 
authority.  All  these  were  cases  of  personal 
estate. 

The  first  trace  of  the  doctrine,  that  I  have 
been  able  to  find  in  the  English  reports,  is 
that  of  Peacock  v.  Spooner  and  others,  de- 
cided by  Sir  .Tose))h  .Tekyll,  4  Geo.  2,  and  cit- 
ed by  Lord  Hardwieke,  in  Hodgeson  v.  Bus- 
sey.  2  Atk.  89.  Upon  the  authority  of  Pea- 
cock V.  Spooner,  and  "the  general  run  of  the 
cases."  as  he  expressed  it,  (none  of  which 
latter,  however,  wei'e  cited,)  Lord  Hardwieke 
decided  the  case  of  Hodgeson  v.  Bussey.  In 
each  of  these  cases,  the  property  limited  was 
a  term  for  years,  whith,  in  questions  of  this 
nature,  stands  upon  jjrecisely  the  same  foot- 
ing as  chattels  personal.  See  note.  2  Atk. 
89.  The  latter  case.  (Hodgeson  v.  Bussey.) 
arose  under  a  deed  of  post-nuptial  settle- 
ment, by  which  the  husband  conveyed  to 
trustees  a  term  for  59  years,  in  trust,  to  per- 
mit Grace  Bussey,  his  wife,  to  receive  the 
rents  and  profits  for  her  sole  and  separate 
use,  during  the  term,  if  she  should  so  long 
live,   and   after   her   decease,   to   permit   Ed- 

*359 
ward  Bussey  (who  was  the  settler)  *to  en- 
joy the  rents  and  profits  during  the  remain- 
der of  the  term,  if  he  should  so  long  live, 
and  after  his  decease,  in  trust  for  the  heirs 
of  the  body  of  Grace,  by  Edward  Bussey  be- 
gotten, their  heirs,  executors  and  assigns. 
This  case  is  relied  on  in  the  argument  for 
the  defendant,  as  being  in  perfect  analogy 
to  that  before  the  Court.  But  it  has  several 
very  Important  contradistinctive  features. 
I  First,    the  subject   matter   is  personal,   and 


DANXKK  V.  TKKsrOT 


*3G1 


not  real  proporty.  Second,  the  limitation  Ls 
not  to  the  heirs  general,  as  in  the  ease  of 
Mrs.  Danner,  but  to  tlie  lieirs  of  tlie  Ijody 
of  Grace  Bussey.  And,  tliird,  tlie  limitation 
is  to  even  a  more  limited  class  than  to  the 
heirs  of  the  liody  of  Grace:  for  it  is  to  the 
heirs  of  her  body  begotten  by  Edward  Bus- 
sey. 

As  our  Courts  have  gone  to  the  English 
<lecisi(>ns  for  the  authority  and  principles 
upon  which  Dott  v.  Wiilsoii,  Lemacks  v.  Glov- 
er, and  similar  cases  havt'  ht>«'ii  dedditl,  it 
would  he  the  extreme  of  ai)surdity  and  incon- 
sistency not  to  consider  the  English  decisions 
as  authoritative,  when  a  similar  question 
arises  as  to  real  estate. 

.larnian  (2  .larm.  Wills,  L'Tl.)  lays  down 
the  doctrine  broadly,  "that  where  the  super- 
added words  amount  to  a  mere  repetition 
of  the  preceding  words  of  limitation,  they 
are,  of  course,  inoperative  to  vary  the  con- 
struction." Tlie  text  is  supported  by  a  uni- 
form and  unbroken  series  of  decisions,  down 
to  the  case  of  Nash  v.  Nash,  ;{  B.  and  Ad. 
S.'JO,  wiiich  is  directly  in  point. 

The  cases  go  further  than  this.  In  Good- 
right  v.  Pulyn,  Ld.  Raym.  14.37,  S.  C.  2 
Strange,  729,  the  devise  was  to  the  first  tak- 
er for  life,  and  after  his  death,  to  the  heirs 
male  of  his  body  and  their  heirs  forever: — 
and  i.f  he  should  bai)pen  to  die  without  such 
male  heirs,  then  over.  It  was  held  to  be 
an  estate  tail  in  the  first  taker.  See  Buxton 
V.  Uxbridge,  10  Metcalf,  87.  So  that  it  seems 
to  be  well  settled,  that  a  limitation  to  the 
heirs  general  of  the  heirs  of  the  IxKly  is  in- 
effectual to  turn  the  words  "heirs  of  the 
body"  into  words  of  i>ur<hnse. 

It  is  said  in  argument,  tiiat  tlie  case  of 
Doe  V.  Ironmonger,  ;*.  East.  'hi:',,  is  contrary 
to    this    proposition.      It    is    not    so    consid 

♦  360 
*ered  by  any  Engli.><h  writer.  It  is  true,  that 
it  is  rpioted  by  Chancellor  Harper,  in  Ije- 
macks  v.  Glover,  in  support  of  the  principle 
therein  decided,  wbieb,  as  we  bav»«  seen,  re- 
lated to  per.><oiial  estate.  That  learned  Chan- 
cellor misconceived  the  issue  decided  in  Doe 
v.  Ironmonger,  in  applying  it  to  the  point 
involved  in  Lemacks  v.  (Jlover.  And  this  is 
shown  by  a  reference  to  the  repctrt  of  the 
former  ca.^'.  wliidi  1  have  now  before  me. 
The  devise,  (which  was  of  lands,  &c..)  was  to 
Sarali  Hallen,  &c.,  "and  after  her  death, 
for  the  use  of  the  heirs  of  her  body,  law- 
fully begotten  or  to  be  begotten,  their  heirs 
and  assigns  forever,  without  any  respect  to 
Ije  had  or  made  in  regard  to  seiuority  of 
flge  or  iiriority  of  birth."  It  is  true  that  the 
form  of  the  devi.se  was  sinular  to  that  of  the 
l)equest  in  Lemacks  v.  Glover.  I'.ut  the  ques- 
tions were  not  the  same.  It  was  n<>t  de- 
<"ided  that  the  heirs  of  Sarah  Ilallen's  bmly 
took  as  purclia.'^ers.  because  the  testator  in- 
tended to  create  a  new  stock  of  inheritance 
in  them.  Hear  Lord  I*"llenlion>ugb,  who  de- 
<ided  the  cause.     He  said,  "all   Sarah   Ilal- 


len's duldren  were  intended  to  take  together, 
witliiait  regard  to  .seniority  of  age  or  priority 
of  birth;  that  must  mean,  that  tliey  should 
take  as  joint  tenants."  This  was  all  that 
was  decided ;  and  tlie  above  extract  embrac- 
es, according  to  tlie  rep»)rt,  every  word  that 
fell  from  his  Lordship's  lii)s.  The  decision 
was,  that  the  heirs  of  the  body  of  Sarah 
Hallen  took  as  purchasers,  not  because  the 
testator  intended  to  create  in  them  a  new 
stock  of  inheritance,  but  becau.><e  he  intend- 
ed to  give  them  an  estate  in  joint  tenancy, 
which  was  inconsistent  with  the  devolution 
of  the  estate  upon  them,  as  tenants  in  tail. 
The  only  other  case  quoted  by  the  counsel 
for  the  defendant,  in  supiMirt  of  liis  con- 
struction of  the  deed,  which  I  feel  it  incum- 
bent ui)on  me  to  notice,  is  that  of  McLure  v. 
Young.  :!  IJi<b.  i:q.  .'mO.  decided  by  the  Court 
of  Errors.  Though  then'  was  a  division  of  tlie 
Court  in  that  case,  and  I  my.'^elf  was  among 
those  who  dis-sented.  I  acknowledge  the  au- 
thoritative f<irce  of  the  decision,  in  cases  to 
which  it  may  be  regard»'d  as  a  precedent.  Tlie 
testator,    Jonathan    Davenport,   gave   all   liis 

♦361 
real  'estate  to  his  daughter  Catharine,  for 
and  during  the  term  of  her  natural  life:  and 
at  her  death,  he  gave  the  .same  absolutely 
and  forever  to  her  lineal  descendants.  Tlie 
decision  of  the  Court  was  made  to  rest  upon 
the  ground  that  the  te.><tator.  upon  the  death 
of  his  daughter  Catharine,  intemled  to  adopt 
the  provisions  of  the  Act  of  17'J1,  as  the  rule 
for  the  distributi(»n  of  his  estate.  It  was 
the  .same  (the  Court  ruled)  as  if  he  had  said, 
on  the  death  of  Catharine,  the  estate  shall 
go,  absolutely  and  for  ever,  to  such  persons 
among  her  lineal  descendants,  as  under  the 
statute  of  distributions,  would  be  entitled  to 
take;  which,  in  the  case  that  happeiie<l.  was 
her  only  child,  the  defendant.  Thus,  accord- 
ing to  the  reasoning  iqion  which  the  decision 
was  founded,  the  testator  had  designated,  on 
the  death  of  Catharine,  a  iierson  or  class  of 
l)ersons,  who  must  then.  If  ever,  be  in  e.s.se, 
and  who,  at  that  time,  were  to  take  an  ab.so- 
lute  estate.  It  was  the  .same  (rea.soned  the 
Court)  as  if  Davenport  had  saiil  in  his  will. 
I  give  the  estate  to  Catharine,  and  on  her 
death  I  give  it  to  her  child  or  children,  to  be 
ecpially  divided  among  them,  with  the  right 
of  rei)resentation  to  the  i.ssue  of  decea.s«'d 
I  children.  &c..  the  division  to  take  place 
among  them  on  the  death  of  Catharine.  It 
is  obvious  that  this  case  is  strikingly  dilTer- 
ent  from  that  lu'fore  the  Court,  in  all  its 
'  main  features,  as  well  as  in  the  rea.soning 
i  by  which  it  was  decided.  Certainly,  the 
■  child  of  Catharine  becaiii*'  a  new  stock,  not 
taking  his  e.state  derivatively  from  his  moth- 
er, but  directly  as  a  purchaser  under  the 
will.  But  that  is  eipially  the  case  in  all 
limitations  of  estates,  where  the  issue  or  heirs 
I  of  the  luMly  take  as  |)urchasers,  after  a  life 
!  estate  in  the  ancestor.  I'.ut  that  is  not  what 
I  Is  meant   by   the  reasoning  ai>plicable   to   a 

143 


*361 


5  RICHARDSON'S  EQUITY  REPORTS 


case  like  that  now  before  the  Court.  It  is 
in  a  case  where  there  being  no  other  circum- 
stances to  show  that  the  testator  intended  to 
use  the  words  "heirs  of  the  body,"  in  another 
than  the  technical  sense,  the  argument  ap- 
plies, that  because  the  testator  has  given 
the  estate  to  the  heirs  of  the  body  of  the 
first  talker,  and,  not  content  witli  this,  has 
again  limited  it  to  their  heirs,  &c.,  he  there- 
fore intended  to  create  a  new  stock.  And  if 
he  did  intend  to  create  a  new  stock,   such 

*362 
new  stock  *would  of  course  talve  as  purchas- 
ers.   It  is  clear  that  the  construction  of  Dav- 
enport's  will   depended   upon   no   such   argu- 
ments as  this. 

The  Chancellor  who  delivered  the  opinion 
of  the  Court,  (quoting  from  tlie  appeal  de- 
cree in  Myers  v.  Anderson,)  says,  "all  the 
authorities  agree,  that  if  the  limitation  be  to 
tlie  heirs  of  the  body  or  issue,  and  to  their 
heirs,  this  constitutes  them  purchasers,  as 
it  shows  an  intention  to  give  them  an  es- 
tate not  inheritable  from  the  first  taker,  but 
an  original  estate,  inherital)le  from  them- 
selves as  a  new  stock."  This  proposition  is 
mucli  too  broadly  laid  down.  It  is  true, 
when  applied  to  cases  involving  personal  es- 
tate, as  in  Myers  v.  Anderson.  But  it  is  not 
correct  when  applied  to  real  estate,  where, 
as  I  have  shown,  the  authorities  are  all  the 
other  way.  It  is  not  for  me  to  say  why  the 
distinction  has  been  drawn.  But  I  take  the 
law  as  I  find  it. 

Archer's  case,  1  Co.  66,  cannot  be  consider- 
ed an  authority  or  an  example  against  this 
construction.  There,  lands  were  devised  to 
one  for  life,  and  after  his  death,  "to  his 
next  heir  male,  and  the  heirs  male  of  the 
body  of  such  next  heir  male." 

It  was  held  by  all  the  Judges,  that  the 
first  taker  had  a  life  estate,  with  a  contin- 
gent remainder  to  "the  next  heir  male."  The 
testator  was  considered  as  having  indicated 
an  intention  to  use  the  words  "next  heir 
male,"  as  a  description  of  the  person  who 
was  to  take  after  the  termination  of  the 
life  estate — the  superadded  words  of  limita- 
tion converting  the  expression  "next  heir 
male,"  into  words  of  purchase;  "an  effect, 
however,"  says  Mr.  Jarman,  2  vol.  235, 
"which  (as  will  be  shown  at  large  in  the 
.sequel)  does  not  in  general  belong  to  such 
superadded  expressions  of  this  nature,"  and 
the  whole  course  of  the  English  decisions  is 
In  conformity  with  Mr.  Jarman's  text. 

But  to  make  the  most  of  the  general  prop- 
osition above  quoted,  found  in  Myers  v.  An- 
derson, it  is  simply  this,  that  "if  the  limita- 
tion be  to  the  heirs  of  the  body,  or  to  the 
issue,  and  to  their  heirs,  this  constitutes 
them  purchasers,"  &c.  But  where  is  the 
authority  for  saying  that  such  will  be  the  re- 

*363 
result,  if  the  *limitation  be  to  the  heirs  gen- 
eral of  the  first  taker,  and  their  heirs?" 

Before  dismissing  McLure  v.  Young,  I  have 

144 


one  further  remark  to  make.  I  do  this  with 
the  view  of  showing  the  utter  want  of  anal- 
ogy between  that  case  and  this.  In  the  for- 
mer, the  gift  was  to  Catharine  Davenport 
for  life,  and  after  her  death  to  her  "lineal 
descendants,  absolutely  and  forever,"  a 
phrase  construed  by  the  Court  to  be  equiva- 
lent to  heirs  of  the  body,  and  evidently  im- 
porting issue;  while,  in  the  case  before  the 
(Jourt,  the  estate  is  given  to  the  plaintiff  for 
life,  and  after  her  death,  to  her  right  heirs, 
and  their  heirs  and  assigns.  There  is  a  vast 
difference,  I  think. 

I  am  of  the  opinion  that  on  the  death  of 
the  husband,  and  the  survivorship  of  the 
wife,  the  trustee  stands  seized  for  the  use  of 
the  plaintiff,  absolutely  and  in  fee.  The  es- 
tate is  convoyed  "to  Dr.  Henry  Fuller  and  his 
heirs,  in  tru.st  for  the  use  of  the  said  Dr. 
Henry  Fuller  and  his  heirs,  in  trust,  never- 
theless," for  the  uses  and  purposes  which  the 
deed  proceeds  to  declare.  This  is  a  trust 
which  is  not  executed  by  the  statute  of  uses. 
1  Cruise,  Dig.  304;  Lewiu  on  Trusts.  102. 
It  will  therefore  be  necessary,  in  executing 
a  conveyance,  that  Dr.  Henry  Fuller  should 
join. 

The  judgment  of  the  Court  is,  that  there  is 
no  valid  objection  to  the  plaintiff's  title,  so 
far  as  the  same  is  derived  from  the  deed  of 
N.  J.  Danner. 

It  is  the  further  judgment  of  the  Court, 
that  if  the  plaintiff  can  show,  in  other  re- 
spects, a  good  and  sutticient  title  to  the 
premises,  she  is  entitled  to  have  a  specific 
performance  of  the  contract  set  out  in  her 
bill  of  complaint. 

It  is  further  ordered  and  decreed,  that  it 
be  referred  to  one  of  the  Masters,  to  report 
upon  the  title. 

It  is  further  ordered  and  decreed,  that  Dr» 
Henry  Fuller,  if  the  plaintiff's  title  should  be 
found  good  and  sufficient,  do  join  in  a  con- 
veyance thereof  to  the  defendant. 

It    is    further   ordered   and   decreed,    that 
each  party  pay  his  and  her  own  costs. 
*364 

*The  defendant  appealed,  on  the  grounds: 

1.  Because  "right  heirs"  may  be  "desig- 
natio  personarum,"  or  words  of  purchase  as 
well  as  "heirs  of  the  body,"  in  grants  or 
deeds,  as  well  of  real  as  of  personal  estate. 

2.  Because  "right  heirs,"  in  this  deed, 
should  be  taken  as  words  of  purchase,  from 
the  concurrence  of  these  provisions:  first,  an 
express  life  estate  to  Mrs.  Danner;  next,  a 
contingent  remainder  to  her  "right  heirs ;" 
and  third,  the  addition  of  words,  showing  an 
intention  to  make  the  "right  heirs"  a  new 
stock  of  inheritance,  or  purchasers. 

McCrady,  for  appellant,  cited  Archer's 
case,  1  Co.  66 ;  King  v.  Melling,  1  Vent.  214 ; 
Lisle  V.  Gray,  Jones  114,  2  Lev.  223 ;  Doe  v. 
Laming,  2  Bur.  1109;  Luddington  v.  Kyme, 
1  Ld.  Raym.  203  ;  Lowe  v.  Davies,  2  Id.  1.561 ; 
Dubber  v.  Trollope,  Auib.  453  ;  Harg.  Tr.  489 ; 
Jones  V.  Morgan,  1  Bro.  Ch.  R.  208 ;    Dott  v. 


cox  V.  COX 


567 


Ciinnington,  1  Bay,  453;   3  T.  R.  14G;   Camp- 
bell V.  Wiggins,  Rice  Eq.  10. 

Petigru,  contra,  cited  2  Fearne,  31,  32. 

PER  CURIAM.  This  Court  concurs  in  the 
conclu.sion  of  tlie  Chancellor.  And  it  is  or- 
dered that  his  decree  be  allirmed,  and  the 
appeal  disniisst'd. 

.701INST0N.     DUNKIN,     DARGAN     and 
WARDLAW.  CC,  concurring. 
Decree  atlirnied. 


5  Rich.  Eq.  *365 
♦FRANCES  COX  v.  PETER  COX. 

(C'liarloston.     Jai.   Term,   1853.) 

[Frauds,  Statute  of  e=.119.1 

Defendant  aKrcod.  by  parol,  with  H.  C,  his 
brother,  who  was  inHrni,  and  whose  land  was 
about  to  be  sold  at  sheriff's  sale,  to  piireliase  the 
land  for  tiie  acconiinodation  of  liis  hrotiier,  and 
to  secure  a  home  to  his  helpless  family,  and, 
when  it  suited  him  to  refund  the  money,  lie 
should  have  the  benefit  of  what  was  done:  de- 
fendant announced  the  asreenicnt  at  the  sale, 
bid  off  the  land  for  a  nominal  i)riee,  and  paid 
the  bid:  II.  C.  remained  in  possession  until  his 
death,  and  then  the  defendant  tooiv  a  shcrilY's 
deed  for  the  land,  and  brouiiht  an  action  at 
law  to  dispossess  the  plaintitt.  the  widow  and 
heir  of  H.  C. : — JJeld,  that  defendant's  conduct 
was  fraudulent,  and  that  he  conhl  not  avail 
himself  of  the  statute  of  frauds  to  defeat  the 
plaintiff's  claim  to  have  the  sheriff's  deed  can- 
celled, (a) 

[Ed.  Note. — Cited  in  Conev  v.  Tiramons,  IG 
S.  C.  385. 

For  other  cases,  see  Frauds.  Statute  of.  Cent. 
Dig.  §  270;    Dec.  Dig.   <©=>11!».| 

Before  Dunkin,  Ch.,  at  Horry,  February, 
1852. 

Dunkin,  Ch.  This  was  an  application  for 
an  injunction  to  stay  proceedings  at  law,  in 
an  action  of  trt'sjiass  to  try  title. 

The  facts,  which  for  the  puri)oses  of  this 
motion,  are  assumed  to  exist,  are  substantial- 
ly tlie.se: 

Herman  Co.\.  deceased,  the  husband  of  the 
complainant,  and  the  brother  of  the  defend- 
ant, was,  in  his  life  time,  seized  and  pos- 
sessed of  two  tracts  of  land,  one  called  Co.\'s 
Ferry,  with  about  twelve  hundred  acres  at- 
tached to  it.  and  the  other  called  Savannah 
Blufif.  Being  embarrassed  in  his  pe<"unlary 
affairs,  both  these  tracts  of  land  were  adver- 
tised for  sale  by  the  .sheriff  of  Horry  district, 
for  October  sales,  1842.  It  is  charged,  that 
the  defendant  attended  the  sale  with  his 
brother,  Herman  Cox,  decea.sed,  and  ainiounc- 
ed  to  the  by.standers,  that  "he  was  desirous 
of  purchasing  tlu'  plantation,  called  Cox's 
Ferry,  for  the  l)enetit  and  acctunmodation  of 
the  said  Herman,  and  a  home  for  him  and  his 
family,  which  was  then  helpless,  and  be.  the 
said    Herman,    infirm;    and   tliat  he  desired 


(a)   Vide  Kiiiard  v.  Iliers,  3  Rich.  E<i.  42."{  [55 
Am.  Dec.  (H.'l]. 


no  benefit  to  himself  In  said  purchase,  but 
that  as  soon  as  the  said  Herman  refunded 
him  the  purchase  money,  he  shouhl  have  the 
said  plantation  absolutely,  all  of  which  he 
had  promlseil  the  said  Herman:  who  assent- 
ed thereto."     Tluit   Herman,   and  all   others. 

•  366 
believed  'the  declaration  to  be  nuide  in  goo«l 
faith,  and  the  land  was  kn<Hked  oft"  to  the 
defendant  at  fifty  dollars,  U'jng  less  than 
one-tenth  the  value  thereof.  These  allega- 
tions are  very  well  sustained:  and  the  atliant. 
Benjamin  E.  Sessions,  moreover  states,  that 
In  January,  1.S44.  the  defendant  t<dd  him  that 
he  had  bought  the  land  called  Cjix's  Ferry,  as 
well  as  another  tract  called  Savannah  I'.luff. 
on  sale  day  in  October  previous,  for  Her- 
man's beneht.  The  latter  trait  was  knocketl 
off  to  liim  for  ninety-three  dollars,  and  Her- 
man liad  agreed  to  sell  tliis  tract  to  the  af- 
fiant for  fotir  hundred  dollars.  The  defend- 
ant told  Sessions  that  he  recognized  this 
transaction,  and  at  first  gave  him  a  lioiid  to 
make  titles,  l)ut  there  was  some  dispute  with 
the  person  in  possession,  and  the  tlefeiidant 
made  a  (piit  claim  to  Herman,  who  sued  for 
tlie  land,  ami  then  sold  it  to  Sessions  for  four 
hundred  dollars,  the  money  being  paid  to 
Hernuin.  or  to  his  agent.  At  the  time  of  the 
.sale,  in  October.  1.S42,  Ilernnin  Cox  and  his 
fannly  w»'re  residing  on  the  Cox's  Ferry 
tract,  where  he  continued  to  reside  until  his 
decease,  some  five  years  afterwards.  (ls47.) 
In  the  meantime,  as  it  is  alleged,  the  defend- 
ant had  taken  no  title  from  the  sherilT  of  the 
Cox's  Ferry  tract. 

The  statement  of  the  Rev.  James  L.  Beliu 
is  important,  not  only  from  his  excellent 
character,  but  from  the  position  which  he  oc- 
cupied towards  the  parties,  and  the  liistinct- 
ness  of  his  luirrative. 

Herman  Cox  being  in  infirm  health,  as 
well  as  involved  in  pecuiuary  difficulties.  Mr. 
lielin,  early  in  1844.  undertook  to  act  as  his 
attorney  in  fact,  in  discharging  his  debts. 
Herman  Cox  gave  him  a  memorandum  of  his 
liabilities,  and  among  others,  rtHpiesteti  him 
to  refund  his  brother,  Peter  Cox,  (the  defend- 
ant,) the  money  which  he  had  i>aid  to  the 
sheriff'  of  Horry  district  for  his  plantation 
at  Cox's  Ferry,  which  had  been  punhaseil  by 
Peter  at  sheriff's  sale,  for  his  accommodation, 
for  some  fifty-o<ld  dollars.  .\  few  days  after- 
wards, .Mr.  Belin  met  the  defendant,  and  had 
a  free  and  ftdl  conversation  with  him  on  the 
subject:    on   whii-h   occasion,    the  defendant 

*367 
confirnu'd  what  his  brother  ♦Herman  had 
stated,  and  t<dd  Mr.  Pelin,  that  he  wouhl 
make  Hernnin  C<»x  titles  to  the  land  as  .soon 
as  the  money  he  had  paid  the  sheriff  was  re- 
fiuided  :  and  clo.sed  his  renuirks  by  .saying, 
that  "what  he  had  done  was  for  the  aciom- 
modation  of  his  brother." 

Mr.  P.elin  told  him  the  amount  should  be 
refunded    to   him.      Manv   of   Herman    Cox's 


€=:»Foroth3r  cases  see  same  topio  and  KEY-NUMBER  in  oil  Koj -Numbered  Digests  and  Indexes 
5RlciI.E(i.— 10 


145 


*367 


5  RICHARDSON'S  EQUITY  REPORTS 


creditors  were  pressing  him,  and  Mr.  Belin 
inquired  of  tlie  defendant,  wlietlier  lie  was 
disposed  to  wait  until  they  could  refund  at 
a  more  convenient  time:  and  he  agreed  to  do 
so.  Mr.  Belin  says,  that,  when  he  was  in 
funds  for  that  purpose,  he  offered  to  pay 
the  defendant  what  his  brother  was  indebted 
to  him.  Perhaps  this  was  after  his  brother's 
death,  for  Mr.  Belin  saj'S,  the  defendant  re- 
fused, and  claimed  his  brother's  whole  estate, 
refusing  to  let  his  sister-in-law  (the  complain- 
ant) have  any  share  of  it.  It  seems  that  Her- 
man Cox  died  intestate,  and  his  heirs  at  law 
were  his  widow,  (the  complainant,)  and  his 
brother,  (the  defendant.) 

Josiah  G.  Waller,  was  present  at  the  sher- 
iff' sales  in  October,  1842,  when  Herman  Cox's 
lands,  to  wit.  Savannah  Bluff  and  the  Cox's 
Ferry  tracts  were  sold;  he  heard  the  con- 
versation between  Herman  Cox  and  the  de- 
fendant. The  defendant  "was  to  bid  off  the 
lands  of  Herman  Cox,  and  when  Herman 
paid  him,  he  was  to  have  the  title."  He  is 
certain  this  was  well  understood  by  the  by- 
standei's  at  the  sale,  as  he  thinks  no  other 
bid  than  that  of  the  defendant  was  made. 
He  says  that  Herman  was  much  attached  to 
the  Cox's  Ferry  tract,  valued  it  highly,  and 
would  not  have  taken  $1,000  for  it.  After 
the  death  of  the  complainant's  husband,  in 
1847,  she  still  continued  in  possession  of 
the  Cox's  Ferry  tract. 

Some  time  in  1850,  the  defendant,  it  is  al- 
leged, attempted  to  take  possession  of  a  por- 
tion of  the  land,  and  did  actually  take  posses- 
sion, by  cutting  turpentine  boxes  and  tending 
them,  and  that  in  March,  1851,  he  instituted 
an  action  of  trespass  to  try  title  against  the 
complainant,  relying  on  a  deed  which  he  had 
obtained  from  the  sheriff'.  The  prayer  of  tliis 
bill  is.  that  this  deed  may  be  set  aside;    that 

*368 
the  suit  at  law  may  be  enjoined,  *and  that 
a  writ  of  partition  may  issue  to  divide  the 
land  between  the  complainant  and  the  de- 
fendant, as  the  heirs  at  law  of  Herman  Cox, 
deceased. 

The  defendant  has  interposed  the  plea  of 
the  statute  of  frauds,  and  on  this  ground,  re- 
sists the  motion  for  injunction.  The  case 
has  been  discussed,  as  if  Peter  Cox,  the  de- 
fendant, was  the  original  owner  of  the  land, 
which,  in  October,  1842,  he  agreed  to  sell  to 
his  brother,  Herman  Cox,  for  fifty  dollars, 
and  that  this  is  merely  an  attempt  to  enforce 
the  performance  of  that  parol  agreement. 
But  the  land  belonged,  it  is  conceded,  to  the 
complainant's  intestate.  The  foundation  of 
her  bill  is,  that  the  defendant  procured  the 
title  (if  any  he  has)  by  fraud,  and  she  seeks 
to  set  aside  the  conveyance  thus  fraudulently 
obtained.  In  October,  1842,  Herman  Cox  was 
in  possession  of  the  premises,  holding  the 
same  in  fee.  He  valued  them  at  $1,000,  and 
they  had  a  marketable  value  for  the  pay- 
ment of  his  debts,  or  other  purposes,  of 
$500.    He  was  in  danger  of  being  summarily 

146 


I  dispossessed  by  a  sherift"s  sale.  Although  the 
witnesses  differ  as  to  the  words,  the  sub- 
I  stance  of  the  agreement  with  the  defendant 
'  was,  that,  "for  the  accommodation  of  his  in- 
firm brother,  and  to  secure  a  home  to  his 
helpless  family,"  he  would  bid  off"  the  land, 
and  pay  the  bid,  by  which  the  lien  would  be 
discharged;  and  that,  when  it  suited  his 
brother  to  refund  the  money,  he  should  have 
the  benefit  of  what  had  been  done.  This  be- 
ing declared  to  the  bystanders,  good  feeling 
to  Herman  Cox  and  family,  prevented  compe- 
tition, and  the  defendant  became  the  nominal 
purchaser,  at  fifty  dollars.  It  is  charged,  and 
it  is  assumed  to  be  true,  that  this  was  a 
fraudulent  contrivance  on  the  part  of  the  de- 
fendant to  obtain  his  brother's  land  for  one- 
tenth  of  its  value.  That  he  continued  the  de- 
ceit and  misrepresentation  by  his  conduct,  in 
taking  no  title,  and  by  his  repeated  assuranc- 
es to  others  during  his  brother's  life  time ; 
and  that  his  fraud  was  consummated  by  his 
subsequently  obtaining  the  sheriff"s  title,  and 
attempting  to  dispossess  his  brother's  widow 
and  heir.  The  complainant  occupies  the  posi- 
tion of  her  husband.  The  ground  of  his  claim 
to  relief  would  be,  that  the  legal  title  to  his 

*369 

land  *had  been  obtained  by  his  brother  by 
fraud,  and  he  would  seek  that  the  deed,  thus 
fraudulently  obtained,  should  be  cancelled. 
This  Court  has  often  repeated,  that  the  stat- 
ute of  frauds  should  never  be  perverted  into 
an  instrument  of  fraud.  Thus,  in  case  of  an 
agreement,  such  as  the  statute  plainly  de- 
clares void  if  not  reduced  to  writing;  yet,  if 
this  was  omitted  by  fraud,  the  defendant 
would  not  be  permitted  to  avail  himself  of 
the  statute.  In  Whitchurch  v.  Bevis,  2  Bro. 
C.  C.  505,  Lord  Thurlow  says,  "if  you  inter- 
pose the  medium  of  fraud,  by  which  the 
agreement  is  prevented  from  being  put  in 
writing,  I  agree  the  statute  is  inapplicable." 
See  Keith  v.  Purvis,  4  Dess.  114. 

The  necessity  of  a  prompt  decision  upon 
this  motion  is  urgent,  as  the  Court  of  Com- 
mon Pleas  for  Horry  district  is  at  hand. 

The  Court  has  not  been  able  to  give  to  the 
subject  the  mature  deliberation  to  which  it  is 
entitled,  and  will  doubtless  hereafter  re- 
ceive. 

For  the  same  reason,  the  Court  has  not 
fully  considered  another  aspect  of  the  case. 
Assuming  it  to  be  a  proceeding  to  carry  into 
effect  a  parol  agreement,  the  transactions  in 
regard  to  Savannah  Bluff"  may  demand  a  full- 
er development. 

It  is  ordered,  that  an  injunction  issue  ac- 
cording to  the  prayer  of  the  bill,  until  the 
hearing  of  the  cause,  and  the  further  order 
of  the  Court  thereon. 

The  defendant  appealed  on  the  ground: 

Because  it  is  submitted,  that  upon  the 
case  as  made  by  complainant's  bill,  his  Honor, 
the  Chancellor,  should  have  sustained  the  de 
fendant's  plea  of  the  statute  of  frauds. 


THOMrSOX  V,  DULLES 


'371 


Munro,  for  appellant. 
Harllee,  contra. 

PER  CnUAM.  This  Court  concur  in  the 
decree  of  the  Chancellor.  an<l  the  appfjil  is 
dismissed. 

DINKIN,  DARGAN  and  WARDLAW,  CC, 
concurring. 

JOHNSTON,  Ch.,  absent  at  the  hearing. 
Appeal  dismissed. 


5   Rich.  Eq.  *370 

*CHARLES  R.  THOMPSON  v.  JOSEPH  H. 
DULLES. 

(Charli'.stou.     Jan.   Term,   1853.) 

\T runts  <®=>L'T:'.'1..1 

Six  co-heirs  make  an  informal  division  of 
their  ancestor's  estate,  and  a  plant;ition  falls  to 
the  exelusive  share  of  C:  no  conveyances  are 
made,  and  W.,  one  of  the  co-heirs,  ihes  intes- 
tate, leaving  an  infant  child  his  sole  heir:  the 
infant  is  a  trustee  for  C.  and  bound  to  convey 
to  him   under  statute,  7  Ann,  c.  11). 

[Kd.  Note. — For  other  cases,  see  Trusts,  Cent. 
Dig.  S  3b7i    Dec.  Dig.   <S=5l.'7oV2.1 

[Infants  <©=>li7.] 

It  is  not  every  interest  that  puts  an  infant 
tru.stee  bej-ond  the  operation  of  the  statute  of 
Ann. 

[Ed.  Note.— For  other  cases,  see  Infants, 
Cent.  Dig.  §  ^5 ;    Dec.  Dig.  «S=3:i7.] 

[Infants  <g=»L'7.] 

A   conveyance    made    by    an    infant    trustee, 

under  a  decree  of  the  Court,  is  good,  until  the 

decree  is  reversed,  and  the  conveyance  avoided. 

[Ed.     Note. — For    other     cases,     see     Infants, 

Cent,  Dig.  S  35;    Dec.  Dig.  <g=27.J 

[.S'pcoi^C   PcrfoniiuiKC   <>i:3!l.").l 

A  good  marketalile  title  is  all  that  is  reciuired 
of  the  vendor — plaintilY  in  a  suit  for  specific  jier- 
formance:  it  is  not  enough  for  the  defendant  to 
shew   that   the   title   may,   possibly   be   defeated. 

[Ed.  Note. — Cited  in  De  Saussure  v.  BoUman, 
7  S.  C.  340 ;  Maccaw  v.  Crawley,  59  S.  C.  350, 
37  S.  E.  934. 

For  other  cases,  see  Specific  Performance. 
Cent.  Dig.   §  liOli ;    Dec.   Dig.   C=>t»5.J 

Mipedfic  Performance  <©==>105.| 

Early  in  1S47.  defendant  agreed  to  purchase 
lilaintiff's  plantation,  and  to  pav  for  tlie  same 
."^^l.CMMt  in  Marcli,  1S48 ;  .l;i',(M)0  in  Mardi.  1S4U; 
and  .i;3,0<)0  in  March,  1S.')0,  without  interest,— 
the  plaintiff  and  defendant  eacli  to  plant  part 
for  the  year  1847,  and  full  possession  ti>  be 
given  to  defendant  on  January  1,  1.S4.S.  Plain- 
tifi'  had  a  good  ecpiitable  title,  but  his  legal  title 
was  defective.  Defendant  took  possession  ac- 
<'ordiug  to  the  agreement.  In  A|)ril,  1S47,  he 
discovered  the  defects  in  plaintilT's  title,  and 
from  that  time  till  December,  1S4S,  repeatedly 
imi)ortuned  him  to  cure  the  defects,  and  execute 
a  conveyance.  On  December  11,  lN4S.  he  in- 
formed plaiutilT,  that  he  had  been  advise(l  good 
titles  could  not  be  made,  and  on  December  '2'.\, 
gave  him  notice,  that,  unless  good  titles  were 
tendered  by  January  1,  1S4'.>,  he  should  consi<|er 
the  negotiation  for  the  sale  at  an  end.  On 
January  1.  1.S4'.>,  he,  accordingly,  aban<loned  the 
luemises — having  paid  no  part  of  thi'  purchase 
money.  There  were  considerable  dillirulties  in 
the  way  of  the  plaintiff  in  getting  in  the  lei,'iil 
title.     In  1S48.  he  took  some  steps  towards  get- 


ting it  in.  In  August,  1S40.  he  filed  his  bill  for 
Bpecihc  perfonnance;  and  in  July,  1S51.  when 
the  Master  submitted  his  rejtort!  he  had  per- 
fecti-d  his  title:— //f/ J,  that,  although  there  had 
been  delay  on  the  plaintiff's  part,  it  ilid  not 
amount  to  such  laches  as  deprived  him  of  his 
right  to  a  decree  for  spti-ilic  performance. 

[Ed.  Note.— Cited  in  Lesesue  v.  Witle,  5  S.  C. 
4«il'. 

For  other  cases,  see  Specific  Performance, 
Cent.  Dig.  $$  3-J5-.541  :    Dec.  Dig.  <S=»105.] 

[Siierific   I'irfurnianre  ©=>105.1 

Principles  on  which  the  Court  pr«M-t«eds  in 
grantiu;.'  or  refusing  relief,  in  suits  for  specific 
Iiertormance,  where  the  party  seeking  relief  is 
wanting  in  diligence. 

[Ed.  Note.— Cited  in  Cureton  v.  Uihnore.  3 
S.  C.  51. 

For  other  cases,  sec  Specific  Performance, 
Cent.  Dig.  SS  3l'5-341;    Dec  Di^'.  «S=>105.1 

[.S/»ccj7/c  Performance  ©zslC!.] 

Where  no  time  is  fixed  in  the  contract,  or 
time  is  not  es.sential,  it  will  not,  however,  be 
permitted  to  the  party  who  is  to  make  the  con- 
veyance, to  trifie  with  the  interests  of  the  op- 
posite party  by  unnecessary  delay:  it  is  in  the 
power  of  the  latter  to  fix  some  rea.sonalde  time, 
—not  capriciously  or  with  intent  to  sui prise,  but 
a  reasonable  time  according  to  the  circum- 
stances of  the  case, — within  whi«'h  he  will  exi»ect 
the  title  to  be  made  at  the  peril  of  rescinding  the 
agreement. 

[Ed.  Note.— Cited  in  Prothro  v.  Smith.  G 
Rich.  Eq.  :',:'.-2;  Sams  v.  Fripn.  10  Ri<h.  E(|. 
4;jU;  McMillan  v.  McMillan,  77  S.  C.  5i:>.  5S 
S.  E.  431. 

For  other  cases,  see  Specific  I'erformauce, 
Cent.  Dig.  S  -'40;    Dec.  Dig.  <g=>;»3.] 

[ISpcrifir  Performance  <£=!»:.'. 1 

Notice  on  December  I'.'J.  that  unless  gcxMl  ti- 
tles were  tendered  by  Jjnuary  1,  the  purchaser 
would  consider  the  contract  at  an  end.  held. 
under  the  circumstances  of  the  case,  not  to  be 
reasonable. 

[Ed.  Note. — For  other  cases,  see  Snecific  Per- 
formance,   Cent.    Dig.    S§    233-:i44 ;     Dec    Dig. 

{Specific   Performance  C=3!'2.] 

The  embarrassin;;  state  of  the  title  has  al- 
ways been  recognized,  as  affording  a  leasouable 
excuse  fc)r  delay. 

[Ed.  Note.— For  other  cases,  see  Specific  Per- 
formance, Cent.  Dig.  SS  -33-L'44 :  Dec  Dig. 
€=91.'.  J 

•371 

•Before  Johnston,  Ch.,  at  Chariest  on.  Feb- 
ruary, 1S5L*. 

Johnston,  Ch.  The  bill,  in  this  case,  re- 
lates to  a  body  of  land,  sitmite  in  t!ie  Parish 
of  St.  Mathew.  sold  by  the  plalntifT.  Thomp- 
son, to  the  defeinlant,  iMilles. 

The  defendant  was  let  jnt<i  possession; 
but  afterwards,  abainloiied  the  prendses.  and 
ivfu.sed  to  complete  the  contract,  on  the 
ground  of  Insufficiency  of  title,  or  delay  on 
the  part  of  the  idaintitT  to  make  him  a  good 
i-onveyance.  The  vendor  brings  this  suit, 
(which  was  instituted  the  l!9th  of  August, 
1S47.)  to  compel  him  to  extvute  the  con- 
tract of  purchase. 

Pending  the  suit,  the  titles  w»'ro  referred 
to  Mr.  Tupiter.  one  of  the  Masters,  who  has 
reported:  and  excei)tlons  ar»»  taken  by  the 
defendant  to  his  reiiort. 

I   shall,   first,   consider  the   report   and   ex- 


^z^FoT  other  cases  see  same  topic  aud  KKY-NUMUEK  iu  all  Key-Numbered  Digests  aud  ludexes 


147 


*371 


5  RICHARDSON'S  EQUITY  REPORTS 


ceptions,  for  the  purpose  of  ascertainiug 
the  true  state  of  the  title. 

The  land  consists  of  two  tracts,  viz: 

1.  A  tract  of  1,447  acres,  called  Lower 
Falls ;    and 

2.  A  small  adjoining  tract,  of  100  acres. 

1.  With  respect  to  the  tract  of  1,447  acres, 
or  Lower  Falls. 

This  body  of  land  originallj-  belonged  to 
William  Sabb.  His  estate  consisted  of  Low- 
er Falls,  and  another  contiguous  tract,  called 
Providence. 

He  died  intestate  in  18 ,  leaving  a  wife, 

Ann;  a  brother  Thomas,  and  two  sisters, 
Ann  Stewart,  (wife  of  James  Stewart,)  and 
Elizabeth  Thompson,  (wife  of  William  R. 
Thompson.) 

Under  a  summons  in  partition,  issued  from 
the  Court  of  Common  Pleas,  the  10th  of 
March,  1S06,  Commissioners  were  appointed, 
who  divided  the  real  estate  of  William  Sabb, 
by  allotting  Providence  to  his  widow,  Ann 
Sabb,  and  Lower  Falls  to  his  brother,  Thom- 
as, and  his  sisters,  Mrs.  Stewart  and  Mrs. 
Thompson,  in  common.  This  partition  was 
confirmed  by  the  Court,  the  18th  March, 
180S. 

Thomas  Sabb  died  in  1811,  intestate  and 
without  issue ;  and  his  distributive  share  of 
Lower  Falls  became  vested  in,  and  distrib- 
utable between,  his  widow,   Sarah   Frances, 

*372 

and  his  two  *sisters,  Mrs.  Stewart  and  Mrs. 
Thompson,  (then  a  widow,  her  husband,  Wil- 
liam R.  Thompson,  having  died  in  1807.) 

Sarah  Frances,  the  widow  of  Thomas 
Sabb,  married  a  second  husband,  James  F. 
Erving.  There  is  evidence,  which,  coupled 
with  lapse  of  time  and  acquiescence,  shows, 
in  a  manner  sufficiently  satisfactory,  that 
she  was  compensated  for  her  interest  in 
Lower  Falls  by  other  real  estate.f'a^ 

Mrs.  Stewart  died  in  1813,  leaving  her 
husband,  James  Stewart,  and  one  child,  Ann, 
to  inherit  her  original  share  of  Lower  Falls, 
and  her  portion  accjuired  as  distributee  of 
Thomas  Sabb,  and  also  her  portion  of  what 
had  been  acquired  from  Thomas  Sabb's  wid- 
ow, Sarah  Frances,  as  already  stated. 

James  Stewart,  the  hvisband,  on  the  30th 
of  May,  1818,  conveyed  all  his  interest  in 
Lower  Falls  to  Mrs.  Thompson. 

Ann,  the  child  of  Mrs.  Stewart,  married 
AVilliam  L.  Lewis,  and  died  December  11, 
1831,  leaving  her  husband  and  three  childre)i: 
Ellen,  (widow  of  William  H.  Colcock.)  Ann 
and  James,  her  sole  distributees.  On  the 
10th  of  April,  1849.  these  three  children 
and  their  father,  William  L.  Lewis,  con- 
ve.ved  to  the  plaintiff,  Charles  R.  Thompson, 
all  their  interests  in  Lower  Falls. 

What  has  been  stated,  shows  that  the 
plaintiff,  by  the  deed  of  April  10,  1849,  has 
the  legal  title  to  two-thirds  of  Mrs.  Stewart's 
original  third  of  Lower  Falls,  as  well  as  of 


(a)   Sugd.   on   Vend.   Chap.   10,  p.   88,   note  1, 
(Hammond's  edition.) 

148 


her  share,  acquired  through  her  brother, 
Thomas  Sabb,  and  his  widow  ;  and  that  the 
rest  of  the  tract  vested  in  Mrs.  Thompson, 
his  mother.  It  remains  to  be  inquired, 
whether  he  has  title  to  that  residue. 

Mrs.  Thompson's  husband,  William  R. 
Thompson,  died,  as  we  have  stated,  in  1807; 
she  died  intestate,  in  November,  1838,  leav- 
ing six  children,  of  whom  the  plaintiff, 
Charles  R.  Thompson,  is  one.  This  gave 
him  one-.sixth  of  his  mother's  interest  in 
Lower  Falls.  He  and  the  other  live  chil- 
dren made  an  informal  division  of  her  and 
her  late  husband's  estate,  in  1839,  in  which 
Lower  Falls  fell  to  his  exclusive  share.     No 

*373 
conveyances   were   *made.     But   he  had   an 
equitable   right   to  conveyances.     The   other 
five  children  of  Mrs.  Thompson  were: 

1.  Caroline,  wife  of  Dr.  John  B.  Lewis. 
She  and  her  husband  conveyed  her  interests 
to  the  plaintiff,  the  13th  of  July,  1843. 

2.  Charlotte,  who  first  married  Derril 
Hart,  and  upon  his  death,  Robert  H.  Good- 
wyn.  She  and  her  second  husband  convey- 
ed her  interests  to  the  plaintiff,  the  25th  of 
December,  1848,  and  she  renounced  her  in- 
heritance the  9th  of  January,  1849. 

3.  John  Linton  Thompson.  He  died  be- 
fore his  mother,  leaving  two  daughters: 
Margaret,  who  married  Dr.  Artemas  T.  Dar- 
by, and  Anna,  who  married  William  H.  Sink- 
ler.  These  two  daughters,  v.dth  their  hus- 
bands, conveyed  their  interests  to  the  plain- 
tiff, the  25th  of  December,  1848;  the  daugh- 
ters relinquishing  their  inheritance,  the  1st 
and  2(1  of  January,  1849. 

4.  Mary  Eugenia.  She  married  A.  B.  Dar- 
bey,  whom  she  survived ;  and  after  his 
death,  she  conveyed  her  rights  in  Lower 
Falls  to  the  plaintiff,  25th  December,  1848, 
The  remaining  child  of  Mrs.  Thompson  was, 

5.  AVilliam  Sabb  Thompson.  He  died  in- 
testate in  1841,  leaving  one  child,  his  sole 
distributee,  by  the  name  of  Emma  Thomp- 
son.   She  is  still  an  infant.    Proceedings  were 

instituted    by    the    plaintiff',    the    of 

February,  1851,  against  this  infant,  upon  the 
ground  that  her  father  was  a  trustee  to  re- 
lease his  interests  in  the  land  allotted  to  plain- 
tiff in  the  division  of  1839,  and  that  the  trust 
descended  upon  her,  and  that,  therefore,  she 
was  bound  to  convey,  under  the  Statute 
7  Ann,  c.  19,  (P.  L.  97 ;  2  Stat.  546,)  en- 
acted, "to  enable  infants,  who  are  seized  or 
possessed  of  estates  in  fee,  in  trust,  or  by 
way  of  mortgage,  to  make  conveyances  of 
such  estates."  A  decree  passed  in  the  case, 
the  13th  of  February,  1851 ;  in  conformity 
to  which,  Emma  Thompson,  the  Infant,  on 
the  28th  of  May,  1851,  conve.ved  to  the  plain- 
tiff the  undivided  sixth  of  her  father  in 
Lower  Falls,  which  had  descended  to  her. 

It  has  been  objected,  that  this  conveyance 
*374 
is  not  binding  on  *the  infant,  and  does  not 


TIIOMPSOX  V.  DULLES 


constitute  a  title  vvlncli  a  purchaser  is  l.ound 
to  accept. 

I  am  of  opinion,  that  the  convevance  Is 
good,  so  lon«  as  the  decree,  under  which  it 
was  made,  remains  of  force ;— unless  it  can 
he  shown  that  the  decree  is  a  nullity 

It  has  heen  argued,  that  the  statute  of 
Ann  empowers  the  Court  to  direct  a  con- 
veyance, hy  an  infant,  only  where  the  in- 
fant IS  a  naked  trustee;  not  where  the  in- 
fant,  although  a  trustee,  has  an  inten-st  • 
and  that  the  infant  in  this  case  had  an  in- 
terest, and.  therefore,  the  decree,  directing 
a  conveyance  by  the  infant,  is  null  and  in- 
operative. 

It  is  not  every  interest  that  Duts  an   in 

fant  trustee  beyond  the  operation  of  the  st",  ', .•,!?''''*' ^''''  ^''''"'^  ^«  ^"^'^  "'•'•^^J  "'  ^-^''^Pel 
ute  of  Ann  ^'"'    ""«  ^^l'**  conveyance;    neither  the  d 


*376 

tempted  to  do  so.    "In  every  way.  therefore." 
'^ays  his  Lordship,  "the  title  is  good  " 

In  tlie  ca.se  bef<»re  me.  tlie  infant  stands 
precLsrly  in  that  situation.  She  would  be 
bound  t<,  convey  at  majority.  The  Court 
would  not.  therefore,  allow  her  to  «voi,l  the 
ceuveyance  she  has  made. 

Kut  this  is  not  all.  The  question  with  me 
is  not.  ^^hether  I  ought  now  to  direct  a  con- 
veyance i)y  this  infant  trusting,  under  tlie 
statute.  The  C.urt  has  already  decreed  a 
conveyance,  and  it  has  In^en  ma.le.  That  de- 
cree IS  in  force;  and  until  it  is  reversed  it 
•mist  be  taken  to  have  been  rightlv  n.a'de 
and  in  a  i)ro|K.'r  ca.se. 


ute  of  Ann 

In  E.x  parte  Marshall,  referred  to  in  a  note 
v.    Ilandcock.    17    Yes.    :iKi,    the 


to 


Master  reported,  that  the  infant  was  not 
only  tru.«;tee  as  heir  of  the  mortgagee  but 
had  an  interest  in  the  mortgage  monev.  as 
one  of  the  mortgagee's  four  residuary  'le-i- 
tees ;  and  was.  therefore,  not  a  mere  trustee, 
within  the  meaning  of  the  statute.  But  the 
Master  of  the  Rolls  was  of  a  ditTerent  opin- 
ion, and  by  an  order,  made  the  15th  of 
June,  1797,  directed  the  infant  to  convey  the 
estate. 

The  same  note  states,  that  the  .same  point 
had  been  decided  by  Lord  Thurlow,  the  15th 
of  March.  1783,  in  a  ca.se  where  the  heir  of 
the  mortgagee,  who  had  died  intestate,  would 
be  entitled,  as  one  of  his  next  of  kin,  to  a 
share  of  the  mortgage  money,  when  paid  to 
the  administrator. 

The  reason  why  an  infant  trustee,  possess- 
ed of  such  an  interest,  is  still  within  the  stat- 
nte    appears   to    l)e,    (as   explained    bv    Lord 

Lldon    in V.   Ilandcock.  17  Ves.  3S4. 

that  the  mortgage  money  being  part  of  tlie 
personal  estate,  may  Ik-  j.aid  to  the  personal 
representative  of  the  mortgagee,  who  may 
compel  the  payment,  and  -ive  a  valid  dis- 
charge  for  the  debt;  and,  if  well  pai.l  to  the 
repre.sentative.  the  consequence  i.s,  that  the 
"'^''^"^'  (though  also  a  co-e.\ecut<.r.  as  in 
-  V.  Ilandcock.)  may  be  considered  as  a 

dry  trustee,  without  interest. 

Uut  in   V.    liiiiid.ock,   17   Ve.s.  ;j,S4, 

*375 
Lord  Eldon  goes  still  *further.  He  holds 
""t  <'nly  that  where  the  interest  of  the  in- 
fant can  be  extinguish,.,!  by  payment  t,.  an- 
"th,M-.  he  is  thereby  redu,e,l  to  a  naked  tru.s- 
tee.  an,l  may  be  c,.mpelle,l  t,.  coiivev  under 
the  statute:  but  that  though  he  po.s.sess  an 
interest  tliat  <ann..t  be  thus  extingnisb,.,! 
and  IS.  therefore,  not  a  dry  trustee,  and  with- 
ni  the  statute;  yet  a  conveyance,  made  bv 
him.  IS  not  void,  but  vohlable,  and  vohhible 
only  during  infancy.  That  it  pa.sses  the  le- 
gal estate  until  avoi.led;    an,l  if  made  in  a 


case   where    he    wnul.l    be    bound    to   c..nv,.v 
when   of  age.  a   Court  of   Equitv  w,.mI.I   uv'n 

vent  him  from  avoidiu-  it  ■  t    -.u      f       ^''^-l  7-'""  "''  \7  ""^''^'^f  "^  the  wife,  in  I'rovi- 
m  dvoiaiu.  It  at  lau.  if  he  at- 1  dence.   to  Hampton   and   wife;    constituting 


.,  - —  v.ecree  nor 

the  conveyance  is  voi.l.  They  are  b..th  goo,l 
until  av„id,Ml :  and  though  there  were  a  pos- 
sibility that  the  infant  may  hereafter  avoid 
them,   I  am  to  regard  them.  as.  now  ellic-a- 

ClOUS. 

There  is  not  aiK.ther  di^ed,  in  the  whole 
chain  of  title,  that  may  not.  bv  possibilitv 
l)e  set  aside,  as  well  as  this,  bv  .some  futurJ 
proceeding.  Hut  that  is  not  enough  t,»  in- 
validate them  in  a  contract  of  .sale.  Mathe- 
matical certainty  is  not  attainable,  and  is 
not  rciuired.  in  such  ca.ses.  Moral  probabil- 
ity sutlicient  to  make  a  g.j,jd  marketable 
title,  IS  all  that  is  re,piiivd.  Ir  is  n,)t  sutli- 
cient for  the  defeiHlant,  in  this  case,  to  sh,.w 
that  the  title  tendered  to  bim  mav.  iM.sslbh' 
be  defeated.  He  must  show,  that  there  jj 
reason    to    apprehend    it    will    be    defeated. 

♦376 
But.  so  'far  from  that  being  the  ,ase.  there 
IS  reason  to  believe  it  can  never  be  def,.ated 
or  set  aside. 

My  conclusion  is,  that  the  plaintitl-  had 
when  he  .sold,  a  good  iviuitable  title,  and  has 
now,  a  good  legal  title,  to  I>.wer  Falls. 

1*.  Then,  as  to  the  1(X)  acn-s  adja.ent.  This 
tract  also  belongwl,  originallv,  to  William 
Sabb,  and  was  parcel  of  Provideutv.  which 
was  assigned  to  his  widow.  Ann  Sabb  in 
the  partition  of  iso.s. 

She  afterwards  married  Donald  Rowe  • 
and  on  the  sth  of  August.  ISOO,  jointnl  him' 
in  a  ,-onveyaiice  of  Providence  to  Edwanl 
Richardsiin. 

E.lward  Richardson,  on  the  .Id  of  January 
1S\G,  conveyeil  to  his  mother.  Rachel  Rich- 
ardson. 

Rachel  Kicliard.s,.n  devi.sed  her  estate  bv 
will  executed  sth  Se|.t.'mber.  IM'O  to  her 
daughter.  Mary  R.  McCord. 

Mary  R.  McCord  died  intestate  leavinc 
two  daughters: 

1.  Rachel  Su.san  Bee.  (by  a  former  mar- 
riage) who  married  John  R.  Cliev.'s ;    and 

2.  Mary  E.  Mc-Cord,  who  married  Christo- 
Ither  F.  Hampton. 

August  U»th,  1,843.  Cheves  and  wife  con- 
veyed all  the  interest  of  the  wife,  in  Provi- 


149 


*376 


5  RICHARDSON'S  EQUITY  REPORTS 


them    tenant    in    entii'ety    of    Mrs.    Cheves' 
moiety. 

Mrs,  Hampton  died  intestate,  leaving  her 
husband,  Christopher  F.  Hampton,  and  an 
infant  daughter,  Ann  Hampton,  her  sole  dis- 
tributees. 

By  her  death,  her  husband  became  entitled, 
as  survivor,  to  the  moiety  of  Mrs.  Cheves, 
which  had  been  conveyed  to  himself  and 
wife,  as  tenant  in  entirety ;  and  to  one-third 
of  his  wife's  original  moiety,  as  her  widower. 
The  child  Ann,  became  entitled  to  the  re- 
maining two-thirds  of  the  latter  moiety. 

July  15,  1850,  Christopher  F.  Hampton  re- 
leased to  the  plaintiff  all  his  right  to  the 
100  acres,  which  the  plaintiff  had  sold  to  the 
defendant. 

June  13,  1851,  the  infant,  Ann  Hampton, 
released  all  her  interest  to  the  plaintiff,  in 

*377 
Ihe  same  100  acres.  This  release  was  *exe- 
cuted  under  an  order  of  this  Court,  obtained 
on  the  application  of  the  plaintiff;  in  which 
she  was  held  to  be  a  trustee,  and  bound  to 
convey.  The  trust  arose  from  the  fact,  that 
Edward  Richardson  had  undertaken  to  con- 
vey, and  did  convey  to  the  plaintiff,  this  100 
acres  by  deed,  dated  the  29th  of  June,  1820. 
He  afterwards  died  intestate,  and  his  es- 
tate became  divisil)le  between  Mrs.  Cheves 
and  Mrs.  Hampton,  who  were  his  nieces. 

The  view  I  took  in  relation  to  the  convey- 
ance of  the  infant,  Emma  Thompson,  is  ap- 
plicable to  that  of  Ann  Hampton;  and  shows 
that,  in  my  opinion,  it  is  a  good  conveyance. 

The  title  of  the  plaintiff  to  this  100  acres 
is,  therefore,  sufficient. 

If  there  is  any  impediment  to  the  enforce- 
ment of  the  contract  of  sale,  it  does  not 
consist  in  a  present  insufficiency  in  the  title, 
but  must  arise  from  some  other  cause. 

In  order  to  discover  whether  there  be  any 
other  impediment,  let  us  now  look  into  the 
treaty  of  sale,  and  the  conduct  of  the  parties. 

The  defendant,  Dulles,  resided  in  I'hiladel- 
phia,  but  owned  a  plantation  adjoining  these 
two  tracts  of  Charles  R.  Thompson.  After 
some  preliminaries  between  the  parties,  Mr. 
Dulles,  (being  at  the  time,  at  his  South-Caro- 
lina estate.)  addressed  Mr.  Thompson  the  fol- 
lowing note: 

St.  Matthews,  Dec.  4,  1846. 

Dear  Sir, — I  have  considered  the  matter 
of  your  river  plantation,  and  have  concluded 
to  offer  you  .$5,000,  payable  in  three  e<iual 
yearly  instalments  of  $1,666.66  each,  without 
interest;  leaving  to  your  use,  for  the  year 
1847,  the  premises  in  use  now,  and  the  lands 
at  present  under  cultivation,  and  to  my  use 
the  fields  and  lands  which  have  not  been 
planted  this  present  year.  A  deed,  clear  of 
incumbrances,  to  be  made  at  the  first  pay- 
ment, and  the  premises  mortgaged  for  the 
balance. 

If  this  proposition  is  accepted,  please  in- 
form me  at  once ;  and  if  not,  please  return 
me  this  letter.     It  is  the  utmost  I  can  offer 

150 


*378 

*now:    and,   if  not   accepted,   I   shall    make 

such  arrangements  as  to  render  the  addition 

not  important  to  me  in  future. 

Yours  respectfully, 

Joseph  II.  Dulles. 
I  .expect  to  return  on  Monday  morning. 
Mr.    Thompson    declined    this    offer,    and 
Mr.  Dulles  proceeded  to  Philadelphia.     After 
reaching  that  city,  he  received  a  letter  from 
:Mr.  Thompson,  to  which  he  replied  as  follows: 
Philadelphia.  Jan.  21,  1847. 
Dear  Sir: — I  have  received  your  favor  of 
the  10th  instant:    and,  although  your  price 
i  is  far  beyond  my  views,  I  have  concluded  to 
come  up  to  your  iirice,  with  some  variation 
of  the  terms. 

You  propose  three  yearly  payments  of  $2,- 
000,  without  interest.  To  this  I  cannot  ac- 
cede. 

But,  on  the  basis  of  your  retaining,  for 
this  year,  the  use  of  the  premises  and  the 
fields  cultivated  by  yon  last  year,  and  my 
using  the  remainder  of  the  lands,  the  whole 
to  be  given  up  to  me  on,  or  before,  the  first  of 
January,  1S4S,  with  good  title,  clear  of  in- 
cumbrance, together  with  the  buildings  and 
fixtures,  (including  the  tract.  I  think  you 
said,  one  hundred  acres,  bought  by  you,  ad- 
joining your  tract.)  I  will  purchase  the  prop- 
erty on  the  following  terms: 

.$1,000  payable  first  of  January,  1848. 
1,000         "         1st  March.  1849. 
2,000         "         1st  March,  1850. 
2,000         "         1st  March,  1851. 


$6,000  without  interest ;  the  payments  to 
be  secui'ed  by  mortgage  of  the  premises,  with 
the  privilege  of  anticipating  the  payments, 
with  allowance  of  interest. 

I  will  add,  that  my  object  in  making  this 
offer  is  to  arrange  my  planting  the  present 
year ;    and  I  fear  it  is  even  now  too  late. 
Should  I  make  the  clearings  now  designed, 
*379 

I  would  not  buy,  *at  any  price:  for  I  do  not 
desire  to  increase  nij-  property  in  Carolina. 

My  plan  is  to  sell  woodlands  to  those  who 
want  it,  to  cover  any  purchase  I  may  make. 
If  I  clear  what  I  want,  this  year,  it  will 
preclude  any  such  operation.  Please  give 
me  your  decision. 

Very  truly,  yours,  Joseph  H.  Dulles. 

This  letter  was  shown  to  Thompson  by 
William  R.  Rast,  then  in  the  employment  of 
Dulles,  as  the  overseer  of  his  South-Carolina 
plantation:  and  he  says  Thompson  declined 
the  terms  proposed. 

But  shortly  after,  another  letter  was  writ- 
ten by  Mr.  Dulles  to  Mr.  Thompson,  from 
Philadelphia,  and  also  confided  to  Rast,  who 
carried  it  to  Mr.  Thompson.  It  does  not 
appear  that  he  delivered  it,  but  showed  it  to 
Thompson,  as  he  had  the  letter  of  21st  Jan- 
uary. It  was  retained  by  Rast,  but  has  been 
lost. 


THOMPSON  V.  DULLES 


*38-2 


Rast,  In  his  testimony,  says,  "SubsiHiueut 
to  this,"  (i.  €'.,  to  the  letter  of  the  21st  Janu- 
ary, 1S4T,)  •"Dulles  wrote  again,  making  a 
different  offer  for  the  same  place.  I  saw  Mr. 
Th(inii)S()n;  showed  him  Dulles"  letter,  and 
Thompson  accepted  the  conditions  lai<l  down 
in  tlH'  letter.  The  terms  of  the  contract  were 
$1,000  in  March,  1848,  .$'J,000  in  March,  1S4J). 
and  $;!,000  in  March,  18.j0,  without  interest." 
lie  refers  to  a  representation  of  the  terms  of 
Dulle.s'  letter  contained  in  a  letter  snb.se- 
qnently  written  by  himself  to  Thonipson, 
which  he  afhrms  to  be  correct,  and  in  that 
letter  he  adds  to  the  foregoing  terms:  "You," 
(Thompson,)  "to  plant  the  upper  part,  and 
Mr.  Dulles  the  lower  part  of  the  plantation, 
and  you  to  give  full  possession  the  first  of 
January,  184S.  Tlie  letter  was  to  be  i>indin:4 
till  Mr.  Dulles  came  on; — then  he  would  ar- 
range business  with  you  himself." 

He  testifies  further,  that  upon  this  verbal 
acceptance  of  these  terms  by  Mr.  Thompson, 
he  apprised  his  employer  of  the  fact,  by  let- 
ter, and,  as  his  agent,  took  possession  of  the 

*380 

lower  part  of  *Lower  Falls,  and  cultivated 
it  in  common  with  the  rest  of  his  plantation. 
This  possession  was  taken  in  or  about  March, 
1847. 

Mr.  Dulles,  he  says,  did  not  reply  to  his 
letter,  but  came  out  about  the  beginning  of 
April,  and  approved  the  contract  that  had 
been  made.  He  also  came  out  again  towards 
the  end  of  that  year.  (1847,)  rode  over  the 
place  with  him,  (Rast.)  saw  the  crop  gather- 
ed in  bulk,  and  received  from  him  a  full 
statement  of  what  had  been  done.  There 
was  no  discrimination  in  the  crops,  between 
what  was  made  on  Mr.  Dulles'  original  plan- 
tation, and  that  made  on  the  part  of  Lower 
Falls  worked  by  his  hands. 

During  Mr.  Dulles'  visit  of  .\pril,  he  ad- 
dressed the  following  note  to  Thompson: 

St.   Matthews,  April   7,   1S47. 
Charles  R.  Thompson,   Ksij.. 

My  Dear  Sir: — On  looking  over  the  papers, 
they  appear  to  me  so  defective,  and  the  right 
.so  much  depending  on  possession,  that  it 
will,  as  I  think,  be  rciiuisite  to  take  out  a 
new  grant,  conforming  with  the  re-survey  of 
1S41:  and  to  strengthen  this  by  obtaiinng  a 
renunciation  on  the  |tart  of  Mr.  and  Mrs. 
Hampton,  [then  alive.l  if  the  legal  title,  un- 
der Mrs.  Rachel  Richardson,  is  in  them,  as 
I  sui)i)ose  it  to  be.  The  deinl  from  Colonel 
Richardson  is  only  an  oliligation  against  his 
estate  to  make  a  good  title;  but  conveys  noth- 
ing, as  I  conclude  from  the  papers  executed 
by  him. 

It  will  be  re(iuisite,  also,  to  have  the  deed 
of  partition  by  your  own  family  rccurdcd.  :is 
I  understand  that  instrument  vests  the  title 
in  you,  so  far  as  concerns  the  heirs  of  your 
mother.    I  presume  it  is  in  proper  form. 

The  deed  of  James  Stewart  w;uits  cr)ntir- 
matiou,   by   the  proving  and   recording  that 


instrument,  and  a  renunciation  on  the  part 
of  the  heirs  of  Mrs.  Stewart. 

And  the  interest  of  Thomas  Sabb  wants 
evidence,  to  show  when  and  how  it  passed  to 
your  mother. 

•381 

•The  evidence  of  posse.ssion,  and  the  per- 
sons l)y  whom  it  can  be  proved,  can  be  given 
in  a  memorandum. 

I  apprehend,  these  things  cannot  be  done 
before  my  going  North,  which  nui.st  be  next 
week,   if  juissible.      I   return   all   the   papers. 

Yours  respectfully,         Josei»h  H.  Dulles. 

In  December,  1H47,  we  find  Mr.  Dulles 
again  In  St.  Matthews,  and  addressing  Mr. 
Thomp.son  the  following  note: 

St.  .Matthews.  De.-.  4,  1H47. 

My  Dear  Sir: — Since  I  left  with  you  the 
papers,  with  a  note  of  what  I  sui»posed  reii- 
nisite,  I  have  not  heard  from  you.  My  ex- 
pectation is  to  return  to  riiiladeliihia  in  ten 
or  twelve  days:  and,  if  they  are  prepartMl,  so 
as  to  make  a  conveyance  which  shall  be 
deemed  good,  I  am  ready  to  complete  the 
contract.  Not  being  fanuliar  with  such  mat- 
ters, I  would  rest  on  the  opinion  of  an  at- 
torney of  experience  in  titles. 

I  am  so  busy,  hunting  an  overseer  and  ar- 
ranging for  an  early  return,  that  I  have  not 
had  time  to  call,  and  would  not  postpone  this 
communication  any  longer. 

Yours    very    resi»e<-tfully, 

Joseph  II.  Dulles. 

Then  f<ill-ows  this  letter,  after  his  return 
to  Philadelphia — the  whole  of  the  premises 
being  thi>ii  in  his  possession: — 

Philadelphia,  Jan.  11.  1848. 

My  Dear  Sir: — As  there  is  an  unavoidable 
uncertainty  about  the  time  of  my  visiting 
Carolina,  this  Spring,  I  take  the  liberty  of 
suggesting  the  proi)riety  of  having  the  land 
papers  prepared  at  one*',  and  if,  when  they 
are  completinl,  they  are  handed  to  Mr.  Ilut- 
.son,  of  Orangeburgh.  who  has  attended  to 
my  law  business,  he  will  examine  them  and 
advise  me,  so  that  I  shall  be  prepared  to  act. 

I  am  so  entirely  unactpiainted  with  such 
♦  382 
matters,  that  I  do  ♦not  presume  to  act  on  my 
own  judgment ;  and.  in  any  ca.><e  of  the  pur- 
cha.se  of  real  estate,  refer  the  ([uestion  of  ti- 
tle to  a  legal  adviser. 

I  supi»ose  (of  counsel  that  a  clear  and  good 
title  can  be  made,  and  suggested  some  things 
last  April;  but  I  do  not  imtfess  to  judge 
whether  they  are  reijuisite,  or  would  be  suf- 
ficient. 

I  may  desire  to  exchange,  or  sell,  a  part  of 
the  tract,  or  perhaps  all  my  lands:  and  it  is 
essential  to  me,  (.so  far  off,l  to  have  the  title 
complete  in  itself,  so  that  any  third  party 
would  l)e  satisfied  with  it;  and  I  h:ive  gone  to 
a  great  deal  of  trouble  to  make  every  thing 
clear  and  exactly  defined,  as  to  my  own 
lands. 

My  stay  at  the  South  n)ay  be  short:  and  it 
would  be  well  to  have  this  matter  attended 

151 


»382 


5  RICHARDSON'S  EQUITY  REPORTS 


to  early,  so  that  there  may  be  no  delay:  and 
I  am  also  anxious  to  have  it  fixed  absolutely, 
as,  until  this  is  done,  I  cannot  but  act  under 
disadvantageous  restraint  in  the  use  of  the 
property. 

With  my  best  regards,  t&c, 

Joseph  H.  Dulles. 

Charles  R.  Thompson,  Esq.,  Fort  Motte. 

He  writes  Mr.  Thompson  again  in  April,  as 
follows: 

Philadelphia,   April   13,   1848. 

Dear  Sir: — I  wrote  to  you  on  the  11th  of 
January  last,  stating  that  there  was  an  un- 
avoidable uncertainty  about  the  time  of  my 
going  to  Carolina,  and  i-equesting  that  you 
would  have  the  land  papers  prepared  im- 
mediately, and,  by  submitting  them  to  Mr. 
Hutson,  of  Orangeburgh,  as  proposed,  I  could 
perform  my  part  of  the  contract,  whether 
present  or  absent. 

My  mortgage  was  prepared  a  year  ago, 
according  to  the  terms  of  agreement,  and  I 
have  been  waiting  to  hand  it  over  to  you,  as 
soon  as  the  titles  were  ready. 

I  am  ready  now,  as  I  have  been,  to  make 
the  first  payment  when  the  titles  were  pre- 
pared, and  I  only  wait  your  action. 

Mr.  Hutson  wrote  to  me  that  he  would  in- 
*383 
form  me,  as  soon  as  *he  examined  your  con- 
veyances.   If  he  has  had  the  papers,  and  neg- 
lected to  do  so,  I  regret  it. 

The  plan  I  proposed  was  the  only  one  to 
prevent  delay:  and  I  now  write  to  say,  that 
I  fear  it  will  not  be  in  my  power  to  go  to 
Carolina  this  Spring,  various  and  important 
changes  in  my  family  iirevent  it,  at  present. 
But  this  will  be  no  dithculty  in  the  way  of  a 
settlement,  as  all  can  be  done  that  the  case 
requires,  on  notice  that  the  title  is  ready. 
Yours,  very  respectfully, 

Joseph  H.   Dulles. 

In  December,  Mr.  Dulles  is  in  South-Caro- 
lina, and  writes  .Mr.  Thompson  as  follows: 
St.  Matthews,  Dec.  11,  1848. 

My  Dear  Sir: — Being  advised  by  my  attor- 
ney, after  an  examination  of  your  papers, 
that  a  clear  title  cannot  be  made,  to  convey 
the  lands  at  the  Lower  Falls  place,  I  must, 
of  course,   relinquish  the  purcliase. 

This  has  been  a  great  disappointment,  and 
a  serious  inconvenience  to  me.  Taking  it, 
however,  as  one  of  the  cases  of  unintentional 
error  to  v^'hich  business  transactions  are  lia- 
ble, I  am  disposed  to  make  the  best  of  it,  and 
am  willing  to  pay  what,  under  the  circum- 
stances, may  be  deemed  a  fair  price  for  the 
use  of  such  parts  of  the  land  as  have  been 
planted. 

This,  we  may  adjust  ourselves,  or  leave  to 
be  settled  by  disinterested  persons:  so  that 
there  may  be  nothing  to  interrupt  the  friend- 
ship which   has    so   long   existed. 

I  expect  to  remain  in  the  parish  twelve  or 
fifteen  days,  and  then  be  subject  to  an  im- 
mediate return  to  the  North.  I  hope  that, 
within  that  time,  this  matter  may  be  settled 

152 


]  to  our  mutual  satisfaction.     I  shall  be  pleas- 
I  ed  to  receive  any  proixisition  from  you,  and 
give  it  my  immediate  attention. 

Yours,  very  respectfully, 

Joseph  II.   Dulles. 
*384 
*He  writes  him  again: 

St.  Mattliews,  Dec.  2?>,  1S4S. 
Dear  Sir: — Under  the  circumstances  in 
which  I  am  placed,  I  deem  it  my  duty  to  ad- 
vise you,  that  if  good  titles  to  the  Lower 
Falls  Plantation,  which  you  proposed  sell- 
ing me,  are  not  tendered  to  me  by  the  tirst 
day  of  January  next,  I  shall  consider  the 
negotiations  for  the  purchase  of  the  same 
at  an  end.  Urgent  business  recpiires  my  re- 
turn home,  at  least  by  that  time. 
Yours,  very  respectfully, 

Joseph   II.   Dulles. 
On  the   1st  of  January,   1841),    .Mr.   Dulles 
closed  the  correspondence,   by   a  delivery  of 
the  keys  to  Mr.  Thompson's  overseer,  and  by 
the  following  note  to  himself: 

January  1,  1849. 
Dear  Sir: — Having  received  no  communi- 
cation from  you,  since  the  notice  which  I 
gave  you  on  the  li3d  of  December,  I  now  sur- 
render the  proposed  purchase  of  lands  on 
the  Santee,  and  return  you  the  keys  of  the 
houses,  which  have  not  been  used.  I  am  as- 
sured, that  the  property  is,  in  every  way,  in 
better  condition  than  when  it  was  left  by 
your  negroes,  excepting  the  ordinary  decay 
of  the  buildings. 

Yours,  very  respectfully, 

Joseph  II.   Dulles. 
These   are   the   facts  upon   which  the   bill 
was  brought:    and  it  was  tiled,  as  has  been 
stated,  the  29th  of  August,  1840. 

One  of  the  questions  presented  in  the  case 
is,  whether  a  contract  of  sale  has  been  made 
out;    and,  if  so,  what  are  its  terms? 

The  bill,  after  stating  the  two  offers  con- 
tained in  Mr.  Dulles'  letters  of  the  4th  of 
December,  1846,  and  21st  January,  1847, 
which  were  declined,  proceeds:  "But  the  said 
Josei)h  H.  Dulles,  at  the  same  time,  author- 
ized his  agent,  William  K.  Kast,  to  see  your 
Orator,   and   to   conclude   the   contract    with 

*385 

him.  That,  *about  the  first  day  of  February, 
1847,  the  said  AVilliam  K.  Kast  saw  your  Ora- 
tor, and  agreed  with  him  for  the  purchase, 
on  the  same  terms,  as  to  the  taking  of  pos- 
session of  part  immediately,  and  the  residue 
in  January,  1848,  as  mentioned  in  Mr.  Dul- 
les' letters."  "And  the  said  William  K. 
Kast,  by  the  authority  of  the  said  Joseph  H, 
Dulles,  agreed  that  the  said  Joseph  H.  Dul- 
les should  pay  your  Orator,  for  the  said  plan- 
tation, the  sum  of  .f6,000,  in  manner  follow- 
ing: that  is  to  say,  $1,000  hi  March,  1848; 
S;2,000  in  March,  1849;  and  the  residue  of 
$3,000  in  March,  1850;"  and  avers  delivery 
of  possession,  under  that  contract,  which  is 
stated  to  have  been  by  parol. 

The  defendant  admits  his  offers  in  the  two 


THOMPSON  V.  DULLES 


*387 


letters  referred  to,  and  tliiit  they  were  de- 
<,'liiied.  He  also  admits,  that  he  yave  au- 
thority to  Rast  to  agree  with  the  iilaintiff 
for  the  purchase  of  the  itlaiitatit)n ;  liut  his 
authority  was  si)eoial,  to  wit:  to  vary  the 
times  of  payment  proposed  in  his  letter  of 
21st  January.  1S47,  so  as  to  make  payment 
of  $1,000  1st  March,  1.S4S:  $12,000  1st  Mareh, 
1S41):  and  $;{,000  1st  March,  isnO:  hut  to 
retain  and  insist  upon  all  the  other  terms  of 
that  letter. 

He  insists  that  the  possession  taken  Ity 
him  was  in  pursviance  of  these  terms,  and 
pleads  the  statvite  of  frauds  to  the  contract 
set  up  by  the  plaintiff,  so  fur  as  it  dei)arts 
from  them. 

The  material  departure  suggested,  is  the 
omission,  (in  the  plaint itTs  statement  of  the 
contract,)  of  the  stipulations  in  the  defend- 
ant's letter,  that  '"a  good  title,  clear  of  in- 
cumbi-ance,"  was  to  accom[)any  the  full  de- 
livery of  possession,  in  January,  1.S4.S ;  and 
that  the  purchaser  was  to  have  "the  privilege 
of  anticipating  the  times  of  payment,  with 
allowance  of  interest." 

It  is  further  insisted,  that  the  oli.ject  of 
speedily  obtaining  the  actual  execution  of 
a  clear  conveyance  was  stated  by  the  de- 
fendant in  his  said  letter,  and  was  of  the  es- 
sence of  the  contract,  and  is  omitted  in  the 
plaintiff's  statement  of  it.  Upon  this  latter 
point,  I  am  very  clear,  that  although  the  dis- 
closure of  his  purposes  by  the  purchaser  so 
bears  upon  the  execution  of  the  contract  of 
sale,  that  it  will  not  be  allowed  to  be  execut- 
ed to  the  disappointment  of  the  purposes  so 

*386 
disclosed — iu  other  words,  *will  not  be  ex- 
ecuted against  good  faith — yet  the  disclosure 
referred  to  forms  no  part  of  the  contract, 
properly  so  called,  and  need  not  be  stated  as 
I)arcel  of  it. 

The  other  departure  from  the  contract,  ad- 
mitted by  the  defendant,  might  be  more  ma- 
terial, if  the  establishment  of  the  contract 
depended  altogether  upon  the  defendant's 
iidmissions. 

Wiiere  the  existence  of  some  contract,  (not 
reduced  to  writing,)  is  evidenced  by  acts 
done  in  partial  execution  of  it,  as  in  this 
instance,  the  case  is  so  far  taken  out  of  tlie 
statute  of  frauds,  that  the  contract  actually 
made,  and,  of  course,  its  particular  terms, 
may  be  established  by  parol.  In  this  case, 
the  act  of  taking  possession  under  a  contract 
is  proved.  This  is  sufficient  to  displace  the 
plea  of  the  statute:  and  that  being  out  of 
the  way,  we  are  to  receive  parol  evidence  of 
the  authority  of  Kast,  the  agent,  and  of  the 
contract  which  he  made.(^) 

I  take  .it  for  granted,  frtun  his  testimony, 
that  he   (Kast)   made  the  contract,  although 


(/))  1  Mad.  Ch.  'Ml ;  1  Fonb.  ISO.  note  (ci):  Sag. 
Vend.  S.'!.  S4:  Atkins,  on  Titlfs.  (5(5:  1  Ves.  "Jl-'l, 
*J!)7;  1  S.Tg.  A:  H.  SO;  L'  Jnlni-^.  IC.  ."ST;  (Jiuit.-r 
v.  lliUsev,  Amb.  nsti;  :{  Atk.  :j ;  1.'.  .M.-iss.  S.".; 
S  liurr.  ioil):  Kirbv.  4(K) ;  1  Dos.  :{r.O  ;  L'  I  >f.s. 
590;   4  Des.  77;  3  Ves.  3U,  note;   12  Ves.  21J. 


that  does  not  appear  to  lie  his  apprehension 
of  tile  mtitter.  He  t»roves  the  contents  of 
the  last  letter  wliich  he  showed  to  Thon>i)soa. 
without  stating  tiiat  it  contained  any  exjiress 
reservation  of  tlie  terms  of  the  previous  let- 
ter, as  defendant  supposes.  That  letter, 
thus  exhibited  by  liim,  was  the  ba.sis  of 
Thompson's  acceptance:  and  Uast's  only  au- 
thority being  t<»  obtain  that  acceptance,  the 
contract  was  cjoseij  liy  Kast  by  taking  po.s- 
se.ssion. 

It  is  olijected,  that,  altiiough  the  part  ex- 
ecution be  adjudged  to  take  the  contract  of 
the  parties  out  of  the  statute,  and  to  let  in 
parol  evidence  of  the  contract  actually  made, 
yet,  as  the  defendant  has  denied  the  con- 
tract alleged  in  the  bill,  the  single  testimony 
of  Kast  is  not  sutHcient,  in  this  Court,  to  es- 
tablish it.  in  opposition  to  the  defendant's 
deiual.  This  objection  is  neither  «'xactly  ac- 
curate, nor  does  it  do  justice  to  the  defend- 
ant, himself.     It  is  not  true  that  his  answer 

♦387 
is  contradicted  by  Rast:  •becjiu.se  the  de- 
fendant (h)es  not,  in  fact,  deny  the  contract 
as  alleged.  To  the  allegation  that  Kast,  as 
agent  of  the  defendant,  made  a  contract,  iu 
certain  terms,  the  defendant  answers  tliat 
he  gave  Ra.st  specific  authority.  This  is 
not,  in  my  opinion,  such  a  direct  denial  of 
the  contract  alleged,  as  renders  it  necessary 
to  prove  it  by  two  witnesses. 

So  far,  I  am  with  the  plaintiff  in  this  case; 
but  the  principal  difticulties  of  the  case  are 
yet  to  be  crmsidered. 

The  plaintiff,  at  the  time  he  made  the 
agreement  to  sell,  had  not  the  legal  title. 
Rut  he  had  the  etpiitable  title:  and  the  gen- 
eral principle  is.  that  wht>re  the  vendor  has 
the  etpiitable  title  in  him,  the  getting  in  the 
legal  title  is  a   matter  of  conveyancing. 

The  plaintiff  had  the  ability,  at  some  time, 
sooner  or  later,  to  nuike  a  good  legal  title. 
Was  there  anything  reipiiring  him  to  make 
it  out  sooner  than  he  has  done? 

I  have  said  that  the  contract  proved,  did 
not  provide  for  the  making  of  titles  at  a 
siiecified  time:  and.  in  such  cases,  time  is 
not   generally  essential. 

Where  a  specific  time  is  fixed  by  contract, 
it  may  generally  be  insisted  on  :  and,  when 
insisted  on.  the  contract  will  not  be  enforced, 
uidess  there  be  a  substantial  coniiiliance 
with  its  terms.((:)  Hut  parties  who  may 
insist  upon  the  terms,  may  also  waive  them: 
and  he  who,  either  expressly  or  by  his  con- 
duct, makes  such  a  waiver,  has  no  right 
afterwards  to  take  advantage  of  the  other 
party,  by  holding  him  literally  to  the  terms 
which   he   lias   waived. (rf» 

On  the  other  hantl,  where  no  time  is  fixed 
in  the  confra<t,  the  party  who  is  to  make 
the  conveyance  will  not  be  permitted,  on  that 
account,  to  trifle  with  the  interests  of  the 
opi)osite   party   by    unnecessary  delay:     and 


(r)  1  Johns.  Ch.  .'{74.  et  soq. 
(rf)  2  Story   i:i\.  §  770. 


153 


*387 


5  RICHARDSON'S  EQUITY  REPORTS 


it  is  in  the  power  of  tbat  purty  to  fix  some 
reasonable  time — not  capriciously  or  unrea- 
sonably, or  for  the  purpose  of  surprising 
him,  and  thus  getting  clear  of  the  bargain, 
but  a  reasonable  time,  according  to  the  cir- 

*388 
cumstances    *of   the   case — within    which   he 
will  expect  the  title  to  be  made,  at  the  peril 
of    rescinding    the    agreement. (c) 

These  principles  are  clear.  There  is  no 
mystery  about  the  doctrine.  Good  faith  is 
to  govern  in  all  cases. 

There  was,  in  the  contract  in  this  case, 
not  only  a  "want  of  .stipulation  as  to  the  time 
when  titles  were  to  be  made,  but  possession 
was  to  pi-ecede  the  title,  and  was  taken  ac- 
cordingly. 

Now,  out  of  this  pos.session  arises  another 
difficulty.  It  is  contended  by  the  plaintiff, 
that  so  long  as  this  possession  was  retained, 
it  was  a  continual  waiver  of  all  objections 
to  the  title,  or  of  the  defendant's  right  to 
complain  of  the  delay  in  making  it  out. 

But  where  the  contract  authorizes  pos- 
session to  be  taken  before  a  title  is  made, 
the  fact  of  possession  cannot,  by  itself,  be 
used  again.st  the  purchaser,  for  that  would 
be  contrary  to  the  very  terms  of  the  con- 
tract.(/)  Nor  is  his  taking  possession  with 
the  vendor's  concurrence,  a  waiver  of 
any  right  to  call  for  a  good  title:  and  the 
vendor's  subsequent  delivery  of  abstracts, 
or  negotiations  on  the  subject,  render  this 
clear.  Nor  will  ordinary  acts  of  ownership, 
after  possession,  vary  the  rights,  as  arising 
from  possession :  for  what  can  be  the  pur- 
pose of  taking  possession,  but  to  act  as 
owner  ? 

A  piirchaser,  who  goes  in  under  a  contract 
for  a  good  title,  cannot  be  compelled,  from 
the  mere  fact  that  he  is  in  possession,  to  ac- 
cept a  bad  or  defective  one.  Nor  is  his  pos- 
session any  justification  to  the  vendor  in  un- 
reasonably delaying  the  title:  nor  will  it, 
of  itself,  deprive  him  of  the  right  to  com- 
plain of  such  delay. 

The  reasonable  doctrine  to  be  deduced 
from  all  the  authorities  is,  that  this  point, 
like  every  other,  must  depend  upon  good 
faith  and  fair  dealing.(f7)  A  party  in  posses- 
sion will  not  be  allowed  to  retain  the  pos- 
session, and,  at  the  same  time,  insist  on  an 
entire  recision  of  the  contract:     and,  so  long 

*389 
as  he  retains  the  *possession,  it  is,  unless 
under  peculiar  circumstances,  so  far,  a  waiv- 
er of  all  anterior  objections,  whether  of  de- 
fects in  the  title,  or  delay  in  completing  it, 
that  if  title  is  made  to  him,  while  j'et  in  pos- 
sei^sion,  he  must  accept  it.  Why  does  he  re- 
main on  the  land,  unless  he  is  waiting  for 
the  title? 

In  this  case,  it  does  not  appear,  that  at 


(e)  2  Story  Eq.  S  777. 

(/)  2  Sug.  65,  cliap.  S,  §  1,  pi.  26,  27,  28,  29, 
and  see  chap.  4,  §  4. 

{g)  2  Sug.  21,  chap.  8,  §  1,  pi.  27, 
154 


the  time  of  the  agreement  of  purchase,  Mr. 
Dulles  had  been  informed  of  the  state  of 
the  plaintiff's  title,  and  it  is  fair  to  pre- 
sume that  he  took  possession  in  ignorance 
of  it. 

The  contract  he  made  was  executory  in 
every  particular,  except  as  to  the  possession. 
But  in  April,  1847,  it  appears  from  his  letter, 
he  was  apprised  of  the  state  of  the  title. 
When  he  received  this  information,  he  might, 
perhaps,  at  once,  have  put  an  end  to  the 
agreement,  by  abandoning  his  occupancy  of 
the  land  then  in  his  possession,  though,  as 
his  crop  was  pitched,  the  sacrifice  would 
have  been  unreasonable.  But  he  remained 
on  it  (constantly  calling  for  the  title,  how- 
ever,) for  the  year  1847.  And  in  1848,  he 
took  possession  of  the  entire  premises,  and 
held  it  until  the  end  of  that  year  also. 

During  all  this  time,  he  was  urgent  for 
the  title,  and  ready  to  perform  his  part  of 
the  agreement.  There  was  neither  neglect 
nor  default  on  his  part.  If  there  was  un- 
reasonable delay  on  the  vendor's  part,  he 
had  a  right  to  complain  of  it,  and  his  waiver 
of  that  right  extended  only  so  as  to  make 
the  contract  obligatory  on  him,  if  the  com- 
plaint was  removed  before  he  abandoned 
it.(/0 

And  here,  I  think,  is  the  main  difficulty  in 
the  way  of  the  plaintiff.  It  appears  to  me, 
he  was  too  indifferent  to  the  interests  and 
claims  of  the  defendant,  as  a  purchaser, 
and,  by  his  delay,  kept  him  in  suspense 
for  an  unreasonable  time,  not  only  as  to  his 
ultimate  right  to  the  property  purchased, 
but  also  as  to  the  plans  and  arrangements 
which  the  defendant  had,  at  the  outset,  in- 
formed him  he  must  make,  in  consequence 
of  the  purchase. 

*390 

*An  eminent  elementary  writer  (i)  says, 
that  "the  exercise  of  this  whole  branch  of 
Equity  jurisprudence,  respecting  the  recision 
and  specific  performance  of  contracts,  is  not 
a  matter  of  right  in  either  party:  but  it  is 
a  matter  of  discretion  in  the  Court.  Not, 
indeed,  of  arbitrary  or  capricious  discretion, 
dependent  upon  the  mere  pleasure  of  the 
Judge,  but  of  that  sound  and  reasonable  dis- 
cretion, which  governs  itself,  as  far  as  it 
may,  by  general  rules  and  principles:  but, 
at  the  same  time,  which  withholds  or  grants 
relief  according  to  the  circumstances  of  each 
particular  case,  where  these  rules  and  princi- 
Ijles  will  not  furnish  any  exact  measure  of 
justice  between  the  parties." 

In  another  place,  he  says,  that  though 
time  is  not,  generally,  deemed  in  Equity  to 
be  of  the  essence  of  contracts  of  sale,  unless 
the  parties  have  expressly  so  treated  it,  or 
it  necessarily  follows  from  the  nature  andt 
circumstances  of  the  conti-act,  yet,  "Courts 
of  Ecpiity  have  regard  to  time,  so  far  as  it 

{h)2  Sug.  chap.  S.  §  1.  pi.  44;  and  Kuatch- 
bull  V.  Grueber.  1  Mad.  R.  91. 
(0  2   Story  Eq.   §  742. 


THOMPSON'  V.  DLLLE.S 


rosiiects  the  good  faith  and  diliReiu-e  of  the 
liuiiies."  (/)  He  observes  further,  that 
"if  circuuistances  of  a  reasonaltle  nature 
lia*e  disahled  u  party  from  a  strict  coiiipli- 
anee.  or  if  lie  eumes  recente  farto  to  ask  a 
.speeihc  performance,  the  suit  is  treated  wifh 
indu)i,'ence,  and  ;,'eia'rall.v  with  favnr,  hy  tl>e 
Court."  '"Hut,  tlien."  says  lie,  "in  such  cases 
it  shoukl  be  clear,"  "that  comiu'usatlon  for 
the  delay  can  be  fully  and  beiu'ticially  niven," 
and  "that  he  who  seeks  a  si)ecitic  perform- 
ance is"  not  only  "in  a  condition  to  perform 
his  own  part  of  the  C()ntract,"  but,  "that  he 
has  shown  himself  ready,  desirous.  promi»t 
antl  eatier  to  perform  the  contra<-t."  (A) 

Cli.  Justice  Marshall  says,  in  Hrashier  v. 
(Jratz,  (ti  Wheat.  584,  [->  L.  Va\.  .31i-J]).  "If  a 
bill  be  brouiiht  by  a  party  who  is  luniself 
in  fault,  the  court  will  consider  all  the  cir- 
cumstances of  the  case,  and  decree  aifordin;,' 
to  those  circumstances." 

Chancellor  Kent,  in  l?enedict  v.  Lynch.  (1 
Johns.   Ch.  o77),  cites   with   approbation   llie 

*391 
doctrine  laid  down  by  Lord  1  lanl*wlcke,  (1 
N'esey.  4oO»,  where  the  enforcement  of  <'on- 
tracts  is  put  ui)on  the  footing,  that  "the  non- 
performance has  not  arisen  by  default  of  the 
party  seeking  to  have  a  specific  perform- 
ance:" and  adds,  ".so  it  wa.s  held  in  the 
case  of  Hayes  v.  Caryll,  as  early  as  170l',  (5 
Viner.  538,  pi.  18),  that  where  one  person  has 
tritied,  or  shown  a  backwardness  in  ptM-form- 
ing  his  part  of  the  agreenu'nt,  Kiiuity  will 
not  decree  a  specific  performance  in  his  fa- 
vor— especially  if  circumstances  are  altered." 

In  Fordyce  v.  Ford,  (4  Bro.  4!>4i.  Lord  Al- 
vanley  said,  "the  rule,  now,  is,  that  if  either 
party  has  been  jiuilty  of  gross  negligence,  tiie 
Court  will  not  lend  him  its  aid.  to  complete 
the  contract.'"  Though,  in  that  case,  his 
Lordship  decreed  a  specific  performance,  he 
added,  that  he  hoped  it  would  not  lie  under- 
stood, that  a  man  entering  into  a  contract 
should  thiidv  himself  entitled  to  take  his 
own  time  to  perform  it.(/» 

I  am  aware  that  most  of  these  observations 
were  made  in  cases  where  a  specific  tinu'  was 
stipulated,  in  the  contract,  for  the  perform- 
ance of  the  acts  whicii  the  parties  seeking  a 
specific  execution  had  omitted.  Hut,  in  prin- 
ciple, there  is  no  distinction  between  negli- 
gence to  come  up  to  a  time  stipulated,  and 
negligence  to  perform  duties  which  are  In- 
funibeut,  although  no  time  is  fixed  in  the 
contract.  The  principle  is  sound  aiai  just, 
.md  demanded  alike  by  morals  and  by  policy, 
that  he  who  has  neglected  to  perform  a  duty 
which  he  might  have  performed,  and  o\ight 
to  have  perf<)rmed,  has  no  claim  ujton  the 
Court  to  comitel  the  other  party  to  perform 
his  engagements.      Whenever   such   negligent 

0)2    Story    Eq.    §    773. 

(A)  T)  Vos.  71iO,  note  b,  citing  Milwanl  v. 
Tlinnot. 

(0  Sec  Milward  v.  Tlianot.  (.".  Vus.  720,  uoti",) 
aud  Guest  v.  Huuifray,  (Id.  518.) 


party  comes  into  this  Court,  he  must  be  told 
that  he  has  neglected  to  do  Kquity,  and  has 
therefore  de|»rived  him.self  of  the  Kquity  he 
claiui.s.  "An  Ktpiity  arising  out  of  one's  own 
neglect  !"  exclaims  Lord  Loughborough,  in 
Ll<»yd  v.  Col  let  t.  (4  Itro.  4i;u.»  "It  is  a  singu- 
lar head  of  Eiiulty  I"  (;;») 
♦392 

•There  are  ca.ses  in  widch  tiie  Court  will 
help  n»'ither  party,  but  will  hNive  them  both 
to  their  remedies  at  Law:  of  which  the  cases 
of  (iillani  v.  Hrlggs  |Kleh.  Kii.  Cas.  4.12] 
and  Hriggs  v.  (Jlllam.  mentioned  l»y  Chancel- 
lor llarju'r,  In  Wldtworth  v.  Stuckey  U  KIch. 
Kq.  4(141,  are  examples.  One  of  these  bills 
was  by  the  vendor,  to  enforce  the  contract 
of  sale,  and  the  other  by  the  purchaser,  to 
rescind  It.  Hoth  bills  were  disndssed.  on  the 
groun<i  of  laches  In  the  parties  who  fibnl 
them,  and  they  were  left  in  the  condition  they 
harl  pla<ed  themselves. 

In  this  lase.  It  Is  true,  that  by  the  terms  of 
the  contract,  the  making  of  titles  was  not  a 
condition  precedeid  to  the  defendant's  first 
|)ayment,  as  he  stiMus  to  have  supimlsjiI.  'Hh' 
titles  ami  the  i>ayments  were  ln<le|H>n<lent. 
Hut  if  the  defenilant.  after  omitting  his  i»art 

of  till itract,  had  tiled  his  bill  Atr  titles,  I 

should  have  disndssed  It.  And  .so  here,  the 
plaintiff  seeking  to  enforce  itaynuMit.  is  not 
entitled  to  a  d«K."ree.  becau.se  he  neglected  to 
perform  his  own  i)art  of  the  agreement. 

In  the  ease  before  me,  it  is  dlllicult  to  per- 
c-elve  any  excuse  for  the  delay  of  the  idalntlfT 
t(>  perfect  his  title.  It  was  not  a  delay  aris- 
ing from,  lind  made  neces.sary  by,  the  state  ol 
the  title.  If  he  had  ju-oceeded  diligently  In 
projier  steps  t»)  perfect  his  title,  and  the  pro- 
ceeding had  been  necessarily  protracted  by 
the  ditliculty  of  the  i)roceeding,  he  ndght  have 
been  excused.  Hut  that  was  not  the  case. 
The  co-heirs  of  his  mother  were  around  hhn; 
yet  he  never  appears  to  have  even  pre.sentt^l 
deeds  for  their  slgnattires.  till  the  very  end  of 
1848.  The  infant  lu'lresses  of  William  Sabh 
Thompson  and  Mrs.  Hampton  wen*  not  mov- 
ed air.tinst  till  ls51.  ami  then  there  was  no 
dilhcnity.  Was  not  this  delay  In  taking  iirop- 
er  steps,  or  any  steps,  the  meri'st  laches,  un- 
less the  plalntltT  accounted  f<u-  It  V  Was  it  not 
necessary  for  him  to  excusi>  himself  liy  evi- 
dence'/ And  what  single  cln-umstance  has  he 
shown,  which  prevented  his  iiroceedlng?  He 
was  made  giware,  by  the  second  letter  of  the 
defendant,  what  his  plans  and  pur|Mtses  were 
In  the  pur<ha.s«>.  iind  could  not  expti-t  that 
he  would  ventur<>  to  sell  woodlands  In  order 
to  cover  this  purcliase,  Jintll  he  was  assured 
of   the   title. 

*393 

•He  shouhl,  therefore,  have  had  sulliclent 

{III)  Smith    v.    Cbiy,    Anib.    ti45:     ,'{    Hro.    o.    r. 

(i4ll,  note)  Hi'«-kfui(|  v.  Wade.  (17  N'os.  .87.)  nnd 
I  soo    2    Hicli.    K(i.    441.      "Notliins:,"    snys    Lord 

Cainiltn.    in    .Simtli    v.   Cla\.   "can   call    forth   tlu> 

Ciiiirt  into  activity,  hat  consii.-nic,  g<i<i«l  faith. 
!  aixl  rcas<inal>l<'  diligence  \\'lioro  tlioso  arc 
i  wantin;:.  flu'  Court  is  passivr.  :iad  <l(>os  nothing. 

Laches  uud  ucgloct  are  always  discouutonanced." 

155 


•893 


5  RICHARDSON'S  EQUITY  REPORTS 


regard  to  his  interests  to  have  made  him  dili- 
gent in  getting  in  his  title. 

But  look  at  the  time  the  plaintiff  allowed 
to  elapse  without  taking  one  single  step  to 
get  it  in.  From  February  or  March,  1S47, 
when  the  agreement  was  made,  the  defendant 
was  continually  importuning  him  to  perfect 
it,  holding  himself  ready  the  whole  time  to 
perform  what  was  incumbent  on  himself.  He 
pointed  out  the  defects  in  the  title,  and  re- 
quested that  the  plaintiff  should  proceed  to 
cure  them.  This  importunity  continued  un- 
til near  the  close  of  1848,  and  not  a  single 
step  appears  to  have  been  taken  by  the  plain- 
tiff until  the  25th  of  December,  1848,  when 
he  got  in  the  deeds  of  some  of  his  mothers 
heirs. 

This  was  done  under  the  spur  of  the  no- 
tice extended  by  the  defendant's  lettex's  of 
the  11th  and  23d  of  December,  1848.  If  .so 
nmch  could  be  done  in  that  short  interval, 
what  excuse  can  be  given  for  the  total  neglect 
of,  and  indifference  to,  the  previous  impor- 
tunities of  nearly  two  years? 

If  the  defendant  had  not  been  constantly 
pressing  the  plaintiff  to  take  steps  to  perfect 
his  title,  before  he  gave  the  notice  of  the  23d 
of  December,  1848,  I  miglit  have  inferred  that 
he  was  acquiescing  in  the  plaintift"s  laches 
up  to  that  time,  and  that  so  sudden  a  notice 
was  calculated  to  surprise  him.  (h)  But  the 
w^hole  correspondence  repels  that  idea.  The 
plaintiff  could  never,  for  a  moment,  have  sup- 
posed, from  anything  in  the  defendant's  let- 
ters, from  first  to  last,  that  he  was  disposed 
to  acquiesce  in  the  least  delay.  He  was  in- 
dulgent, not  acquiescent,  and  his  kind  for- 
bearance should  not,  in  good  faith,  be  un- 
reasonably turned  against  him.  To  all  ap- 
pearance, if  he  had  not  abandoned  the  prem- 
ises and  the  contract,  the  plaintiff  would  nev- 
er have  proceeded  to  deduce  his  title.  Was 
the  defendant  to  wait  forever? 

It  has  been  argued,  that  because  the  de- 
fendant, in  throwing  up  the  contract,  offered 

*394 
the  objection  that  he  was  advised  good  *titles 
could  not  be  made,  therefore  he  had  no  other 
justification  for  that  act.  Did  the  fact  that 
the  plaintiff  could  make  good  titles,  justify 
his  laches  in  not  making  them?  Is  it  usual 
to  limit  a  defendant  to  a  single  ground  taken 
by  him,  merely  because  he  fails  to  state  oth- 
ers, equally,  and  indeed,  more  just?  We 
might,  it  is  true,  infer,  from  the  defendant's 
silence  on  that  occasion,  as  to  the  plaintiff's 
laches,  that  though  sensible  of  it,  he  had 
waived  it ;  but  when  we  look  to  his  previous 
letters,  in  which  his  constant  theme  is  "no 
delay: — make  the  titles  forthwith, — early: — 
at  once — I  am  acting  under  restraints  until 
I  get  them,"  &c. — are  these  evidences  of 
waiver?  or  are  they  not  evidences  of  a  con- 
trary character?  And  as  to  the  defendant's 
prolonged  indulgence — its  length  is  only  proof 


(n)  2   Sug.  21,  chap.   8,   §  1.   pi.  44;  Knatch- 
bull  v.  Grueber,  (1  Mad.  R.  91.; 

15G 


of  the  extent  of  his  injury.  Will  it  do  to 
say,  that  the  greater  the  delay — the  more  ripe 
the  offence — the  greater  proof  is  the  ending 
of  it  that  complaint  has  been  waived? 

Though  a  party  be  not  bound  to  make  titles 
at  a  fixed  time,  he  is,  nevertheless,  hound  to 
make  eft'orts  to  complete  them  in  a  reasonable 
time.  If  such  a  party  manifests  diligence,  he 
will  generally  be  sustained,  if  he  is  able  to 
make  titles  at  the  time  of  the  decree.  But 
where  there  is  not  the  least  trace  of  diligence 
— but  the  reverse^I  think  it  would  be  a 
sacrifice  of  sound  policy  to  grant  such  indul- 
gence. It  must  necessarily  encourage  laches, 
and  leave  the  opposite  party  subject  to  unrea- 
sonable suspense  and  vexation. 

In  concluding  to  refuse  the  application  for 
specific  performance.  I  avail  myself,  with 
pleasure,  of  the  offer  of  the  defendant  to 
make  reasonable  compensation  for  his  use  of 
the  premises. 

It  is  ordered,  that  the  bill,  so  far  as  relates 
to  a  specific  performance,  be  dismissed  with 
costs ;  and  that  it  he  referred  to  one  of  the 
Masters,  to  inquire  what  sum  should  be  paid 
by  the  defendant  to  the  i)laintiff,  for  his  use 
of  the  land,  the  subject  of  the  suit. 

The  plaintiff  appealed,  for  the  following 
reason: 

That,  as  time  was  not  of  the  essence  of  the 

*395 

contract,  as  his  *Honor  has  well  shown,  the 
circumstances  of  this  case  entitle  the  com- 
plainant, on  grounds  of  Equity,  and  accord- 
ing to  the  rules  of  this  Court,  to  a  specific 
performance. 

1.  That  after  the  defendant  had  taken  pos- 
session, the  sale  was  not  executory,  but  exe- 
cuted:  so  that  the  question  is,  rather  about 
the  rescinding  than  about  the  performing  of 
a  contract.  That  defendant  has  shown  no 
sufficient  cause  for  rescinding  his  agreement, 
and  would  probably  never  have  thought  of 
doing  so,  but  for  the  advantage,  which  he 
supposed  that  he  had  in  the  provisions  of 
the  statute  of  frauds — an  advantage  which 
he  owed  to  the  suppression  of  his  letter  to 
William  R.  Rast,  which,  from  the  testimony 
of  Rast,  there  is  every  reason  to  believe, 
came  to  his  hands. 

2.  That  all  the  delay  was  between  Feb- 
ruary, 1847.  and  January,  1849.  That  great 
part  of  that  delay  is  accounted  for  by  the 
death  of  Mrs.  Hampton.  That  complainant 
was  not  inactive:  that  he  employed  defend- 
ant's solicitor,  who  made  progx'ess,  and  ob- 
tained the  releases  of  December,  1848 :  and 
the  necessity  for  legal  proceedings  probably 
prevented  him  from  going  further.  That,  as 
soon  as  defendant  assumed  a  position  ad- 
verse to  the  fulfilment  of  his  contract,  com- 
plainant employed  counsel,  who  lost  no  time 
in  furnishing  an  abstract  of  the  title,  by 
their  letter  of  the  9th  February,  1849,  and 
the  bill  was  filed  as  soon  as  a  reasonable 
time  had  been  allowed  to  defendant  to  con- 
sider whether  he  would  answer  that  letter. 


TIIUMrSON  V.  DULLES 


*39S 


And  the  cause  was  actually  at  issue  before 
the  day  for  the  last  iiaynient  had  arriveil. 

3.  That  k'jxal  procecdintis  were  ueivssary. 
not  only  to  j^et  in  the  lepil  estate  vested  in 
the  intants,  but  to  satisfy  the  defendant's 
doubts:  for  it  is  evident  that  he  retained 
those  doubts  up  to  the  tiuu'  of  the  lu-arinj;. 
and  that,  even  if  complainant  had  iK'en  as 
ready  in  1S4.S  as  he  was  at  the  hearing,  he 
would  have  met  with  the  same  resistance. 
So  that  the  case  presents,  in  fact,  an  ex- 
ample of  a  purchaser,  who  would  accept  of 
no  title,   but   such   as   would    lie    pronounced 

*396 
good  upon  the  hearing  of  a  bill  *for  specific 
performance;    and  scttinj:  tip.  as  a  dt-feia-e, 
that  delay  whii-h  he  rcndenMl  inevitable. 

Lastly.  The  defendant's  i»ossession  was  not 
disturl>ed,  or  threatened,  or  ever  in  dau^rer: 
and  the  delay  of  th»>  conveyances,  which  is 
the  only  matter  of  complaint,  neither  caused 
him  any  loss,  nor  (lei)rive(l  him  of  any  op- 
portunity of  Rain. 

Taber,  Peti^rru.  fur  appellant,  cited  Mor- 
phett  V.  Jones,  1  Swanst.  172;  Palmer  v. 
Richardscm.  3  Strob.  Kq.  10;  2  Story  i:«|.  § 
776-7;  .Vtk.  on  Tit.  'JO  U\w  Lib.  70;  Rad- 
cliffe  v.  Warrington,  12  Ves.  326;  Reynolds 
V.  Nelson,  6  Mad.  R.  26;  Sujid.  Vend.  282 
et  seq. ;  Pinke  v.  Curteis,  4  Bro.  C.  C.  329; 
Seton  v.  Slade,  7  Ves.  265 ;  Langford  v.  Pitt. 
2  P.  Wms.  629;  6  Bro.  P.  Cas.  201:  llog- 
gart  V.  Scott,  2  Russ.  &  M.  293 ;  Hepburn  v. 
Auld,  5  Cra.  262 ;  Paton  v.  Rogers,  6  Mad. 
256;  Roach  v.  Rutherford.  4  Des.  i:V6 ;  1 
Sug.  415;  Nokes  v.  Kilmorey,  1  De(J.  &  Sm. 
444. 

DeSaussure,  contra,  cited  2  Story,  §  M-O, 
771-8;  1  Wheat.  '204;  5  Ve.s.  736;  Id.  818; 
4  Ves.  667 :  Heapy  v.  Hill.  1  C'ond.  Eng.  Ch. 
R.  332;  Watsou  v.  Reid.  4  Id.  404;  Bene- 
dict V.  Lynch,  1  Johns.  Ch.  370:  6  Wheat. 
528;  Taylor  v.  Brown,  2  Beav.  180;  Perk- 
ins v.  Wright,  3  liar.  &  McII.  326;  2  Wheat. 
290;  Bryan  v.  Reed,  1  Dev.  &  Batt.  78;  2 
Cox  Eq.  C.  221;  Dick.  400;  Southcombc  v. 
Exeter,  6  Hare,  21:1. 

The  opinion  of  the  Court  was  delivered  by 

DI'NKIN,  Ch.  This  Court  is  so  well  satis- 
fied with  the  conclusions  of  the  Chancellor, 
upon  the  several  legal  i>ropositions  disctissed 
in  the  decree,  that  it  is  deemed  unnecessary 
to  express  more  than  a  geni'ral  concurrence 
in  the  i)rinciples  annoiuiced.  And  in  the  ai>- 
plicatiou  of  those  principles  to  many  of  the 
questions  involved,  tlie  Court  is  equally  well 
satisfied.  The  decree  substantially  deter- 
mines, (and  we  think  rightly.)  the  existence 
and  validity  of  the  contract  of  Fi'brnary,  1847, 
of  whicli  the  complainant  asks  the  specific 
performance;  that  possession  was  taken  by 
the  defendant  under  that  contract,  and  that 

♦397 
the  plea  of  the  *statute  of  frauds  was  inap- 
plicable.    It  is  further   ruled,  that  when  the 
complainant    entered    into    the    contract,    he 


had  a  good  equitable  title  to  the  premises, 
of  which  he  was  in  possession,  anil  which  he 
avrreed  to  convey  to  tile  defendant. — the  com- 
plainant laid,  in  the  language  of  the  tlecree. 
"an  e<iuitable  title,  with  the  ability,  at  some 
time,  sooner  or  later,  to  make  a  good  legal 
title;"  and  furthermore,  that  "the  contract 
ltr«)ved  did  not  |irovi«le  for  the  making  of  ti- 
tles by  a  specifieil  time. I'here  was  in  the 

contract."  says  the  Chancellor,  "not  only  a 
want  of  stipulation  as  to  the  time  when  titles 
Wi're  to  Ik-  made,  but  pos.session  was  t<»  pre- 
cede the  title,  and  was  taken  accordingly." 
The  decree  also  detennines,  after  fully  con- 
sidering file  defendant's  exceptions  to  the 
Master's  re|iort  of  July  1,  is."»l.  that  the  com- 
plainant had  then  a  good  le<^al  title  to  tlie 
liremises,  and  that,  "if  tliere  is  any  inqieili- 
nuMit  to  the  enforcement  of  the  contract  of 
sale,  it  does  not  consist  in  a  present  insuth- 
eiency  in  tlie  title,  but  must  arise  from  some 
otlier  cause."  The  Chancellor  then  reviews 
the  correspondence,  and  the  conduct  of  the 
parties,  from  February,  1N47,  to  the  latter 
part  of  December,  1.S4S,  ami  concludes,  that 
in  consequence  of  tiie  negle<t  or  unnecessary 
delay  «)f  the  complainant,  uiuler  tlie  circum- 
stances, the  defendant  was  well  warranted 
in  his  abandonment  or  surrender  of  the 
premises,  on  January  1,  ls49,  and  that  the 
Ciiinplainant  was  not  entitled  to  the  aid  of 
tliis  Court. 

Although,  as  .Mr.  Sugdeii  declares,  "every 
case  of  this  nature  must,  in  a  great  meas- 
ure, depend  upon  its  own  particular  circum- 
stances," (p.  44.'>.)  yet  there  are  certain  lead- 
ing principles,  which  direct  the  juil'.;ment  of 
llie  Court,  in  granting  or  refusing  relief, 
wiiere  time  is  not  an  essential  |»art  of  the 
contract.  These  are  clearly  stated  in  tlie  de- 
cree. Where  no  time  is  fixed  in  the  contract, 
or  where  time  is  not  essential,  it  will  not. 
Innvever.  be  i)ermitted  to  tlie  pa'ty.  who  Is 
to  make  the  conveyance,  t<»  trifle  with  the 
interests  of  the  opposite  party,  by  uniie^'es- 
sary  delay  :  and  it  is  in  the  power  of  that 
I)arty  to  fix  some  reasonable  time,  not  ca- 
priciously or  with  Intent  to  sur|>rise.  but  a 
rea.sonable  time  according  to  the  circum- 
stances  of  the   case,   within   which    he   will 

•398 

♦expect  the  title  to  be  made,  at  the  peril  ot 
resciiuling  the  agreement.  These  smind  prin- 
ciples are  abundantly  sustained  by  the  au- 
thorities cit«>d.  It  remains  only  to  adil.  that, 
after  such  pre-«Mnpt(U\v  notlt-e.  it  becomes  the 
party  notitie<i.  if,  from  any  cause,  lie  is  un- 
able strictly  to  comply,  ti>  apjily  promptly 
for  the  aid  of  the  Court  by  filini.'  his  bill. 

About  the  i»rincli>al  facts,  tin-re  is  no  dis- 
pute. As  early  as  April,  1S47.  the  defendant, 
having  examined  the  complainant  s  papers, 
was  aware  of  tlu'  defects  in  his  legal  title, 
and  brought  them  to  the  particular  notice  of 
the  complainant.  In  that  year,  however,  he 
went  into  i>ossession  of  part  of  the  |)renilse.s, 
and,  in  January,  1848,  he  took  possession  of 

157 


*398 


5  RICHARDSON'S  EQUITY  REPORTS 


the  whole,  and  planted  and  gathered  the  cropi 
of  that  year.  By  the  terms  of  his  agree- 
ment, he  was  to  pay  the  complainant  one 
thousand  dollars,  on  March  1,  1848.  In  his 
letter  from  Philadelphia,  of  January  11,  1848, 
he  suggests  to  the  complainant  the  propriety 
of  having  the  land  papers  prepared  at  once, 
and  when  they  are  completed,  submitted  to 
the  defendant's  legal  adviser,  Mr.  Hutson,  of 
Orangeburgh,  who  would  examine  them,  and 
advise  him,  so  that  he  should  be  prepared  to 
act.  It  does  not  appear,  that  the  defendant 
made  his  payment  of  March  1,  1848,  al- 
though, as  the  Chancellor  has  ruled,  "the 
making  of  titles  was  not  a  condition  prece- 
dent to  the  defendant's  first  payment,  as  he 
seems  to  have  supposed."  We  concur  with 
the  Chancellor  in  this  construction;  and  yet 
the  defendant  may,  very  excusably,  have  sup- 
posed that  they  were  dependent  covenants, 
and  the  complainant  may  also  very  well  have 
supposed,  that  this  was  the  extent  of  the 
penalty  he  might  incur,  for  not  having  the 
title  completed  at  that  time.  Certainly,  the 
complainant  should  have  taken  measures  to 
perfect  his  title  prior  to  January,  1848,  and 
the  duty  was  still  more  imperative  during 
that  year.  Viewing  his  conduct  in  the  most 
favorable  light,  he  was  guilty  of  neglect; 
and  the  only  inquiry  is,  as  to  the  effect  of 
that  neglect  on  the  rights  of  the  parties. 
There  is  no  arbitrary  rule  upon  the  subject. 
It  depends  very  much,  not  only  upon  the 
situation  and  conduct  of  the  parties,  but 
also  upon  the  state  of  the  title.     In  1847,  the 

*399 
*defendant  was  let  into  possession  of  part  of 
the  premises,  and  in  January.  1848,  of  the 
whole,  under  the  contract  set  forth  in  the 
pleadings.  He  continued  to  use  and  culti- 
vate the  premises  during  these  years.  Early 
in  1847,  he  was  aware  of  the  complainant's 
equitable  title,  and  became  also  informed  of 
the  infirmity  or  defects  in  his  legal  title. 
These  were  brought  by  him  to  the  notice  of 
the  complainant,  in  the  spring  of  1847 ;  and 
his  entry  into  full  possession  in  January, 
1848,  w-as  done  with  perfect  consciousness 
that  the  legal  title  was  yet  incomplete.  In 
his  letter  of  January  11,  1848,  he  says.  "I 
take  the  liberty  of  suggesting  the  propriety 
of  having  the  land  papers  prepared  at  once, 
and  if,  when  they  are  completed,  they  are 
handed  to  Mr.  Hutson,  of  Orangeburgh,  w'ho 
has  attended  to  my  law  business,  t&c."  The 
evidence  affords  strong  reason  to  infer,  that 
the  complainant,  as  the  most  ready  and  cer- 
tain mode  of  complying  with  this  suggestion, 
addressed  himself  to  the  same  professional 
gentleman  for  the  purpose  of  having  the 
papers  prepared.  An  important  defect  in  the 
complainant's  chain  of  title  was  the  want 
of  a  conveyance  from  the  co-heirs  of  his  de- 
ceased mother,  Mrs.  Elizabeth  Thompson, — 
the  partition  of  that  estate,  under  which  the 
complainant  had  held  exclusive  possession 
since  1839,  having  been  informal.    The  deed 

158 


of  conveyance  for  this  purpose,  to  be  execut- 
ed by  the  several  parties  who  were  of  age, 
was  adduced  at  the  hearing.  It  is  in  the 
hand-writing  of  Mr.  Hutson,  is  dated  by  the 
draftsman,  as  prepared  for  signature,  in  the 
year  1848.  The  month  was  left  in  blank, 
and  also  the  year  of  Independence.  Erom 
which  it  is  most  probable  that  the  deed  was 
prepared  prior  to  July  4,  1848.  This  convey- 
ance was  executed  by  the  parties  on  Decem- 
ber 25,  1848,  and  the  renunciation  of  inher- 
itance  wdthin   fifteen   days  afterwards. 

The  other  defects  in  the  complainant's 
legal  title  were  not  to  be  supplied  by  so  plain 
a  process.  A  release  from  Mr.  and  Mrs. 
Hampton  was  to  be  obtained,  and  a  convey- 
ance from  the  infant  heir  of  William  Sabb 
Thompson ;  and  it  became  furthermore  nec- 
essary to  establish  by  parol  evidence  the 
legal  title  of  the  complainant  in  the  interest 

*400 
of  Thomas  Sabb,  or  the  extinguish*ment  or 
satisfaction  of  that  interest.  In  the  Spring 
of  1848,  Mrs.  Hampton  died,  and  the  infancy 
of  her  child  added,  very  materially,  to  the 
difficulty  and  embarrassment  in  perfecting 
the  legal  title.  It  was  for  some  time  doubtful 
in  what  mode  these  difficulties  could  be  ob- 
viated. So  serious  were  they,  that,  in  the 
judgment  of  Mr.  Hutson,  they  had  become 
insurmountable,  and  so,  in  the  course  of  the 
year,  he  informed  the  defendant ;  for,  on 
December  11,  1848,  he  writes  to  the  complain- 
ant that  he  must  relinquish  the  purchase, 
(not  as  it  would  seem  from  the  letter,  on  ac- 
count of  the  delay  in  completing  the  legal 
title,)  but  because  of  "being  advised  by  his 
attorney,  after  an  examination  of  the  com- 
plainant'_^s  papers,  that  a  clear  title  could  not 
be  made."  It  is  now  manifest,  and  it  is  so 
adjudged,  that  in  this  opinion  the  legal  ad- 
viser of  the  defendant  was  mistaken.  The 
ditnculties  have  been  removed,  and  the  legal 
title  perfected.  But  the  embarrassing  state 
of  the  title  has  always  been  recognized  as 
affording  a  reasonable  excuse  for  delay,  and 
especially  under  the  circumstances  of  this 
case.  Wliere  "a  purchaser  is  aware  of  the 
objections  to  the  title,  and  proceeds  witli 
the  purchase,  although  the  time  fixed  for  the 
completion  of  the  contract  may  have  elapsed, 
and  a  much  longer  period  may  be  requisite 
in  order  to  make  a  good  title,  he  will  be 
held  to  have  w^aived  his  right  to  object  to  the 
delay,  and  not  be  enabled  to  resist  specific 
performance."  See  a  collection  of  the  cases 
in  a  note  to  Seton  v.  Slade,  2  vol.  2  part,  p. 
15.  ysn.nte  and  Tudor's  Lead.  Cases  in  Equity. 
But  the  defendant,  in  his  letter  of  December 
11,  1848,  for  the  first  time,  notifies  the  com- 
plainant of  his  intention  to  relinquish  the 
purchase,  for  the  reason  therein  stated  ;  and, 
in  his  more  formal  communication  of  the  23d 
of  the  same  month,  advises  him,  that  if  good 
titles  are  not  tendered  by  the  1st  January, 
he  should  consider  the  contract  at  an  end; 
and  accordingly,  on  January  1,  1849,  he  in- 


THOMPSON  V.  DULLES 


M03 


forms  him  of  the  nliandonmtMit  of  the  prem- 
ises and  «.f  tlie  coiitrart.  It  Is  luirdly  neees- 
sary  to  say.  tliat  if  it  was  tiie  duty  of  tlie  de- 
fendant, after  having'  detennliicil  t<>  abandon 
his  purchase,  unless  tlie  I.-khI  title  were  com- 
pleted,   to   give   the   complainant    reasonahle 

♦401 
notice  of  his  intention,  or,  in  *the  lancuage 
of  the  authorities,  "to  fix  some  reasonahle 
time,  aoeordin};  to  the  eircumstaixes  of  the 
case,  within  which  he  would  exjiei  t  the  title 
to  be  made,  at  the  peril  of  n'scindin^  the  con- 
tract;"  this  notice  was  entirely  insullicient. 
The  defendant  had  lieen,  during:  the  whole 
year,  in  the  full  and  undisturlu'd  enjoyment 
of  the  prenuscs  whi<  h  hi«  had  a^'recd  to  i>ur- 
chase.  He  had  paid  no  iiart  of  the  purchase 
money,  althouirh  one  tliousaiid  dollars  had 
been  payable  on  March  1,  IMS.  In  bis  letter 
of  April  1.3,  he  refers,  it  is  tru«',  to  the  de- 
\ay  in  relation  to  the  titles,  but  he  says.  "I 
am  ready  now,  as  I  have  been,  to  make  the 
tirst  payment  when  the  titles  wen-  i»rcparcd. 
and  I  only  wait  your  action."  Tlu-  complain- 
ant nuj,dit  very  well  understand  frouj  this, 
that  the  defendant  intended  to  make  no  \r,iy- 
ment  until  the  title  was  comi»leted.  Hut 
there  is  no  evidence  of  his  bein;;  a|)prised  of 
any  more  serious  constMiuence  <»f  his  delay, 
until  the  receipt  of  the  defendant's  letter  of 
Deceml)er  11,  communicatinj;  the  le^^al  opin- 
ion that  a  clear  title  could  not  be  matle.  and 
the  notice  of  2'.U\  Dccemlicr.  that  unless  );ood 
titles  were  made  within  ei.i,'bt  days,  the  con- 
tract would  be  rescinded.  From  this  period, 
certainly,  the  complainant  .seems  to  liave 
been  sutliciently  on  the  alert,  not  only  in 
havinfj  his  title  completed,  but,  as  we  all 
think,  in  applyini:  for  the  aid  of  this  Court  in 
enforciuf?  the  performance  of  the  contract. 
In  the  letter  of  his  solicitors,  of  February 
9.  184!).  they  inform  the  (lefen<lant  of  the 
precise  nature  of  the  ditticullies  in  relation 
to  the  title,  of  the  causes  of  delay,  and  of  the 
mode  of  removinj;  them,  and  intimate,  if 
their  opinion  should  not  be  satisfactory,  ns  to 
bis  oMi;,'atioii  to  complete  the  contract,  that 
he  nii;:iit  srlect  the  forum,  either  Of  the 
State  or  Federal  tribunals,  in  which  the  mat- 
ter mi«bt  be  adjudicated.  The  bill  was  ac- 
cordinirly  filed  in  Au^rust  succeedinsi. 

A  recent  decision  in  the  Knylish  Court  of 
Chancery  has  been  brought  to  our  notice,  not 
as  ennnciatiuf;  any  novel  principle,  but  as 
e.xhibitinjr  the  jud;,Mnent  of  an  able  Chan- 
lellor  in  the  application  of  well  known  and 
established  rules.  Southcond)  v.  The  Hisliop 
of  Exeter,  (C.  Hare.  L'i;!.i  :;i  Eni;.  Ch.  Hep. 
LTJ.   is   very   analogous,   in   many  of  the  cir- 

♦402 
cumstances.  to  this  case.  ♦Tlie  bill  was  by 
the  vendors,  for  the  specific  performance  of  a 
contract.  It  was  dated  October  1(5.  lS-10. 
The  purchaser  was  to  pay  L'O  per  cent,  de- 
posit, and  the  balance  en  the  iMltli  September, 
1841,  at  which  time  the  contract  was  to  be 
completed,   and   the   purchaser   to  have   jios- 


se.sslon.  The  abstract  of  ritle  was  delivered 
on  the  ."{Oth  ()(tol»er.  1S40.  After  some  cor- 
respondence in  relation  to  the  title,  the  de- 
fendant, on  Auu'ust  '20,  1S41.  inft>rmed  the 
comiilalnant.s,  that  his  h';ral  advisers  regard- 
ed the  title  as  defiMtlve.  ami  tlesired  the 
plaintiffs  to  regard  that  letter  as  iioti«-e  of 
his  Intention  to  res<-ind  the  (.xMitract.  Sul>- 
sts|uent  correspondence.  Iiowever,  »'nsued.  but 
always  under  protest  that  the  defendant  re- 
lied on  this  iiotlci'.  The  ctirres|Kindence  was 
not  com-biihHi  until  January  17.  ls4l!.  when 
the  defen<lant's  solhitors  Informed  the  ven- 
•lors"  solicitors  that  their  client  would  fall 
back  to  his  position  untler  the  rescinded  t\m- 
tract,  and  referre<l  to  tlie  letter  of  Au;;ust 
20,  1S41. 

The  bill  was  not  tiled  until  .".oth  .\u;:ust. 
l.*>4.'{.  The  Vi<v-('hancellor  (.Sir  .lames 
Wi;,'ram)  says,  "the  inisltion  of  the  vendors 
and  purchaser,  in  this  case,  was  this:  on  the 
-<»tb  Au;:ust,  1S41.  the  purchaser  bad  taken 
upon  himself  to  declare  the  contract  at  an  end, 
&<•.;"  and  then  adverts  to  the  other  circum- 
stances. 'Now.  if,"  says  he.  -the  plaintiffs 
had,  immediately  on  the  rinelpt  of  the  Bish- 
op's letter  of  tlu'  joth  Auirust,  1S41.  t.r  had, 
within  a  reasonable  time  aff«-rwar<ls.  tiled 
their  bill,  I  could  have  had  no  doubt  of  the 
vendors'  ri;:ht  to  the  common  refeivnce  ais 
to  title."  The  bill  was.  ln>wever.  dismis.siMl 
on  the  ground  of  the  delay  from  ITtb  Jan- 
uary, l.s4li,  till  .'WMh  An^Mist.  1S4:!.  -I  dismiss 
the  bill."  says  the  \'ice-('hancellor.  ••u|ion  the 
sole  ;;round  of  the  vendors'  delay  In  tiliin;  the 
bill,  after  the  purcbast'r  had  irlve  him  tlistlnct 
notice  tliat  he  as.serted  a  ri;:ht  to  rescind 
the  contract,  and  considered  It  at  an  end." 
Accordiiifr  to  this  decision,  the  complainant, 
in  the  cause  before  us.  was  entitled  to  the 
Common  reference  of  title:  ami  It  belli;;  well 
settled  that  the  vendor  Is  entltle<l  to  a  de<ri'e, 
if  he  cjin  make  out  the  title  at  the  time  of 
the  Master's  report.  w»>  are  of  opinion,  that 
the  plaintiff  is  entitled  to  the  aid  which  ho 
seeks. 

•403 

*It  is  ordered  and  deiieeil.  that  upon  the 
execution,  by  the  com|ilainant,  of  a  <-onvey- 
ance  in  fee  sim|ile  of  the  preiHls(>s  descrlU»d 
In  the  ]ileadin^s.  with  the  usual  coven:ints, 
and  delivery  of  the  same  to  the  defendant, 
or  Ills  solbitors.  th«'  defendant  pay  to  the 
complainant  the  purchase  money,  to  wit,  the 
sum  of  six  thousand  ili>llars.  with  Interest 
on  the  several  Instalments  as  they  sucee.sslve- 
ly  b(>canie  due.  according  to  the  contract  rec- 
ognized and  I'stablished  by  the  Circuit  de- 
cree, and  that  the  premi.ses  stand  pledged 
for  the  ]iayment  of  the  .same. 

It  Is  tlnally  order«'d  and  tleini-d.  that  the 
costs,  up  to  the  tilliiK  of  the  Chancellor's  Cir- 
cuit decn-e.  be  paid  hy  the  coinplainiint.  the 
subseipiently  accndnp  costs  by  the  defendant. 

1>A1{<;A\  an..  WAUId.AU,  CC,  concur- 
red. 

1  >e<ree  reversed. 

1.'9 


CASES!  X  1^:  (1  U  I  T  Y 


AlttilED    AM)    nETEHMINKI)   IN    THE 


COURT  OF  APPEALS 

AT  COLUMBIA,  SUL'TH  CAKOLIXA— MAY  TKKM,  1853. 


CllANCKM.ORS    PrI-.SICN'T. 

Hon.  .loP.   JOEINSTON. 
"       HKN.I.   r.    IMNKIX. 

"     (ii:<)U(;i-:  w.  i>ak<;ax, 

"       F.  II.  W AUDI. AW. 


5   Rich.  Eq.  *405 

♦MARTHA   F.    OWK.NS   and    Otliers   v.   E.   G. 

SLMI'SOX  and  (niuMs. 

(Columbia.      May   Term,    18."»3.) 

[Wills   (®=>714.1 

A.  B..  wlio  was  old  and  intiiin,  loqiicsted  C. 
D..  her  frii-nd  and  ♦•(nincctiou.  tu  take  ui)  an 
f.Xf'CUtiKn.  for  about  ij^SOO,  \\hi<'h  was  pressiii!; 
her: — lie  did  .so,  and  she  H'-^ve  liini  a  confcs.sion 
of  judiumont  for  .$1,000.  He  aft<'rwards.  at  her 
refjuest,  took  up  another  e.xeoution  against  lier, 
for  about  Jj^l'iO.  and  she  gave  hiiu  anotiier  con- 
fession, for  -YrioO.  A.  B.  afterwards  made  her 
will,  bequeathing  to  C.  1>.  ."<1,1'(K).  ami  direetihg 
payment  of  lier  debts  out  of  the  residue  of  her 
«'state: — Mild,  upon  the  evidence,  that  C.  D. 
was  not  entitled  to  hohl.  as  creditor  of  .V.  B., 
the  two  judgments  he  had  taken  up.  and  the  two 
fonfep.sions  al.so— that  he  could  claim  only  tlic 
two  confessions: — Held,  further,  that  the  legacy 
was  not  given  as  satisfaction  of  the  two  con- 
fessions. 

|Kd.   Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  §   1702;    Dec.  Dig.  <®=3714.1 

WVillK   C=>4!U).l 

Parol  evitlence  was  inadmissil>]e.  to  sliow 
that  the  legacy  was  intended   as  satisfaction. 

|Kd.   Note. — For  other  cases,  see   Wills,  Cent. 
Dig.  S   in."j;j:    Dec.  Dig.  <S=>4!>0.] 

\Milh  C=3714.] 

That  the  legac.v  is  less  th:ui  the  debt,  and 
that  the  testator  m.-ikes  ])rovisi(Mi  for  the  pay- 
ment of  debts,  is  sullicient  to  destroy  the  pre- 
sumption that  the  legacy  was  intended  as  satis- 
taition. 

I  Kd.    Note.— Cited   in   Sullivan   v.    Latimer,  38 
S.  C.  l<i«i.  17  S.  E.  701. 

For    other    cases,    see    Wills.    Cent.    Dig.    %% 
16itS-1703;    Dec.    Dig.   ©=9714. 1 

Before    Duiikin,    Ch.,    at    Abiiovillc    .Tune, 
lS.-._'. 

Dunkiii,  CU.     Sarah  Cuiiiiiiigliani  departed 
Ibis  life  on  the  L'Nth  April,  l.s.-»l.     She  was.  at 

*406 
the  time  <if  licr  death.  scveiity-*tW(i  years  of 


age;  had  been,  for  many  year.*;,  Inlirni.  ami 
was,  latterly,  in  many  respects,  of  weak  mind. 
Iler  will  bears  date  the  KJth  .January,  1n."»1. 
By  the  first  clause,  after  certain  specific  be- 
(luest.s,  and  a  direction  of  sale,  she  l)e<iueaths 
twelve  hundred  dollars  to  the  defendant.  Dr. 
Edward  Simpson,  and  then  directs  that  ti>e 
balance  of  her  e.state,  after  payment  of  her 
dei)ts,  be  divided  between  the  children  of 
Elizabeth  Owens,  who  are  two  infants  of  ten- 
der years,  the  coniidainants  in  these  procoed- 
in{j;s.(a)  The  defendant  and  Thomas  Payne 
were  api)ointed  executors,  the  latter  of  whom 
never  qualitied.  Immediately  after  the  deatli 
of  the  testatrix,  the  defendant  caused  the 
real  and  personal  estate  of  the  testatrix  to 
l)e  levied  on  by  the  sherift".  under  executions 
in  Ids  otKce,  owned  by  the  defendant,  and, 
within  a  week  after  her  decease — to  wit.  May 
nth.  1851 — the  property  was  sold,  and  pur- 
clui.sed  i>y  the  defendant,  for  tlie  sum  of  $.'>,- 
871).  On  tile  l.">th  May.  1S."»1,  defendant  prov- 
ed the  will  and  (inalitied  as  »'xecutor,  and  on 
.'JOth  of  .same  month,  a  sale  was  made  by  him 
of  tile  residue  of  tlie  personalty,  for  .<.'!:!4.4G, 
at  which  sale,  it  is  alleged,  the  defendant  was 
the  i)rincii»al  imrchaser;  but  the  sale  bill 
was  not  put  in  evidence.     On  the  lilst  Janu- 


{n)  Tiie  will,  after  certain  bequests  of  house- 
hold furniture,  is  as  follows:  "It  is  ray  will 
and  desire,  that  all  the  balance  of  my  estate 
both  real  and  personal,  be  sold  at  the  dis<Tetiou 
of  my  e.Kecutors.  and  l)e  distriiiuted  as  follows, 
viz:  (ith.  I  do  give  and  becpieath  to  Dr.  IMward 
.Simpson  twelve  hundred  dollars.  7th.  It  is  my 
will  and  d<sire  that  all  the  l)alance  of  my  estate, 
after  paying  my  just  deiits.  lie  equally*  divided 
l)elween  the  children  of  Eli/.alieth  Owens.  Sth. 
-Vnd  last,  I  do  hereby  appoint  n-y  friend.  Dr. 
Kdward  .'"Jimpson,  and  my  friend,  Thomas 
Payne,  executors  of  this,  my  last  will  and  testa- 
nient." 


©zisFor  other  cases  see  same  loplc  uuU  KEY-NUMBKK  iD  all  Key-Numbered  Digests  aud  InUexos 
5  Klcii.Ey.— 11 


161 


*-106 


5  RICHARDSON'S  EQUITY  REPORTS 


ai-y,  1852,  (less  than  nine  months  after  the 
death  of  the  testatrix,)  the  defendant  says 
he  had  a  regular  account  and  settlement  with 
the  Ordinary,  "by  which  it  will  appear  that, 
after  the  payment  of  the  executions  aforesaid, 
the  assets  were  not  sufficient  to  pay  the  lega- 
cy to  the  defendant,  by  near  two  hundred  dol- 
lars, which  legacy,  under  the  will,  was  to  be 
first  paid.  The  defendant,  therefore,  insists 
that  the  complainants,  who  are  merely  residu- 
ary legatees  under  the  will,  have  no  avail- 
able interest  in  the  estate  of  the  said  Sarah 

*407 
Cun*ningham,  and  that  there  is  no  necessity 
for  a  new  accounting  in  this  Court,  in  rela- 
tion to  the  said  estate."  It  appeared,  by 
the  testimony  of  Allen  Vance,  that  at  the 
sale  of  Sarah  Cunningham's  property,  the  de- 
fendant said  to  witness  that  the  negroes 
would  be  sold,  and  asked  witness  not  to  bid 
against  him ;  that  he  would  take  it  as  a  fa- 
vor if  he  would  not  bid  against  him;  that  he 
wished  to  buy  the  negroes  himself;  the  wit- 
ness did  not  consent,  however,  not  to  bid 
against  defendant,  as  defendant  declined  the 
terms  proposed  by  witness.  The  negroes 
brought  a  fine  price.  Under  these  circum- 
stances, it  is  not  remarkable  that  the  friends 
of  the  /complainants  should  desire  an  inquiry 
into  the  regularity  of  the  transactions  by 
which  the  bountiful  intentions  of  the  testa- 
trix towards  them  have  become  illusory. 

The  testatrix  was  a  resident  of  Abbeville 
district,  being  possessed  of  a  plantation  and 
n  few  slaves,  who,  from  indulgence,  were  of 
very  little  value  to  her.  Being  indebted  to 
Joel  Smith,  she  confessed  a  judgment  to  him, 
on  the  4th  May,  1847,  for  eight  hundred  dol- 
lars, fifteen  cents,  with  interest  from  1st  Jan. 
previous,  on  which  execution  was  lodged  in 
Abbeville  district.  On  the  28th  March,  1848, 
the  testatrix  confessed  a  judgment  to  defend- 
ant for  one  thousand  dollars,  with  interest 
from  the  day  of  the  confession.  On  the  fol- 
lowing day,  an  execution  was  lodged  in  the 
office  of  the  sheriff  of  Laurens  district,  but 
was  not  lodged  with  the  sherifl:  of  Abbeville 
until  after  the  death  of  the  testatrix.  On 
the  day  last  mentioned,  Joel  Smith's  judg- 
ment was  assigned  to  the  defendant,  who 
claims  the  amount  of  both  judgments  from 
the  estate  of  the  testatrix. 

On  this  subject,  the  answer  of  the  defend- 
ant states,  among  other  things,  that  the  tes- 
tatrix was  an  old  widowed  lady  of  seventy- 
two  or  three  years  of  age;  that  she  owned  a 
small  tract  of  land  and  five  slaves,  to  wit: 
one  man  and  four  women;  that  she  was 
'  much  attached  to  her  negroes,  and  very  in- 
dulgent to  them,  and,  for  some  time  prior 
to  1848,  had  not  made  a  support ;  that  her 
nearest  relations  were  Dr.  Robert  Campbell, 
of  Laurens  district,  a  brother,  whose  daugh- 

*408 
ter  witness  had  mar*ried,  some  other  neph- 
ews,   and    the    complainants,    who    are    the 
great-grandchildren  of  the  testatrix's  deceas- 
162 


ed  brother,  Angus  Campbell ;  that  "the  tes- 
tatrix was  greatly  troubled  and  excited, 
when,  on  the  5th  January,  1848,  the  sheriff 
of  Abbeville  district,  under  the  execution  of 
Joel  Smith,  made  a  levy  upon  her  land  and 
negro  woman,  Lucinda."  "Upon  that  occa- 
sion, when  she  saw  the  property  was  about 
to  be  sold,  and  her  cherished  object,  of  keep- 
ing her  negroes  togetlier  until  her  death,  de- 
feated, testatrix  went  to  Laurens  district, 
to  the  house  of  her  brothei-,  the  said  Dr.  Rob- 
ert Campbell,  to  see  this  defendant,  who  was 
there  living  with  his  father-in-law,  the  said 
Dr.  Campbell."  She  stated  to  him  her  con- 
dition and  distresses — "that  her  property  was 
about  to  be  sold,  under  an  execution  which 
Joel  Smith  had  obtained  against  her;  that 
she  was  very  desirous  to  have  a  home  whilf; 
she  lived,"  &c.  "Testatrix  proposed  to  de- 
fendant, that  if  he  would  assist  her  to  keep 
her  property  together — if  he  would  procure 
an  assignment  to  himself  of  the  Smith  judg- 
ment, and  wait  for  the  payment  of  it  until 
her  death,  she  would  give  him  a  thousand 
dollars,  to  be  paid  at  her  death,  and  she  pro- 
posed to  secure  him  the  thousand  dollars  by 
any  writing  which  would  accomplish  the  pur- 
pose." "Defendant  thanked  her  for  her  kind- 
ness," tfec.  He  "then  immediately  went  to 
Stoney  Point,  in  Abbeville  district,  to  see  Joel 
Smith,  and  induce  him,  if  possible,  to  stay 
his  execution  for  a  time,  and,  upon  defend- 
ant's representing  to  him  that  the  money 
should  be  paid  in  the  Spring,  he  consented  to 
wait  until  sales'  day  in  April  then  next." 
Defendant  borrowed  the  money,  by  giving  his 
own  note,  with  security.  About  the  same 
time,  he  mentioned  the  matter  to  a  relative 
acquainted  with  legal  forms,  stated  the  prop- 
osition of  the  testatrix,  and  asked  his  ad- 
vice "as  to  what  paper  ought  to  be  prepared 
and  signed,  to  carry  out  the  agreement." 
"He  advised  a  confession  of  judgment,  which 
could  be  stayed  until  her  death."  '"He  ac- 
cordingly procured  a  blank  confession  from 
a  legal  friend,  who  also  concurred  in  the 
advice,  and,  on  the  28th  March,  1848,  accom- 
panied by  Dr.  Campbell,  he  went  over  to  Ab- 

*409 
beville,  to  the  house  of  testatrix.  *The  agree- 
ment was  rehearsed,  and  she  signed  the  note 
and  confession  of  judgment  in  his  presence. 
Dr.  Campbell  suggested,  at  the  time,  that  the 
note  would  bear  interest,  and  that,  as  the 
money  was  only  to  be  paid  at  her  death,  some 
understanding  ought  to  be  had  upon  that  ob- 
ject. Testatrix  was  unwilling  that  interest 
should  run,  and  the  defendant  gave  her  an 
instrument  in  writing,  that  he  would  not  ex- 
act the  interest."  On  the  same  day  he  went 
to  Joel  Smith's,  paid  him  the  amount  due  on 
the  execution,  and  took  his  receipt.  The 
assignment  was  executed  afterwards,  but 
dated  as  of  that  date. 

From  this  statement,  it  would  appear  that 
the  moving  cause  of  the  testatrix's  distress, 
when  she  applied  to  the  defendant  in  Janu- 


OWEXS  V.  SIMPSON 


Mil 


ary,  1S48,  was  her  apprehension  of  being 
broken  up  by  Joel  Smitli,  who  then  lield  the 
only  execution  a^'aiust  lier  property.  "She 
was  ureal ly  troubled  and  exciteil,"  says  the 
defendant,  •wiien.  on  tlie  r.tl»  January.  1.S4S, 
tlu>  slieriff  of  Abbeville,  under  tins  execution, 
levied  upon  lier  lanil  and  lier  ne«ro  woman 
laitiniia."  Siie  went  to  (h'fendant.  told  Idni 
tier  i>r<iperty  was  about  to  be  sold  under  tids 
I'xerution,  and  tliereuiion  made  tlie  proposal 
stated.  Tlie  defendant  "went  immediatt'ly 
to  Stoney  I'oint,  to  see  Joel  Smith,  and  in- 
duce liiui.  if  possible,  to  stay  his  exe<uti<»n 
for  a  time."  Now,  Joel  Smith  was  examined 
as  a  witness  iiefore  tlie  Commissioner.  On 
his  cross-examination,  he  .says  the  testatrix 
was  "old  and  eliildlsh.  She  was  desirous  of 
ktH'piiif.'  her  projierty  to^'ether;  is  conviiK-ed 
that  the  intlueiia>  of  her  negroes  i»n'venteil 
her  from  selliii};  them;  that  she  always  ap- 
pealed to  witness  for  induiiieiice  :  that  he  was 
certain  his  debt  was  sure.  I>r.  ("amiibell  and 
witness  concluded  that  the  lu>st  tliiiij,'  that 
eould  be  done  for  her  was  that  the  iiroperty 
siiould  be  sold,  and  tlu'reiipon  a  levy  was 
ordered.  I'ayne  (nephew  of  testatrixi  may 
also  have  spoken  to  witness  as  to  the  pro- 
priety of  orderinj;  a  levy.  In  havinj?  tlie 
levy  made,  witness  was,  to  some  extent,  in- 
fluenced l)y  the  representations  of  her  frit'iids. 
His  object  was  not  to  injun',  but  to  benetit 
her.   by   the   course   he  took.      He  thinks   he 

*410 
wt)uld  *have  sold  the  iiropcrty  twelve  niontlis 
earlier,  had  it  not  been  for  her  friends." 

Dr.  Campbells  evidence  accompanies  this 
decree.  lie  states  his  presence  when  the 
SI.OOO  note  was  si;jcned.  It  was  drawn  eitlu'r 
I  y  witness  or  the  defi'iidant.  He  said  he  had 
no  particular  conversation  with  liie  t<'statrix 
upon  the  subject.  She  was  at  witness's 
hou.se.  She  was  uneasy  about  Smith's  jud^'- 
ment,  and  wanted  it  satisfied,  (tills  was  prob- 
ably at  the  Hrst  meetinj;.)  He  says,  tliat 
when  the  confession  was  given,  defendant 
broufiht  tlu'  papers  ready.  She  wishetl  the 
Smith  judjiiiient  paid  olT ;  it  was  p;iid  olY, 
but  it  was  kept  as  a  lien  upon  the  pnii>erty. 
"Witness  told  her  that  she  mi^'ht  certainly 
be  ea.sy  for  a  year;  that  defendant  would 
be  easy  with  her.  Tlie  .'jtl.dOO  had  notliiii;;  to 
do  witli  the  Smith  jud^'iiieiit.  The  .51,(t()() 
was  ;:iven  to  defendant  in  considt'ration  of 
what  lie  had  done,  was  to  di',  and  his  eonnec- 
tion  in  the  family.  It  was  .1  irratuity  f(U- 
.services  and  connection  in  the  family."'  He 
says  afterwards.  "Tlie  .'!;i.(M»(>  was  a  free 
uift."  Witness  says  "lu>  never  liked  the  con- 
fession, and  preferred  it  should  lie  a  «leed  of 
j;ift.  and  be  (witness)  jiroposerl  to  draw  it; 
but  the  defeiubiiit  had  consulled  soiiu-  of  his 
friends.  Testatrix  did  not  object  to  the  form 
of  a  gift,  as  it  would  be  the  .same." 

It  seems  that,  some  time  after  this  trans- 
action, to  wit:  on  the  '2.".d  October,  1S4S,  one 
'I'homas  Stewart  obtained  a  jiidmiienf  ;iL'aiiist 
testatrix  for  one  hundred  Uollars,  with  inter- j 


est  from  sth  February,  1844.  and  lodged  ex- 
i  ecutlon  thertHju  in  the  ottiiv  of  the  sheriff  of 
AblK'ville.  On  the  L'Tih  February,  1S41»,  the 
testatrix  confe.sstHl  a  jutlgnient  to  the  defend- 
ant for  the  sum  of  live  hundrtnl  dollars,  with 
Interest  from  that  day.  on  which  Judgment 
execution  was  lodge«l  on  the  1st  .Mareh.  1S4J>, 
In  the  «itHee  of  the  sherilT  of  Laurens  district. 
It  Is  charged  that  tin-  d«'fendant  had  agrinnl 
to  pay  off  aiKl  satisfy  the  Stewart  execution, 
and  that  the  latter  Jmlgnient  was  oidy  In- 
tended as  an  Imlemnify  or  M'curlty  ti>  him. 
The  (h'fendant 's  answer  Is  very  unich  at 
length,  and  It  l.s  proiMisi-^l  only  to  state  the 

•411 
substaiHv  'of  It,  whieh  is.  that  Stewart  had 
h'vied  on  tlie  land  of  ti-statrix.  and  she  again 
ai»plied  to  defentlant  for  advlee  and  a.sKl.sl- 
aiice.  rroiMis«sl,  If  he  wtmld  get  an  assign- 
ment of  the  Stewart  jutlgnieiit.  and  wait  for 
the  payment  till  her  death,  and  would  take 
charge  of  herself,  and  her  proiKTty,  Jtc., 
"she  would  give  him  a  confe.s.slon  of  Judgment 
for  live  hundred  dollars,  whbh  was  to  be 
stahl  until  lu-r  death,  but  whbh  was  to  bear 
interest."  That  on  I^Cth  February,  1M!».  de- 
fendant having  already  paid  a  part  of  the 
Stewart  exe<ution,  paid  Stewart  the  remaind- 
er, and  took  his  nt-eipt  in  full  for  the  money 
paid,  which  appears  attaehe<l  to  the  exwu- 
tion.  That  on  the  day  after  the  last  payment 
defendant  went  with  I>r.  John  I*.  Watts  to  the 
house  of  testatrix,  and  he  witnessed  the  con- 
fession of  judgment. 

Dr.  Watt-s  was  «>xamlntHl  before  me.  and 
testlti«'d,  that  he  drew  the  note  for  J.'iOO. 
Testatrix  s«H'nied  grateful  for  defendant's 
kindness.  Testatrix  said  "she  had  given  de- 
fendant the  hve  hundre«l  dollars  for  what  he 
had  done,  and  what  he  had  iiromi.sed  to  do 
for  her.  She  spoke  of  the  Stewart  case  and 
of  the  Smith  Judgment.  The.se  were  the 
two  ca.ses  sjiokeii  of.  and  which  .simmuihI  to 
prey  on  her  mind.  Witness  thought  the  J.Vmi 
was  to  be  in  addition  to  what  defendant 
had  paitl.  Testiitrix  seeme<l  to  think  the 
Smith  and  Stewart  Judgments  were  sjitl.s- 
tied.  and  she  was  satlstied.  Her  gratitude 
to  d»'fendant  seemed  to  be  In  c»uise«|UeiK"e  of 
his  having  settled  those  riaims.  He  was  to 
take  care  of  her  and  her  property  until  lier 
death."  iVc.  "Witness  beard  nothing  of  the 
compliment  to  be  made  to  defemlanl,  until  he 
went  to  the  hou.se  of  testatrix.  Deft'iidant 
was  to  hold  these  matters — the  Smith  and 
Stewart  judgments — as  It  were  on  a  .stay,  and 
was  to  reii'lve  the  the  hundred  dollars  for 
having  settled  tbem."  This  last  statement 
the  witness  relteated  twice  over,  with  jKisitlve- 
ness  and  ilistinetness. 

So  far  as  the  Court  can  gather  from  the 
defendant's  answer,  the  ]iroposition,  in  Janu- 
ary. 1S4S.  was  that  the  defendant  should 
"aid  testatrix  in  keeiilng  her  i»ro|>erty  togeth- 
er tin  her  death,  slioubl  i»ay  off  the  Smith 
judgment.'  and  tlieii.  at  her  de;ith.  the  de- 
fendant bhould  be  paid  uue  thousand  dollars. 

16a 


*412 


5  RICHARDSON'S  EQUITY  REPORTS 


•412 
The  (ie*fendant  agreed  to  gratify  her  wishes, 
as  far  as  in  liis  power,  and  she  gave  him  a 
note  and  confessed  judgment  for  one  thou- 
sand dollars.  But,  within  less  than  eleven 
months  after  this  agreement,  testatrix's  land 
was  levied  on,  and  about  to  be  sold,  xinder 
an  execution  for  one  hundred  dollars,  or 
thereabouts.  There  was  no  other  lien  upon 
her  property,  nor  does  it  appear  that  any 
other  debt  of  any  consequence  existed.  Yet 
the  defendant  does  not  a^i^pear  to  have 
thought  himself  bound  to  aid  her  in  keeping 
her  property  together  until  her  death,  by 
interfering  in  this  case.  But  he  says  she 
applied  to  him,  and  "repeated  what  she  had 
previously  said  to  the  defendant,  upon  the 
occasion  oF  the  levy  under  Joel  Smith's 
judgment,"  &c.,  and  said  that,  "if  he  would 
assist  her  to  keep  her  property  together  dur- 
ing her  life — if  he  would  procure  an  assign- 
ment to  himself  of  the  Stewart  judgment, 
as  he  had  previously  done  the  Smith  judg- 
ment, and  wait  for  the  payment  of  it  until 
her  death,  and  take  a  general  charge,"  &c. — 
"she  would  give  him  a  confession,  &c.,  for 
$500,  which  was  to  be  staid  until  her  death, 
but  which  was  to  bear  interest."  Whatever 
may  have  been  the  impressions  of  the  defend- 
ant, it  was  manifestly  the  settled  conviction 
of  the  witness  to  whom  his  answer  specially 
refers.  Dr.  John  P.  Watts,  that  the  five  hun- 
dred dollars  was  all  that  the  defendant  was 
to  receive  in  the  way  of  gratuity.  "Mrs. 
Cunningham,"  (testatrix,)  says  Dr.  Watts, 
"seemed  very  grateful  for  his  (defendant's) 
kindness.  She  said  she  had  given  him  the 
five  hundred  dollars  for  what  he  had  done, 
and  what  he  had  promised  to  do  for  her.  She 
spoke  of  the  Stewart  case  and  the  Smith 
judgment — these  were  the  cases  spoken  of," 
«S:c.— and  he  concludes  his  evidence  by  twice 
repeating  "that  the  defendant  was  to  hold 
the  Smith  and  Stewart  judgments,  as  it  were, 
on  a  stay,  and  was  to  receive  the  $500  for 
having  settled  them." 

Another  witness,  W.  B.  Merriwether,  testi- 
fied that  he  lived  within  half  a  mile  of  testa- 
trix, and  knew  something  of  her  affairs ; 
heard  her  repeatedly  say  what  she  owed ; 
that  she  owed  a  judgment  to  Joel  Smith  for 
$800  or  $900,  and  a  judgment  to  Thomas  Ste- 
wart,   for    about    $130;     she    said    she    had 

*413 
*  Joel  Smith's  judgment  settled ;  "that  de- 
fendant had  taken  it  up;  that  she  had  given 
the  defendant  a  confession  for  $1,000  for  that 
purpose."  "One  morning  testatrix  sent  for 
witness ;  he  went ;  she  said  Stewart  was 
pushing  his  judgment,  and  she  wished  wit- 
ness to  go  and  see  Stewart,  and  get  him  to 
wait,"  &c.  In  a  few  days  after,  this  witness 
saw  her,  "when  she  said  that  she  had  paid 
the  Stewart  judgment,  through  defendant,  by 
giving  him  a  confession  for  $500,  to  pay  him 
for  the  Stewart  judgment  and  all  her  other 
debts.     There  were  some  debts  then  against 

164 


her  not  in  judgment.  She  owed  Red  a  debt 
of  some  seven  or  eight  dollars,  which  defend- 
ant afterwards  paid."  "In  her  conversation 
about  the  Smith  judgment,  she  said  that  to 
the  confession  for  that  debt,  and  also  to  the 
confession  for  $500,  Dr.  Cami^bell  and  Dr. 
Watts  were  witnesses ;  that  she  owed  no- 
body but  the  defendant."  This  witness  fur- 
ther said,  that  "he  was  at  defendant's  house 
when  the  old  lady  (testatrix)  died.  The 
morning  after  her  death  he  had  a  conversa- 
tion with  defendant,  as  to  what  the  estate  of 
testatrix  owed  him,  and  defendant  said  it 
owed  him  either  eighteen  hundred  or  two 
thousand  dollars.  This  conversation  was 
brought  about  by  the  defendant's  asking  wit- 
ness how  to  proceed:  whether  he  could  sell 
the  property  under  his  execution,  &c.  De- 
fendant said  he  had  judgments  against  the 
estate  to  that  amount;  did  not  say  in  whose 
names  they  were." 

Another  witness,  M.  G.  Overby,  testified 
that  "he  had  a  conversation  with  defendant 
the  night  of  testatrix's  death,  before  her 
death.  Defendant  said  he  had  paid  off  the 
Smith  judgment  and  the  Stewart  debt  also, 
and  that  he  had  secured  himself  by  confes- 
sions, and,  in  the  ari'angement,  had  got  one 
hundred  dollars  advantage,  as  a  gift  or  do- 
nation for  his  services  in  paying  off  the 
Smith  judgment,"  &c.  "He  also  said  he  had 
paid  off  the  Stewart  case,  and  the  old  lady 
had  given  him  $500  for  paying  it  off."  From 
the  report  of  this  witness's  evidence,  he 
seems  to  have  been  closely  cross-examined, 
but  it  is  not  perceived  that  his  testimony 
materially  varies.  He  said  also,  that  testa- 
trix was  his  aunt  by  marriage,  and  that  the 

*414 
impression  *made  upon  his  mind,  in  conver- 
sations with  her,  was  that  she  owed  about 
twelve  hundred  dollars.  There  is  much  other 
evidence,  which  appears  in  the  report.  In 
the  view  which  the  Court  will  hereafter  pre- 
sent, it  seems  most  important  to  ascertain 
what  were  the  impressions  of  the  testatrix 
in  relation  to  these  transactions,  when  she 
made  her  will  in  January,  1851.  By  that 
instrument,  she  bequeathed  to  the  defendant 
the  sum  of  twelve  hundred  dollars.  A  wit- 
ness, Thomas  R.  Puckett,  who  was  present 
when  the  instructions  were  given  and  the 
will  drawn,  testified,  among  other  things, 
that  the  instrument  was  drawn  by  Gen.  Gil- 
lam,  who  had  been  sent  for,  for  that  purpose. 
When  he  asked  for  the  outlines,  "the  first 
item  was,  she  wanted  defendant  to  have 
$1,200,  to  pay  him  for  his  trouble."  She  aft- 
erwards repeated  that  "she  desired  that  (the 
$1,200)  for  defendant  for  all  his  trouble." 

Without  dissecting  the  testimony,  or  com- 
menting further  upon  the  answers,  it  is  evi- 
dent from  all,  that  whatever  the  defendant 
was  to  receive,  over  and  above  the  amount 
which  he  paid  on  the  judgments  of  Joel 
Smith  and  Thomas  Stewart,  was  intended 
and  accepted  as  a  gratuity.     This  is  sub- 


OWENS  V.  SIMPSON 


*-117 


stantially  the  result  of  all  the  testimony. 
Any  other  acts  of  the  defemlaut  were,  per- 
haiKS.  not  mure  than  Dr.  Caniphell  had  ren- 
dered, and  other  relatives  were  willing;  to 
render.  In  comparinK  the  eviilence,  it  is  not 
very  easy  to  deterniiiie  what  the  defendant 
supposed  was  the  extent  of  tliis  gratuity.  He 
certainly  paid  Joi'l  Snutli  about  nine  hundred 
dollars,  and  the  testatri.x  gave  him  a  con- 
fession for  one  thousand  dollars.  Overhy 
says  defendant  told  him  he  had  paid  tlie 
Smith  judgment  hy  a  confession,  and,  in  the 
arrangement,  had  obtained  a  gratuity  of  one 
hundred  dollars.  Dr.  Watts,  wiio  is  defend- 
ant's witness,  says,  that  when  he  and  defend- 
ant went  to  the  house  of  testatri.x.  to  get  the 
confession  of  ^~>(H).  in  February,  isp.t.  she 
stated  that  this  .$.")()()  was  a  gift  to  defendant 
for  what  he  had  done,  and  had  prumi.MMl  to 
do;  that  he  was  to  receive  this  in  atldition 
to  what  he  had  paid,  in  taking  up  the  judg- 
ments of  Smith  and  Stewart;  he  was  to  re- 
ceive the  .$500  for  having  settled   them.     On 

*415 
the  other  *haiid.  Dr.  Campbell  certainly  re- 
garded the  .$1,000  as  a  gift  over  and  above 
the  Smith  judgment.  lie  testifies  nothing, 
of  course,  about  the  .$.">00  confession:  but, 
as  has  been  intimate<l,  whatever  may  have 
been  the  impressions  of  the  defendant,  it 
can  scarcely  be  doubted,  after  the  evidence 
of  Dr.  Watts,  what  were  the  views  of  the 
testatrix,  when  she  gave  the  confession  of 
$."•00  for  having  settled  the  Smith  and  Stew- 
art judgments — she  did  not  understand  that 
she  had  already  given  the  defendant  one 
thousand  dollars  for  having  settled  the  Smith 
judgment.  The  Court  is  well  satisfied,  from 
the  evidence,  that  when  the  testatrix  made 
her  will,  in  .January,  1851,  she  felt  under 
great  obligations  to  the  defendant  for  his 
liindness  and  his  trouble,  and  was  not  un- 
mindful of  their  family  conutH-tions.  She 
had  promised  that,  at  her  death,  he  should 
be  remunerated.  Whether  she  had  in  mind, 
or  memory,  any  consciousness  of  any  par- 
ticular sum  or  amount,  which  she  had  prom- 
ised, it  is  impossible  to  determine.  Hut  she 
becpieathed  to  the  defendant  the  sum  of 
twelve  hundred  dollars,  which,  she  declared 
to  the  draftsman,  was  to  the  defendant  for 
all  his  trouble. 

"Satisfaction,"  says  Mr.  .Tu.stice  Story, 
(Story  K(i.  §  10!lf>,)  "may  1k>  defined  in  Kcpiity 
to  be  the  donation  of  a  thing,  with  the  in- 
tention, expressed  or  implied,  that  it  is  to  be 
an  extinguishment  of  some  existing  right  or 
claim  of  tile  donee.  It  usually  arises,  as  a 
matter  of  presumption,  where  a  man,  being 
inider  an  obligation  to  do  an  act,  (as  to  pay 
money,)  does  that  by  will,  which  is  capalde 
of  being  considered  as  a  performance  or  sat- 
isfaction of  it,  the  thing  jierformed  iH-lng 
ejusdem  generis  with  that  which  be  had  en- 
gaged to  iterfctrm.  Tuder  such  circumstanc- 
es, and  in  the  absence  of  all  ciunitervailing 
circumstances,   the  ordinary  presumption    iu 


I  Court.s  of  Equity  i.s,  that  the  testator  has 
done  the  act  iu  .s^itisfaetion  of  his  obligation." 

I  Again,  (§  1100,)  "The  donation  is  held  to  be 
a  .satisfaction,  uules.s  that  conclusion  is  re- 
pelled by  the  nature  of  the  gift,  the  terms  of 
the  will,  or  the  attendant  circumstances" 
A  distinction  is  noticed  In'tween  saitisf.-ictlon, 
proi)erly  so  <-alle<l  and  i-a.ses  of  the  penyrm- 
auce    of   agreements   or    covenants.      Iu   Che 

•416 
former  •case,  the  donation  is  intended  as  a 
substitute  or  eipdvah-nt  for  the  contract;  iu 
the  latter  as  a  fulfilment  of  It.  The  Court 
is  strongly  inclined  t»)  the  conviction,  that 
both  the  transactions — viz.,  the  confession  of 
$1,000  and  the  confession  of  $.'i(K»— could,  at 
most,  be  regarded  as  mere  voluntary  agree- 
ments or  i»romises,  on  the  part  of  testatrix, 
to  pay  at  lier  death.  Indeed,  this  is  sul)- 
stantlally  admitte«l,  and  that  the  fornj  adopt- 
ed was  merely  u  .security  for  the  i>erform- 
auce  of  the  agreement.  It  Is  tjuite  manifest 
that  tljey  were  so  regarded  by  the  testatri.x. 
The  Court  Is  also  satisfietl,  from  the  testi- 
mony, that,  when  the  testatrix  gave  the  con- 
fession for  $i5(K),  it  was  not  intended  l>y  her 
that  this  sum,  given  for  defendants  servlcvs. 
in  taking  up  the  Smith  and  Stewart  judg- 
ments, was  to  be  in  addition  to  a  sum  (if 
one  thousand  dollars:  or,  iu  other  words, 
that  when  the  testatrix  signed  the  confe.sslon 
for  If5(R»,  in  the  pn-scnce  of  Dr.  Watts,  .slie 
did  not  understand  that  the  defendant  was 
to  receive  the  amount  paid  to  Smith,  with 
interest,  the  amount  paid  to  Stewart,  with 
interest,  the  five  hundred  dollars,  with  inter- 
est, and,  in  addition,  a  gratuity  of  one  tliou- 
sand  dollars.  According  to  the  jHisltive 
statement  of  Dr.  Watts,  it  was  rehearsed 
that  the  confession  of  $.'»00  was  for  his  serv- 
ices in  taking  ui*  both  judgments.  Tlie  de- 
fendant cannot,  therefore,  tlaim  the  amount 
of  both  confessions  as  a  gratuity  for  his  serv- 
ices. If  he  be  regarded  as  a  creilitor,  the 
legacy  of  twelve  hundred  dollars  is  a  larger 
amoiuit  than  was  due,  was  deilared  to  be  for 
the  same  consideration,  and  mu.st  In.'  regard- 
ed as  a  satisfaction.  On  the  other  hand,  the 
legacy  may  be  regarded  as  at  one**  an  ample 
and  generous  fulfilment  of  a  voluntary  agrt*e- 
nient  or  promise  to  the  ilefendant,  and  a 
gratification  of  her  fiH'llngs  for  his  kindness. 
Although  the  ti'statrix  was  grateful  to  the 
defendant,  and  attached  to  his  family,  yet  it 
Is  evident,  both  from  the  will  an<l  the  evi- 
dence, that  she  had  other  objects  of  attach- 
ment, and  whom  she  intendeil  to  be  re<ipi- 
ents  of  her  txiunty.  It  was  said,  too,  at  the 
hearing,  that  the  mother  of  the  complain- 
ants had  resided  with  the  testatrix  from  the 
age  of  fourteen  years,  till  her  marriage  with 
complainants"    father.      After    the    lega<y    to 

•417 
•the  defendant,  and  the  payment  ot  her  just 
th'bts,  she  dln'<ts   the  balance  of  her  estate 
to  be  e<pially  divided  betwiH'U  the  complain- 
auts.     The  claims   of   the  defendant    would 

165 


*417 


5  RICHARDSON'S  EQUITY  REPORTS 


uot  only  exhaust  the  proceeds  of  the  estate, 
(which  was  sold  at  a  fair  price,)  but  they 
would  be  iusuflicient  to  satisfy  them.  On  the 
other  hand,  to  regard  the  defendant  as  en- 
titled to  the  sums  paid  to  yniith  and  to 
Stewart,  with  interest,  as  well  as  the  legacy 
of  twelve  hundred  dollars,  is  in  conformity 
with  the  views  or  declarations  of  the  testa- 
trix, as  to  the  amount  of  her  indebtedness 
at  the  tirfie  of  her  death,  and  a  fulfilment 
of  her  intentions  of  bounty,  both  in  regard 
to  the  defendant  and  the  complainants. 

It  is  ordered  and  decreed,  that  an  account 
be  taken  by  the  Commissioner  of  the  defend- 
ant's transactions  as  executor;  that,  in  taking 
the  account,  he  be  allowed  credit  for  the 
amount  paid  on  the  executions  of  Joel  Smith 
and  of  Thomas  Stewart,  with  interest ;  that 
he  also  be  allowed  credit  for  the  twelve  liun- 
dred  dollars;  and  that  the  Commissioner  re- 
port the  result.  And  it  is  further  ordered  and 
decreed,  that  the  defendant  enter  satisfac- 
tion, or  cause  the  same  to  be  done,  on  the 
several  judgments  against  the  testatrix  de- 
scribed in  the  pleadings. 

The  defendant  appealed  upon  the  grounds: 

1.  It  is  respectfully  submitted,  his  Honor 
erred  in  admitting  in  evidence  loose  declara- 
tions of  Mrs.  Sarah  Cunningham,  the  testa- 
trix, made  after  the  judgments  confessed  to 
the  defendant  Simpson,  to  impeach  said  judg- 
ments. 

2.  It  is  respectfully  submitted,  his  Honor 
erred  in  admitting  parol  testimony,  to  ex- 
plain the  will  of  Mrs.  Sarah  Cunningham,  in 
relation  to  the  legacy  to  the  said  defendant, 
Simpson. 

3.  Because  a  voluntary  promise  to  pay  mon- 
ey, secured  by  a  judgment  confessed  or  ob- 
tained, is  a  good  executed  lien  or  title,  and 
such  muniment  is  good  against  all  persons 
churning  as  volunteers.  The  fact  that  levy 
and  sale,  under  the  executions,  are  postpon- 
ed until  the  death  of  the  donor,  cannot,  upon 
principle,  alter  the  case  in  any  respect. 

4.  Because  the  judgments  confessed  in  this 

*418 

case  to  the  de*feudant,  Simpson,  were  not 
voluntary,  but  based  upon  considerations 
both  good  and  valuable — relationship,  kind- 
ness, and  services  actually  rendered.  They 
were  fairly  obtained,  and  not  only  freely  and 
cheerfully  given,  but  placed  in  an  executed 
and  irrevocable  condition  by  the  donor  her- 
self ;  and  the  defendant  insists  that  nothing 
could  afterwards  diminish  or  alter  his  vested 
rights. 

5.  Because  his  Honor  erred  in  holding  that 
Mrs.  Cunningham  did  not  intend  to  give  the 
defendant.  Simpson,  both  the  judgment  for 
one  thousand  dollars  and  the  judgment  for 
five  hundred  dollars.  The  defendant  insists, 
with  the  utmost  confidence,  that  the  whole 
evidence,  taken  together,  affords  conclusive 
proof  that  IMrs.  Cunningham  intended  to  give 
liim  both  judgments,  as  distinct  and  separate 

166 


liens,  over  and  above  the  amount  of  money 
advanced. 

6.  Because  the  defendant,  Simpson,  was 
a  creditor  of  Mrs.  Cunningham's,  to  the  ex- 
tent of  all  the  judgments  held  by  him,  and  he 
is  entitled  to  be  paid  all  his  judgments,  at 
least,  even  if  the  doctrine  of  satisfaction  ap- 
plies, and  he  elects  to  claim  his  demands,  but 
not  to  receive  the  legacy  at  all. 

7.  Because  the  doctrine  of  satisfaction  is 
not  applicable  to  the  case,  and  the  defendant 
is  entitled  to  receive  the  amount  of  his  judg- 
ments as  creditor,  and  also  the  bequest  in  the 
will,  as  legatee. 

McCowau,  for  appellant. 
Marshall,  contra. 

The  opinion  of  the  Court  was  delivered  by 

JOHNSTON.  Ch.  It  certainly  was  compe- 
tent for  Mrs.  Cunningham — if  she  clearly  un- 
derstood the  transaction,  and  entered  into 
it  with  such  an  intention, — to  make  a  gift  to 
Dr.  Simpson  of  the  two  confessions,  and  to 
allow  him,  in  addition,  to  hold  the  two  prior 
judgments,  lo  reimbur.se  him  for  the  money 
he  might  advance  on  them.  But,  considering 
her  advanced  age  and  infirmity,  and  her 
great  distress,  and  the  confidence  she  reposed 

*419 
*in  him,  it  vpould  require  clear  evidence  to 
establish    this:     clearer    evidence    than    this 
case  affords. 

Considered  in  the  light  of  a  mere  business 
transaction,  it  would  be  dirticult  to  support 
a  bargain,  by  which  one  party  has  obtained 
from  the  other  enforcible  securities  to  near 
$2,500,  for  advancing  little  over  $1,000. 

But  my  conviction,  arising  maiidy  from  the 
evidence  introduced  bj'  Dr.  Simpson  himself, 
with  very  slight  aid  from  any  other  evidence, 
and  without  resorting  at  all  to  the  after  dec- 
laratit)ns  of  Mrs.  Cunningham,  (which  I  re- 
gard as  incompetent,)  is,  that  it  was  not  the 
intention  of  the  parties — especially  of  Mrs. 
Cunningham — that  the  judgments,  wliicli  Dr. 
Simpson  was  to  take  up,  were  to  be  kept  afoot 
by  him,  as  demands  against  her. 

Dr.  Campbell,  who  was  present  when  the 
bargain  respecting  Smith's  judgment  was 
made,  says  expressly,  she  "wanted  it  satis- 
fied ;"  and  again,  that  "she  wished  the  Smith 
judgment  paid  off."  And  Anderson,  who  was 
present  when  Dr.  Simpson  paid  it  off  to 
Smith,  saj's,  that  it  was  in  conseipience  of  his 
suggesting  to  Simpson,  that  he  had  better 
take  an  assignment  of  it,  to  guard  against 
prior  liens,  that  Simpson,  after  some  hesita- 
tion, concluded  to  do  so.  Would  he  have 
hesitated,  if  he  had,  at  that  time,  understood 
that  the  judgment  was  to  be  kept  afoot? 

Whatever  was  said  in  relation  to  a  gift,  in 
connection  with  the  $1,000  confession  which 
Mrs.  Cunningham  made  for  taking  up  Smith's 
judgment,  is  easily  accounted  for  by  the  fact, 
that  the  confession  exceeded  the  prior  judg- 
ment nearly  $200.  The  gift  consisted  in  this 
excess. 


SIMPSON  '. .  DOWNS 


*42J 


.^niith's  testimony  Is  not  opposfd  U>  this 
view.  He  was  not  present  at  tlie  bargain: 
and  only  repeated  wluit  Simpson  told  him, — 
prohaiily.  after  he  had  concluded  to  adopt 
Andersofi's   advice. 

So  nnuh  for  Smith's  judgment  and  the 
confession  of  $1.0(10. 

Dr.  Watts  was  present  when   Dr.  Simpson  ! 
undertook  to  take  up  Stewart's  judgment  of  I 
.SIOO;   <»n    whicli   occasidu.   the   ctmfessien   of 
."PuOO  was  given.     He  testilies  to  Mrs.  Cunning- 
ham's   impression,    that    both    Smith's    and 

*420 
Stewart's  judgments  were  to  *he  extinguish- 
ed;— "Slie   seemed    to    think    the    Sndth    and 
Stewart  judgments   were  satistie<l. — and   she 
was  satisfied." 

On  this  occasion,  siie  increased  the  rate 
of  compensation  7u'y(Mid  what  she  had  agreed 
to  give,  when  the  treaty  related  to  Smith's 
judgment  alone.  It  will  be  renuunbered.  that 
though  Dr.  Simpson  was  to  reci'ive  ^L'OO  for 
paying  Smith  oft",  yet  he  was  to  wait  until 
her  death  for  reimbursement,  and.  in  the 
meantime,  was  to  forego  the  interest  on  his 
confession.  When  Stewart's  debt  became  the 
subject  of  further  sti|iulations,  it  may  have 
occurred  to  the  parties,  that,  by  the  probm- 
.gation  of  her  life,  this  might  become  a  less 
advantageous  bargain  on  his  part  than  had 
been  anticipated ;  and  this  occasion  may 
have  been  taken  to  increase  liis  compensation, 
as  well  as  to  give  him  compensation  for  un- 
dertaking to  take  care  of  her  and  her  affairs, 
(which  lie  now  undertook.)  by  allowing  him. 
in  addition  to  the  .$1,000  confession,  which 
he  already  held,  another  for  $r)fK): — thus,  ac- 
cording to  Dr.  Watts,  compensating  him  "for 
wliat  he  liad  done,  and  what  he"  now  "[jrom- 
ised  to  do  for  her." 

Thus,  it  will  be  perceived,  that,  in  my  opin- 
ion, the  ju.stice  of  the  case  reipiires  a  decree, 
that  the  two  judgments  of  Smith  and  Stew- 
art, which  Dr.  Simpson  sets  up.  be  peri)etual- 
ly  enjoined;  and  that  lie  be  allowed  to  set 
up  his  two  confessions,  with  interest  only 
from  the  death  of  the  testatrix.  This,  I 
think,  was  the  understanding  and  eontraet  of 
the  parties,  and  there  appears  to  have  been 
fair  consideration  for  it. 

I  do  not  think  evidence,  to  show,  that  the 
legacy  of  $1.1200  was  intended  as  a  satisfac- 
tion of  what  the  testatrix  owed  Dr.  Simp- 
son, was  admissible. 

Nor  do  I  think,  that  any  presumption  that 
it  was  .so  intended,  can  be  raised  under  tlu' 
will.  The  fact  that  the  legacy  is  le.ss  than 
the  just  claim  of  a  creditor,  as  in  this  in- 
stance, and  the  additional  fact,  which  ap- 
pears in  this  will,  that  the  testator  has  made 
express  provision  for  the  payment  of  debt.-!  — 
both,    according    to    amhority.i^i     repel    the 

*421 
idea    that    a    legacy,    in    terms    of   'donation 
merely,  to  one  who  liappeus  to  be  a  creditor. 


(/<)  1!  Story  Eq.  §  llL'O,  1122. 


was  intended  as  a  satisfaction  of  Ids  de- 
mands. 

It  is  onh-reil.  that  the  defendant.  Dr.  Kd- 
ward  <;.  Simpson,  be  perpetually  enjoined 
from  setting  up  tlu'  judgments  and  execu- 
tions of  Smith  and  Stewart,  mentioni'd  in  the 
pleaflings,  and  that  he  eater  satisfaction 
thereon. 

And  It  Is  further  ordered,  that.  In  the  ac- 
count directed  in  the  decree,  the  said  de- 
fendant be  allowiHl  credit  for  tlie  two  confes- 
sions taken  by  him  from  his  testatrix,  de- 
scrllied  In  the  pleadings,  with  interest  only 
from  the  death  of  said  testatrix;  and  that 
lie  als((  be  allowed  cre<lit  for  his  said  legacy 
of  $1,200. 

That  he  do  pay  the  costs  of  thi.s  suit. 
And  that  the  decree  appealed  from  be  iuihII- 
fied,  a<cording  to  this  decree:  and  that.  In 
all  respe«ts.  except  as  so  motlltied,  it  be  af- 
firmiHl. 

WAIJDI>AW.  Ch..  concurred. 

Dl'NKIN.  t'h.  On  reconsideration  of  the 
Circuit  decree,  I  should  still  |)refer  the  view 
there  presented.  Hut  the  transaction  is  very 
well  susceptible  of  the  constriction  which 
has  been  adopted  by  the  Court,  and  1  am 
content  to  concur  In  it. 

Decree  modified. 


R.  F. 


5   Rich.  Eq.  421 
SI.MliSoX  V.  SARAH  I>OWNS.  and 


(Cohmiliia. 


Others. 
-May   Term.    1853.) 


[Apiieal  and  Knur  ®=3.'{42.1 

Rill  by  creditor  t«  set  aside  a  judgment 
!i!.'iuiist  the  debtor  for  frauil.  The  hill  jirayed 
relief  on  dtiuT  i;ri>uii(ls,  against  otln-r  parties. 
The  credituis  of  the  delitor  were  called  in,  and 
one  oliject  of  the  bill  was  tu  marshal  his  a.'isets 
among  tiiem.  A  decree  wa.s  made  disinisshig  the 
bill,  so  far  as  it  sought  to  set  aside  the  judg- 
ment—ordering new  parties  to  be  made.  an<l  re- 
ferring the  case  to  the  commissioner.  .\t  an- 
other term,  a  decree  was  ma<le  upon  the  report 
of  the  Commissioner,  and  exceittions  thereto: — 

♦422 
field,  *tli:it  it  was  then  too  late  to  api>eal  from 
the   first  decree   refusing  to  set  aside  the  jiidg- 
niiiit. 

I  Kd.  Note.— For  other  cases,  see  Appeal  and 
Frrnr.  Cent.  Dig.  §§  1889.  1899;  Dec.  Dig.  «=> 
.•542.] 

[Aliiirnl  and  Error  @:=3.144.] 

Where  there  is  a  fin  d  decree  as  to  any  one 
of  the  p.irties.  or  an.v  distinct  branch  of  litiga- 
tion, so  that  nothing;  ninains  to  be  adjiid;:ed  as 
to  tJiat  party,  ur  that  brancii  of  the  litigation, 
the  appeal  must  lie  taken,  within  the  time, 
and  in  the  manner  prescribed  l)y  the  rules  of 
Court,  or  the  ri^ht  of  appeal  will  be  lost. 

|i;d.  Note. — Cited  in  Verdier  v.  Verdier,  12 
Rich.   F.i.   14:{. 

For  otlx-r  eases,  see  Appeal  and  Error.  Cent. 
Dig.  §  1SS9;    Dec.  Dig.  «©=3:{44.1 

[Apfical  and  Error  C=''542.1 

Where  the  decTee  adjudges  the  liability  of  a 
party,  and  refers  the  nuitter  to  the  Commissioner 


^=>For  other  cases  see  same  topic  and  KEY-NUMBEK  in  all  Key-Numbered  Digests  and  lndeze> 


161 


*422 


5  RICHARDSON'S  EQUITY  REPORTS 


to  ascertain  the  amount  due,  or  where  some- 
thing remains  to  be  done,  recjuiring  the  further 
jucJicial  action  of  the  Court,  the  appeal  may  be 
taken  at  once,  or  the  party  may  wait'  the  final 
judgment  of  the  Court,  and  then  appeal. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  §§  1889.  1899  :  Dec.  Dig.  €=> 
342.] 

lAi)r)cal  and  Error  <S=58o3.1 

Petition  to  the  Court  of  Appeals  to  rehear 
a.  case,  in  which  a  Circuit  decree,  not  appealed 
from,  had  been  made,  on  the  ground  of  newly 
discovered  evidence: — Petition  dismissed,  with  an 
intimation  of  opinion,  that  application  should 
be  made  to  the  Circuit  Court  for  leave  to  file  a 
supplemental  bill,  in  the  nature  of  a  bill  of  re- 
view. 

[Fd.  Note. — Cited  in  Tomlinson  v.  Tomlinson, 
10  Rich.  Eq.  300;  Tomlinson  v.  Tomlinson,  11 
Rich.  Eq.  69;  Ex  parte  Knox,  17  S.  C.  211, 
212. 

For  other  cases,  see  Appeal  and  Error,  Cent. 
Dig.  §§  3214,  3229-3240.  3244-3246 ;  Dec.  Dig. 
<©=833.] 

[Equity  <gp>392.] 

A  petition  for  a  re-hearing  is  the  proper 
mode  of  proceeding  before  the  decree  has  been 
rendered  ;  but  where,  after  the  filing  of  the  de- 
cree, a  party  wishes  to  avail  himself  of  newly 
discovered  evidence,  his  api)lication  should  be 
for  leave  to  file  a  bill  of  review,  or  a''  supple- 
mental bill,  in  the  nature  of  a  bill  of  review. (a) 

[Ed.  Note.— Cited  in  Bennett  v.  Bell,  10  Rich. 
Eq.  465:  Hillv.  Watson.  10  S.  C.  275;  Durant 
v.  Philpot,  16  S.  C.  125:  Yates  v.  Gridley.  Id. 
500:  Ex  parte  Carolina  National  Bank,  56  S. 
C.  20,  33  S.  E.  781;  New  York  Life  Ins.  Co. 
v.  Mobley,  90  S.  0.  560,  73  S.  E.  1032. 

For  other  cases,  see  Equity,  Cent.  Dig.  §  835 ; 
Dec.  Dig.  <©=»302.] 

[Courts  <©=>206.1 

Tlie  Court  of  Appeals  having  only  appellate 
jurisdiction,  an  original  application  there  to  re- 
hear a  Circuit  decree,  not  appealed  from,  can- 
not be  entertained. 

[Ed.  Note. — Cited  in  Ex  parte  Knox,  17  S. 
C.  210. 

For  other  cases,  see  Courts,  Cent.  Dig.  §  738 ; 
Dec.  Dig.   <©==>206.] 

Before  Dunkin,  Ch.,  at  Laurens,  July,  1852. 

This  case  will  be  sufficiently  understood 
from  the  opinion  delivered  in  the  Court  of 
Api)eals. 

Irby  Sullivan,  for  appellant. 
Young,  I'erry,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DARGAN,  Ch.  The  questions  involved  in 
this  case  are  questions  of  practice. 

Sarah  Downs,  by  proceedings  in  the  Court 
of  Equity,  had  obtained  a  decree  against  lier 
son,  Wlilliam  F.  Downs,  for  upwards  of  $15,- 
000.  The  plaintiff  had  a  judgment  against 
the  said  AVilliam  F.  Downs,  of  a  junior  date. 
He  also  had  other  demands  against  him,  for 
a  considerable  amount,  arising  from  part- 
nership transactions ;  he  and  Downs  having 
been  the  joint  owners  of  a  cotton  and  wool- 


{(I)  See  the  case  Ex  parte  Vandersmisscii  and 
AVife  [5  Rich.  Eq.  519,  60  Am.  Dec.  102],  in 
the  appendix  of  this  volume,  where  leave  was 
granted  to  file  a  bill  of  review.  See  also  the 
case  of  Carr  v.  Green,  Rich.  Eq.  Cas.  405. — R. 


*423 
en  factory.  He  had  filed  a  bill  *agalnst 
Downs  for  the  adjustment  of  tlu-se  claims, 
which  was  iiending  at  the  rendition  of  the 
decree,  which  will  be  hereafter  mentioned. 
W.  F.  Downs  was  insolvent.  And  the  decree 
of  Sarah  Downs  against  him,  which  was  of 
an  older  date,  and  for  a  large  amount,  stand- 
ing in  the  way  of  the  satisfaction  of  the 
plaintiff's  claims,  he  filed  a  bill  against  Sarah 
Downs,  charging  that  her  decree  against 
AVilliam  F.  Downs,  was  a  fraud  upon  credi- 
tors, and  void ;  and  prayed  the  Court  to  set 
it  aside  on  that  ground.  He  made  other  per- 
sons defendants  to  the  cause,  on  other 
grounds  of  relief,  in  which  Sarah  Downs  was 
not  interested,  and  had  no  concern. 

There  was  a  fund  under  the  control  of  the 
Court,  arising  from  the  sale  of  a  tract  of 
land,  in  which  AVilliam  F.  Downs  had  an 
estate.  The  creditors  of  Downs  were  called 
in.  The  fund  aforesaid  constituted  the  only 
assets,  which  had  not  been  appropriated. 
And  one  of  the  objects  of  the  proceedings 
was,  to  marshal  this  fund  among  the  credi- 
tors of  AVilliam  F.  Downs,  according  to  their 
respective  rights. 

The  case  was  first  heard  in  1851,  when  tlae 
presiding  Chancellor,  holding  that  the  evi- 
dence was  not  sutlicient  to  impeach  the  bona 
fides  and  validity  of  the  decree  wliich  Sarah 
Downs  had  obtained  against  AA\  F.  Downs; 
dismissed  the  bill  as  to  her.(/>)  He  ordered 
new  parties  to  be  made,  which  was  done. 
xVnd  he  referred  the  case  back  to  the  Com- 
missh)ner  for  further  investigation  as  to  the 
questions  between  the  plaintiff  and  the  rep- 
resentatives of  W.  F.  Downs,  and  the  other 
parties  to  the  bill.  From  this  decree  no  ap- 
peal was  taken. 

The  case  went  on,  and  was  again  heard  in 
1852,  on  the  rei)ort  of  the  Commissioner  and 
exceptions.  In  marshaling  the  fund,  the 
Commissioner  applied  so  much  of  it  as  was 
necessary  to  the  satisfaction  of  claims  ad- 
mitted, on  all  hands,  to  be  entitled  to  preced- 
ence. He  then  applied  tlie  residue  to  the 
decree  in  favor  of  Sarah  Downs,  which  ex- 
hausted the  fund  without  satisfying  the  de- 
cree. This  was  to  the  entire  exclusion  of 
the  claims  of  the  plaintiff  and  of  the  other 

*424 
creditors ;  and  was  a  rightful  appli*catiou, 
if  the  decree  in  favor  of  Sarah  Downs  is 
valid.  The  plaintiff,  and  others  of  the  credi- 
tors, filed  exceptions  to  the  report,  which,  in 
substance,  may  be  resolved  into  the  objec- 
tion, that  the  decree  in  favor  of  Sarah  Downs 
was  fraiululent  and  void,  and,  therefore,  en- 
titled to  no  part  of  the  fund,  as  against  them. 
The  Chancellor  overruled  the  exceptions,  and 
confirmed  the  report.  And  this  decree  pur- 
ports to  be  a  final  disposition  of  all  the  is- 
sues growing  out  of  the  plaintiff's  bill. 


(&)  That  is,  so  far  as  it  sought  to  set  aside  the 
decree  in  her  favor. — R. 


168 


^^ssFor  other  cases  see  same  topic  and  KEY-NUMBKR  ia  all  Key-Numbered  Digests  and  Ip,dexe» 


CHINA  V.  WHITE 


•426 


Tlie  plaintiff  now  appeals  from  the  first 
deoree  of  ISHl,  on  the  f^round.  that  tlu?  Chan- 
cellor should  havo  set  aside  the  decree  in  fa- 
vor of  Sarah  Downs,  for  fraud. 


niiglit   have  had   an   important   inrtut-m-e   on 
tlie  jud>:iuent  of  the  Court. 

I    aiipn-liiMid,    liowever,    that    some    nf   the 
ridfs  i>f  praetlcf  on   this  sulject   have  l>een 


A  i)relinunary  i>liji'«-tion  is  interposed  hy  ((infmuided  in  tlie  pre>;ent  proreedin;;.  This 
tlie  counsel  for  the  appellees,  which  is,  that  |  is  a  petition  for  a  rehearing,  whi<h  is  the 
the  plaintiff  can  have  no  standhi};  in  this  projK'r  uumIc  of  pr<KvedinK  In-fore  tin*  decree 
Court  as  an  appellant,  as  to  any  alleged  er-  luis  Ihhmi  rendered.  Hut.  after  the  tiling  of 
I'ors  in  the  first  decree:  in  other  words,  the  decree,  when  a  party  wishes  to  avail  Idiu- 
that  lie  has  lost  his  rii^ht  of  ap|»eal.  hy  not  :  self  of  newly  diseoveretl  evidence,  the  remedy 
hriniilnj;  it  forward  in  the  proper  time.  If  I  should  l»e  sou;;ht  hy  an  a|>iilication  in  tile 
the  atHrniative  of  this  proposition  be  true,  !  projier  form,  and  properly  vouched,  for  leaive 
further  con.sideration   on   this  liranch  of  the  ]  to   lile   a    l>ill   of   review,   or   a    supplemental 


cas  '  v.ill  he  unnecessary. 

It  is  not  my  purpose  to  enter  at  lar,i,'e  in- 
to the  disciission  of  this  (|uestion.  Kut  I 
will  content  ni\self  with  a  simple  statement 
of  the  result  of  our  delilterations.  The  opin- 
ion of  the  Court  is,  that  where  there  is  a 
final  decree  as  to  any  one  of  the  parties,  or 


hill  In  the  nature  of  a  hill  of  review;  the 
supplenuMital  hill  bein>.',  perhaps,  the  most 
api>ropriate  form  of  protv«'dinn. 

Another  very  important  distinction  has 
lieen  lost  sight  of  in  this  aiiplicati<ai.  This 
C<airt  only  entertains  aiipellate  juris«liction. 
No  cause  can  come  before  it   except  hy  way 


any  distnict  branch  of  the  litiixation,  so  that  I  of  appeal.     This  is  fandliar  to  all.     Hy  the 
nothinfi   remains  to   be  adjudged   as   to   that    decision  announced   in  tlie  lirst   part  of  this 


party,  or  that  branch  of  the  litigation,  the 
appeal  must  be  taken  within  the  time  and  in 
the  manner  prescrilied  by  the  rules  of  Court, 
or  the  riulit  of  appeal  will  he  lost.  It  is  dif- 
ferent, where  there  has  In'en  a  dcK.'ree  adjudii- 
int;  the  liability  of  a  party,  with  a  reference 
to  the  Comaii.'-sioner  to  ascertain  the  amount 
due;  or  where  soiiiethini;  remains  to  be  done, 
requiring  the  further  judicial  action  of  tlie 
Court.  I'nder  the.se  circumstances,  tlie  par- 
ly, supposing  hinuself  aggrieved,  may  appeal 
at  once  from  the  decree,  tliougli  it  be  inter- 
locutory ;  or  he  may  wait  the  linal  juilgr 
nient  of  the  Court,  and  take  his  appeal  from 
that,  and  all  the  judicial  orders  and  decrees, 
which  preceded  and  led  to  the  final  judgment. 
This,   as   a    rule   of   practice,   was   settled   in 

*425 
*Hrown  v.  Tostell,  4  Klcii.  Vai.  71  ;    and  is  not 
intended   to  be   shaken,   or   ino(lilied   by  any- 
thing herein  ex])ressed. 

The  further  opinion  of  the  Court  is;  that 
the  first  decree  rendered  in  this  cause  was 
final  against  the  plaintiff  as  to  all  matters 
charged  in  his  bill  against  Sarah  Downs; 
and  that  the  plaintiff,  not  having  i)ro.secuted 
liis  appeal  within  the  time  prescribed,  the 
case  is  not  l)efore  this  Court,  and  cannot  be 
heard.     It  is  so  ordered  and  decreeil. 

But  the  p'  ntift',  in  atldition  to  his  at- 
tempt {{)  be  luard  before  this  Court,  by  way 
appeal  from  the  decree  of  l.sr>l,  has  tiled 
this  Court  a  petition  f<u"  a  rehearing,  ou 
...e  alleged  ground  of  newly  discovered  testi- 
mony in  writing,  not  within  his  power  to 
have  been  produced  at  the  trial  on  wliich  the 
s;iid  decree  was  rendered.  The  petition  is 
supported  l)y  the  allidavit  of  the  plaintiff, 
and  is  certified  to  by  coun.sel.  The  i»etition 
and  the  exhibits  set  forth  the  evideia-e  alleg- 
e<l  to  have  been  newly  discovered ;  and  it 
seems  to  this  Court,  from  a  prima  facie  view 
of  the  facts  stated,  that  if  tlu-y  had  been 
proved  on  the  former  trial  of  the  cause,  tliey 


decree,  the  petitimier's  case  is  not,  and  can- 
not  come   before  tliis  I'ourt    for   its   judicial 

•426 

coirnizance.  The  Court  is  pre*cluded  by  its 
organization  from  entertaining  the  petition; 
which  would  be,  to  assume  original  jurisdic- 
tion. From  the  foregoing  views,  tlie  <lis- 
missal  of  the  petition  follows  as  a  matter  of 
course.  Here  I  might  .stop.  To  say  more, 
would  he,  i>erhaps.  to  travel  out  of  the  re<-- 
ord.  It  maj,  however,  not  he  amiss  for  me 
to  intimate,. that,  in  the  opinion  of  the  Court, 
the  proper  nuKle  of  proceeding,  und»'r  the  cir- 
cumstames  alleged  in  the  petition,  would  he 
to  afiply  to  the  Circuit  Court  for  leave  to  lile 
a  supplemental  bill,  in  the  miture  of  a  hill  of 
review.  The  petitioner,  if  he  chooses,  may 
avail  him.self  of  this  iirivilege  of  pmceeding 
in  that  Court,  in  such  numner  as  he  may  be 
advised.     The  petition  is  dismissed. 

JOHNST<>N.    I'lNKI.N    and    WAUDLAW, 
CC,  concurred. 

Apiteal  and  itetititm  disndssed. 


5    Rich.  Eq.  426 

WILLIAM  A.  CHINA  ami  Others  v,  GEORGE 
W.     W1HT1-:    and    Others. 

(Coluuibia.     May  Term,  LSo.'J.) 

[Willit  ©=417,  042.) 

Testator,  having  four  children,  nil  of  ngi', 
and  a  ;.'riindsoii,  a  minor,  made  his  will,  by 
wliicii  he  l>r<|ii('.itht'd  certain  personidty,  "to  be 
iMiually  divided  anu>n;;st  my  children,  and  ray 
^rand.son.  to  them  and  the  lawful  heirs  of  their 
body— if  either  of  my  children,  or  said  gnind- 
siiii,  shall  tlie  undiT  age,  or  without  leaving 
liviiij;  issue,  his  or  her  part  <<f  my  properly  is 
to  return  to  my  survivin;:  heirs":— //»/</,  tii.it  or 
must  bo  construed  and;  that  the  contin^en<-y 
provided  for  was,  the  death  of  the  lirst  taker 
"under  age,  and  without  leaving  living  issue;" 
that,  therefore,  each  of  the  children  took  au  ab- 


(g=^For  other  cases  see  suiut  topic  auU  IvEY-NUiiUliU  ia  all  Key-NumbereU  Digests  and  Indexes 


109 


*426 


5  RICHARDSON'S  EQUITY  REPORTS 


solute  and  indefeasible  estate  in  his  or  her 
share. 

[Ed.  Note. — Cited  in  Shands  v.  Rogers,  7 
Rich.  Eq.  428. 

For  other  cases,  see  Wills.  Cent.  Dig.  §§ 
900,  1166;    Dec.  Dig.  <S=3417,  542.1 

Before  Dargan,  Ch.,  at  Willianislnirg,  Feb- 
ruary, 1853. 

Dargan,  Ch.  The  will  of  William  Taylor 
*427 
bears  date  the  *4tb  March,  1821.  He  died 
in  1822,  leaving  the  said  will  unrevoked.  He 
left  surviving  him  his  wife,  Mary  Taylor, 
one  son,  iSamuel  P.  Taylor,  three  daughters, 
Mary  Nelson  Taylor,  Susannah  Elizabeth 
Taylor,  Maria  Bouneau  Taylor,  w'ho  after- 
wards intermarried  with  Thomas  China,  and 
a  grandson,  George  W.  White,  the  only  child 
of  a  daughter  of  the  testator,  who  had  died 
before  the  execution  of  the  will. 

The  testator  bequeathed  to  each  of  his 
children,  and  to  his  grandson,  one  negro.  He 
had,  in  a  previous  clause,  directed  certain 
property  to  be  sold  for  the  payment  of  his 
debts.  Plavlng  made  these  dispositions,  he 
then  declared  as  follows: 

"The  rest  and  residue  of  my  personal  prop- 
erty is  to  remain  on  my  plantation,  for  the 
support  and  maintenance  of  my  wife,  Mary 
Taylor,  and  daughters  who  may  remain  un- 
married at  my  death,  during  the  life  time  of 
my  wife,  Mary  Taylor;  and  at  her  death, 
the  whole  of  my  personal  property,  not  al- 
ready be(iueathed,  to  be  equally  divided 
amongst  my  children,  and  my  grandson, 
Oeorge  W.  White,  share  and  share  alike,  to 
them  and  the  lawful  heirs  of  their  body ; 
l-ut  if  one  or  more  of  my  children  or  grand- 
son shall  die  before  that  time,  leaving  issue, 
tJiat  issue  is  to  have  that  which  the  parent 
would  have  been  entitled  to  if  living." 

"It  is  my  will  and  desire,  that  if  either  of 
my  children,  or  said  grandson,  shall  die  un- 
der age,  or  without  leaving  living  issue,  his 
or  her  part  of  my  property  is  to  return  to  my 
survi\'ing  heirs.  It  is  my  will  and  desire 
also,  that  my  plantation  and  lands  shall 
remain  for  the  use  and  benefit  of  my  daugh- 
ters, as  long  as  any  of  them  shall  remain  un- 
married, and  at  the  death  or  marriage  of  all 
my  daughters  that  are  single,  then  said 
lands  to  be  sold  at  public  auction,  on  a  credit 
of  twelve  months,  by  the  executor,  and  the 
money  arising  from  such  sale  to  be  equally 
divided  among,  my  lawful  heirs,  share  and 
share  alike."' 

Samuel  P.  Taylor  died  in  the  life  time  of 
his  mother,  the  testator's  widow,  without  is- 
sue and  unmarried.  On  her  death,  the  tes- 
tator's personal  property,  disposed  of  in  the 

*428 
residuary    *clause,    was    divided    among   the 
testator's  children,  and  his  grandson,  accord- 
ing to  the  directions  of  the  A\'ill. 

Maria  Bomieau  Taylor,  who,  after  the  tes- 
tator's death,  intermarried  with  Thomas 
China,  died  iu  April  or  May,  1852,  leaving 

170 


her  husband,  the  said  Thomas  China,  and 
ten  children,  namely:  William  A.  China, 
Thomas  J.  China,  Louisa  S.  China,  Mary  T. 
China,  Harriet  A.,  the  wife  of  David  M.  Ma- 
son, Magdaline,  the  wife  of  I'eter  R.  KeaLs, 
Frances  H.  China,  Samuel  M.  China,  Lenora 
M.  China,  and  John  R.  Ciiina,  surviving  her. 

Mary  Nelson  Taylor  died  in  August,  1852, 
aged  sixty  years  or  upwards,  without  issue, 
without  ever  having  been  married,  and  in- 
testate. 

The  children  of  Maria  B.  China,  abo^c 
named,  and  the  husbands  of  her  married 
daughters,  have  filed  this  bill  for  a  partition 
of  the  estate,  of  which  Mary  Nelson  Taylor 
died  possessed.  They  have  made  Susannah 
E.  Taylor,  George  W.  White,  and  Thomas 
China,  (their  father.)  defendants  in  the 
cause.  The  plaintiffs  allege,  that  all  the  ne- 
gro property  of  which  Mary  Nelson  Taylor 
died  possessed,  are  the  same  negroes,  or  the 
issue  thereof,  which  she  derived  from  the 
will  of  her  father,  the  said  William  Taylor ; 
and  this  fact  is  not  disputed.  The  plaintiffs 
further  allege,  that  Mary  Nelson  Taylor  took, 
by  the  will  of  her  father,  an  estate  in  these 
negroes,  defeasible  upon  a  condition  that  has 
ha])peued :  that  they,  as  remaindermen,  are 
now  entitled  to  a  share  in  said  negroes ;  and 
they  claim  that  the  division  should  be  per 
capita.  Failing  in  this  proposition,  they 
claim  a  division  per  stirpes ;  and  failing  iu 
this,  they  claim  as  the  distributees  of  the 
said  Mary  Nehson  Taylor.  They  also  ask 
for  an  account. 

The  defendants,  Susannah  E.  Taylor  and 
George  W.  White,  in  rheir  answer  say,  that 
Thomas  China,  the  father  of  the  plaintiffs, 
has  been  improperly  made  a  party,  and  that 
he  has  no  pait  or  lot  in  the  matter.  They 
further  say,  that  they,  as  '"the  surviving 
heirs"  of  the  said  William  Taylor,  are  en- 
titled to  the  whole  of  the  property  of  which 
Mary  Nelson  Taylor  died  possessed,  and 
which  she  derived  under  her  father's  will ; 
and  if  not  so  entitled,  that,  under  the  limita- 

*429 
tious  of  tlie  will,  or  as  the  *distributees  of 
Mary  Nelson  Taylor,  they  are  entitled  to  a 
division  of  the  property  per  stirpes,  and  not 
per  capita.    These  are  the  issues  of  the  cause. 

The  construction  of  this  will  is  not  free 
from  difficulty.  The  condition,  upon  which 
the  estate  given  by  the  testator  to  his  chil- 
dren and  grandson,  was  to  go  over,  or  as  he 
has  expressed  it,  was  to  return  to  his  sur- 
viving heirs,  was  their  dying  under  age  or 
without  leaving  living  issue.  If  the  will  is  to 
be  construed  by  its  own  terms,  without  ref- 
erence to  collateral  and  extraneous  facts,  the 
interpretation  would  be  easy,  both  upon  prin- 
ciple and  authority.  To  give  to  the  language 
employed  in  this  clause  its  literal  import,  the 
testator  would  be  made  to  express  two  inde- 
pendent conditions,  upon  the  happening  of 
either  of  which,  the  estate  was  to  pass  away 
from  the  first  object  of  his  bounty.     Upon 


CHINA  V.  WHITE 


*432 


this  construction,  If  the  le«iitt*e  dlftl,  either 
under  aae  or  without  leaviii;:;  issue,  tlie  es- 
tate would  be  defeated.  Althou^jh  tlie  legatee 
niiglit  die  under  a^f,  but  leaving  issue,  tlie 
issue  c-ould  take  nothing;.  To  avnld  iniputln^ 
to  the  testator  so  unreasonable.  an<l,  in  many 
instances,  so  unnatural  an  intention,  as  to 
design  that  the  iiroperty  should  i»ass  away 
from  the  issue  of  the  tirst  »»bject  of  his  boun- 
ty, to  collateral  or  distant  kindred,  or  io 
persons  of  no  kindred  blood,  the  Court  pre- 
sumes that  the  testator  has  usetl  the  eon- 
junction  in  a  lottse  and  un^'rannnat hal  .sense, 
by  no  means  uncctmnion  in  careless  and  In- 
artistic composition.  I'pon  this  Kronnd,  In 
cast's  like  the  iiresent,  the  Court  has  i>resum- 
cd.  that  the  testator  has  iinnvurately  used  the 
disjunctive  for  the  coi>nlative  conjunction, 
and  for  tlie  purpose  of  carrying;  into  effect  his 
intention,  "or"  has  been  construed  into  "and." 
More  particularly  should  this  rule  of  con- 
struction apply  in  a  case  like  the  present, 
where  the  testator  had.  in  a  previous  clause, 
fjiveii  the  property  to  his  children  and  the 
lawful  heirs  of  their  body.  The  doctrine  is 
fully  recofinized  in  the  case  of  Scanlan  v. 
I'orter,  1  Bail.  4'2~.  It  is  the  lirst  reptn-ted 
case  of  the  kind  in  Sontli-CaroHna.  It  has 
been  freipieiitly  followed  since.  The  jtriii- 
ciple  is  supported  by  the  most  unanswerable 
reasoniiii:.  aiul  by  the  lii;,'liest  authority.     See 

*430 
Burhans    *v.    Pdanshan,   6   Johns.   54,   where 
Chancellor  Kent  has  };iven  a  masterly  analy- 
sis of  the  doctrine,  and  the  authorities  in  suih 
port  of  it. 

But  the  (li(li(  ulty  which  has  been  suKgested 
in  this  ca.se,  arises  uiton  a  matter  out.side  of 
the  will.  Mary  Nelson  Taylor  was  thirty 
years  of  aj;e  at  the  date  of  her  fatlu'r's  will. 
Each  of  his  other  children  had.  before  that 
time,  attained  their  majority:  and.  of  all  liis 
legatees,  his  grandson,  George  W.  White, 
alone,  was  under  the  age  of  twenty-one 
years.  It  is  urged,  that  the  testator  must  be 
Itresumed  to  know  the  ages  of  his  <-hildren. 
I  think  this  a  reasonabh"  presuniption  in 
most  instances,  particularly  in  this  case, 
wliere  the  testator's  children  had  advanced 
a  considerable  period  beyond  their  minority, 
rpoii  this  i)resumptlon.  it  is  further  contend- 
ed, that  the  doctrine  of  Scanlan  v.  I'orter, 
though  it  applies  to  the  legacy  in  favor  of 
(Jeorge  W.  White,  cannot  apply  to  tlio.se  in 
favor  of  Mary  Nelson  Taylor,  and  the  tes- 
tator's other  chililren.  who.  at  the  execution 
of  the  will,  had  already  attained  the  age  of 
twenty-one  years,  l-'or  if  this  doctrine  is  to 
prevail,  (the  argument  is.)  then,  at  the  very 
execution  of  the  will,  the  limitation  was  in- 
elTectnal.  because,  at  that  period,  it  had  al- 
ready ceased  to  be  possible  that  the  testa- 
tor's children  could  die  under  age  and  with- 
out leaving  issue.  This,  as  to  them,  it  is  said, 
is  putting  the  limitation  obviously  intended 
by  the  testator  upon  an  imitossible  condition, 
which  is  unreasonable.     Why  did  he  attempt 


to  create  a  limitation  which  was  tlearly  a 
failure  from  the  beginning'/  This  is  the  argu- 
ment in  favor  of  the  plaintiffs.  The  argu- 
ment founded  upon  the  redact  io  ad  alsurduin, 
may  l>**  retorted  by  the  defendants  with  .some 
d»'gree  of  force.  If  the  testator  did  remember 
the  ages  of  his  children,  and  intende«l  the 
tUsjuiictivi-  construction  contemled  for  by 
the  plaintiffs,  why  did  he  make  the  limitation 
to  depend  upon  two  separate  (unditions,  one 
of  which  was  lm|Kissible  at  the  execution  of 
the  will'/  This  construction  would  strike 
out  the  whole  of  the  lirst  conditittn.  ithe 
death  of  the  children  under  age.i  as  a  nullity. 
There  ciuild   be   no   meaning  in   iliosi-  words. 

•431 
They  would  be  'utterly  void  «if  sense,  and 
as  if  they  dbl  not  occur  in  the  will.  Is  not 
tills  dilliciilty.  which  Is  op|Mi.se«l  to  the  Inter- 
in-etation  of  the  plaintiffs,  as  great  as  that 
wlihh  they  urge  against  the  construction  of 
the  op|>osit«>  jtarty'/ 

Again:  it  is  atlmltted  that  the  doctrine  of 
Scanlan  v.  Porter  would  apply  to  the  ea.se  of 
(leorge  W.  White:  that,  as  to  his  legacy,  "or" 
woulil  be  construed  "and:"  and  the  limita- 
tion over  would  uot  take  effiH.'t  unless  he  died, 
both  under  age  and  without  leaving  i.ssue. 
Hence  would  arise  the  incongruity  anil  aln 
surdity  of  deducing  two  different  meanings 
for  the  testat«)r.  from  the  same  language  and 
from  the  same  sentence.  It  can  hardly  be 
that  he  intend»'d  to  give  (Jeorge  W.  White  ail 
estate  different  from  that  which  he  gave  to 
his  children. 

An  «'minent  llnglish  commentator,  (Jarm. 
on  Wills,  1  vol.  44(i. I  in  his  remarks  <ai  this 
subject,  uses  the  following  language:  "It  is 
obvious  that  the  ground  for  changing  or  into 
and  exists  a  ftu-tiori,  where  children  or 
i.ssu«'  are  the  express  tibjects  of  the  testator's 
bounty." 

At  the  same  page,  he  furthei  says:  "It 
would  .seem  that  the  iirinclple  in  <jue.stlon 
would  api»ly  in  every  ca.se,  where  the  gift 
over  is  to  arise  in  the  event  of  the  preceding 
devisee  or  legatee  dying  uiuler  certain  pre- 
scribed circumstances,  or  leaving  an  object 
who  would,  or,  at  least,  might,  take  a  LM'ue- 
lit  derivatively,  through  the  devls«H>  or  lega- 
ti'c.  If  his  interest  renialne«l  undlvested;  and 
to  whom,  therefore.  It  Is  probable  that  the 
testator  inti'iided  indirectly  a  benetlt,  not  de- 
pendent ujion  the  devisee  «ir  legatee  dying  un- 
der the  prescrllu'd  circumstances  or  not.  In 
this  point  of  vh'W,  It  would  seem  to  be  im- 
material whether  the  dying  Is  contlntnl  to 
minority,  or  Is  assiulatiMl  with  any  other  i-on- 
tingeiicy:  as  in  the  ca.se  of  a  gift  to  A.,  and 
If  he  shall  die  In  the  life  time  of  B..  or  with- 
out Issue,  then  over;  or  whether  the  event 
Is  leaving  Issue,  or  leaving  any  other  objiH-t 
who  would  derive  a  ben«'llt  through  the  lega- 
tee. If  his  or  her  Interest  was  held  absolute." 

Ipon  the  whole,  though  not   without  some 
♦432 
mlsjjlviugs,    I   am    *of  the   oiilnloii   that   the 

171 


*432 


5  RICHARDSON'S  EQUITY  REPORTS 


copulative  construction  sliould  prevail ;  and 
it  is  so  ordered  and  decreed. 

This  construction  makes  tlie  property  in 
question  tlie  absolute  estate  of  Mary  Nelson 
Taylor,  in  regard  to  wliich  she  died  intestate, 
and  which  must  be  divided  according  to  tlie 
provisions  of  the  statute  of  distributions: 
one-third  part  thereof  to  the  plaintiffs,  one- 
third  part  to  Susannah  E.  Taylor,  and  one- 
third  part  to  George  W.  White.  It  is  so 
ordered  and  decreed. 

It  is  further  ordered,  that  a  writ  of  parti- 
tion do  issue,  at  the  instance  of  either  of 
said  parties. 

It  is  further  ordered,  that  the  accounts  of 
the  administrator  of  Mary  Nelson  Taylor  be 
referred  to  the  Commissioner. 

It  is  further  ordered,  that  the  question  as 
to  the  sale  or  gift  of  the  negroes,  A'eptune 
and  ijavicy,  be  reserved,  and  that  the  Com- 
missioner report  thereon. 

The  complainants  appealed,  on  the  ground.s: 

1.  That  the  limitation  over,  in  the  will  of 
William  Taylor,  to  liis  surviving  heirs,  took 
effect  on  the  death  of  Mary  N.  Taylor,  with- 
out leaving  issue ;  and  that  she  conse<iuently 
did  not  take  an  absolute  estate  in  the  prop- 
erty sought  to  be  partitioned  in  the  bill  of 
the  complainants. 

2.  That  the  decree  was,  in  otlier  respects, 
contrary  to  law  and  evidence. 

The  defendants  appealed,  on  the  grounds: 

1.  Because,  under  a  proper  construction  of 
the  will,  the  defendants,  George  W.  White 
and  Susannah  E.  Taylor,  are  entitled  to  the 
slaves  held  by  Mary  N.  Taylor,  as  the  surviv- 
ing heirs  of  the  testator. 

2.  Because,  conceding  that  :Mary  N.  Taylor 
took  an  absolute  estate  in  the  property,  the 
partition  ordered  is  premature,  as  she  has 
not  been  dead  twelve  months,  and  there  has 
been  no  administration  on  her  estate. 

Miller,  for  plaintiffs. 

Dargan  and  Porter,  for  defendants. 

*433 

*The  opinion  of  the  Court  was  delivered  by 

DARGAN.  Ch.  In  announcing  the  judg- 
ment of  the  Court,  in  this  case,  I  deem  it 
necessary  to  add  but  little  to  what  has  been 
tvid  in  the  Circuit  decree. 

The  diffidence  and  doubt  with  which  I  ar- 
rived at  and  expressed  my  conclusion,  upon 
the  Circuit,  have  been  greatly  diminished,  Iiy 
finding  my  opinion  supported  by  the  judg- 
ment of  the  Court  of  Errors,  in  Waller  v. 
Ward,  2  Sp.  786,  which  was  not  brought  to 
my  notice,  or  considered  by  me.  upon  the  Cir- 
cuit trial.  In  the  case  cited,  the  testator, 
William  Waller,  bequeathed  legacies  to  his 
children ;  and  among  others,  he  bequeathed 
to  his  son,  Samuel  Waller,  the  use  of  certain 
negroes ;  to  him  and  the  lawful  issue  of  his 
body  forever.  In  a  subsequent  clause,  the 
testator  declared,  "if  any  of  his  children  be- 
fore named  should  die  under  age,  or  without 


leaving  lawful  issue  of  their  body,  that  the 
legacy  liecpieathed  unto  them,  and  the  proper- 
ty given  to  them,  be  equally  divided  among 
his  surviving  children,"  &c.  The  limitations 
of  this  will,  it  will  be  perceived,  are  very  sim- 
ilar, in  all  respects,  to  the  limitations  under 
the  will  of  Williain  Tayor.  There  is  another 
strong  feature  in  the  resemblance.  The  ques- 
tion was  as  to  the  limitation  of  the  negroes 
given  to  the  testator's  son,  Samuel  Waller. 
And  he  was  over  the  age  of  twenty-one  years, 
at  tlie  execution  of  the  will.  This  fact  ap- 
pears obscurely  upon  the  report  of  the  evi- 
dence, but  is  said  to  have  been  earnestly 
pressed  in  the  argument,  and  was  assumed  by 
the  Court  of  Errors,  in  the  argument  accom- 
panying the  judgment.  The  case  was  reason- 
ed by  the  Court,  upon  the  supposition  that 
the  fact  existed.  In  the  construction  of  Wil- 
liam Waller's  will,  "or"  was  construed  "and," 
and  the  fact  that  Samuel  Waller,  the  first 
taker,  was  of  age  at  the  execution  of  the  will, 
was  considered  not  to  vary  the  interpretation. 
The  two  cases,  as  to  this  point,  could  scarcely 
have  been  more  similar.  Tlie  decision  is  not 
without  .strong  support  from  the  case  of 
Usher  v.  Jessep,  12  East,  2<SS. 

I    am    satisfied    with    the    Circuit   decree. 
Subseipient  reflection  has  rather  strengthened 
my   opinion,   therein   expressed. 
*434 

*This  Court  concurs  in  the  conclusions  of 
the  Circuit  decree. 

It  is  ordered  and  decreed,  that  the  said  de- 
cree be  affirmed,  and  the  appeal  be  dismissed. 

JOHNSTON,    DUNKIN    and   WARDLAW, 
CO.,  concurred. 
Decree  affirmed. 


5   Rich,  tq,  434 
E.  L.  DAVIS  and  Otlu-s  v.  DAVID  KELLER 

and  Other.s. 
(Columbia.      May    Term,    ISoo.) 

[Estoppel  (2=33.37.] 

Husband'-s  interest  in  wife's  inheritance  was 
sold  by  the  sheriff.  I'nrcliaser,  husband  and 
wife,  then  joined  in  eouveyins  the  land,  with 
warranty,  to  trustees,  in  trust  (1)  to  sell  the 
land,  (2)  to  pay  purchaser  his  bid,  with  interest, 
and  (3)  to  hold  surplus  for  sole  and  separate 
use  of  wife.  •  Wife  died  before  renouncing  her 
inheritance.  There  was  no  sale  by  the  trustees, 
and  husband's  interest  was  again  levied  on  and 
sold  by  the  sheriff: — Held,  that  the  conveyance 
to  the  trustees  passed,  by  way  of  estoppel,  the 
husband's  interest  as  heir  of  the  wife,  for  the 
purpose  for  which  the  deed  was  made ;  but  not 
the  shares  of  other  heirs,  her  children,  two  of 
whom  were  the  trustees. 

[Ed.    Note. — For    other    cases,    see    Estoppel, 
Cent.  Dig.  §  93;    Dec.  Dig.  (®=:337.] 

\Evidence  <©=:3419.] 

Held,  also,  that  it  was  competent  for  the 
trustees  to  show,  by  parol,  other  considerations, 
as  that  they  were  to  reimburse  themselves  for 
certain  expenses  of  husband  and  wife  before  the 
trust  deed  was  executed. 

[Ed.    Note. — For    other    cases,    see    Evidence, 
Cent.  Dig.  Ji  1912 ;    Dec.  Dig.  <©=>419.] 


172 


«S=»For  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-NumBered  Digests  and  Indexes 


DAVIS  V.  KELLER 


•436 


[Edcciitors   and   Admin'isitaiors   C=Jl211i.] 

Held,  further,  that  tho  second  purchaser  at 
sheriff's  sah'  was  entitled  to  no  nioi'e  than  the 
surplus  of  husband's  distributive  share,  (one- 
third. t  alter  :ill  incumbrances  under  the  trust 
deed    were  satisfied   out  of  that  share. 

[Kd.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  S  TU2;  Dec. 
Disr.  <g=>l.'llM 

Ht'forc  Duiikin.  C'li..  at  Abiieville,  June, 
is.ji'. 

Diuikiii.  Ch.  It  is  admitted  that  Christiana 
Ilaniiltoii.  the  mother  of  tlie  comphiiuants, 
and  of  some  of  the  defeiKhmts,  l)ecame.  while 
a  widow,  the  proprietor  in  fee  of  the  premises 
described  in  the  pleadinj;s.  She  afterwards 
niarried  Joseph  A.  Hamilton.  In  the  early 
part  of  1S49.  the  jiremises  were  levied  on  hy 
the  sheriff  of  Abbeville  district,   under  exe- 

*435 
tnitions  afiainst  *Hamiltou.  and  scdd  to  Na- 
thaniel J.  Davis,  at  public  outciy.  for  the 
sum  of  two  hundred  and  thirty-three  dollars. 
On  5th  February,  1S40,  the  sheriff  executed 
;i  conveyance  of  the  premises,  tojiether  with 
the  appurtenances,  "and  all  and  siiifiular  the 
estate.  rij;ht.  title,  interest,  proiterty.  claim  or 
demand,  which  the  said  Joseph  A.  Hamilton, 
at  the  time  of  the  sale  of  the  said  house  and 
lot.  had  in  the  same."  According  to  the 
proof,  the  house  and  lot  were  then  worth  fif- 
teen hundred  dollars;  and  it  was  announced 
at  the  biddings,  that  the  sheriff  sold  only 
■•Hamilton's  interest  in  right  of  his  wife."  It 
appears,  also,  that  neither  Hamilton  nor  his 
family  were  living  on  the  itremises  during 
the  year  1S40. 

On  the  lOth  November.  lS4f>.  a  conveyance 
of  the  entire  premises  was  executed  hy  Na- 
thaniel J.  Davis.  .Joseph  A.  Hamilton,  and 
his  wife.  Christiana  Hamilton,  to  the  com- 
plainants, in  trust  for  the  inirpo.ses  tlieroin 
declared.  The  rights  of  Nathaniel  J.  Davis 
are  recited,  and.  on  his  part,  the  deed  pur- 
ports to  warrant  the  premises  only  during  the 
joint  lives  of  Hamilton  and  wife.  On  the 
part  of  Hamilton  and  wife,  there  is  a  general 
covenant  of  warranty  in  fe(\  The  trusts  are, 
that  the  grantees  should  make  sale  of  the 
premises,  and  from  the  proceeds  i»ay.  in  (lie 
first  place,  to  Nathaniel  J.  Davis,  the  amount 
of  Ills  bid  at  sheriff's  sale,  with  interest 
thereon,  and  hold  the  surplus  to  the  sole  and 
separate  use  of  Christiana  Hamilton,  not  sub- 
ject to  the  debts,  contracts,  control  or  en- 
gagements of  her  husband ;  and  "to  effect 
and  carry  out  such  end,  the  .said  Jo.seph  A. 
Hamilton."  should  he  have  "any  interest  in 
said  proceeds  of  sale,  thereby  a.ssignetl,  tran.s- 
f erred,  and  set  over  the  same"  to  the  com- 
plainants.!/; i 


(n)  The  following  is  a  copy  of  the  c!ause.s  of 
the   deed    in   which   the  trusts  are  declared: 

"It  is  nnderst"  oil  that  the  said  10.  Lewis  Davis 
and  .loscjih  \.  Davis  will,  as  soon  ;is  conxcnient. 
make  a  salr  <  f  the  house  and  lot  aiove  (|e-!(  i  ih- 
ed  :  and  a  valid  and  absolute  t'tle.  in  fee  simple, 
to  the  purehaser.  who  is  not  hound  in  any  way 
to  '^ee  to  the  ,ii)iilication  of  the  i)urchase  nmney. 


*436 
*It  seems  from  the  evidence,  that  Hamil- 
ton was  sold  out  early  in  1849,  and  that  he, 
with  liis  family,  removed  to  a  rented  place. 
The  complainants  were  not  inmates  of  lii.s 
family,  but  they  furnished  the  family  witli 
two  negryes.  and  purchased  a  hor.se.  to  work 
in  tlie  crop,  and  made  other  advances.  Tlie 
witness.  N.  J.  Davis,  says  that  the  deed  of 
Novend)er,  1849,  was  made  with  a  view  to 
cover  the  expen.ses  of  living  of  1849,  incur- 
red by  complainants,  for  Hannltou  and  wife; 
tliat  the  negro  hire  was  part  of  the  expenses; 
that  "when  the  deed  was  executed,  tlie  ac- 
counts for  lilre.  «&c..  were  spoken  of.  and  es- 
timated, in  making  the  deed.  Witness  did 
not  know  exactly  the  amount  of  complain- 
ants' accounts  for  rent  of  land,  hire  of  ne- 
groes, horse,  furnishing  provisions.  &c.,  but 
lie  thinks  they  were  reimbursed,  for  their 
outlay  for  Hamilton  and  family,  except  as  to 
the  horse  and  as  to  the  negro  hire."  It  ap- 
pears to  the  Court,  competent  to  show  by 
parol  evidence,  as  in  lianks  v.  Brown.  (2 
Hill,  Ch.  rid.-)  [30  Am.  Dec.  380],)  additional 
considerations  liesides  that  set  forth  in  the 
deed.  But  the  complainants  specially  under- 
took to  reimburse  N.  J.  Davis  for  the  sum 
paid  by  him  at  sheriffs  sale,  in  February  pre- 
vious.   A  note  of  one  of  the  complainants  was 


below  direited.  but  only  to  pay  the  same  to  E. 
Lewis  Davis  and  Josei)h  A.  Davis,  or  their 
heirs  or  assigns ;  from  the  i)roceeds  of  this  sale, 
the  said  E.  Lewis  Davis  and  Ji>sei)h  A.  Davis 
shall  pay  to  the  said  N.  J.  Davis  the  amount 
<if  his  bid  at  the  purchase  at  sheriff's  sale,  as 
aforesaid,  and  his  lawful  interest  on  such  hid, 
until  his  money  has  been  paid  to  him.  All  the 
residue  of  the  proceeds  of  such  sale  the  said  E. 
Lewis   Davis   and   Joseijh   A.   Davis   shall   keep 

*436 
in  their  hands,  not  to  be  paid  to  the  said  *Jos- 
ei)h  A.  Hamilton;  nor  in  any  way  subject  to 
his  disposition  or  control,  nor  in  any  way  liable 
for  his  debts,  nor  shall  pass  by  any  assignment 
of  him.  the  said  Joseph  A.  Hamilton:  and  in 
no  manner,  in  Law  or  Equity,  the  said  money 
shall  be  liable  for  said  Joseph  A.  Hamilton's 
debts,  contracts  or  obligations,  nor  sul)ject  to 
his  control,  nor  assignment.  And  to  effect  and 
carry  out  such  end.  the  said  .loseph  A.  Hamil- 
ton, should  he  have  any  interest  in  said  pro- 
ceeds of  sale,  hereby  assigns,  transfers  and  sets 
them  over  to  the  said  E.  Lewis  Davis  and  Jos- 
eph A.   Davis. 

"The  said  E.  Lewis  Davis  and  Jo.seph  A. 
Davis  are  to  hold  in  trust  the  said  i)roceeds  of 
sale  of  said  house  and  lot.  for  the  sole  and  s&[)- 
arate  use  and  behalf  of  said  Christiana,  the 
wife  of  said  Joseph  A.  Hamilton,  subject  to 
her  separate  control  and  disiiosition.  and  her's 
only.  To  be  paid  for  her,  and  to  her,  in  such 
sums  and  amounts,  principal  and  interest,  as 
she  may  designate  and  <lesire.  by  the  said  trus- 
tees, and  her  separate  dischai-ge.  a<Mpiittance  or 
receipt,  shall  be  a  sullicient  vou<'lier  to  the  said 
trustees,  1].  Lewis  Davis  and  .Joseph  A.  Davis. 
The  whole  sum  to  l)e  subject  to  her  absolute, 
seiiarate  and  alone  control,  as  she  may  direct 
the  said  trustees  to  apply  it.  Oidy  the  legal  in- 
terest shall  rem.iin  in  tlu'  said  trustees  forever, 
whilst  any  of  the  said  proceeds  remain  unex- 
pended, in  order  that  the  marital  rights  of  the 
.said  Jo.seph  A.  Hamilton  may  not  attach  upon 
the  same." 


^z^For  other  cases  see  same  topic  auU  KKY-NUMBER  iu  all  Key-Numbered  Digests  and  Indexes 


173 


*436 


6  RICHARDSON'S  EQUITY  REPORTS 


accordingly  given  to  him,  when  the  deed  was 
executed,  for  the  sum  of  two  hundred  and 
fifty-nine  dollars,  with  interest ;  which  note 
has  been  fully  paid  to  him  hy  the  complain- 
ants. As  has  been  said,  both  N.  J.  Davis 
and  Joseph  A.  Hamilton,  and  his  wife,  joined 
in  the  deed  to  the  complainants  of  10th  No- 

*437 
vember,  1840.  Six  *  weeks  afterwards,  to  wit. 
30th  December.  1840.  Christiana  Hamilton 
departed  this  life,  and  the  complainants  had 
made  no  sale  of  the  premises.  In  January. 
1850,  the  sheriff  again  levied  on  the  premises, 
under  an  execution  against  Josei»h  A.  Ham- 
ilton, whose  interest  was  purchased  liy  the 
defendant,  David  Keller,  (with  notice  of  the 
deed  of  November,  1840.)  for  the  sum  of  one 
hundred   dollars. 

The  deed  of  November.  1840,  was  supported 
by  a  valual)le  consideration  :  and  Joseph  A. 
Hamilton,  or  any  one  claiming  under  him.  is 
estopped  from  disputing  its  validity  for  the 
purposes  therein  set  forth.  But  the  ulterior 
trusts  of  the  deed  ceased  with  the  life  of 
Mrs.  Hamilton.  No  provision  is  made  for 
the  appropriation  of  the  fund  after  her  death. 
If  she  had  executed  a  formal  release  of  her 
inheritance  on  the  deed  of  November.  1840, 
and  the  complainants,  having  sold  the  prem- 
ises for  two  thousand  dollars,  and  reimburs- 
ed themselves,  had  held  fifteen  hundred  dol- 
lars for  her  sole  and  separate  use,  and  she 
had  then  died,  her  husband  would  be  entitled 
to  his  distributive  share  of  what  was  left. 
His  deed  only  estops  him  to  the  extent  of 
the  purposes  therein  declared.  But  those 
purposes  were,  to  reimburse  the  complain- 
ants, and  then  secure  the  fund  to  his  wife 
during  her  life.  Mrs.  Hamilton,  however, 
never  parted  with  her  inheritance.  Joseph 
A.  Hamilton's  interest,  which  accrued  on  the 
death  of  his  wife,  was  affected  by  his  cove- 
nant in  the  deed  of  November,  1849.  (1  Inst. 
476.)  But  the  complainants  can  only  be  re- 
garded as  incumbrancers  to  the  extent  of 
their  claim ;  and,  subject  thereto,  the  in- 
terest of  Hamilton,  vested  in  the  defendant, 
Keller,  under  his  purchase  at  sheriffs  sales. 
(2  StoiT,  E(i.  §  790.) 

It  is  ordered  and  decreed,  that  the  house 
and  lot  be  sold  by  the  Commissioner,  at  such 
time  and  on  such  terms  as  the  parties  in- 
terested, or  their  solicitors,  may  agree  upon ; 
and  in  default  of  such  agreement,  as  the 
Court  may  fix  by  a  future  order;  that  from 
the  proceeds  of  sale  the  cost  of  these  pro- 
ceedings be  first  paid;  that  two-thirds  of 
the  residue  to  be  distributed  among  the  chil- 
dren of  Christiana  Hamilton,  deceased ;  that 

*438 
out  of  the  re*maining  third,  the  complainants 
lie  reimbursed  the  amount  paid  to  Nathaniel 
J.  Davis,  with  interest  thereon  ;  as  also  the 
value  of  the  services  of  the  two  slaves  for 
the  year  1840,  and  of  the  horse  furnished ; 
upon  which  several  amounts  the  Commis- 
.sioner  is  directed  to  report ;  that  the  surplus 

174 


of  the  said  third  be  paid  to  the  defendant, 
David   Keller. 

The  defendant,  David  Keller,  appealed,  on 
the  grounds: 

1.  Because,  at  the  first  sale  by  the  sheriff, 
N.  J.  Davis  purchased  the  right  to  the 
usufruct  during  the  joint  lives  of  Hamilton 
and  wife,  Avhich  he  enjoyed ;  and  he  is  not 
entitled  to  be  reimbursed  from  any  source. 

2.  Because  the  deed  of  10th  November, 
1849,  is  a  mere  nullity.  N.  J.  Davis  never 
executed  it.  Joseph  A.  Hamilton  had  no 
right  whleh  he  could  convey ;  all  his  interest, 
during  the  life  time  of  his  wife,  having  been 
previously  conveyed  by  the  sheriff  to  N.  J. 
Davis ;  and  Mrs.  Hamilton,  beijig  a  feme 
covert,  could  not  convey,  without  relinquish- 
ing her  inheritance. 

.3.  Because  tlie  distributive  share  of  J.  A. 
Hamilton  in  his  wife's  estate,  which  had  no 
existence  until  her  death,  is  improperly 
charged  with  the  purchase  of  N.  J.  Davis, 
and  the  expenses  of  the  family  of  Hamilton 
for  the  year  1840. 

4.  If  the  deed  of  November,  1840.  is  held  to 
be  good  as  against  Hamilton,  that  will  not 
authorize  the  incumbering  of  his  share  with 
what  N.  J.  Davis  paid  for  the  usufruct  dur- 
ing the  joint  lives  of  Hamilton  and  wife. 

5.  But  if  the  purchase  of  N.  J.  Davis  is  an 
incumbrance  upon  the  estate,  it  is  an  incum- 
brance upon  the  whole  estate,  and  not  a 
charge  exclusively  upon  the  share  of  Hamil- 
ton ;  and  whether  it  constitutes  a  charge  up- 
on the  whole,  or  upon  Hamilton's  share,  that 
incund)raiice  has  already  been  more  than  dis- 
charged by  rents  and  profits  received  exclu- 
sively by  the  complainants. 

6.  The  deed  re<iuired  the  complainants  to 
sell  the  lot.  and  from  the  proceeds  to  pay 
to  the  said  N.  J.  Davis  the  amount  of  his  bid,^ 
&c.     The   sale   has  not   been   made,  but  the 

*439 
rents  and    *profits.   since  the  death  of  Mrs. 
Hamilton,    will    more    than    pay    Davis    the 
amount  of  his  bid  at  the  first  sale. 

7.  Because,  at  the  time  of  the  execution  of 
the  said  supposed  deed,  Hamilton  was  large- 
ly indebted,  by  judgments,  to  defendant, 
Keller,  and  others ;  and  any  attempted  con- 
veyance by  him  of  any  interest  he  had,  or 
might  have,  in  the  premises,  would  be  fraud- 
ulent, and  void  as  to  creditors. 

8.  If  the  share  of  J.  A.  Hamilton  is  affect- 
ed by  his  covenant  in  the  deed,  it  can  only 
be  so  to  the  extent  of  the  consideration  re- 
ceived by  himself  and  family,  and  that  is 
limited  to  the  expenses  of  1849,  already  reim- 
bursed. If  his  share  is  to  be  burdened  witli 
the  bid  of  N.  J.  Davis,  complainants  should 
be  required  to  account  for  the  rents  and 
profits  of  the  premises,  of  which  they  have 
been  in   possession. 

The  plaintiffs  also  appealed: 

Because  the  deed  of  10th  November,  1849, 
founded  on  a  good  consideration,  was  a  valid 
conveyance   of  the  possibility   of  Joseph  A. 


WRIGHT  V.  HERRON 


#442 


Hamilton  to  complainants,  and  an  estoppel  to 
Jim,  and  all  claiming  under  him,  or  was  an 
^ssiiiiunent  of  all  bis  possible  interest  to  eom- 
l)lainants. 

Wilson.  Mefiowan,   for  defendant. 
Thomson,   eontra. 

The  <)]iiinoii  of  the  Court  was  delivered  by 

DUNKIN.  Ch.  The  deed  of  November, 
1S49.  though  void  as  to  Christiana  Hamilton, 
was  valid  as  to  her  liusband,  .T()sei)h  A.  Ham- 
ilton: and  so  it  was  ruli'd  in  Brown  v. 
.•>i)ann,  2  Mill,  12.  The  deed  purported  to 
o'/uve.v  the  entire  premises,  with  a  general 
warranty.  However  limited  the  interest  of 
llannlton  might  then  have  been,  or  if  he  had 
no  interest,  this  atfected  the  right  which 
he  subsequently  acquired  upon  the  death  of 
his  wife.  Such  is  the  doctrine  of  the  au- 
Ihority  cited  in  the  decree;  and  in  1  Atk. 
IMt.  it  is  said,  if  a  man  convey  land  which 

="=440 
is  not  *his.  and  he  afterwards  purchase  the 
land,  or  it  descend  to  him,  the  lease  shall 
enure  by  way  of  estoppel.  The  subject  is 
ehUiorately  discussed  by  the  Court  of  Ap- 
peals in  Equity,  in  the  case  of  the  adminis- 
trator of  Smith  V.  Buford,  INIs.  Col.  1822. 

The  deed  of  November,  1S4!),  was  sustained 
liy  valuable  consideration,  and.  if  the  grantee 
had  been  a  stranger,  it  would  seem  to  follow, 
that,  on  the  death  of  Mrs.  Hamilton,  the 
right  of  her  husband  was  in  his  grantee  un- 
(h>r  the  deed  of  November.  The  right  of  Mrs. 
Hamilton's  children  not  being  affected  by  the 
iU'Vil,  two-thirds  of  the  inheritance  vested 
ill  tlHMU.  and  they  became,  at  law.  tenants  in 
( ommon  with  the  grantees  under  the  deed  of 
November,  1849.  But,  for  the  reasons  stated 
in  the  decree,  the  title  in  this  Court  is  con- 
.  Idered  to  pass  to  the  grantees  only  for  cer- 
tain purposes,  and  when  those  purposes 
were  accomplished,  the  grantees  were  ac- 
countable for  the  residue  or  surplus.  It 
makes  no  difference  in  the  relative  rights  of 
the  parties,  that  the  grantees  in  the  deed 
w(^re  sons  of  Mrs.  Hamilton.  They  paid  a 
\;ilualile  consi(|(>ration,  and  occupy  the  posi- 
tion of  purchasers.  The  (luestion  of  most 
dnul)t  is,  whether  any  interest  passed  to  the 
defendant.  Keller,  under  the  purchase  from 
the  sheriff",  in  .January,  1S.jO.  The  principle 
is  thus  stated  by  Sir  James  Wigram.  in 
I'.ourne  v.  Bourne,  2  Hare.  iJS:  "If  the  trus- 
tee had  taken  tlie  property  with  absolute  di- 
rections to  sell  and  convert  it,  the  circum- 
stance, that  the  directions  had  not  been  car- 
ri(>d  into  effVct  at  the  deatli  of  the  testator, 
might  have  been  innuaterial,  and  it  might 
liave  been  treated  as  personalty.  I'.ut.  in  this 
case,  there  was  no  absolute  or  compulsory 
direction  for  the  sale  or  conversion  of  the 
estate ;  it  is  merely  an  authority,  in  a  certain 
event,  to  enter  into  possession  of  this  estate, 
and.  at  the  discretion  of  the  trustee,  to  sell 


it.  for  the  purpose  of  recovering  payment  of 
the  debt  for  the  mortgage."  So,  here,  the 
Circuit  Chancellor  thought  there  was  no 
such  clear  indication  that  the  land  should 
be  converted,  out  and  out.  as  to  prevent  it 
from  retaining  tlie  character  of  realty.  It 
is  not  very  clear.  But  Keller  is  also  a  judg- 
ment creditor  of  Hanulton ;  and,  besides, 
there  is  no  appeal  on   this  point.     It  is  not 

*441 
an  impnry  in  which  *the  complainants  have 
any  interest.  It  could  only  be  important  to 
Jo.seph  A.  Hanulton,  or  his  general  creditors. 
It  is  ordered  and  decreed,  that  the  appeal 
be  dismissed. 

JOHNSTON.    DARCAN   and   WARDLAW, 
CC,    concurred. 
Decree  aliirmed. 


5    Rich.  Eq.  44r 

JONATHAN    WKKHIT   and    Others  v.   WII^ 
LIAM  II.  HERRON  and  Others. 

(Columbia.      May   Term,    1853.) 

[Deeds  (©=>  120.1 

The  (Iced  conveyed,  with  warranty,  to  N.  H. 
"and  tlie  heirs  of  her  body,"  a  tract  of  land, 
"unto  the  said  N.  H..  and  the  heirs  of  her  body 
and  assigns  forever  ;"—//(■/(/,  that  N.  H.  took 
an  estate  in  fee  conditional. 

[Ed.  Note. — Cited  in  Withers  v.  Jenkins,  14 
S.  C.  COS,  012:  (iaffnev  v.  Peeler,  21  S.  C. 
OS,  09:  Miller  v.  Graham,  47  S.  C.  294,  290. 
2.5  S.  E.  105:  McMichaol  v.  .McMicliael.  51 
S.  C.  558..  29  S.  E.  403:  Crawford  v.  Masters, 
98  S.  C.  461,  82  S.  E.  794. 

For  other  cases,  see  Deeds,  Cent.  Disr.  §§ 
.3,561/2,  357,  420.  449;    Dec.  Dig.  <®==>120.] 

The  (luestion.  whether  the  husband  surviv- 
ing, is  entitled  to  hold  for  life  as  tenant  by  the 
curtesy,  where  the  wife  was  tenant  in  fee  con- 
ditional, referred  to  the  Court  of  Errors. 

[This  case  is  also  cited  in  Oaffney  v.  Peeler, 
21  S.  C.  07,  as  to  the  right  of  curtesy  in 
fee-simple  estates.] 

Before  Dargan,  Ch.,  at  Darlington,  Feb- 
ruary,  1853. 

Dargan,  Ch.  Newit  Delk,  by  a  deed  dated 
isth  June,  A.  D.  1830.  "for  and  in  considera- 
tion of  one  dollar  in  hand  paid,  as  also  for 
the  good  will  and  affection  which  he  bore 
towards  his  daughter,  Nancy  Ilerron ;  also 
for  the  better  maintenance,  support  and  liveli- 
hood of  the  said  Nancy  Ilerron  and  the  heirs 
of  her  body,"  conveyed  in  proper  words,  "to 
the  said  Nancy  Ilerron,  and  the  heirs  of  her 
body,"  the  laud  described  in  the  pleadings, 
"unto  the  .said  Nancy  Herron.  and  the  heirs 
of  her  body  and  assigns,  forever,  peaceably 
and  quietly  to  have  and  to  hold,  use  and  oc- 
cupy, possess  and  enjoy,  the  said  land  grant- 
ed and  contirmed,  against  all  other  gifts, 
grants,  bargains,  sales,  and  against  the  said 

*442 
Newit  Delk,   his  heirs  and  assigns,   *or  any 
other  person,   or  i>er.sons,   lawfully   claiming 
the  same,  or  any  part  thereof." 


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175 


*442 


5  RICHARDSON'S  EQUITY  REPORTS 


Nancy  Herron  was,  at  the  date  of  this 
deed,  the  wife  of  the  defendant,  W.  H.  Her- 
ron, and  had  at  that  time  live  children.  She 
departed  this  life  in  the  year  1S4S,  leaving 
her  husband  surviving  her ;  and  also  leaving 
eleven  children,  one  of  whom  (a  daughter) 
has  since  died,  leaving  one  child  of  tender 
years ;  some  of  the  other  heirs  of  lier  body 
are  infants,  and  all  of  her  lieirs,  including 
the  husband,  are  parties  to  the  cause,  either 
complainants  or  defendants. 

The  bill  is  filed  liy  Jonathan  Wright  and 
Eliza  Ms  wife,  (a  daughter  of  Nancy  Her- 
ron,) and  Darius  L.  Stuckey  and  Margaret 
his  wife,  (also  a  daughter  of  Nancy  Herron.) 
against  the  other  heirs  of  tlie  body  of  tlie 
said  Nancy  Herron,  and  her  surviving  lius- 
band,  the  said  William  H.  Herron.  The 
plaintiffs  claim  that  the  deed  of  Newit  Delk 
created  a  fee  conditional  in  Nancy  Herron. 
which,  on  her  death,  descended  to  the  heirs 
of  lier  body.  They  pray  for  a  partition  of 
the  land  among  the  heirs  of  the  body  of  the 
i-nid  Nancy  Herron ;  and  that  tlie  said  W.  H. 
Herron,  who  has  used  and  occupied  the 
premises  since  the  death  of  his  wife,  may  be 
decreed  to  account  for  tlie  rents  and  profits. 

William  H.  Herron,  in  his  answer,  admits 
all  the  material  allegations  of  the  plaintifCs' 
bill.  He  concurs  with  them  in  the  construc- 
tion of  the  deed,  which  makes  the  estate  a 
fee  conditional  in  Nancy  Herron.  He  ad- 
mits, that  on  her  death  it  descended  to  the 
heirs  of  her  body ;  subject,  nevertheless,  to 
a  life  estate  in  himself,  as  tenant  by  the 
curtesy.  He  therefore  contends  that  he  is 
entitled  to  enjoy  the  estate  during  bis  life, 
free  from  any  accounting  for  the  rents  and 
profits,  and  that  the  plaintiffs  are  not  en- 
titled to  any  present  partition. 

I  assume,  as  beyond  debate,  that  the  fee 
conditional  is  recognized  in  the  jurisprudence 
of  South-Carolina.  There  are  so  many  de- 
cisions to  this  effect,  that  to  deny  the  propo- 
sition would  manifest  the  most  daring  ir- 
reverence for  established  principles  and  in- 
stitutions.    I   assume   further,   that  a   grant 

*443 
or  devise  to  *one,  and  the  heirs  of  his  body, 
is  the  niost  pi-oper  and  apt  form  of  language 
to  create  such  an  estate.  What  was  a  fee 
conditional,  as  it  was  known  to  the  common 
law,  before  the  statute  de  donis  condition- 
alibus?  It  was  an  estate,  upon  the  condition 
that  the  first  taker  had  heirs  of  his  body, 
to  whom,  upon  his  death,  the  estate  was  to 
descend,  per  formam  doni,  from  generation 
to  generation,  until  the  line  of  the  donee  be- 
came extinct.  By  considering  it  an  estate 
upon  condition,  it  came  to  be  held,  that  when 
the  donee  had  issue  capable  of  inheriting  the 
estate,  he  had  performed  the  condition.  By 
this,  his  estate  became  enlarged,  so  as  to 
admit  of  its  being  alienated  in  his  life,  though 
it  could  not  be  the  subject  of  devise.  Upon 
the  failure  of  heirs  capable  of  inheriting  the 
estate,  it  reverted  to  the  donor.    It  admitted 

176 


of  restrictions,  which  confined  the  descent  of 
the  estate  to  issue  of  a  particular  class — as 
heirs  male  or  female.  As  an  estate  of  in- 
heritance, it  was  subject  to  dower  and  cur- 
tesy. These  are  the  principal  incidents  by 
which  this  estate  may  be  defined. 

The  statute  de  donis  destroyed  the  alien- 
able qualities  of  the  estate,  and  in  the  other 
respects  left  it  very  much  as  it  was  before. 
The  effect  of  this  legislation  converted  the 
possibility  of  reverter  to  the  donor  into  a 
reversion.  The  estate  tail  into  which  the  fee 
conditional  was  transmvted,  thenceforward 
became  in  England  a  particulfir  estate,  capa- 
ble <»f  sui>porting  a  remainder.  Where  no  re- 
mainder was  limited  upon  the  fee  tail,  on  its 
termination  by  natural  eflux,  or  in  any  other 
way,  there  was  a  reversion  to  the  donor. 
The  fee  tail,  though  a  less  estate  than  the 
fee  conditional,  was  subject  to  dower  and 
curtesy : 

"Tenant  by  the  curtesy  is  he.  who  after  his 
wife's  death,  (having  hnd  issue  by  her  in- 
heritable,) is  introduced  into  her  inheritance, 
and  has  an  estate  for  life  therein ;  and  he 
is  so  called  from  the  xuvor  or  curtesy  of  that 
law,  which  made  thJs  provision  for  him." 
Bac.  Abr.  Tit.  Curtesy.  The  estate  must  be 
descendible.  The  condition  seems  to  be,  that 
the  issue  of  such  husband  may  by  possibility 
inherit.     lb.  letter  C 

*444 

*  Before  the  statute  de  donis,  conditional 
fees  were  subject  to  curtesy ;  when  that  stat- 
ute converted  them  into  estates  tail,  hus- 
bands were  allowed  to  be  tenants  by  the  cur- 
tesy of  them  also.  1  Cruise,  Dig.  117 ;  8 
Rep.  70 ;  2  Inst.  336.  In  Paine's  case,  a  hus- 
band was  allowed  his  curtesy  in  an  estate 
tail,  after  the  po&'Jbility  of  issue  extinct.  8 
Rep.  67. 

The  curtesy  of  the  husband  and  the  dower 
of  the  wife  seem  to  be  correlative  estates. 
While  curtesy  is  a  provision  for  life,  allowed 
to  the  husband  oai  of  his  deceased  wife's  in- 
heritance ;  dower  is  a  similar  provision  in 
favor  of  the  wife,  out  of  the  descendible  es- 
tate of  her  deceased  husband.  There  is  a 
remarkable  analogy  between  these  two  free- 
hold estates,  in  the  circumstances  under 
which  they  arise.  In  each,  the  estate  is  for 
life  onl.v.  In  each,  there  must  be  seizin. 
They  attach  "upon  legal,  not  upon  trust  es- 
tates. In  each,  the  estate  upon  which  they 
are  engrafted  must  be  a  descendible  estate ; 
and  descendible  to  such  heirs  as  the  husband 
or  wife  (as  the  case  may  be)  might  have  had 
born  to  them  in  their  life,  capable  of  inherit- 
ing the  estate. 

The  statute  de  donis  has  never  been  of 
force  in  S:uth-Carolina,  and  the  statute  of 
distributions  (1781)  does  not  bear  upon  the 
question  here  presented :  Whether  a  husband 
can  have  his  cui'tesy  in  his  deceased  wife's 
fee  conditional  estates.  In  the  first  clause 
of  the  last  mentioned  statute,  it  is  declared, 
in  sweeping   language   applicable   to   all   in- 


WRIGHT  V.  IIERRON 


•447 


herltances,  "that  the  right  of  i»riuiogeniture 
be,  and  the  same  is,  hereby  abolished."  This 
clause,  I  apprehend,  will  apply  equally  to 
fees  conditional  as  to  fees  simple.  In  the 
fee  conditional,  instead  of  descending  accord- 
ing to  the  law  of  primogeniture,  it  would  de- 
scend to  all  the  issue,  who  could  bring  them- 
selves within  the  descrii)tioi)  of  the  gift,  as 
tenants  in  common,  and  to  take  per  capita. 

The  subsequent  parts  of  the  Act  clearly  re- 
late to  the  distribution  of  fee  simple  estates: 
for,  after  declaring  the  alK)litlon  of  the  right 
of  primogenit\ire,  it  proceeds  to  enact  "that 
when  any  person  possessed  of,  interested  in, 
or  entitled  unto,  a  real  estate  in  his  or  her 
own  right,   in   fee   simple,  shall  die  without 

♦445 
dispos*ing  thereof  by  will,  the  .same  .'ihall  lie 
distributed  in  the  following  manner."  Then 
follows  the  various  clauses,  directing  the 
mode  of  distributing  such  estates,  that  is  to 
say,  fee  simple  estates.  This  Act  makes  no 
Innovation  upon  the  common  law  principles 
which  govern  the  fee  conditional,  except  so 
far  as  it  relates  to  the  abolition  of  the  right 
of  primogeniture.  It  is  imiiossible  to  sup- 
pose that  the  sulis(>quent  clauses  of  this  stat- 
ute have  any  bearing  upon,  or  can  modify  the 
doctrines  of  the  fee  conditional,  for  refer- 
ence is  only  made  to  fee  simple  estates.  If 
its  provisions  embrace  the  fee  conditional, 
then  that  estate  is  destroye<l,  and  does  not 
exist  in  South-Carolina.  The  statute  speaks 
of  intestate  property.  Rut  the  fee  condition- 
al is  not  the  intestate  property  of  the  de- 
ceased tenant  last  seized.  He  has  no  power 
of  devising  it.  Nor  is  such  an  estate  dis- 
tributable on  his  death  among  his  heirs  gen- 
eral ;  but  it  descends,  per  formam  doni,  to 
such  of  the  heirs  of  his  body  as  are  entitled 
to  take,  ajccording  to  the  terms  of  the  deed, 
or  will,  which  created  the  estate.  On  the 
failure  of  such  issue,  it  does  not  go  to  col- 
laterals, and  next  of  kin,  (as  the  statute  dis- 
poses, in  such  case,  of  a  fee  simple.)  but  it 
reverts  to  the  donor  or  his  heirs.  There  is 
not  a  feature  in  the  distributory  clauses 
which  can  be  imagined  to  relate  to  the  fee 
conditional,  consistently  with  the  preserva- 
tion of  the  estate.  Is  there  any  legislation, 
whatever,  modifying  the  common  law  in- 
cidents of  the  fee  conditional?  I  am  aware 
of  none.  If  this  proposition  he  admitted, 
no  alternative  is  left  me.  but  to  decide  ac- 
cording to  the  principles  of  the  common  law. 
If  the  common  law  concedes  to  the  husband 
an  estate  by  the  curtesy,  in  the  fee  condition- 
al of  his  deceased  wife,  (there  being  no  legi.<;- 
lation  ui)on  the  subject,)  the  Court  has  no 
discretion  or  authority  to  disallow  the  claim. 
Why  should  we  revere  the  principle,  which 
secured  the  reverter  to  the  donor — or  that 
which  compelled  the  descent  to  the  issue  per 
formam  doni. — and  deny  his  curtesy  to  the 
husband?  All  these  rights  stand  precisely 
upon  the  same  authority.  And  it  seems  to 
me  that  It  would  be  a  very  great  Inconslst- 
5  Rich. Eq.— 12 


ency    to    respect    and   enforce   one   of   them, 
rather  than  another.     It  would  not  bt^  irrel- 

♦446 
evant  on  ♦this  question,  to  iiniuirc  whether  the 
correlative  estate  of  dower  is  allowed  by  the 
law  of  South-Carolina,  in  the  fee  conditional. 
That  it  was  allowed  by  the  ancient  common 
law,  in  such  an  estate,  and  that  it  is  allowed 
by  the  present  law  of  England,  in  fees  tail.  Is 
Indisputable.  The  statute  yf  ITHl  does  not 
take  away,  ab.solutely,  the  widow's  dower  in 
fee  simple  estates.  It  makes  a  provision  for 
her  out  of  the  husband's  intestate  property, 
and  re<iuires  her  to  elect  between  the  statu- 
tory provision  and  her  common  law  right  of 
dower.  The  statutory  provision,  wljen  ac- 
cepted, is  in  lieu  of,  and  in  bar  of  dower. 
This  is  expressly  upon  the  principle  of  com- 
pensation. Her  distributive  share  is  con- 
sidered an  equivalent.  But  in  tiie  fee*  condi- 
tional there  can  be  no  compensation  or  equiv- 
alent. There  is  nothing  which  she  can  re- 
ceive "in  lieu"  of  dower,  l-'or  that  estate 
descends  to  the  heirs  of  the  body  per  formam 
doni.  I  see  no  reasonable  ground  for  saying 
that  the  widow's  right  of  dower,  in  the  fee 
conditional,  is  abolished.  And  if  dower  be 
allowed  in  such  an  estate.- why  should  not 
the  corresponding  estate  of  curtesy  be  also 
allowed? 

The  Act  of  1791  makes  no  special  provision 
as  to  the  husband's  estate,  by  the  curtesy, 
in  his  wife's  fee  simple  estate.  In  the  Gth 
clause  it  declares,  that  "on  the  death  of  any 
married  woman,  the  husband  shall  b»»  en- 
titled to  the  same  share  of  her  real  estate,  as 
is  herein  given  to  the  widow  out  of  the  es- 
tate of  the  husband."  I'pon  the  construction 
of  the  Act,  it  has  been  held,  that  the  hus- 
band is  not  entitled  to  his  curtesy  in  fee  sim- 
ple estates.  But.  as  the  widow  is  allowed  to 
elect  between  her  distributive  share  anil  her 
dower,  and  as  the  Act  expressl\  declares 
that  the  husband  shall  be  entitled  to  the 
same  share,  in  his  deceased  wife's  real  estate, 
as  it  allows  to  the  widow,  out  of  the  hus- 
band's estate,  would  it  not  be  a  just  c-on- 
structlon,  to  allow  the  husband  his  election 
between  his  distributive  share  and  bis  cur- 
tesy, and  this  even  in  fee  simple  estates?  Is 
there  any  case  which  adjudges  this  question 
— which  refuses  him  his  election? 

As  to  his  estate  by  the  curtesy,  in  the  fee 
♦447 
conditional  of  his  ♦deceased  wife,  there  is,  in 
my  judgment,  no  reason,  precedent  or  au- 
thority for  disallowing  it.  I  conclude  what 
I  have  to  say  upon  this  interesting  question, 
by  referring  to  the  able  oi)inion  of  Chan- 
cellor Johnston,  in  the  circuit  decree,  in  Mc- 
Lure  v.  Young,  3  Rich.  Eq.  550. 

It  will  be  proper  for  me  now  to  notice  some 
other  views  as  to  the  construction  of  the  deed, 
that  were  urged  at  the  trial  of  the  cause.  In 
the  habendum  of  the  deed,  the  words  are, 
"unto  the  said  Nancy  Ilerron.  and  the  neirs 
of  her  body,  and  assigns  forever,"  &c    It  was 

177 


*447 


5  RICHARDSON'S  EQUITY  REPORTS 


suggested  that  the  words,  'and  assigns," 
might  mal<e  a  difference  in  tlie  construction. 
It  does  not  very  clearly  appear,  whether  by 
the  words  were  intended  the  assignees  of 
Nancy  Ilerron,  or  the  assignees  of  the  heirs 
of  her  body.  From  the  analogy,  which  this 
expression  bears  to  the  usual  form  of  con- 
veyances of  fee  simple  estates,  I  apprehend  it 
must  be  considered  as  meaning  the  assignees 
of  Nancy  Herron.  If  there  be  any  force  in 
the  argument,  as  urged  in  behalf  of  the  is- 
sue of  Nancy  Herron,  and  if  the  words  have 
any  power  in  modifying  the  construction,  it 
must  be  to  enlarge  the  estate  from  a  fee  con- 
ditional to  a  fee  simple.  This  would  be  ad- 
verse to  the  parties  urging  the  objection:  for, 
if  it  be  a  fee  simple,  the  iuisband  would  be 
entitled  to  take  one-third  absolutely,  under 
the  statute  of  distributions.  But  I  think 
the  expression,  ("and  assigns,")  whether  it 
means  the  assignees  of  Nancy  Herron,  or  the 
assignees  of  the  heirs  of  her  body,  can  have 
no  modifying  influence  upon  the  interpreta- 
tion. Certainly,  the  estate  in  fee  conditional 
is  assignable  absolutely,  when  the  condi- 
tion is  performed;  and  before  the  birth  of 
issue,  it  is  assignable  for  the  life  of  the  ten- 
ant, for  the  lime  being,  and  so  of  every  tenant 
for  life  in  succession:  thus  the  rule  of  con- 
struction, which  demands,  where  it  is  possi- 
ble, that  every  part  of  a  deed  must  have  some 
meaning,  is  satisfied,  without  resorting  to  a 
forced  construction,  to  defeat  the  obvious  in- 
tention which  the  grantor  had,  of  giving  some 
interest  to  the  heirs  of  the  body. 

Again,  it  has  been  urged,  that  because  the 
grantor  warranted  the  title  generally,  and  es- 

*448 
pecially  against  himself  and  those  *who 
claimed  by,  or  through  him,  the  idea  of  a  re- 
verter to  himself  is  excluded  or  negatived. 
Again,  I  say,  that  the  objection,  if  allowed, 
would  be  adverse  to  the  parties  making  it: 
for,  if  there  be  no  reverter,  there  can  be  no 
fee  conditional ;  and  if  no  fee  conditional,  it 
must  be  a  fee  simple — in  which  case  the  ims- 
band  would  be  entitled  to  one-third,  in  fee, 
as  his  distributive  share. 

But  it  is  a  petitio  principii  to  say,  that  the 
warranty  excludes  the  idea  of  reverter. 
What  title  the  grantor  warranted,  depends 
upon  what  title  he  intended  to  convey.  If, 
from  the  other  parts  of  the  deed,  it  appears 
that  the  grantor  intended  to  give  to  Nancy 
Herron  a  fee  conditional,  it  would  be  a  per- 
version of  the  language  employed,  to  say  that 
his  warranty  covered  a  larger  estate  than  he 
intended  to  create.  It  is  needless  to  dwell  on 
this  point. 

In  the  judgment  of  the  Court,  the  estate  cre- 
ated by  the  deed  of  Newit  Delk,  to  Nancy 
Herron,  is  a  fee  conditional,  and  that  her  sur- 
viving husband,  W.  H.  Herron,  is  entitled  to 
hold  the  said  estate  for  his  life,  as  tenant  by 
the  curtesy. 

It  is  ordered  and  decreed,  that  the  bill  be 
dismissed. 
178 


The  plaintiffs  appealed,  and  moved  this 
Court  to  reverse  the  decree,  on  the  grounds: 

1.  Because  his  Honor  erred  in  nolding  that 
Mrs.  Herron  took  a  fee  conditional  in  the 
lands  conveyed  to  her  by  the  deed  referred  to 
in  the  pleadings. 

2.  That  under  a  proper  construction  of  said 
deed,  INIrs.  Ilerron  took  a  life  estate  in  the 
land,  and,  at  her  death,  the  remainder  vested 
in  her  children  absolutely,  as  purchasers ; 
or,  if  this  construction  is  erroneous,  then 
Mrs.  Herron  and  her  children  were  jointly 
seized. 

3.  That  the  estate  of  tenancy  by  the  curte- 
sy does  not  exist  in  this  State,  has  never  been 
recognizd  by  our  Courts,  and  the  reason  and 
policy  upon  which  it  was  founded  in  Eng- 
land does  not  exist  here;  and  that  his  Hon- 
or erred  in  holding  that  W.  H.  Herron  was 
entitled  to  said  lands  for  life,  as  tenant  by 
the  curtesy. 

*449 

*4.  Because  the  decree  was,  in  other  re- 
spects, contrary  to  Law,  Equity,  and  a  proper 
construction  of  the  deed. 

[For  subsequent  opinion,  see  G  Rich.  Eq. 
40G.] 

Dargan,  for  appellants. 
Moses,  contra. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW,  Ch.  Whatever  diversity  of 
opinion  there  may  be  among  the  judges  of 
this  State,  concerning  the  impJication  of  a  fee 
conditional,  and  as  to  some  of  the  incidents  of 
the  estate,  the  exi.stence  of  the  estate  itself, 
with  most  of  its  attributes,  according  to  the 
Conunon  Law,  has  been  recognized  by  many 
decisions  of  our  Courts. (a)  If  there  be  mis- 
chiefs in  this  state  of  the  law,  the  Legisla- 
ture alone  can  correct  them. 

In  the  present  instance,  the  grantor  in  the 
deed  creates  a  fee  conditional  in  strict,  tech- 
nical form,  by  donation  to  Nancy  Herron  and 
the  heirs  of  her  body.  There  is  neither  need 
nor  room  for  implication.  In  the  tenendum 
of  the  deed,  the  terms  of  tenure  are,  "unto 
the  said  Nancy  Herron,  and  the  heirs  of 
her  body,  and  assigns,  forever ;"    and,  in  the 


(rt)  MurreU  v.  Mathews,  1  Brev.  190 ;  [Id.] 
2  Bay,  o'JT  ;  Jones  ads.  Postell  &  Potter,  Harp. 
92:  Bedon  v.  Bedon,  2  Bail.  231;  Cruger  v. 
Heyward,  2  Des.  112,  429 ;  Thomas  v.  Benson, 
4  Des.  18;  Milledge  v.  Lamar.  4  Des.  (J3S ; 
Carr  v.  Porter,  1  McC.  Eq.  90;   Henry  v.  Felder, 

2  McC.  Eq.  330;  Mazyck  v.  Vanderhorst,  Bail. 
Eq.  49;  Izard  v.  Middleton,  Bail.  Eq.  228; 
Adams  v.  Chaplin,  1  Hill.  Eq.  208,  276;  Ed- 
wards v.  Barksdale,  2  Hill,  Eq.  189,  196;  Deas 
V.  Horry,  2  Hill,  Eq.  246;  Gray  v.  Givens,  2 
Hill,  Eq.  511;  Laborde  v.  Penn,  McM.  Eq.  448; 
Dehay  v.  Porcher,  1  Rich.  Eq.  269;  Whitworth 
v.  Stuckey,  1  Rich.  Eq.  404 ;  Chaplin  v.  Turn- 
er, 2  Ricii.  Eq.  138 ;  Hull  v.  Hull,  2  Strob.  Eq. 
189;     [Id.]   3  Rich.  Eq.  77;    Smith  v.  Hilliard, 

3  Strob.  Eq.  214 ;  Barksdale  v.  Gamage,  3 
Rich.  Eq.  271 ;  Hay  v.  Hay,  3  Rich.  Eq.  390 ; 
MoLure  v.  Young,  3  Rich.  Eq.  563,  574 ;  Buist 
v.  Dawes,  4  Rich.  Eq.  421;  Bailey  v.  Seabrook, 
Rich.  Eq.  Cas.  419. 


PARRIS  V.  COBB 


*451 


ai'ffuinent,  much  stress  is  laid  upon  the  word 
"assigns."  But  it  is  pkiin  tliat  the  term  "as- 
signs," by  grammatical  construction,  must  be 
referred  to  Nancy  Ilerron,  the  tenant  in  fee 
conditional ;  and  that,  if  it  could  be  construed 
to  refer  to  the  heirs  of  her  body,  it  cannot 
enlarge  the  heirs  to  take  the  inheritance,  and 
expresses  merely  by  pleonasm  the  rii.'ht  of  "as- 
signment" or  alienation  incident  to  the  estate. 
We  are  satisfied  with  the  reasoning  and  con- 

*450 
elusion  *of  the  Chancellor  on  this  point;   and 
it  is  adjudged  and  decreed,  that  Nancy  Her- 
ron  took  an  estate  in  fee  conditional. 

This  Court  is  not  agreed  on  the  question, 
whether  the  surviving  husband  of  Nancy  Iler- 
ron be  entitled  to  hold  for  his  life,  the  whole 
lands,  as  tenant  by  the  curtesy;  and  two 
Chancellors  request,  that  this  question  be 
referred  to  the  Court  of  Errors. 

It  is,  therefore,  ordered,  that  it  be  referred 
to  the  Court  of  Errors,  to  determine  the  ques- 
tion, whether  the  surviving  husljand  of  a  wife, 
who  is  tenant  in  fee  couditional.be  entitled  to 
hold  by  the  curtesy,  the  land  for  his  life,  con- 
veyed to  the  wife  in  fee  conditional. 

JOHNSTON,  DUNKIN  and  DARGAN,  CC, 
concurred. 


5  Rich.  Eq.  450 

WILLIAM  PARRIS  and  Others  v.  AMAZIAH 
B.  COBB  and  Others. 

(Columbia.      May   Term,    1853.) 

[Executors  and  Administrators   <©=3.3.] 

For  any  residue  undisposed  of  by  the  will, 
the  executor  is  a  trustee  for  the  distributees, 
and  liable  to  account  directly  to  them: — no  ad- 
ministration is  necessary. 

[Ed.  Note. — ^^Cited  in  Richardson  v.  Manning, 
12  Rich.  Eq.  485. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  3;    Dec.  Dig.  <S=33.] 

[Limitation  of  Actions  <S=>46.] 

The  statute  of  limitations  does  not  com- 
mence to  run,  in  favor  of  a  general  agent,  until 
the  termination  of  the  agency. 

[Ed.    Note. — For   other   cases,    see   Limitation 
of  Actions,  Cent.  Dig.  §  247 ;   Dec.  Dig.  <©=540.] 

[Slaves  <S=>7.] 

An  executor,  claiming  slaves  under  a  gift 
(declared  fraudulent)  from  the  testator  in  his 
life  time,  not  protected  by  the  statute  of  limi- 
tations— his  adverse  possession  not  having  con- 
tinued four  years  before  the  death  of  testator. 
[Ed.  Note. — For  other  cases,  see  Slaves,  Cent. 
Dig.  §§  20-29;    Dec.  Dig.  <©=:57.] 

[Deeds  <&=>68.] 

A  deed  of  slaves  and  other  personalty,  recit- 
ing the  consideration  to  be  money  advanced, 
&c.,  and  love  and  affection,  from  a  grandfather, 
ninety  years  of  age,  to  iiis  grandson  and  agent, 
set  aside  as  obtained  by  fraud  and  undue  influ- 
ence. 

[Ed.    Note.— Cited   in    Pressley    v.    Kemp,    16 
S.  C.  347,  42  Am.  Rep.  635. 

For  other  cases,  see  Deeds,  Cent.  Dig.  §  153; 
Dec.  Dig.  <S=>6S.] 


•  [Wills  <©=>55.1 

The  donor  had  at  the  same  time  executed 
his  will,  appointing  the  graud.son  and  aueiit  ex- 
ecutor: the  will  had  been  impeached  on  the 
same  grounds  on  which  the  deed  was  now  im- 
I)eached: — Held,  that  there  was  no  variance  be- 
tween tlie  decree  setting  aside  the  deed,  and  the 
judgment  sustaining  the  validity  of  the  will. 

I  Ed.  Note. — For  other  cases,  see  Wills.  Cent. 
Dig.  §§  137-158,   161;    Dec.  Dig.  <©=5o.] 

[Gifts  C=>38.] 

Principles  upon  which  the  Court  proceeds 
in  determininir  whether  a  gift  by  a  principal  to 
an  agent,  imi)eached  on  the  ground  of  weakness 
of  mind,  fraud  and  undue  influence,  is  valid  or 
invalid — the  same  principles  ap|ily  to  all  the 
variety  of  relations  in  which  doniiniou  may  be 
exercised  by  one  i)erson  over  another:    it  should 

*451 
be  made  to  appear,  in  *order  to  support  the  sift, 
that  the  confidence  has  not  been  abu.><ed  :    that 
all  was  fair ;    that  the  agent  received  the  bounty 
freely  and  knowingly  on  the  giver's  part. 

[Ed.  Note.— Cited  in  Ex  parte  Gadsden,  89  S. 
C.  ;{(;4,  71   S.  E.  952. 

For  other  cases,  see  Gifts,  Cent.  Dig.  §  74  ; 
Dec.  Dig.  <g=33S.J 

[This   case  is   also  cited  in   Norris   v.   Cobb,   8 
Rich.  58,  as  to  facts.] 

Before  Dunkln,  Ch.,  at  Anderson,  June, 
1852. 

Duukin,  Ch.  On  the  27th  September,  1847, 
Henry  Parris  died,  at  the  advanced  age  of 
between  ninety  and  one  hundred  years.  He 
had  made  his  will  on  the  28th  April,  1843, 
being  at  that  time,  according  to  the  report 
of  the  Judge  in  a  proceeding  on  that  matter, 
ninety  years  of  age.  At  the  time  of  making 
his  will,  the  testator  had  three  sons,  to  wit: 
William  Parris,  complainant;  Moses  I'arris 
and  John  Parris  ;  and  four  daughters,  to  wit: 
Eleanor  Cobb,  (wife  of  Henry  Cobb,  since  de- 
ceased, and  mother  of  the  defendant,  A.  B. 
Cobb ;)  Laurania,  or  Lauraney  Jenkins,  wife 
of  Roily  Jenkins ;  Mary  Mauldin,  wife  of 
Rucker  Mauldin  ;  and  Elizabeth  Gordon,  and  a 
lunatic  daughter,  Nancy  Parris.  By  his  will, 
the  testator  bequeaths  a  negro,  Caroline,  to 
the  complainant,  William  Parris,  and  the  ne- 
gro girl,  Harriet,  to  the  complainant,  Mary 
Parris,  daughter  of  Wm.  Parris,  and  since  the 
wife  of  the  complainant,  James  Hickey.  To 
Lauraney  Jenkins,  he  betiueaths  some  slaves; 
but  it  appears  that  these  were  already  the 
property  of  her  husband,  Roily  Jenkins,  as 
well  as  a  family  which  he  leaves  to  his  son, 
Moses  Parris:  all  were  in  the  possession  of 
Roily  Jenkins,  at  the  date  of  the  wi.ll,  and 
had  been  for  years  previously.  To  his  son, 
John  Parris,  he  leaves  five  dollars,  and  to 
his  daughter,  Elizabeth  Gordon,  one  dollar. 
He  leaves  the  negro  girl.  Ann.  to  his  execu- 
tor, (the  defendant,  A.  B.  Cobb,)  in  trust,  for 
his  daughter,  Mary  Mauldin,  for  life,  and  on 
her  death,  the  negro,  with  her  increase,  to 
be  divided  between  the  complainant,  William 
Parris,  and  Eleanor  Cobb.  He  directs  that 
his  daughter,  Nancy  Parris,  should  live  with 
her  sister.  Mrs.  Cobb,  the  slaves.  Betsey  and 


«g=sFor  other  cases  see  same  topic  and  KEY-NUMBER  in  all  Key-Numbered  Digests  and  Indexes 


179 


<J51 


5  RICHARDSON'S  EQUITY  REPORTS 


her  five  children,  remaining  with  her,  for  her 
support ;  and  at  her  death,  he  leaves  the 
slaves  to  Eleanor  Cohb  and  her  heirs.  To 
his  grand-daughter,  Elizabeth  Cobb,  he  be- 
queaths the  negro  Sally  and  her  increase. 
The  land  on  which  he  lived,  and  his  slave, 
Hence,  he  directs  to  be  sold  for  the  payment 
of  his  debts.    The  will  contains  no  residuary 

*452 
clause.  *0n  the  death  of  the  testator,  his 
will  was  proved  in  common  form  by  the  de- 
fendant, A.  B.  Cobb,  who  qualified  as  ex- 
ecutor. He  says  in  his  answer,  that  in  a 
short  time  after  the  death  of  Henry  Parris, 
the  complainant,  William  Parris,  who  re- 
sides in  Tennessee,  visited  this  State,  and 
made  a  demand  of  the  negroes  specifically 
bequeathed  to  himself  and  his  daughter ; 
that  the  defendant  "refused  to  deliver  them, 
because  the  estate  was  unsettled,  and  he  had 
not  had  time  to  settle  it — that  the  estate 
was  considerably  indebted,  and  there  were 
no  assets  to  pay  the  debts,  except  the  specific 
legacies,  which  would  require  the  legacies 
to  the  complainants  to  abate  proportional- 
ly ;"  that  the  complainant,  finding  he  could 
not  obtain  the  property  specifically  bequeath- 
ed, in  company  with  other  heirs  at  law,  con- 
tested the  validity  of  the  will,  which  litiga- 
tion was  finally  determined  in  favor  of  the 
will,  by  the  Court  of  Appeals,  in  May,  1850. 
It  does  not  appear  at  what  time  precisely  the 
complainant  came  in  and  made  the  first  de- 
mand for  the  negroes  specifically  bequeathed 
to  him  and  his  daughter;  but  from  the  an- 
swer, it  is  to  be  inferred,  that  the  contest 
about  the  will  soon  followed  the  defendant's 
refusal  to  give  them  up.  From  the  record, 
it  is  shown,  that  "the  hei.rs  commenced  the 
contest  against  the  will,  on  the  27th  Novem- 
ber, 1848."  A  judgment  was  entered  up 
against  the  heirs  for  the  costs,  on  the  11th 
December,  1850;  and  the  complainants,  hav- 
ing satisfied  this  judgment,  again  made  a 
demand  of  the  negroes  specifically  bequeath- 
ed under  the  will,  which  had  been  establish- 
ed. The  defendant  admits  that  he  refused 
this  second  demand,  because  the  complain- 
ants did  not  "offer  to  pay  their  part  of  the 
debts,  and  expenses  of  litigating  the  will, 
though  they  arranged  the  judgment  for  the 
taxed  costs  of  the  litigation."  The  defend- 
ant further  says,  that  he  has  no  doubt,  if  he 
had  delivered  the  slaves  when  demanded  the 
first  time,  the  litigation  about  the  will  never 
would  have  arisen ;  or,  if  they  had  been  de- 
livered, when  demanded  the  second  and  third 
times,  this  bill  never  would  have  been  filed. 
It  seems   there   had   been   a    third    demand 

*453 
when  the  parties  *met  in  the  Ordinary's  of- 
fice, soon  after  the  second  demand  and  re- 
fusal. 

It  may  be  important  to  inquire,  what  was 
the  apparent  condition  of  Henry  Parris's  es- 
tate in  the  Autumn  of  1848,  when  the  com- 
plainants first  applied  for  the  property  spe- 
180 


cifically  bequeathed  to  them.  The  complain- 
ants were  then  told  that  the  estate  was 
considerably  indebted — that  there  were  no  as- 
sets— and  that  the  specific  legacies  must 
abate.  It  does  not  appear,  nor  is  it  suggest- 
ed, that  any  statement  was  then  exhibited. 
The  appraisement  was  made  2d  February, 
1848,  and  the  sale  of  the  property  took  place 
within  the  month  thereafter.  No  return  was 
made  to  the  Ordinary  tmtil  16th  December, 
1850 ;  the  controversy  about  the  will  having 
terminated  in  the  Appeal  Court,  May,  1850. 
The  appraisement,  over  and  above  the  ne- 
groes, amounted  to  $10.3.24 — the  property 
sold  appears  to  have  amounted  to  $52.25 — 
the  whole  amount  of  the  testator's  indebted- 
ness at  the  time  of  his  death,  (other  than  the 
claims  held  by  defendant,  to  be  hereafter 
noticed,)  was  $38.87 — the  funeral  expenses 
and  Ordinary's  fees  brought  the  amount  to 
$54.87.  But  the  defendant  avers,  that,  oa 
certain  transactions  of  his,  as  the  agent  of 
the  testator,  testator  owed  him  a  balance  of 
$244.23,  and  as  administrator  of  his  father, 
Henry  Cobb,  deceased,  $184.50.  Whether 
anything,  and  how  much,  was  due  on  these 
claims,  will  depend  entirely  on  an  examina- 
tion of  the  transactions  between  the  defend- 
ant, A.  B.  Cobb,  and  his  principal  In  his 
life  time.  Very  much  is  it  to  be  regretted, 
that  the  legal  representative  of  the  estate, 
who  should  defend  its  interests,  and  who 
alone  has  the  adequate  means  of  proof,  is 
the  only  creditor  calling  for  an  abatement  of 
the  specific  legacies  to  satisfy  the  demands 
which  he  sets  up.  It  is,  too,  greatly  to  be 
regretted,  that  these  demands  were  not  spe- 
cifically brought  to  the  notice  of  the  parties 
at  an  earlier  date  than  the  filing  of  the  de- 
fendant's answer. 

In  the  Fall  of  1848,  four  hundred  and  thir- 
ty dollars  would  have  satisfied  every  demand 
which  the  defendant  now  insists  on.  This 
sum,  too,  would  have  been  ai^parently  to  be 
paid  from  the  slaves  bequeathed  to  the  com- 
plainants— the  slave  Ann,  bequeathed  to  Mrs. 
Mauldin  for  life,  and  the  slaves  bequeathed 

*454 
*to  Eleanor  Cobb,   (defendant's   mother,)   oa 
the  death  of  Nancy  Parris,  who  had,  in  fact, 
pre-deceased  the  testator. 

The  will,  however,  was  disputed,  and  as 
the  defendant  says,  "after  a  severe  contest," 
was  finally  established.  The  record  was  in 
evidence,  together  with  the  evidence  of  some 
of  the  witnesses.  ^V'^lieu  the  complainants, 
having  paid  the  costs  of  the  litigation, 
again  demanded  the  negroes,  they  were  met 
with  the  same  reply.  But,  in  addition  to 
the  former  alleged  indebtedness,  the  de- 
fendant now  insists  that  the  sum  of  five 
hundred  dollars,  for  counsel  fees  in  con- 
troverting the  will,  should  be  charged  on 
the  specific  legacies,  and,  as  will  be  presently 
shewn,  on  the  specific  legacies  of  the  com- 
plainants alone.  The  effect  of  this  would  be 
to  exclude  the  complainants  entirely,  as  their 


PARRIS  V.  COBB 


»456 


legacies    would    prohably    be    insufficient    to 
satisfy  tlie  demaiuls  of  tlie  defendant. 

Under  lliese  eireumstanee.s,   tlie  complain- 
ants were  eonipelh'd  to  ask  the  aid  of  this 
Court,  and  in  dohig  so,  they  insist,  that  the 
property  really  bflon«in>,'  to  the  testator  was 
for  more  than  sufficient  to  satisfy  his  just 
debts,  which  were  few  and  ineonsidi-rable  if 
any.      Tlie    answer    of    the    defendant    sub- 
stantially insists  that  the  debts  and  charfres 
should   be   paid   l)y   the  complainants   alone. 
Admitting,'  the  other  specific  legacies,  he  al- 
leges that  the  slave  Ann,  Iteipieathed  to  Mrs. 
Mauldin,  bad  been  {,'iven  by  the  testator  to 
the   defendant's   sister,    Kli/.alieth    Cobb,   and 
that  the  slaves  b(H|ueatb<Ml  to  Kloanor  Cobb, 
defendant's  niotlier,  had  been   given   in    tes- 
tator's  life  time,  and   were  the  property  of 
her  husband,  Henry  Cobb,  deceased,  and  that 
the  defendant  took   them   as  his  administra- 
tor.    In  the  contest  concerning  the  will,  one 
of  the  strongest  arguments  was.  that  tlu>  will 
was  chiefly  for  the  benefit  of  the  defendant 
and  his  family.     But,  according  to  the  nar- 
rative in  the  defendant's  answer,  his  family 
had    no   interest   whatever  in   the   will.     On 
the  contrary,  his  si.ster  and  his  mother  held 
by  a  title  anterior  to  the  will,  and,  in  some 
measure,  in  opposition  to  its  provisions.    The 
answer  insists  that  the  testator  left  no  prop- 
erty, except  the  two  slaves  bequeathed  to  the 
complainants,  and  .$52.25  worth  of  furniture, 

*455 
*&(:,  and  that  the  slave,  Ann,  which  the 
defendant  had  caused  to  be  appraised,  was  in 
fact  not  testator's  property  at  his  decease, 
but  the  property  of  defendant's  sister,  under 
a  parol  gift  of  the  testator.  It  is  unfortunate 
here,  too,  that  the  instrument  whidi  the  de- 
fendant is  officially  bound  to  sustain,  derives, 
at  least,  no  sup-port  from  his  efforts. 

It  is  not  proposed,  at  this  time,  to  dis- 
cuss the  various  issues  raised  by  the  plead- 
ings. It  is  admitted,  that  the  complainants 
are  entitled  to  specific  legacies  under  the 
testator's  will.  The  defendant  in.sists  that 
the  estate  of  his  testator  is  Indebted  to 
him — that  there  were  no  assets  to  pay  these 
debts,  and  that  the  same,  together  with  cer- 
tain subsecpient  charges,  nmst  be  paid  by  the 
specific  legati'cs.  On  the  part  of  the  com- 
plainants, the  indebtedness  is  denied,  and  it 
is.  moreover,  insisted,  that  the  defendant  has 
received  property  and  funds,  belonging  to 
the  estate,  for  which  he  ought  to  account, 
and  for  which  he  has  not  accounted.  It  is 
charged  among  other  things,  that  about  the 
time  when  the  validity  of  the  will  was  con- 
tested, in  the  Fall  of  1848,  the  defendant 
carried  out  of  the  State,  and  .sold,  certain 
slaves  of  the  testator;  and  that  he  also 
received  certain  oxen,  cattle,  horses,  sheep, 
&c.,  for  which  he  has  not  accounted.  As  to 
some  of  these  negroes,  to  wit:  Charity, 
Frances.  Eliza,  David,  Cinda,  and  Walker,' 
six  in  number,  the  defendant  admits,  tiiat,  in 
1S48,  he  took  them  to  Mississippi,  and  sold 


them  in  the  aggregate  for  ?.'?,000,  or  .$.1,050. 
But  he  avers,  that  Henry  Parris  made  him 
a  parol  gift  of  these  slaves  in  the  latter  part 
of  the  year  1S41,  or  early  in  1842.— and  that 
when  lie  was  making  his  will,  April  28,  184.'?, 
he  executed  to  him  a  deed  of  conveyance  for 
these  slaves,  and  other  property  menti<ine<l 
in  the  said  deed,  of  which  a  copy  is  exhibit- 
ed with  tlie  answer.  The  comi)lainants  ob- 
ject to  the  validity  of  this  deed,  in  conse- 
<iuence  of  the  fiduciary  relation  in  which  the 
defendant  stood  to  Henry  I'arrls;  the  con- 
dition of  his  mind;  and  other  circumstances 
detailed  in  the  testliiuuiy. 

It  appears  that,  in  the  early  part  of  1841. 
the  defendant  went  to  live  with   his  grand- 

*456 
father,  Henry  I'arris.  The  defendant  'was 
a  young  man,  and  as  well  as  the  Court  can 
collect,  had  previously  been  engaged  in  negro 
trading,  (buying  and  .selling  slaves,)  in  which 
he  had  not  been  successful.  His  grandfather 
was  far  advanced  in  years,  being  then  mi  the 
verge  of  eternity,  and  was  besides,  allllcted 
with  a  sore  leg.  He  resided  in  (Jreenville 
district,  between  three  or  four  miles  from 
the  Court-hou.se,  on  a  place,  which  was  after- 
wards sold  to  Mrs.  Townes,  for  seven  hun- 
dred dollar-s.  The  number  of  slaves  which 
he  then  had  in  possession  does  not  precisely 
appear.  He  managiil  badly— the  slaves  diil 
not  make  a  support  for  him  and  them,  and 
he  was  not  unfrequently  indebted  to  Mrs. 
Townes  for  sujiplies. 

The   defendant    appears  to   the   Court,   to 
have    had    the    entire    management    of    the 
property  so  long  as  they  remained  together, 
and  to  have  acted  as  the  agent  of  his  grand- 
father from  that  time,  (early  in  1841,)  until 
his  death,   in  September,  1847.     This   is  de- 
ducible,   not   only   from   the   current   t)f   the 
testimony,  but  from  the  narrative  contained 
in  the  defendant's  answer.     When  he  took  up 
his  residence  at  his  grandfather's,  the  latter 
was   in    possession    of   his    homestead,    of   a 
valuable  slave  named  Hence,  another  called 
Bob,    and    probably    of    some    sixteen    other 
negroes,  of  more  or  less  value.     The  defend- 
ant's expression  to  one  of  the  witnesses  was, 
that  he  had  come  to  take  care  of  his  grand- 
father, as  he  was  old  and  childish.     On  the 
28th    April,    1843,    the    old    man's    will    was 
executed,  with  the  provisions  stated;    on  tlie 
.same   daj-,    at    the   same   time,    the   deed    in 
favor  of  the  defendant   was  executed.     Not 
many    months    after    this    arrangement,    the 
estalilishnient  near  (Jreeiiville  was  abandon- 
ed.    Parris  removed  to  Ander.son,  to  the  resi- 
dence   of    Henry    Cobb,    and    the    defendant 
took  possession  of  the  Garrison  iilace,  three 
or  four  miles  distant  from  his  father's,  tak- 
ing   with    him    the   negroes   included    in   the 
deed.     It  seems  that,  in  '45  or  '40,  two  ne- 
groes were  given  to  Mo.ses  Parris.     But  be- 
tween   the    period    of    the    execution    of   the 
deefl  and  the  death  of  Henry  Parris.  in  Sep- 
tember, 1847,  Hence,  and  probably  Bob,  and 

181 


*456 


5  RICHARDSON'S  EQUITY  REPORTS 


certainly  his  homestead,  had  been  disposed 
of.  At  his  death,  the  condition  of  his  atlairs 
was  this:    the  defendant   claimed   and   held 

*457 
the  six  negroes  under  the  deed ;  *his  father, 
Henry  Cobb,  or  his  mother,  Eleanor  Cobb, 
laid  claim  to  the  remaining  six  negroes 
enumerated  in  the  fifth  clause  of  the  will, 
alleging  a  parol  gift  by  Henry  Parris,  sub- 
sequent to  the  date  of  the  will.  The  slave, 
Ann,  bequeathed  to  Mrs.  Mauldin,  was  claim- 
ed by  defendant's  sister,  Elizabeth  Cobb, 
under  another  parol  gift,  said  to  have  been 
made  after  the  execution  of  the  will ;  and, 
notwithstanding  the  sales  of  property  above 
stated,  the  defendant  now  claims  the  only 
remaining  negroes,  to  wit:  the  two  or  three 
bequeathed  to  the  complainants,  on  the 
ground  that  they  are  the  only  assets  to  pay 
and  satisfy  the  testator's  indebtedness  to 
him,  (the  defendant,)  contracted  during  his 
agency,  and  in  the  transaction  of  his  busi- 
ness. So  that,  pending  defendant's  manage- 
ment, sums,  arising  from  the  sales  of  prop- 
erty, to  a  not  less  amount  than  $1,600  or 
.$1,700,  have  been  appropriated  in  some  way, 
and,  excepting  the  two  slaves  to  Moses  Par- 
ris, all  the  other  slaves  of  the  testator,  with 
the  rest  of  his  effects,  will  have  become  the 
property  of  the  defendant,  and  his  immedi- 
ate family.  It  is  this  extraordinary  result 
which  has  naturally  stimulated  an  inquiry  by 
the  complainants,  not  merely  why  the  other 
objects  of  tlie  testator's  bounty  were  over- 
looked, or  neglected ;  but  why  the  poor  pit- 
tance, allotted  to  those  who  were  remember- 
ed and  noticed,  should  be  taken  from  them. 

The  prominent  question  presented,  relates 
to  the  validity  of  the  deed  of  April,  1843. 
The  complainants  submit,  that  a  transaction 
of  this  character,  between  parties  occupying 
these  relations  to  each  other,  is  always  re- 
garded jealously ;  and  that  when  the  com- 
parative helplessness,  both  physical  and  in- 
tellectual, of  one  of  the  parties  is  considered, 
the  Court  will  at  least  demand  the  most 
ample  and  satisfactory  proof,  not  only  of 
the  fi'ee  will  of  the  donor,  but,  more  espe- 
cially, of  his  distinct  comprehension  of  the 
transaction  in  which  he  was  engaged. 

It  is  true,  that  this  relationship  between 
the  parties  would  not  necessarily  invalidate 
a  gift.  As  was  argued  in  Huguenin  v.  Base- 
ley,  14  Ves.,  273,  "there  is  no  authority  that 
a  mere  agent  is  not  capable  of  receiving  a 

*458 

gift."  But  the  propositions  of  Sir  *  Samuel 
Romilly,  in  that  case,  received  the  distinct 
approbation  of  Lord  Eldon.  He  says,  that 
though  the  Court  disclaimed  any  jurisdic- 
tion to  annul  donations  merely  as  being  im- 
provident, and  that  it  was  not  necessary  to 
affirm  that  an  agent  might  not  accept  any 
bounty ;  yet  he  says,  the  interference  of  the 
Court  stands  upon  a  general  principle,  ap- 
plying to  all  the  variety  of  relations  in  which 
dominion  may  be  exercised  by  one  person 
182 


over  another.  The  Court  regards  such  trans- 
actions with  a  jealous  eye.  If  the  donor  is. 
a  weak  man,  and  liable  to  be  imposed  upon, 
the  Court  "will  very  strictly  examine  the 
conduct  of  the  person  in  whose  favor  the 
gift  is  made,  and,  if  it  sees  any  arts  or  strat- 
agems, or  any  undue  means  have  been  used; 
if  it  sees  the  least  speck  of  imposition  at 
the  bottom,  or  that  the  donor  is  in  such  a 
situation,  with  respect  to  the  donee,  as  may 
naturally  give  an  undue  influence  over  him ; 
if  there  be  the  least  scintilla  of  fraud,  this 
Court  will  and  ought  to  interpose ;  and,  by 
the  exercise  of  such  a  jurisdiction,  they  are 
so  far  from  infringing  the  right  of  aliena- 
tion, which  is  the  insepai'able  incident  of 
property,  that  they  act  upon  the  principle 
of  securing  the  full,  ample,  and  uninfluenced 
enjoyment  of  it."  Both  the  English  and 
American  decisions  upon  this  subject  are 
collected  in  White  and  Tudor's  leading  cases 
in  Eq.,  2  vol.,  406.  No  arbitrary  general 
rule  can  be  established ;  nor,  as  is  suggest- 
ed in  one  of  the  cases,  "would  it  be  advisa- 
ble that  any  strict  rule  should  be  laid  down 
— any  precise  line  be  drawn.  If  it  were 
stated  that  certain  acts  should  be  the  test, 
or  certain  things  should  be  required  to  rebut 
the  presumption,  how  easy  would  it  be  for 
cunning  men  to  place  themselves  beyond  the 
denunciations  of  the  law."  When  these  con- 
fidential relations  are  shown  to  exist,  it 
should  be  made  to  appear,  in  order  to  sup- 
port the  deed,  that  the  confidence  has  not 
been  abused — that  all  was  fair — that  the 
agent  received  the  bounty  freely  and  know- 
ingly on  the  giver's  part.  The  circumstances 
of  each  particular  case  are  to  be  considered. 

Let  us  apply  these  principles.     The  deed 
on    which    the   defendant    relies,    bears    date 

*459 
28th  April,  1843,  and  purports  to  *have  been 
executed  in  the  presence  of  W.  P.  Turpin. 
The  consideration  is  thus  stated,  "in  con- 
sideration of  four  hundred  and  eightj'-nine 
dollars  and  ninety-eight  cents,  money  laid 
out  and  expended  in  and  about  the  manage- 
ment of  my  business ;  the  justice  of  which 
account  has  been  acknowledged  by  me,  paid 
by  Amaziah  B.  Cobb,  and  for  the  services, 
care  and  attention,  and  the  love  and  af- 
fection to  him,  the  said  Amaziah  B.  Cobb,^ 
(my  grandson,)  I  bargain,  sell  and  deliver 
unto  the  said  Amaziah  B.  Cobb,  'the  slaves. 
Charity,  and  her  child,  Julian,  Dave,  Walk- 
er, Cinda,  and  Frances,  and  also  the  cattle, 
horses,  hogs,  and  sheep,  that  are  at  this 
time  upon  the  plantation,'  "  concluding  with 
a  general  warranty  of  the  said  bargained 
property. 

The  defendant's  account  is,  that  "some 
time  shortly  before  or  after  the  parol  trans- 
fer and  delivery  of  the  slaves,"  (said  to 
have  been  in  the  latter  part  of  1841,  or  early 
in  1842,)  "this  defendant  lent  and  advanced 
to  the  said  Henry  Parris,  the  money  above  ~ 
mentioned,   ($489.98,)   during  the  year  1841> 


PARRIS  V    COBB 


•462 


ji.s  lias  been  before  stated;  and  when,  at  the  large  portion  of  those  in  the  donor's  posses- 
dniwiniL'  of  the  deed,  this  defendant  learned  sion.  But  besides  this,  the  deed  made  an 
that  the  said  Henry  Parris  was  about  to  con-  absolute  and  huuiediate  transfer  of  'the  cat- 
vey  to  hini  tin-  said  slaves  by  deed,  feeling  tie,  horses,  hogs,  an<l  sheep,  that  were  at  that 
grateful  for  his  generous  uuniltieence,  this  time  uimjii  the  plantation."  where  the  donor 
defendant  offered  to  include  the  note  for  lent  resided.  It  was  not  a  testamentary  disposi- 
money.  which  was  accordingly  done,  and  the  tion,  nor  a  donatio  causa  moitis,  but  an  abso- 
said  Henry  Parris  added  and  included  the  lute  bargain  and  sale,  acc(»mpanied  with  a 
other  property  mentioned  in  the  deed."  This  warranty.  If  it  was  intended,  that  the  donor 
deed  had  l)een  prepared  by  Joseph  Powell,  should  at  once  be  deprived  of  the  use  of  the 
some  time  before  its  exe<ution,  listh  April,  cattle,  horses,  hogs,  and  sheep,  which  were 
iS-i;;.  but  the  said  Henry  Parris  had  delayed  *461 

its  execution  till  the  making  of  his  will.  so  Indispensable  for  his  support,  "(not  to  In- 

A  large  number  of  witnesses  were  exaraln-  elude  the  .slaves.)  it  woubl  in  it.self  be  such 
ed.  as  to  the  mental  capacity  of  Henry  Par-  an  act  of  improvidence,  as  would  strongly  im- 
ris,  at  the  time  when  this  deed  was  executed,  ply  mental  Imbecility,  or  undue  inlluence,  or 
Some  of  the  witnesses,  such  as  .Tolin  Watson,  lx)th.  Hut,  if  Henry  Parris  was  still  to  re- 
the  Ordinary  of  Greenville  district,  "thought  main  in  the  pos.sesslon  and  enjoyment  of  the 
iiim  not  a  man  of  sound  mind;  he  was  weak,  property,  why  did  not  this  act  of  "generous 
and  subject  to  influence,  &c.;"  and  others  te.s-  munificence,"  as  it  is  termed  by  the  defend- 
tified,  on  the  contrary,  that  he  had  good  com-  ant,  constitute  a  clause  of  the  will  executed 
nion  sense,  and  always  knew  what  he  was  at  the  same  time?  Without  pursuing  this  in- 
aliout.  The  Court  will  not  pretend  to  review  quiry,  it  seems  hardly  necessary  to  remark, 
the  evidence,  but,  In  the  course  of  the  Investi-  i  that  a  party,  situated  as  the  defendant  was, 
gatlon.  prefers  to  adopt  certain  leading  and  and  claiming  the  benefit  of  this  instrument, 
admitted  facts,  and  the  statements  of  some  '  should  show  that  its  provisions  were  well 
*460  I  understood,   its  effects   well  considered,   and 

of  the  defendant's  witnesses,  in  *relatlon  to  j  that  the  act  done  was  the  result  of  his  own 
the  capacity  of  Henry  Parris.  The  Court  '  unbla.sed  will.  It  is  first  proi)er  to  scan  care- 
can  perceive  no  proof  of  what  is  i)roperly  fully,  the  circumstances  accompanying  the 
unsoundness  of  mind.  He  had  arrived  at  an  execution  of  the  instrument.  The  law,  for 
age  very  rarely  reached  by  any  of  his  fellow-  |  wise  purposes,  has  required  that  in  .some 
creatures.  He  had  long  passed  the  period  dispositions  of  property,  witnesses  should 
when  "the  .strength  of  man  is  but  labor  and  be  called  to  attest  the  transaction.  This 
sorrow."     The  defendant's  highly  resi)ectable    is  important  for  both  parties.     To  te.stameu- 


witness,  George  F.  Townes.  Ksq.,  who  had 
known  him  from  his  (witness")  infancy,  says, 
in  his  cross-examination,  that  "Parris  was  05 


tary  dispositions,  a  large  number  of  witnesses 
is  retpilred — and  one  of  the  prominent  rea- 
sons is,  to  throw  a  guard  around  those  who 


years  of  age  when  he  died,  in  1N47.  He  never  [are  likely  to  require  protection— to  secure 
was  a  smart  man,  his  mind  always  was  from  imposition  those  whose  situation  may 
weak."  Another  of  the  defendant's  witnesses  render  them  most  obnoxious  to  its  influence, 
speaks  of  Ileni-j-  I'arris.  in  April.  184.3,  as  be-  |i)r.  William  P.  Turpin  is  the  attesting  wit- 
ing  "very  old  and  passive."  Without  the  tes-  ness  to  the  deed  of  L'sfh  April,  1843.  He  had 
timony  of  witnesses,  this  would  probably  be  never  known  Henry  Parris  until  one  week 
the  condition  both  of  his  mind  and  will,  at  previous,  when  he  was  called  to  see  him  pro- 
thls  advanced  age.  He  was  precisely  in  the  ■  fessionally.  He  had  visited  him  on  the  I'Tth 
condition  to  be  much  under  the  influence  of  'April,  and  tohl  them  he  should  not  return  un- 
those  about  him,  and  such  is  the  general  cur-  til  the  LTtth  April.  But,  on  the  morning  of 
rent  of  the  testimony.  His  age  and  his  in-  the  L'8th,  defendant  called  up.m  him  to"  go 
tirmltles  demanded  the  attention  of  his  and  see  his  grandfather,  and  he  acconqtanled 
friends,  that  he  should  not  act  unadvisedly,  him.  He  says,  "his  actpiainfance  with  Mr. 
According  to  some  of  the  evidence,  one  of  the  I'arris  was  limited;  knew  nothing  of  the 
purposes  of  the  defendant  in  going  to  live 'state  of  his  mind  at  that  time;  he  was  labor- 
wlfh  him.  was  to  prevent  him  from  squander-  Ing  under  great  bodily  suffering  fn)m  a  .severe 
ing  ills  pro|»erty.  and  particularly  to  prevent    sore   leg;"    that,   "at  the  time  he  witnessed 


further  bargains  of  slaves  to  P.  Cauble,  who 
appears  lo  have  had  Influence  with  him. 


the   will,    be   al.so  signed    a   paper,    (as   wit- 
ness,)  which   was   rei)resented   to  be  a   deed 


There  was  no  want  of  care  or  precaution  i  for  the  land  on  wlihb  Mr.  Parris  lived."  He 
in  the  preparation  of  the  deed.  Not  only  is  says,  that,  ".Joseph  Powell.  C.  Larke,  and 
the  pecuniary  consideration  recited  with  another  man,  were  present.  Mr.  Powell  wrote 
minute  particularity,  but  that  it  was  "money  1  and  produced  the  papers;" — "the  defendant 
laid  out  and  expended  In  and  about  the  man-  j  was  not  present,  but  was  in  an  adjoining 
ngement  of  my  buslne.s.s,  the  justice  of  which  I  room."  He  says,  "his  (Parrl.s'si  heallli  was 
account  has  been  acknowledge<l  by  me."  (The  bad,  and  he  was  confined  to  bed— he  had  to 
an.swer  .says  it  was  money  loaned  to  Henry  ♦462 

Parris,  In  1841,   for  which   he  held  bis  note    be  propped  up  to  sign  *tlie  two  papers— his 
for  money  lent.)     The  negroes  constituted  u   sufferings  were  so  great  that  they  rendered 

183 


*462 


5  RICHARDSON'S  EQUITY  REPORTS 


him  physically  unfit  for  business; — he  was 
very  feeble  at  the  time  spoken  of."'  In  his 
reply  to  the  defendant's  fourth  interrogatory 
in  chief,  he  says,  "he  saw  Mr.  Parris  sign  the 
paper  referred  to,  but  did  not  see  him  de- 
liver the  same  to  Mr.  Cobb;"  and  he  repeats 
that  the  paper,  which  he  thus  attested,  was 
"represented  to  be  a  deed  for  the  land  on 
which  Mr.  Parris  lived." 

Charles  Larke  was  also  examined  for  the 
defendant,  A.  B.  Cobb.  He  said,  among  other 
things,  that  "he  was  present  when  Henry 
Parris  signed  his  will,  and  he  subscribed  his 
name  as  witness  to  it;"  also  "saw  him  sign 
another  paper  at  that  time,  but  did  not  know 
what  it  was ;  that  he  was  at  Parris's  house 
about  two  hours;"  that  "there  was  only  a  min- 
ute or  two  between  the  signing  of  the  two  pa- 
pers." On  his  cross-examination,  he  says, 
"A.  B.  Cobb  came  to  witness's  house  that 
morning,  and  said  his  grandfather  wanted 
him  to  go  over  and  witness  his  will."  "When 
the  will  was  signed,  Mi-.  Parris  was  sitting  on 
the  bed,  and  complained  that  his  leg  hurt 
him ;  the  will  was  read  before  Parris  signed 
it,  but  the  other  paper  was  not  read;  Powell 
handed  the  paper  to  Parris,  and  he  signed  it. 
He  (witness)  did  not  hear  it  read,  but  he  saw 
Parris  have  it  in  his  hand  looking  at  it,  and 
long  enough  to  have  read  it;  there  was  no- 
body present,  except  Mr.  Powell,  Dr.  Turpin, 
and  witness.  A.  B.  Cobb  was  not  there." 
This  witness  said,  he  was  himself  a  German ; 
that  he  came  to  this  country  from  Germany, 
in  1834 ;  that  he  cannot  read  writing  in  Eng- 
lish— and  his  acquaintance  with  the  language 
seems  imperfect; — he  understands,  (he  says,) 
"low  English,  but  did  not  understand  high 
English."  Both  these  witnesses  are  adduced 
in  behalf  of  the  defendant ; — their  evidence 
is  very  instructive; — neither  of  them  was 
called  in,  with  reference  to  this  transaction. 
Dr.  Turpin  was  called  in,  that  morning,  pro- 
fessionally, and  was  suiiDrised,  he  says,  to 
find  that  for  that  purpose  he  was  not  wanted. 
Larke  was  told  that  Henry  Parris  wished  him 
to  come  and  witness  his  will;  the  old  man  is 
very  feeble;   obliged  to  be  propped  up  in  his 

*463 
bed;  physi*cally  unfit  for  business;  the  will 
is  read,  and  executed  and  attested.  At  the 
same  time.  Dr.  Turpin  thinks,  after  the  will, 
"this  paper  is  handed  by  Mr.  Powell  to  Henry 
Parris ;"  the  paper  is  not  read,  but  Parris 
signed  it.  If  the  will  was  read  to  the  testa- 
tor, why  should  it  be  deemed  unnecessary  to 
read  this  instrument?  Larke  says  it  was  not 
read.  Dr.  Turpin  proves  not  only  that  it  was 
not  read,  but  he  proves  much  more.  He  is 
the  defendant's  witness; — he  is  the  attesting 
witness.  He  says  that  the  defendant  request- 
ed him  to  sign  as  a  witness,  and  then  retired 
into  an  adjoining  room.  Mr.  Powell  had  pre- 
pared, and  he  produced  the  papers ; — one,  the 
witness  understood  to  be  a  will; — this  paper 
was  represented  to  be  a  deed  for  the  land  on 
which  Mr.  Parris  lived.    Thus  represented,  it 

184 


was  handed  to  Mr.  Parris,  and  executed  by 
him,  and  attested  by  the  witness,  but  he  .saw 
no  delivery  of  the  deed  to  the  defendant.  Dr. 
Turpin  is  evidently  an  intelligent  witness, 
and  his  statement  on  this  subject  is  posi- 
tive, distinct,  and  twice  repeated,  in  reply 
to  the  defendant's  inquiry.  By  whom  was 
this  representation  made?  Not  by  Larke 
certainly;  perhaps  not  by  the  defendant, 
Cobb.  The  only  persons,  then,  by  whom 
the  representation  could  have  been  made  in 
the  presence  of  Dr.  Turpin,  were  either 
Joseph  Powell,  or  Henry  Parris  himself,  or 
both.  The  Court  has  in  vain  sought  for  any 
explanation,  any  evidence  which  would  re- 
pel the  inference,  or  rather  impair  the  force 
of  the  positive  statement,  that  this  instru- 
ment, containing  the  acknowledgment  of  an  in- 
debtedness of  $489.98,  and  a  gift  of  six 
slaves,  with  cattle,  horses,  hogs,  t&c,  was  mis- 
represented by  the  draughtsman,  who  handed 
it  for  signature  to  the  party,  to  be  "a  deed 
for  the  land  on  which  he  lived;"— that  it  was 
so  represented  in  the  presence  of  the  attest- 
ing witness.  It  is  possible  that  Dr.  Turpin 
is  mistaken  in  his  evidence,  or  that  the  de- 
fendant himself  had  no  part  in  this  misrep- 
resentation, and  is  incapable  of  it.  But 
any  such  arbitrary  speculation  on  the  part 
of  the  Court  derives  no  confirmation  from 
other  sources,  and  is  painfully  chilled  by  the 
testimony  of  William  Choice,  a  witness  ad- 
duced by  defendant,  and  who  was  cross-exam- 

*464 
ined  by  the  complainants.  Among  *other 
matters,  he  testified  that  Henry  Parris  was 
weak  minded,  failing,  and  easily  infiuenced, 
in  the  latter  years  of  his  life,  by  his  friends. 
He  never  considered  Mr.  Parris  competent  to 
attend  to  complicated  transactions.  At  the 
time  mentioned,  he  considered  him  to  be  easi- 
ly imposed  upon  by  those  who  had  his  confi- 
dence. "He  regarded  the  defendant  as  the 
general  agent  for  Parris, — he  claimed  to  be 
so."  Witness  "understood,  both  from  A.  B. 
Cobb  and  Henry  Parris,  that  Cobb  was  the 
general  agent  of  Parris."  Witness  instituted 
a  suit  in  the  name  of  Parris,  against  Roily 
Jenkins,  the  whole  of  which  was  commenced 
and  conducted  by  A.  B.  Cobb,  without  any 
communication  between  witness  and  Parris. 
But  the  transaction,  to  which  this  witness 
particularly  testifies,  took  place  "before  he 
heard  of  Parris's  will,  which  was  drawn  by 
Mr.  Powell,  who  became  the  counsel  of  Mr. 
Cobb ;"  he  cannot  fix  the  precise  date  of  the 
occurrence,  but  what  then  took  place,  "has 
been  impressed  on  his  mind  by  frequent  ex- 
aminations since  their  occurrence."  On  the 
occasion  to  which  he  refers,  he  says,  "Mr. 
Cobb  called  on  me,  and  asked  me  to  draw  an 
instrument  of  writing,  conveying  to  himself 
a  considerable  portion  of  Henry  Parris's 
property,  to  be  signed  by  Henry  Parris ;  and, 
on  being  told  by  me  that,  if  Mr.  Parris  would 
call  and  tell  me  what  kind  of  an  instrument 
he  wanted,  and  if  I  believed  he  understood 


PARRIS  V.  COBB 


*467 


its  nature  and  charaote'*.  I  would  draw  it  for 
hiui,  Mr.  Cobli  said,  tliat  if  I  woulfl  tt-il  Henry 
Parri.s  it  was  riglit  for  him  to  do  it,  he, 
Henry  Tarris,  would  do  it — if  I  would  pro- 
cure sufh  an  instrument,  he,  A.  R  Cobb, 
■would  give  me  one  hundred  dollars.  After- 
wards. .Mr.  Henry  Tarris  called  at  my  offloe, 
and  said.  A.  B.  Cobb  had  told  him  to  call 
there  and  sign  a  powi-r  of  attorney,  authoriz- 
ing A.  B.  Cobb  to  attend  to  the  affairs  of 
said  I'arris.  I  told  I'arris  it  was  unnecessary 
to  give  such  an  instrument,  as  Cobb  was  al- 
ready acting  as  his  general  agent."  When 
asked  by  the  defendant  as  to  his  inference, 
he  says,  that  "he  has  stated  the  facts,  from 
which  conclusions  may  be  drawn."  After 
this  unsuccessful  experiment  with  the  wit- 
ness, he  says,  "that  Mr.   I'owell  became  the 

♦465 
counsel  of  Mr.  Cobb,  and  he  heard  of  'the 
will  that  he  had  drawn;"  although  there  is 
good  reason  to  believe  that  neitiier  he,  nor 
any  one  else,  except  the  defendant  and  his 
counsel,  was  aware,  until  after  the  decease 
of  Henry  Parris,  in  1847,  that  a  deed  of  this 
character,  and  containing  the.se  provisions, 
Lad  been  executed.  Excei)t  the  evidence  of 
Mr.  I'owell,  there  is  no  proof  of  delivery. 
It  was  never  recorded,  nor  was  it  ever  prov- 
ed for  record.  If  no  fiduciary  relation  had 
existed  between  the  defendant  and  Henry 
Parris,  the  Court  would  come  to  the  conclu- 
sion, upon  the  clear  preitonderance  of  the  tes- 
timony, that  this  transaction  cannot  .stand; 
that,  whether  the  defendant  relies  upon  the 
parol  gift  of  the  slaves,  or  the  liargain  and 
sale  of  the  slaves  and  stock,  his  claim  must 
equally  fail.  It  may  be,  that  Henry  Parris 
was  grateful  to  the  defendant,  and  intended, 
and  was  willing  to  have  rewarded  liim  for 
his  services.  As  Lord  Kldon  says,  in  lluguen- 
iu  v.  liaseley,  this  is  not  enough.  "Was  all 
the  care  and  providence  placed  round  this 
aged  and  infirm  i)erson,  as  against  those  who 
advised  him,  which,  from  tlieir  situation  and 
relation  with  respect  to  him,  they  were  bound 
to  exert  in  his  behalf V  So  far  from  it,  it  is 
imi»ossible  to  read,  and  to  credit  the  testi- 
mony of  Mr.  Choice,  without  being  forced 
to  the  conclusion  of  the  unworthy  designs  of 
the  defendant ;  or  the  evidence  of  Dr.  Turpin. 
without  a  deep  conviction  that  tho.se  designs 
Imd  been  consummated. 

Leaving  this  branch  of  the  case,  it  is  i)ro- 
posed  now  to  advert  to  the  purchase  of  the 
Charles  CJarrison  tract  of  land.  It  was  sold 
by  the  Sheriff  in  July,  IMli.  Henry  Parris 
lived  at  this  time  between  three  and  four 
miles  from  (Jreenville  Court  House,  at  his 
homestead.  He  was  ninety  years  ohl.  feeble, 
and  so  incapable  of  attending  to  his  own 
farm,  that  he  was  obliged  yearly  to  purcha.se 
supplies — and  he  was  annoyed  by  petty 
debts,  which  he  had  not  the  means  to  satis- 
fy, without  a  sale  of  property.  The  Carrl- 
son  place  was  some  fourteen  miles  from  the 
Court  House.     Yet  the  Court  is  told,  in  the 


<lefendant's  answer,  that,  at  the  Siierift"'? 
.sale  in  1n41'.  this  land  was  l»id  off  by  Henry 
Colli),  (the  father  of  the  defendant,)  for  Hen- 
ry Parris,  for  the  sum  of  eleven  hundred  and 

*466 
ten  dollars;  that  Parris  •a'J.rnied  the  con- 
tract, and  afterwards  sold  the  land  to  the  de- 
fendant. The  whole  transaction  is  compli- 
cated. Hut  if  Parris  understinxl  anything 
alxiut  it,  it  affords  the  most  striking  evi- 
dence of  his  general  incapacity,  or  of  the  ab- 
solute control  exer(i.sed  by  the  defendant. 
He  was  on  the  brink  of  the  grave,  with  more 
hiii'l  than  be  could  possibly  improve,  and  so 
embarrassed  In  his  i)ecuniary  affairs,  that 
he  had  .sometimes  a  constable  at  the  door, 
with  a  magistrate's  sununons.  Yet.  at  this 
periofl  of  life,  under  these  circumstances, 
he  embarks  in  a  new  purchase  of  four  hun- 
dred and  twenty  acres  of  land,  situate  ten 
miles  off,  which  was  .sold,  as  the  defend- 
ant .says,  at  a  fair  iirice,  and  for  which 
he,  Henry  Parris,  was  to  pay  eleven  hun- 
dr»'d  and  ten  dollars,  cash.  "The  nu)ney 
was  rai.sed,"  (says  the  defendant.)  "by  bor- 
rowing six  hundred  dollars  from  Jeremi- 
ah Cleveland,  and  five  hundred  dollars  from 
Jo.seph  Powell,  and  the  ten  dollars  was 
paid  by  this  defendant."  Mr.  Choice 
says,  "he  distinctly  remembers,  that  in 
July,  1.S41.',  the  Cobbs  wanti^  to  borri»w 
money  for  the  payment  of  the  Charles  (Jarri- 
son  land,  bought  at  Sheriff's  sale.  As  far  as 
his  memory  .si-rves  him,  the  Cobbs  borrowe*! 
the  money,  and  Mr.  Parris  was  security." 
Witness,  "its  attorney  of  Capt.  Cleveland, 
took  the  confession  of  judgment,  and  in  that 
way  became  ac<iuainted  with  the  tran.sac- 
tion."  The  Sheriff's  deed  to  Parris  was  not 
obtained  until  December,  ISUiiJ.  On  the  19th 
December,  1S4L',  Parris  conveye<l  the  premises 
to  the  defendant  for  the  same  sum.  and  on 
the  next  day  proceedings  were  instituted 
against  (larri.son.  Defendant  went  to  live  on 
the  (Jarrison  place  in  the  l>eginning  of  1844, 
and  continued  to  reside  there  until  December, 
1847,  when  he  sold  the  premises  to  William 
Meares,  for  thirteen  lunidred  and  fifty  dol- 
lars. The  defendant  insists  on  the  validity 
of  the  purchase  for  Henry  Parris,  at  ."Sher- 
iff's sale,  and  the  Court  is  not  disixised  to 
disturb  it,  nor  do  the  complainants  ask  it 
Put  the  Court  is  of  oi)inion,  that,  in  the  con- 
dition which  the  defendant  occupied  in  De- 
cember, 1S4L',  and  under  the  circinnstances 
which  have  been  develojted,  the  transfer  of 
the    l'.>th    DecenilK-r,    IM'J.    ought    not    to   be 

•467 
sustaineil,  and  that  the  *defendant  must  ac- 
count for  the  enhanced  price  at  which  he 
.void  the  |)remises  to  Meares,  as  well  as  for 
the  rent,  from  the  time  h«'  t<iok  possession,  in 
1844.  until  the  .sale  to  Meares,  as  against 
whom  the  bill  must  be  disnnssed. 

It  is  ordered  and  decnn^d.  that  the  defend- 
ant, A.  H.  Cobb,  deliver  up  to  the  complain- 
ants the  slaves,  with  their  issue,  specifically 

185 


»467 


5  RICHARDSON'S  EQUITY  RErORTS 


bequeathed  to  them,  respectively,  by  the  tes- 
tator, Henry  Parris,  and  that  he  account  for 
their  hire  from  the  Fall  of  1S48,  until  such 
delivery. 

It  is  further  ordered  and  decreed,  that  the 
instrument  bearing  date  28th  April,  1843, 
be  delivered  up  to  be  cancelled ;  that  the 
defendant  account  for  the  amount  for  which 
he  sold  the  slaves  therein  mentioned,  with 
interest  from  the  time  of  their  removal 
from  this  State,  in  1848,  and  that  he  account 
for  their  hire  from  the  beginning  of  1844, 
until  such  removal,  in  1848 ;  that  he  ac- 
count also  for  the  residue  of  the  property 
purporting  to  be  transferred  by  said  deed. 
It  is  also  ordered,  that  it  be  referred  to  the 
Commissioner,  to  take  an  account  of  the  mon- 
eys received  and  disbursed  by  the  defendant, 
both  during  his  agency  in  the  life  time  of  the 
testator,  and  as  executor  since  his  death ; 
and  that  he  report  thereon,  preparatory  to 
a  final  adjustment  among  the  parties  interest- 
ed In  the  residuary  estate  of  Henry  Parris, 
deceased,  as  his  next  of  kin.  ' 

It  is  finally  ordered,  that  the  costs  of  the 
complainants,  as  well  as  those  of  the  defend- 
ant, William  Meares.  be  paid  by  the  defend- 
ant, Amaziah  B.  Cobb.  Parties  to  be  at  lib- 
erty to  apply  for  any  other  orders  which 
may  be  necessary  in  carrying  the  decree  into 
effect. 

The  defendant,  A.  B.  Cobb,  appealed,  and 
moved  this  Court  to  reverse  or  modify  the 
Circuit  decree,  on  the  grounds : 

1.  Because  the  will  of  Henry  Parris  is  a 
will  of  specific  legacies,  without  a  residuary 
clause ;  and  therefore  Cobb,  as  executor, 
is  only  chargeable,  in  this  form,  with  the 
specific  legacies  committed  to  him  by  the 
will.  If  there  are  other  means  belonging  to 
the  estate  of  Parris,  they  can  only  be  reach- 

*468 
ed  by  *taking  administration  on  the  estate ; 
and  that  not  having  been  done,  Cobb  is  not 
liable   to   account    to    the    plaintiff    in    this 
form. 

2.  Because  A.  B.  Cobb  was  the  special, 
and  not  the  general  agent  of  Parris,  esipecial- 
ly  after  their  separation  in  January,  1844 ; 
and,  as  such,  the  statute  of  limitations  ought 
to  protect  him  against  the  several  matters 
mentioned  in  the  bill. 

3.  Because,  even  if  he  had  been  the  gener- 
al agent  of  Parris,  which  he  never  was,  the 
statute  ought  to  protect  him,  as  to  convey- 
ances of  property  made  to  him  by  Parris, 
after  the  lapse  of  four  years  from  such  con- 
veyances. 

4.  Because  the  deed  of  April  28,  1843,  hav- 
ing been  executed  at  the  same  time  that  Par 
ris  executed  his  will,  and  the  will  having  been 
established  before  every  tribunal  in  which 
the  appellants  were  entitled  to  be  heard,  in 
the  face  of  the  same  objections  here  urged 
against  the  deed,  the  Circuit  decree  ought  to 
have  established  the  deed. 

5.  Because,  independent  of  the  adjudication 
186 


in   favor  of  the  will,  the  evidence  Ls  suffi- 
cient to  establish  the  deed. 

6.  Because  the  Circuit  decree  ought  to 
have  sustained  both  the  purchase  and  sale 
by  Pai-ris  of  the  Garrison  place,  as  the  two 
conveyances  were  executed  within  seven  days 
of  each  other,  or  ought  to  have  set  both 
aside ;  and  therefore  the  Chancellor  erred  in 
declaring  the  purchase  by  Parris  valid,  and 
the  sale  by  him  invalid,  and  in  requiring  A, 
B.  Cobb  to  account  for  the  rents,  and  for  the 
excess  for  which  he  sold  the  place  to  Meares. 

7.  Because,  if  the  deed  to  A.  B.  Cobb,  of 
28th  April,  1843,  cannot  stand,  he  is  entitled 
to  payment  for  his  services,  in  the  years 
1841,  1842  and  1843,  as  overseer  for  Parris ; 
and,  therefore,  the  Chancellor  erred  in  set- 
ting aside  the  deed,  without  allowing  Cobb 
payment   for  said  services. 

8.  Because  the  demand  of  $184.50,  in  the 
hands  of  A.  B.  Cobb,  as  administrator  of 
Henry  Cobb,  was  money  paid  by  Henry  Cobb, 
on  12th  October,  1847,  for  Parris,  as  clearly 
shown  by  the  evidence  and  is  a  valid,  sub- 
sisting demand,  due  to  tlie  estate  of  Henry 
Cobb   by  the  estate  of  Henry  Parris;    and 

*469 
there*fore   the   Chancellor   erred   in   his  de- 
cree, in  not  making  the  said  demand  a  charge 
on  the  estate  of  Parris. 

Vandiver,    for   appellant. 

Perry,  contra.  > 

The  opinion  of  the  Court  was  delivered  by 

DUNKIN,  Ch.  The  defendant's  first  ground 
of  appeal  has  certainly  no  foundation.  But 
it  is  due  to  the  zeal  and  earnestness  with; 
which  it  was  insisted  upon  by  both  the  coun- 
sel of  the  appellant,  that  it  should  be  more 
fully  explained.  It  is  said  this  is  a  will  of 
specific  legacies,  without  any  residuary 
clause,  and  that  the  defendant,  the  executor, 
is  either  not  accountable  at  all,  beyond  the 
payment  of  debts  and  legacies,  or  that,  if  so 
accountable,  the  surplus  (in  the  language  of 
the  appeal)  "can  only  be  reached  by  taking, 
administration  on  the  estate  of  Henry  Par- 
ris, deceased." 

It  is  stated  in  the  decree,  that  when  the 
testator  made  his  will,  he  had  three  sons  and 
four  daughters.  One  of  his  sous  had  since 
died.  All  the  daughters,  the  two  .surviving 
sons,  and  the  representatives  of  the  deceased 
son,  were  parties,  either  as  complainants  or 
defendants.  It  is  not  suggested  that  there 
were  any  other  distributees,  nor  is  it  a 
ground  of  appeal,  that  all  the  distributees  are- 
not  before  the  Court.  Then,  whence  the  ne- 
eessity,  or  propriety,  of  an  administration? 
By  law,  the  title  of  all  the  testator's  person- 
alty, whether  disposed  of  by  his  will  or  not,, 
is  vested  in  the  executor.  It  is  true,  that  in 
England,  the  surplus,  after  payment  of  debts 
and  legacies,  was  held,  at  law,  to  belong  to 
the  executor;  but  even  there,  this  general 
rule  of  law  was  controlled  in  Equity,  in  all 
cases  where  a  necessary  implication  or  strong; 


PARRIS  V.  COBB 


*472 


presumption  appoared.  that  the  testiitor 
meant  only  to  give  the  office  of  executor,  and 
not  tlie  iieneticial  interest  in  the  residue.  In 
Jill  such  cases,  the  executor  has  iieen  con- 
sidered a  trustee  for  the  next  of  kin  of  the 
testator.  And  now,  hy  the  statutes  of  11 
(Jeo.  IV.  and  1  Win.  IV.,  Courts  of  I^iuity 
are  required  always  to  consider  ex«'cutors  as 
trustees  for  the  pi'rsons  who   would   he  en- 

*470 
titled  to  distrihution,  in  respect  of  'any  resi- 
<lue  not  disposed  of  hy  the  will.  2  Wins. 
Exors.  lOoO.  Hut  in  South-Carolina  execu- 
tors have  heen  always  so  regardetl.  As  ex- 
ecutors, they  have  no  interest  beyond  the 
connnissions  allowed  by  law,  and  for  any 
surplus  of  their  testator's  estate  they  are  ac- 
countable as  trustees,  to  the  next  of  kin.  In 
nearly  every  volume  of  our  Reports,  ca.ses 
may  be  found  in  which  this  liability  of  the 
executor  is  familiarly  recognized,  such  as 
Ilinson  v.  I'ickett.  1  Hill  E<i.  .'iu :  Hronghton 
V.  Telfer,  3  Rich.  Eq.  4:U,  &c. ;  although  it 
juay  be  true  that  no  dire<?T  decision  upon 
the  subject  may  be  found,  because  no  such 
(lue.stion  has  been  made. 

Then  it  is  contended  that  the  defendant  is 
ju'otected  by  the  statute  of  limitations,  and 
that,  inarticularly  after  January,  1S44,  he 
was  only  the  special  agent  of  the  testator. 
Rut  the  testimony  is  very  full,  both  from  his 
own  acts  and  declarations,  as  well  as  the 
declarations  of  the  testator,  that  the  defend- 
ant was  his  general  agent.  One  of  the  de- 
nuntls  on  which  he  insists,  is  for  a  note 
which  he  signed,  in  the  name  of  the  testator, 
and  as  his  agent,  siibsetiueut  to  .January, 
1844,  and  whicii  he  alleges  was  paid  by  the 
surety,  Henry  Cobb.  It  is  well  settled,  that 
in  such  cases,  the  statute  does  not  couuuence 
to  run  until  the  termination  of  the  agency. 
Hopkins  v.  Hopkins,  4  Strob.  Eq.  201  [Ho 
Am.  Dec.  6U3].  And,  even  if  the  general 
agency  ceased,  as  contended,  in  Janiiary, 
1S44,  the  bar  had  not  attached  in  Heiitem- 
lier,  1S47,  when  the  defendant  became  ex- 
ecutor. 

The  defendant  having  refu.sed  to  deliver 
the  two  slaves  specifically  bequeathed  to  th^' 
complainants,  (the  son  and  granddaughter  ul 
testator,)  on  account  of  the  insuthciency  of 
the  estate  to  pay  the  debts,  this  bill  was  filed, 
alleging,  among  other  things,  that  the  de- 
fendant, soon  after  testator's  decease,  had 
carried  off  to  the  West  and  sold  certain  of 
testator's  slaves,  and  the  bill  prayed  not  only 
a  specific  delivery  of  the  slaves  betiueathed, 
and  an  account  of  their  hire,  but  that  the 
defendant  nnght  account  for  his  actings  and 
doings  as  executor,  and  also  for  what  he  had 
received  and  disposed  of  during  the  testa- 
tor's imbecility.     The  answer  admits  the  re- 

•471 
nioval  and  siile  of  the  *negroes,  in  1848,  for 
$0,050;  but  insists  that  they  had  b(>come 
the  property  of  the  defendant  by  the  deed 
of  April,  1M;?.  The  infirmity  of  that  deed 
has  been  adjudged,  for  the  reasons  slated  iu  | 


the  de«ree,  and  which  need  not  he  repeated. 
And  as  no  adverse  possession  of  the  prop- 
erty included  therein  is  suggested  to  have 
existed,  until  the  defendant's  removal  in 
January,  1S44.  the  Iwir  «)f  the  statute  (if  ap- 
I)licable  under  such  cinumstancvs)  was  not 
completed  at   the   testatm-'s   death. 

It  is  argued  that  the  conclusions  of  the 
Chancellor  ui)on  the  facts  are  at  variance 
with  the  verdict  of  the  jury,  in  relation  to 
tlu'  will.  This  Is  an  entire  misapprehension. 
The  Chancellor  was  of  opinion,  and  so  stated, 
that  the  testimony  did  not  establish  inca- 
pacity to  make  a  will,  but  only  such  condi- 
tion, both  of  mind  and  bixly,  as  would  ren- 
der the  testator  peculiarly  subject  to  be  in- 
fluenced, and,  it  nnght  be,  misled,  by  those 
in  his  confidence,  and  that  the  defendant  stood 
in  that  relation,  and,  in  the  matter  of  the 
deed,  had  abused  the  confidence.  liut,  under 
the  will,  the  defendant  took  no  part  of  tlie 
testator's  estate,  and,  besides,  it  was  iiroved 
that  the  will  was  read  aloud,  in  the  presence 
of  the  attesting  witnesses.  I'mler  the  deed, 
the  defendant  took  a  large  part  of  the  tes- 
tator's estate.  It  was  executed  at  the  same 
time  with  the  will,  but  it  was  not  read  to 
the  testator,  and,  according  to  the  testimony 
of  the  only  attesting  witness,  it  was  rep- 
resented to  be  a  detnl  of  the  land  on  which 
he  lived.  Eurther,  on  the  trial  of  the  will, 
Mr.  Choice  gave  the  same  evidence  as  on 
this  occasion.  In  the  report  of  the  presid- 
ing Judge  to  the  Court  of  Appeals,  adverting 
to  this  evidence,  he  s:iys  he  "charged  the 
jury  that  even  the  offer  of  a  fee.  or  a  bribe, 
to  a  lawyer,  to  induce  him  to  i>ersuade  the 
testator  to  make  a  will  iu  favor  of  the  ex- 
ecutor— and  there  was  no  further  proof  that 
su<h  base  intention  was  carried  out — was 
not,  of  itself,  conclusive  evidence  of  either 
fraud  or  undue  infiuence."  Hut  what  would 
have  been  the  ruling  of  that  pure  and  en- 
lightened magistrate,  if  such  unworthy  in- 
tention had  been  too  successfully  carried  in- 
to effect"/  or  if  a  party,  who  was  proveti  to 
have  unsuccessfully  tampered  with  the  integ- 

*472 
rity  of  *one  of  those  who  should  be  minis- 
ters at  the  altar  of  justice,  had  afterwards 
sought  to  defend  his  pretensions  under  an  in- 
strument of  preci.sely  the  same  character  as 
that  whii'h  he  had  attenq>ted  to  procure? 
As  already  intimated,  it  does  not  appear  that, 
at  the  trial  of  the  will,  the  parties  knew 
anything  about  the  existence  of  this  deed. 
It  had  not  been  read  in  the  hearing  of  the 
bystanders.  It  was  never  put  on  record; 
and,  for  all  that  appeared  on  that  trial,  the 
defendant  had  very  little  p«'rsonal  interest  in 
the  transactions  that  took  place  at  the  bed- 
side of  Henry  Harris,  on  the  UNth  April, 
1S4.'{.  Subsequent  developments  have  given 
more  marked  significancy  to  his  conduct.  It 
may  be  that  witnesses  are  nnstaken — or 
worse.  It  may  be  that  appearances  are  de- 
lusive. Hut  Courts  of  Justice  are  bound  to 
form   conclusions   from    the   evidence   before 

187 


*472 


5  RICHARDSON'S  EQUITY  REPORTS 


them.  They  must  deal  with  the  materials 
presented  to  them,  and  are  not  permitted  to 
indulge  in  speculations.  According  to  the 
evidence  submitted,  and  the  approved  prin- 
ciples of  this  Court,  as  applicable  to  the  re- 
lations of  these  parties,  Che  judgment  of  the 
Circuit  Court  should  be  sustained.  It  is  so 
ordered  and  decreed,  and  the  appeal  dis- 
missed. 

JOHNSTON,   DARGAN   and  WARDLAW. 
CC,  concurred. 
Decree  affirmed. 


5  Rich.  Eq.  *473 

*Ex  parte  WILLIAM  WARE. 

(Columbia.     May  Term,   1853.) 

[Executors  and  Admimstrators  <S=2G3.] 

A  surety  to  a  single  bill,  who  pays  it  off  aft- 
er the  death  of  the  principal,  is  entitled  to 
rank  as  a  specialty  creditor  of  the  estate  of  the 
principal. 

[Ed.  Note.— Cited  in  Edwards  v.  Sanders,  6 
S.  C.  333;    Robinson  v.  Robinsun,  20  S.  C.  573. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  §  994;    Dec.  Dig.   <©=»2()3.] 

Before  Dunkin,  Ch.,  at  Abbeville,  June, 
1852. 

This  was  an  appeal  from  the  judgment  of 
the  Ordinary. 

N.  M.  Ware,  deceased,  the  intestate,  and 
William  Ware,  were,  at  the  death  of  the  for- 
mer indebted  to  the  representatives  of  Thos. 
Kirkpatrick,  by  two  joint  and  several  sealed 
notes.  N.  M.  Ware  was  the  principal,  and 
William  Ware  his  surety.  The  notes  were 
paid  by  William  Ware  after  the  death 
of  his  principal.  He  presented  them  before 
the  Ordinary,  and  claimed  to  be  entitled  to 
rank  as  a  specialty  creditor  of  the  estate  of 
the  intestate.  The  Ordinary  thought,  he  was 
only  entitled  as  for  so  much  money  paid ; 
and  rejected  his  claim  as  a  specialty  credi- 
tor.   He  appealed. 

Dunkin,  Ch.  The  statement  of  facts  ap- 
pears from  the  brief  of  the  solicitors,  togeth- 
er with  the  judgment  of  the  ordinary. 

It  will  be  remarked,  that  the  sealed  note  is 
joint  and  several.  At  the  decease  of  the  intes- 
tate, N.  M.  AVare,  the  representatives  of  Thos. 
Kirkpatrick,  the  payees,  were  specialty  credi- 
tors of  the  estate  of  N.  M.  Ware,  deceased. 
In  Morton  &  Courteny  v.  Caldwell,  3  Strob. 
Eq.  161,  it  was  ruled  by  the  Court,  that  "the 
proper  mode  of  determining  the  proportion  of 
assets  liable  to  the  respective  creditors  of  a 
deceased  debtor,  is  to  assign  them  according 
to  the  amount  of  the  debts  as  they  existed 
at  his  death."  It  is  there  said,  that  "if  upon 
any  of  the  demands  thus  taken  into  consid- 
eration, any  payments  have  subsequently 
been  made  by  a  third  party,  that  does  not  re- 
lease the  proportion  of  the  deceased's  assets 
originally  liable  to  the  creditor,  if  there  still 
remains   due  on  the  demand  a   balance   re- 


*474 
quiring  that  proportion  to  satisfy  *it."  The 
Chancellor  also  clearly  intimates  tlie  oplidon, 
that  if  tlie  party  who  made  the  payment  was 
only  surety  for  the  debt,  he  would  become 
entitled,  (if  he  had  paid  the  whole  debt.)  by 
way  of  reimbursement,  to  the  proportion  to 
which  the  original  creditor  was  entitled. 
And  in  King  v.  Aughtry,  Id.  149,  the  riglit 
of  the  surety  who  pays  off  the  debt  of  the 
principal  was  considered,  and  the  doctrine 
of  our  own  Courts,  in  affording  protection 
to  sureties,  recognized  and  enforced.  See  al- 
so, Thomson  v.  Palmer,  3  Rich.  Eq.  139. (a) 
My  opinion  is,  that  the  appellant  was  enti- 
tled to  rank  as  a  specialty  creditor  of  the 
estate  of  N.  M.  Ware,  deceased ;  and,  in  con- 
formity with  the  thirteenth  section  of  the 
Act  of  1S.39,  regulating  appeals  from  the 
court  of  ordinary,  it  is  ordered  and  decreed, 
that  it  be  referred  to  the  Commissioner  of 
this  Court  to  re-state  the  account  according 
to  the  principles  herein  declared. 

The  administrator  of  N.  M.  Ware,  ai)i»eal- 
ed,  on  the  grounds: 

1.  Because,  it  is  respectfully  submitted,  his 
Honor  erred  in  deciding  that  a  surety  who 
paid  a  single  bill  to  the  obligee,  after  the 
death  of  the  intestate,  the  principal,  was  re- 
mitted to  the  rights  of  the  obligee,  and  rank- 
ed as  a  specialty  creditor. 

2,  Because  the  Ordinary,  in  deciiling  ques- 
tions in  his  Court,  must  be  governed  by  the 
law  and  practice  established  therein,  which 
do  not  recognize  the  right  of  subrogation ; 
and  that,  to  require  the  Court  of  Ordinary 
to  conform  in  all  respects  to  the  Court  of 
Equity,  would  subvert  the  independence  of 
the  former  Court,  and  render  it,  in  sub- 
stance, a  subordinate  branch  of  the  Court  of 
Equity. 

Tliomson  &  Fair,  for  appellant. 
Perrin  &  McGowan,  contra. 

PER  CURIAM.     This  Court  is  of  opinion, 
*475 
that  there  is  no  error  *in  the  decree  of  the 
Chancellor ;   and  it  is  ordered,  that  it  be  af- 
firmed, and  the  appeal  dismissed. 

JOHNSTON,     DUNKIN,     DARGAN     and 
WARDLAW,  CC,  concurring. 
Decree  affirmed. 


(a)  See  also  Perkins  v.  Kershaw,  1  Hill,  Eq. 
351 ;  Pride  v.  Boyce,  Rice  Eq.  275  L33  Am. 
Dec.  78]. 


5    Rich.  Eq.  475 

DUNCAN  McRAE   and  Others  v.   JOSHUA 

DAVID,   Ordinary. 

(Columbia.     May  Term,   1853.) 

[Executors   and   Administrators   <©::^2t).] 

The  statute  22  and  23,  Car.  II.  c.  10,  mak- 
ing it  the  duty  of  the  Ordinary,  in  granting  ad- 
ministration, to  take  suttieient  bond,  "with  two 
or  more  able  sureties,— respect  being  had  to  the 


18S 


®;:^For  other  ca-ses  see  same  topic  and  KEY-NUMBEH  in  all  Key-Numbered  Digests  and  Indexes 


McRAE  V.  DAVID 


*477 


value  of  the  estate,"  is  not  repealed  by  the  Act 
of  1789,  requirini?  that  "every  admiuistrator 
shall  enter  into  bond,  with  Rood  security,  to  be 
approved  by  the  Court,  in  a  sum  equal  to  the 
full  value  of  the  estate.  '  The  two  Acts  are  to 
be  construed  together. 

I  Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  SS  144-170; 
Dec.  Dig.  ®=3l!6.1 

[Executors   and  Adniiiiistratois  <S=>2(!.1 

In  determining  the  suttieicncy  of  tlu'  bond. 
the  r(Si)onsibility  of  the  administratur  himself 
is  not  to  be  considered.  The  ability  of  the  sure- 
ties is  alone  to  be  looked  to. 

[Ed.  Note. — For  other  cases,  see  E.xecutors 
and  Administrators,  Cent.  Dig.  SS  144-1 7U; 
Dec.  Dig.  ©=32<J.l 

[Executors   and   Administrators    <©=3li6.1 

It  is  the  duty  of  tlie  Ordinary  to  take  bond, 
with  at  least  two  sureties;  and  each  surety 
must  be  able,  in  a  i)e(iiiiiary  or  proiinty  point 
of  view  respect  being  had  to  tiie  value  of  the 
estate  to  be  administered. 

[Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  §§  144-170; 
Dec.  Dig.  <g=-J(J.] 

[Executors   and   Administrators    (S=>20.1 

The  Ordinary,  in  determining  u])on  the  abil- 
ity of  the  sureties,  acts  ministerially,  and  not" 
judicially. 

[Kd.  Note. — Cited  in  Williams  v.  Weeks,  70 
S.  C.  5,  48  S.  E.  G19. 

For  other  cases,  see  Executors  and  Adminis- 
trators, Cent.  Dig.  J!§  144-170;  Dec.  Dig.  <©=> 
20.] 

[Jud(/cs  <g=>36.] 

If  the  loss,  which  has  been  sustained  from 
the  insutiiciency  of  the  bond,  has  not  resulted 
from  negligence  on  the  part  of  the  Ordinary, 
but  has  arisen  from  causes,  which,  acting  faith- 
fully, he  could  not  foresee  or  control,  he  is  not 
liable. 

[Ed.  Note. — For  other  cases,  see  Judges,  Cent. 
Dig.  §  IGG;    Dec.  Dig.  <s=>3U.] 

[Executors  and  Administrators  <S=>26.] 

The  evidence  as  to  the  ability  of  the  sure- 
ties to  an  administration  bond  considered,  and 
the  Ordinary  held  liable  to  distributees  for  tak- 
ing  an   insufficient  bond. 

I  Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  §§  144-170; 
Dec.   Dig.  <S=320.] 

Before  Dargan,  Cli.,  at  Marlliorough. 
March.  1853. 

Dargan.  Ch.  Daniel  McRac.  late  of  Marl- 
borough district,  departed  this  life  on  the 
5th  August.  1842.  intestate,  and  left  a  person- 
al estate  I'stiuiated  at  the  time  as  worth  be- 
tween fciur  and  live  thousantl  dollars.  The 
defendant,  Joshua  David,  who  was  then  (as 
he  is  now)  ordinary  of  the  district,  granted 

*476 
letters  of  *adniinistration  to  Colin  McKae. 
The  latter  executed  an  administration  bond 
to  the  ordinary,  bearing  date  the  2!lth  Au- 
gu.st.  1S42;  to  which  Kphraini  L.  Ilenagan 
and  John  L.  .McKac  were  the  sureties.  Colin 
McUae.  the  administrator,  made  only  one  re- 
turn. He  reduced  the  assets  to  possession; 
and  in  the  year  is45.  died  intestate  and  in- 
solvent, without  liaving  accounted  for  any 
portion  of  the  estate  of  Daniel  .McKae.  which 
had   conu'   into  his   hands.     After  his  death, 


the  defendant,  as  ordinary,  administered  de 
bonis  non  on  the  estate  of  Daniel  McRae,  as 
a  derelict  estate. 

The  sureties.  E.  L.  Ilenagan  and  John  I.. 
McKae.  have  both  died  intestate,  and  totally 
insolvent ;  and  nothing,  by  any  possil»ility, 
could  have  been  derived  from  their  estates  to 
satisfy  the  claims  of  the  distributees  of  Dan- 
iel McUae. 

This  bill  has  been  tiled  by  parties  claiming 
to  be  the  distrilmtees  of  Daniel  McKae. 
against  the  defendant,  as  ordinary,  for  the 
purpose  of  making  him  liable  for  the  mal- 
administration of  Colin  M<Kae.  They  charge 
that  he  is  so  liable  on  account  of  his  othcial 
default  and  nii.seonduct  in  taking  inadequate 
and  insolvent  security  on  the  administration 
bond  of  Colin  McKae.  Failing  in  this,  they 
claim  au  account  of  such  i)ortions  of  the 
derelict  estate  of  Daniel  McKae.  as  have 
come  into  his  hands,  after  the  death  of  Colin 
McKae. 

As  to  the  question  of  the  defendant's  lia- 
bility for  the  othcial  default  charged  in  the 
bill,  much  evidence  has  been  offered ;  and  if 
the  charges  of  the  bill  had  been  sustained, 
the  defendant  would  of  course  have  l>een  lia- 
ble. 

The  Act  of  1070.  2  Brev.  Dig.  80.  directs 
the  ordinary,  in  granting  letters  of  adminis- 
tration, to  take  the  bond  of  the  administra- 
tor, with  "two  or  more  able  sureties."  The 
Act  of  1789  directs  him.  under  the  same  cir- 
cumstances, to  take  good  security,  to  be  ap- 
proved by  the  Court.  The  two  Acts,  in  this 
respect,  have  precisely  the  same  meaning: 
where  sureties  are  reiiuired  by  law  to  be  giv- 
en for  any  purpose,  it  means  got)d  and  suffi- 
cient security,  adeciuate  to  the  end  i»roposed. 

The  ordinary,  like  every  other  public  offi- 
*477 
cer,  is  bound  to  dis*charge  tlie  duties  im- 
posed upon  him  by  his  otHce  in  an  honest, 
faithful  and  prudent  manner.  If  he  has  not 
so  discharged  his  duties,  and  loss  and  dam- 
age result,  he  should  be.  and  is  resi»onsible, 
to  the  parties  aggrieved.  The  iluties  of  an 
ordinary  are  judicial  and  ministerial.  In 
the  discharge  of  his  judicial  duties,  nothing 
short  of  wilful  defaul*^.  amounting  to  cor- 
ruption, would  make  him  liabh\  In  the  per- 
formance of  his  ministerial  functions,  he  is 
not  (for  the  best  of  rea.sons)  so  heilged  in 
and  protected  by  the  law.  In  regard  to  his 
merely  ministerial  duties,  he  may  be  an- 
swerable lor  damages  resulting  from  ins  neg- 
lect, though  it  may  not  amount  to  corruption, 
or  a  wilful  default.  The  taking  of  an  ad- 
ministration bond  by  an  ordinary,  as  by  law 
re<iuired.  is  a  ministerial,  and  not  a  judicial 
act.  The  omission  to  take  good  and  suffi- 
cient sureties  to  an  administration  l)ond.  by 
which  loss  accrues  to  the  parties  interested, 
is  an  official  default,  for  which  an  ordinary 
would  be  liable,  if  it  be  tiie  result  of  care- 
lessness or  neglect,     .still,  in  reference  to  the 


<Q=;5For  other  cases  see  same  topic  and  KEY-NUMBEK  in  aJl  Key-Numbered  Digests  aud  Indexes 


189 


*477 


5  RICHARDSON'S  EQUITY  REPORTS 


discharge  of  his  merely  ministerial  duties, 
infallibility  of  judgment  is  not  required. 
Neither  is  he  to  be  regarded  as  a  guarantor 
of  the  solvency  of  the  sureties  which  he 
takes.  If  he  discharges  a  duty  like  this, 
with  the  circumspection  and  diligence  which 
prudent  men  would  observe,  under  similar 
circumstances,  in  the  management  of  their 
private  affairs,  that  is  sufficient  to  exempt 
him  from  liability  for  any  subsequent  loss. 

Every  public  officer  is  presumed  to  have 
discharged  his  duties  in  a  proper  manner. 
The  onus  is  upon  the  party  alleging  the  con- 
trary of  this  presumption,  to  prove  his  alle- 
gations. The  defendant  has  the  advantage 
of  this  presumption  in  the  commencement 
of  this  investigation.  And  it  would  not  have 
been  sufficient  for  the  plaintiffs  to  have  made 
a  doubtful  case  against  him.  The  proof 
must  be  strong  enough  to  produce  a  convic- 
tion, iniaccompanied  with  doubt,  that  the  de- 
fendant has  committed  an  official  default. 

When  I  come  to  apply  the  foregoing  prin- 
ciples to  the  evidence  which  has  been  taken 
in  this  case,  I  cannot  perceive  that  the  de- 
fendant has  committed  an  official  default  of 

*478 
such  a  character  *as  to  make  him  liable  to 
the  plaintiffs.  The  result  of  the  administra- 
tion has  been  most  disastrous.  And  E.  L. 
Ilenagan,  I  am  satisfied,  was  insolvent  at 
the  date  of  the  bond.  John  L.  McRae.  the 
other  surety,  was  not  worth  more  than  .$2,- 
500  at  that  time.  But  there  is  strong  proof, 
from  intelligent  and  disinterested  sources, 
that  the  bond  was  deemed  a  good  one  at  the 
time;  and  there  are  many  witnesses,  who 
have  been,  and  are,  in  public  stations,  (sher- 
iffs, clerks,  ordinaries,  and  merchants,)  who 
were  well  acquainted  with  the  obligors  on  the 
administration  bond,  and  whose  duty  and  in- 
terest it  was  to  learn  and  know  the  pecuniary 
circumstances  of  their  neighbors,  who  have 
testified  strongly,  that  the  bond  would  have 
been  deemed  by  them  adequately  secured  at 
the  time  it  was  taken,  and  that,  if  they  had 
been  the  ordinary,  they  would  have  taken  the 
bond  under  the  like  circumstances.  I  refer  to 
the  evidence  on  this  point.  It  is  ample  and 
conclusive.  Unless  infallibility  of  judgment 
Is  to  be  required  of  the  defendant,  he  can- 
not be  made  responsible  for  the  insolvency  of 
the  obligors  of  the  bond  in  question. 

It  is  ordered  and  decreed,  that  so  much  of 
the  complainants'  bill  as  seeks  an  account 
against  the  defendant,  for  the  devastavits  of 
the  administrator,  Colin  McRae,  be  dismissed. 

The  defendant,  as  I  have  before  stated,  on 
the  death  of  the  administrator  of  Daniel  Mc- 
Rae, as  ordinary,  took  charge  of  what  re- 
mained of  said  estate,  as  derelict.  It  is  in 
evidence,  that  the  case  of  Joshua  David,  Or- 
dinary, V.  Duncan  McRae,  which  has  been  col- 
lected by  sheriff  McGilvary,  and  which  he 
is  now  ready  to  pay  over  to  the  defendant,  is 
a  portion  of  the  assets  of  Daniel  McRae. 
Whether  the  defendant  has  been  able  to  save 
190 


anything  from  the  wreck,  does  not  appear, 
lie  must  accoun~t  for  so  much  as  he  has  re- 
ceived, and  it  is  so  ordered  and  decreed. 
This  is  subject,  however,  to  the  condition  that 
follows : 

The  defendant,  not  knowing  the  plaintiffs 
in  the  bill  to  be  the  distributees  of  Daniel 
McRae,  insisted  in  his  answer,  that  they 
should   be   required   to   make   proof  on   that 

*479 
point.  This  was  *not  done  on  the  trial.  But 
the  solicitors  of  the  parties,  on  l)oth  sides, 
insisted  that  the  case  should  be  tried,  with 
a  reservation  as  to  the  right  of  the  plaintiffs 
to  be  considered  as  the  distributees  of  Daniel 
McRae.  I  consented  reluctantly,  and  I  think 
improperly,  to  the  arrangement.  The  trial, 
however,  was  gone  into  upon  this  condition. 

It  is  ordered  and  decreed,  that  the  plain- 
tiffs have  leave  to  prove  themselves  to  be  the 
distributees  of  Daniel  McRae ;  and  after 
that,  the  Commissioner  will  proceed  to  take 
the  account  above  ordered  against  the  de- 
fendant, as  the  assets  of  the  estate  of  Daniel 
McRae.  which  have  come  into  his  hands. 

The  plaintiff'.s  appealed  upon  the  grounds: 

1.  Because  his  Honor  has  adjudged,  that 
the  ordinary  is  not  responsible  for  the  con- 
sequences of  having  taken  insufficient  sureties 
on  an  administration  bond,  unless  it  is  prov- 
en by  the  parties  claiming  such  responsibility, 
that  he  did  not  exercise  such  care  and  dili- 
gence, as  prudent  men  use  in  the  manage- 
ment of  their  private  affairs:  Whereas,  it  is 
respectfully  submitted,  the  true  question,  in 
every  case  of  the  kind  is,  whether  there  was 
in  fact,  under  the  particular  circumstances, 
negligence  on  the  part  of  the  ordinary,  to 
which  the  resulting  injury  is  fairly  attributa- 
ble, and  when  the  sureties  are  proven  to 
have  been  in  fact  insufficient,  and  injury  is 
shown  to  have  resulted,  the  burden  is  upon 
the  ordinary  of  showing  that  his  having  tak- 
en such  suretj'  was  owing  to  no  negligence 
on  his  part. 

2.  Because,  in  the  case  before  the  Court, 
the  evidence  was  abundant  to  exclude  the  de- 
fendant from  the  terms  of  even  that  rule  of 
diligence,  which  his  Honor  affirmed  in  his 
decree;  and  whether  the  test  of  responsibility 
be  that  contended  for  in  the  first  ground  of 
appeal,  or  that  stated  by  his  Honor,  the  de- 
fendant is,  upon  the  evidence,  liable  to  the 
distributees  of  the  estate  of  Daniel  McRae, 
for  the  loss  resulting  from  his  having  taken 
insufficient  sureties  on  the  administration 
bond  of  Colin  McRae. 

3.  Because,  it  is  most  respectfully  submit- 

*480 
ted,  in  determining  *the  question,  what  a 
prudent  officer  would  have  done  under  the 
circumstances  of  the  defendant,  his  Honor 
has  attached,  altogether,  an  undue  impor- 
tance to  the  wild  opinions,  which  witnesses 
profess  to  have  entertained,  some  ten  or  elev- 
en years  ago,  of  the  solvency  and  responsibili- 
ty of  E.  L.  Heiiagau  and  John  L.  McRae; 


McRAE  V.  DAVID 


»4S2 


whereas,  these  opinions  nro  worthU'ss.  un- 
less founded  ui)on,  and  supportfd  by.  reasons 
which  wouhl  liave  been  entirely  satisfactory 
to  prudent  men.  making'  dili},'ent  inquiry  into 
the  solvency  of  these  parties. 

4.  Because,  it  is  respectfully  sujrgested,  his 
Honor  appears  to  consider,  in  bis  decree,  the 
leyal  oblitjation  of  the  ordinary  "to  take 
bond,  with  two  or  more  able  sureties,"  sutK- 
ciently  fnltilled  by  his  simply  taking  a  good 
Iwnd,  with  two  sureties,  and  this,  it  is  sub- 
mitted, is  error. 

[For  sHbse<iuent  opinion,  see  7  liich.  Eq. 
;57o.j 

Thornwell.  Ini,'iis.  for  the  motion,  cited,  2 
Stat.  ~>-2:',:  ->  lb.  110;  2  (Jreen.  I']v.  §  58G; 
Sparhawk  v.  P.artlett.  2  Mass.  19S;  Oxley  v. 
Coperthwaite,  1  Dal.  :14U :  Clark  v.  .Moore,  1 
Tread.  151;  Treasurers  v.  l>eSaus.sure,  2 
Spcer,  180;  Jenner  v.  Jolifte,  9  Johns.  K. 
.'iSl ;  Sinjmons  v.  Watson,  2  Speer,  97;  Smith 
on  Stat.  599;  Hext  v.  Porcher,  1  Strob.  Eq. 
170;  Boggs  V.  Adger,  4  Rich.  E(i.  408;  1 
MeC.  Ch.  404;  2  Hill,  Ch.  364 ;  McM.  Eq.  153, 
155;  1  Smith  Lead.  Cas.  283,  Amer.  note;  2 
Mill,  382;    Bail.  Eq.  4S2;    4  McC.  547. 

Dudley,  contra,  cited  Sewill  on  Sheriffs, 
162,  169,  457;  3  Rich.  59;  Teasdale  v.  Ken- 
nedy, 1  Bay,  322;  Stat.  11  Geo.  2  c.  19.  §  23; 
Act  1839,  11  Stat.  15,  29,  30. 

Tlie  opinion  of  the  Court  was  delivered  by 

JOIINSTOX,  Ch.  We  agree  with  the 
Chancellor  in  relation  to  the  application  of 
the  statute  22  and  23  Charles  2,  ch.  10,  2 
Stat.  523,  to  this  ca.se. 

This  statute,  which  was  made  of  force  by 
our  statute  of  1712.  makes  it  the  duty  of  the 
ordinary,  in  granting  administration  of  intes- 
tates" estates,  to  take  sulticient  bond,  "with 

*481 
two  or  more  able  *sureties. — respect  being 
Jiad  of  the  value  of  the  estate."  It  constitut- 
ed the  law  on  the  subject  at  the  passage  of 
our  statute  of  1789.  (5  Stat.  110.)  This  lat- 
ter statute  requires  that  "every  administra- 
tor shall  enier  into  bond,  with  good  .■security, 
to  be  approved  by  the  Court,  in  a  sum  equal 
to  the  full  value  of  the  estate." 

These  two  statutes  are  to  be  construed  to- 
gether. There  are  no  express  terms  in  the 
latter  repealing  the  former;  therefore,  if  re- 
jiealed,  it  unist  be  by  implication.  Tlie  doc- 
trine of  repeal  by  implication  is  not  favored 
in  law.  (a)  Where  repeal  arises  by  implica- 
tion, the  implication  must  be  necessary,  and 
arise  from  inconq)atihility  or  incongruity, 
more  or  less,  between  the  provisions  of  the 
new  law  and  the  old.  But  tluM-e  is  no  repug- 
nance between  them  in  this  instance. 

The  true  interpretation  of  the  statute  of 
1789.  in  connection  with  the  statute  of 
Charles,  is,  that  when  the  former  requires 
bond,  "with  good  security,"  it  means  that  se- 


(a)  State  v.  Woodsidc,  9  Ired.  490;    Bruce  v. 
Schuyler,  4  (Jilmau,  4. 


curity  which  the  latter  required  and  made 
good, — to  wit.  the  security  of  two  "able  sure- 
ties.— re.spect  being  had  to  the  value  of  the 
estate.". 

If  this  interpretation  of  our  statute  law 
were  douittful,  we  should  feel  inclined  to 
adopt  it,  from  its  conformity  to  the  itractical 
construction  which,  we  lielieve.  has  uniform- 
ly i)een  jiut  upon  the  Act  of  17N9.  from  the 
time  of  its  enactment.  We  believe,  in  every 
ordinary's  oflice  in  the  State,  the  rule  is.  to 
re<piire  at  least  two  sureties  to  administra- 
tion bonds. 

In  our  view,  the  respon.sibility  of  the  ad- 
ministrator himself  does  not  enter  into  the 
consideration  of  the  sufliciemy  of  tiu-  boml. 
The  creditors  and  distributees  of  the  estate 
never  needed  his  bond  to  make  him  respon- 
sible. He  wns  responsible  without  it.  The 
security,  which  the  law  intended  to  give 
them,  was  additional  to  his.  This  will  be 
more  clearly  seen,  when  it  is  consideriHl  that 
the  legislature  had  estab]ishe(l  a  rule,  regu- 
lating the  right  to  claim  adnunistration,  ir- 
respective of  the  responsibility  of  the  person 
upon  whom  this  rigiit  devolved.  Tlie  person 
entitled    to    administer,    must    have    letters 

*482 
granted  to  him  upon  *the  sole  condition,  that 
he   give   suitable   sureties ;     and    this   .shows 
that    the   ability   of   the   sureties    w.-is   alone 
looked  to  by  the  legislature. 

We  have  thus  ascertained  the  duty  of  the 
ordinary.  He  must  take  bond,  with  at  least 
two  able  .sureties.  He  was  not  to  iiKiuire 
whether  the  bond  was  good,  referenee  being 
had  to  the  solvency  of  the  a<lministrator. 
The  inquiry  was  not,  whether  conu)ounding 
the  responsibility  of  all  the  parties  to  it,  it 
was  sutticient.  He  nnist  look  to  the  sureties 
alone.  If  they  were  "able"  to  respond  for  the 
estate,  the  "security"  was  good ;  otherwise, 
it  was  not  such  as  he  was  reipiired  to  take. 
Nor  was  his  duty  performed,  unless  he  took 
two  such  sureties.  If  he  had  taken  a  bond, 
with  one  surety  only — however  able  that  t>ne 
miglit  be  to  answer  for  the  value  of  the  es- 
tate,— this  would  have  been  no  conqdiance 
with  the  statute.  He  must  take  another. 
Nor  would  it  have  been  a  substantial  com- 
pliance, if,  having  taken  one  al>le  surety,  he 
had  accepted  a  man  of  straw  for  tlie  second. 
It  would  have  been  a  mere  evasion  of  duty. 
The  second  surety  nmst  be  able — respect  be- 
ing had  to  the  value  of  the  estate — as  well  as 
tlie  tirst.  Each  surety  must  be  "aide."  and 
"alile"  with  reference  to  the  estate  to  be 
secured. (?>t     That  is  the  standard   by  which 


{b)  NoTK  BY  Chancellor  JDIIXST(Vs.— 
Since  the  delivery  of  this  opinion.  I  liavc  iccon- 
sidend  this  iioiiit.  and  tiiid  some  reason  tu  doubt 
whctlier  a  proper  constiuetion  of  the  st.itute  ot 
Charles  demands  an  ability  in  eacli  surety  ei|ual 
to  tlie  value  of  the  estate  to  he  administered. 
In  advaneiiijj  the  opini<in  I  did.  I  understood 
myself  to  be  exprrssin;:  the  views  of  my  breth- 
ren, in  wliieli  I,  at  the  time,  cciiiciirri'd.  Per- 
haps it  would  have  been  better  to  have  .ibstain- 
ed,  altogether,  from  expressing  auy  oi)iuiou  on 

191 


*482 


5  RICHARDSON'S  EQUITY  REPORTS 


the  statute  requires  the  ability  of  a  surety  to 
be  lueiisurecl. 

It  seems  Iiardly  necessary  to  observe,  that 
the  ability  to  which  the  statute  refers,  is  a 
pecuniary,    or   property,   altility.      It   has   no 

*483 
*reference  to  the  intelligence,  industry,  or  ac- 
tivity of  the  party,  by  which  he  may  repair 
an  embarrassed  estate,  or  acquire  property. 
But  it  refers  to  the  apparent  means,  or  prop- 
erty, possessed  by  the  party,  to  which  resort 
may  be  had  to  repair  the  loss,  if  the  estate 
should  be  wasted. 

The  duty  of  the  ordinary  was,  to  have 
taken  such  a  bond  as  we  have  described.  It 
was  a  duty  imposed  on  him  by  law,  and 
which,  when  he  accepted  office,  he  undertooli 
to  perform.  In  his  performance  of  it,  he  was 
not  under  the  control  of  the  parties  interest- 
ed in  the  estate.  It  seems  to  be  just  that  an 
otRcer,  to  whom  the  law  has  committed  the 
care  of  estates,  belonging,  in  many  instances, 
to  helpless  parties — (widows  and  infants  ; — ) 
whose  conduct  is  beyond  their  control  or  in- 
terference, and  who  possesses  an  ample,  al- 
most a  capricious,  power  to  reject  any  se- 
curity, the  sufiiciency  of  whicli  he  may  doubt 
or  suspect, — should  be  held  to  a  strict  ac- 
count for  any  neglect  in  taking  security,  by 
which  they  have  sustained  loss. 

A  question  has  been  presented,  whether  the 
ordinary,  in  taking  bond  in  this  instance, 
acted  judicially  or  ministerially.  The  ques- 
tion is  inqiortant ;  because,  if  tlie  act  was 
judicial,  he  is  not  responsible  for  error  in  its 
performance.  It  is  otherwise,  if  the  act  was 
ministerial. 

We  think  the  Chancellor  was  right  in  re- 
garding the  act  of  the  ordinary  as  ministerial. 

A  judicial  act  generally  intends  the  deci- 
sion of  some  question  of  law,  falling  within 
the  jurisdiction  of  the  forum,  in  which  the 
question  arises  between  parties.  Tliere  may 
be  cases  in  which  the  decision  may  be  judi- 
cial, although  there  be  no  litigation,  and,  of 
course,  no  parties;  but;  even  then,  the  deci- 
sion must,  generally,  involve  some  question  or 
point  of  law. 

The  mere  circumstance,  that  an  official 
act  demands,  on  the  part  of  the  officer,  the 
exercise  of  discretion,  vigilance,  circumspec- 
tion or  prudence,  is  not  sufficient  to  make  it 
a  judicial  act.  Many  acts,  clearly  recognized 
in  law  as  ministerial,  require  the  exercise  of 
these  qualities ;  as,  for  instance,  of  a  sheriff 
making  levies,  taking  bail,  &c. 


this  point  of  the  case.  There  was  no  necessity 
for  it.  Independently  of  any  such  constructiou, 
the  result  attained  by  the  Court  of  Appeals  was 
inevitable:  for  even  supposing  that,  by  proper 
construction  of  the  statute,  it  was  sufficient 
that  one  of  the  sureties,  or  both  of  them  to- 
gether, shoidd  be  of  ability  to  make  good  the 
estate :  the  proof  in  this  case  was,  that  nei- 
ther of  them,  noj-  the  two  combined,  possessed 
such  ability:  and  the  ordinary  had  no  reason 
to  suppose — from  appearances  presented  to  him, 
or  from  any  representations  made  to  him.  upon 
inquiry,— that  either  of  them,  or  both  together, 
were  able  to  indemnify  parties  interested  for 
the  loss  of  the  estate. 

192 


*484 

*If  the  ordinary  had  not  determined,  in 
this  instance,  to  take  two  sureties,  it  might, 
possibly,  have  been  supposed  that  he  had 
gone  into  an  inipiiry,  wliether  it  was  his 
duty  to  do  so ;  and,  in  the  course  of  that  in- 
quiry, had  determined  that  the  statute  of 
Charles  was  no  longer  of  force,  and  that  the 
whole  of  his  duty  was  to  be  gathered  from 
the  Act  of  17.89.  This  might,  possibly,  have 
been  regarded  as  a  judicial  error,  for  which 
he  was  not  responsible.  But  the  taking  of 
two  sureties  shows  that,  if  that  (piestion 
arose  in  his  mind,  he  decided  it  correctly; 
and  that  the  only  error  he  committed  was  in 
accepting  two  insufficient  sureties. 

According  to  the  principles  of  many  deci- 
sions in  this  State(c)  ordinaries,  in  granting 
administration  and  taking  bond,  act  min- 
isterially ;  and  they  have  been  held  liable 
for  omitting  to  take  bonds,  for  not  taking 
them  at  the  right  time,  or  of  the  proper  form, 
or  for  taking  them  with  inadequate  surety. 
This,  together  with  the  fact  that  ordinaries 
are  to  give  bond.  ((/)  on  which  they  are  amen- 
able((')  and  are  expressly  made  liable  by  the 
21st  section  of  the  Act  of  1789,  5  Stat.  110, 
for  omission  to  take  administration  bonds,  as 
required  by  law, — shows,  we  think,  that  the 
legislature,  especially  in  the  last  instance, 
did  not  contemplate  the  duty  in  question  as 
judicial. 

But  viewing  the  act  of  the  ordinary,  in 
the  case  before  us.  as  ministerial,  and  not 
judicial,  the  plaintiffs'  counsel  have  properly 
conceded,  that  if  the  loss,  which  has  I)een 
sustained,  has  not  resulted  fi'oni  negligence 
on  his  part,  but  has  arisen  from  causes 
which,  acting  faithfully,  he  could  not  foresee 
or  control — he  is  not  amenable,  especially  in 
this  Court.  Indeed,  according  to  my  recol- 
lection, such  was  the  doctrine  held  at  law.  in 
a  case  brought  by  the  distributees  of  Cates 
against  Cureton,  Ordinary  of  Newberry,  and 
decided  in  the  Appeal  Court,  about  1S26; 
which  decision  cannot  now  be  found  in  the 
Clerk's  office. 

*485 

*This  is,  substantially,  the  doctrine  of  the 
Chancellor  in  this  case;  and  we  are  satis- 
fied with  it.  He  announces  the  position,  that 
the  measure  of  a  public  officer's  duty  Is,  the 
exercise  of  that  degree  of  prudente  and  dili- 
gence, which  a  discreet  individual  would  em- 
ploy about  his  private  alfairs  of  the  same 
nature.  If  an  officer,  after  the  exercise  of 
that  degree  of  discretion,  should,  from  un- 
foreseen causes,  fail  to  attain  the  end  at- 
tempted by  him,  he  is  excusable. 

If  the  evidence  adduced  at  the  hearing  had 
been  directed  to  this  point,  and  the  Chancel- 
lor had  concluded   from  that   evidence  that 


(c)  Simmons  v.  Watson,  2  Sp.  97 ;  Boggs  v.> 
Hamilton  2  Mill,  382;  Somerall  v.  Gibbes.  4 
McC.  547;  State  v.  Patterson,  1  Strob.  35; 
Treasurers  v.  Clowney,  2  McM.  510. 

(rf)  11   Stat.  39. 

(e)  6  Stat.  384. 


McRAi:  V.  DAVID 


*487 


the  defendant  had  come  up  to  this  rule,  we  |  will    h,,hi    him   guilty  of  murder,   unless   he 
.should    not    have   disturi.ed    his   decree;     for  ,  extenuates  the  offense  hy  evidence, 
we  desire  to  adhere  to  tlie  rule  of  tliis  Court.       After  tlie  proof  made  by  tlie  plaintiffs  in 
wluch  is.  thaV  a  Cliancellors  conclusion  upon    this  case,  the  burden  of  proof  was  upon  the 
matters  of  fact   is  to   be   respected,   lliie   the  !  oniinary.  to  .sliow  that  the  bond— shown  to  be 


verdict  of  a  jury  ;  and  lutt  to  be  set  aside, 
unless  for  ijross  error.  We  sliall  re(  ur  to 
this  point  hereafter. 


insnthcient — was  taken  by  him  under  circum- 
stanc<'s  wliidi  would  have  imposeil  a  belief, 
on  men  df  circumspection  and  prudence,  that 


Let  us  now  proceed  to  the  evidence  in  this  i  it  was  .if  the  character  which  the  law  requir 
^''^^^-  fd:  tliat  tbou;,'h  tlie  sureties  were  not  -able." 


The  fact  is  incontestilily  made  out.  that, 
at  the  date  of  the  bond,  neither  of  tlie  sure- 
ties taken,  nor  both  together,  nor  the  two 
with  the  aid  of  their  principal,  were  of  suf- 
ficient means  to  answer  for  the  estate. 
Though  their  insudiciency  was  developed  by 
subsetiueiit  events,  it  really  existed  at  the 
time. 

But,  to  confine  ourselves  to  the  two  sureties 
to  the  bond.— whidi  is  the  true  view. — it  is 
certain,  that  John  L.  .McIJae.  one  of  them, 
never  had  property  t^tiuivalent  to  tlie  estate 
which  he  undertook  to  insure.  No  witness 
ventured  to  value  his  ostensible  means  be- 
yond !t!J,uOO  or  -K'.oOO;  and  the  weight  of  evi- 
dence was  much  lower.  The  land  of  the 
other,  (Ilenegan.)  had  been  sold  out;  and 
with  extHutions  against  him,  amounting  real- 
ly to  about  .l^lli.lWO.  but  apparently  to  near 
!K19.000.  he  had  hut  nineteen  negroes,  (with 
some  inconsiderable  property  besides,)  to 
answer  these  judgment  debts. 

These  were  the  circumstances  under  which 
the  bond  was  taken.  Uo  they  not  show  that, 
in  fact,  the  sureties  were — neitlu'r  of  them — 
able,  in  the  sense  of  the  statute,  for  their  un- 

*486 
♦dertaking?  And  that  the  bond  which  the  ordi- 
nary took  was  not.  in  fact,  such  a  bond  as 
the  legislature  reijuired  him  to  take".' 

Now,  ailmitting  that  the  oniinary  is  al- 
lowed to  show  an  excuse  for  his  failure,  we 


conceive  that   the   excuse   is 
sumed. 

If.  in  a  collateral  proceeding,  there  was  a 
deficiency  of  proof  that  a  bond  luul  i)een  tak- 
en, we  might  presume  that  the  olhcer  luul 
done  his  duty,  and  infer  that  one  was  taken, 
liut  even  in  that  case,  if  it  were  proved  that 
there  never  was  a  bond,  we  could  neither 
in-esume  the  performance  of  official  duty  nor 
the  existence  of  a  bond.  And  in  this  case, 
if  there  was  no  proof  of  the  inaliility  of  the 
sureties,  we  should  presume  their  ability, 
and  discard  the  imputation  of  ollicial  neglect. 

But  when  the  fact  is  made  out.  that  the 
sureties  taken  by  the  ordinary  were  not 
"able,"  the  plaintiffs  are  not  bound  to  go  on. 
and  prove  that  tlie  ordinary  had  no  justifiable 
reasoih  for  tak'ng  tliem.(/i  When  a  default 
is  jiroved  on  him  the  burden  of  pr<M)f  shifts, 
and  he  must  show  his  excuse: — in  analogy 
to  the  criminal  law,  which,  though  it  pre- 
sumes every  man  iiuiocent  of  crime  yet.  if  a 
homicide    be    proved    on    an    accu.sed    person, 


(/)  Sjiaihawk  v.  Bartlctt,  2  Mass.  R.  198. 
oRicii.Eq.— 13 


they  appeared  to  be  .so:  tliat  they  had  the 
appearance  of  ability. — and  that  he  was  de- 
ceived. 

His  proof  was  not  directed  to  this  jioiiit ; 
and  has  signally  failed  <>f  making  out  a  de- 
fence. The  ordinary  himself  has  not.  in  his 
answer,  prctendeil  to  aver,  that  either  of  the 

*487 
sureties  ♦was.  or  that  he  at  the  time  believeil 
either  of  tliem  to  lie.  i>ossessed  of  property 
eiiual  to  the  value  of  the  estate.  Nor  has  any 
witness  .said  that  they  had,  or  appeared  to 
have,  property  of  that  value. 

The  proper  (piestion  was  not.  whether  the 
bond,  by  the  compound  ability  of  all  the  obli- 
gors, was  good.  That  was  not  the  character 
of  the  bond  which  the  ordinary  was  to  take. 
The  law  was  that  the  sureties  were,  .severally, 
to  be  of  ability  to  pay  the  amount  of  the  es- 
tate: and  the  question  was.  whether  they  ex- 
hibited substantial  appearances  of  such 
ability. 

This  inquiry  was  not  solved  by  witnesses 
saying,  that  they  would  have  taken  the  bond 
for  that  amount.  In  the  first  place,  the 
prudence  of  the  ordinary's  taking  the  bond 
was  not  to  be  left  to  the  opinion  of  witnesses. 
It  was  a  matter  to  be  inferred  by  the  Court, 
upon  the  evidence  of  facts.  In  the  next  place, 
it  is  manifest  that  the  opinion  of  the  witness- 
es proceeded  upon  a  principle  different  frouj 
that  which  the  exigency  of  the  case  re<iuired. 
>t  to  be  pre- 1  '^^'*'-^  supposed  that  the  prudence  of  taking 
j  the  bond  dei)ended  upon  the  suHiciency  of  all 
the  obligors  together.  Viewed  in  that  light, 
it  might  be  prudent  to  take  it.  But  the  law 
reiiuired  a  bond,  good  in  referenc-e  to  each  of 
the  sureties;  and  it  was  not  prudent  to 
take  one  which  did  not  promise  to  come  ui) 
to  this  standard.  No  witness  was  found  who 
proved  that  he  would  have  taken  this  bond, 
if  his  object  had  been. — or  if  he  had  been  re- 
quired.— to  take  one  of  the  character  de- 
scribed. Therefore,  though  the  position  be 
true,  that  the  oniinary  might  stand  excused, 
if  he  exercised  the  prudence  of  ordinary  men, 
in  similiar  circumstantvs :  the  proof  adduced 
does  not  apply  to  persons  in  similar  circum- 
stances, but  to  others  acting  under  a  different 
rule  of  conduct,  and  by  no  means  makes  out 
the  defence  reciuired  in  the  ca.se. 

Most  of  the  witiies.«jes.  who  .>;aid  they  would 
have  taken  tin-  bond,  apiiear  to  have  been  Ini- 
lu-rfectly  aiipiainted  with  the  proiierty  and 
indebtedness  of  the  sureties.  Not  one  of  them 
says  that  John  L.  McRae  appeared  to  be 
"able"    to    make    good    the    estate.      Those 


193 


»487 


5  RICHARDSON'S  EQUITY  REPORTS 


who  appeared  best  acquaiuted  with  Ileiiegan, 

*488 
*relied,  for  their  opiniou,  more  on  his  capac- 
ity than  his  property. 

But,  in  opposition  to  the  opinion  of  tlie 
wliole  of  them,  is  tlie  declaration  of  the  de- 
fendant to  Weatherly,  that,  in  taking  the 
bond,  he  relied  more  on  Colin  McRea,  the  ad- 
ministrator, thaji  on  tlie  sureties— iwhich 
shows  that  he  deemed  it  unnecessary  to  make 
the  investigation  which  his  duty  required, 
or,  if  he  did,  that  he  was  left  in  doubt  as  to 
the  condition  of  the  latter ;  and  (contrary  to 
his  duty)  risked  the  bond  on  the  means  of 
the  principal. 

Besides,  it  is  not  to  be  forgotten,  that  the 
condition  of  Henegan  was  one  which  the  de- 
fendant was  bound  to  notice.  Overwhelming 
judgments  existed  on  record  against;  him, 
and  his  remaining  property  was  levied  on, 
and  advertised  on  the  door  of  the  very  Court 
House  in  which  thei  ordinary's  office  was. 
Did  not  this  oblige  him  at  least  to  inquire V 
and  has  he  produced  a  single  witness  to  prove 
that  he  ever  did  so?  or  has  he  proved  that 
he  ever  had  a  favorable  representation  of 
the  means  of  this  surety,  or  of  his  co-surety, 
from  any  person  whomsoever? 

On  the  whole,  we  are  of  opinion,  that  the 
decree,  so  far  as  it  exonerates  the  defendant 
from  ac-countability  for  the  assets  which 
came  to  the  hands  of  Colin  McRae,  was  er- 
roneous, and  should  be  reversed:  and  it  is  so 
ordered:  and  it  is  adjudged  that  he  is  ac- 
countable for  the  same. 

We  are  of  opinion,  that  the  objection  to 
the    exercise    of   jurisdiction,    taken   in    the 

194 


pleadings,  is  obviated  by  the  fact,  that  *t 
was  waived  at  the  hearing,  and  has  not  been 
insisted  on  here.  Were  it  otlierwise,  it  is  not 
clear  that  it  could  prevail. 

Certainly,  the  plaintiffs  have  a  right  to 
claim  an  account  of  so  much  of  the  estate  as 
came  to  the  hands  of  the  defendant.  This 
gives  jurisdiction  to  the  Court:  and,  when 
complete  justice  recjuires  it  to  go  on,  it  may 
dispose  of  the  whole  case. 

Not  only  so,  but  the  plaintiffs  have  a  right 
to  an  account  of  the  assets  which  came  to 
the  hands  of  Colin  McRea:  and,  for  that  pur- 
pose,   may    bring   in    all    persons   who   have 

*489 
made  them*selves  answerable  for  his  adminis- 
tration of  them.  The  defendant,  as  we  have 
adjudged,  has  made  himself  thus  answerable. 
It  may  be,  however,  that  he  stands  as  surety 
for  the  parties  to  the  administration  bond: 
and  it  is  left  to  the  consideration  of  the 
plaintiffs,  whether  they  will  venture  to  ask 
a  final  decree,  until  they  have  brought  in 
the  sureties,  or  their  representatives.  It 
would  seem  proper  to  bring  them  in. 

In  closing  this  judgment,  it  may  be  proper 
to  observe  further,  on  the  subject  of  jurisdic- 
tion, that  a  ground  of  jurisdiction  exists  in 
preventing  a  multiplicity  and  circuity  of 
suits. 

It  is  ordered,  that  the  Circuit  decree  be 
moditied,  according  to  this  judgment,  and 
that  the  cause  be  remanded  to  the  Circuit 
Court. 

DUNKIN  and  WARDLAW^  CC,  concurred. 
Decree  modified. 


IN  THE  COURT  OF  ERRORS 

COLU-M  CIA— DECEMBER,  1852. 


All  Tiiic  JuDGLs  and  Chancklloks  i'rl:sext,  except  Evaxs,  J. 


5   Rich.  Eq.  *49l 

*R.   C.  FOWKE,  Ordinals .   v.  \V.\L  II. 
THOMl'SUN. 

(Columbia.     Dec,  1S32.) 

[■/mlfjes  <S;=>:i",.] 

The  out-f:uinK  Ordinary  is  l)uund  to  turn 
oyer  to  iii.s  succt'ssor  all  moneys  in  iiis  hands,  in 
his  ottieial  capacity  as  Ordinary,  as  well  as  the 
books.  i)ai)ers  and  furniture,  and  every  thing 
••ise,  belungins;  to  the  oUioe.  If  the  moneys  be- 
lonjj;  to  dereiiet  estates,  he  is  bound  to  turn 
them  over,  even  in  a  ease  where  the  estate  has 
been  in  his  hands  more  than  six  months,  and 
nothinjir  remains  to  be  done  but  to  deiiosit  tlie 
money  in  Bank;  or,  where  proeecdin^s  in  the 
Court  of  Equity  are  pending  against  him,  and 
an  order  has  been  made,  requiring  him  to  pay 
out  the  monej". 

I  Ed.  Note.— For  other  cases,  see  Judges,  Cent. 
Dig.  §  lUS;    Dec.  Dig.  <®=:533.J 

[Court a   <©=:!!».] 

L'nless  questions  of  jurisdiction  are  raised, 
according  to  the  established  forms,  and  at  the 
proper  stage  of  the  proceedings,  parties  cannot 
reijuire  the  Coui-t.  as  a  aiatter  of  right,  to  con- 
sider and  decide  them. 

I  Ed.  Note.— For  other  cases,  see  Courts,  Cent. 
Dig.  §§   152-15(3:    Dec.   Dig.  <®=o"J.] 

This  was  an  appeal  from  the  decision  of 
his  Honor,  Chancellor  Wardlaw.  The  Equi- 
ty Court  of  Appeals  ordered  the  case  to  this 
Court,  where  it .  was  now  liearil. 

Hutson.  Bellinger,  for  appellant. 
J.  T.  Aldrich,  A.  P.  Aldrich,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DARGAN.  Ch.  The  defendant  was  the 
Oi-dinary  of  Karnwell  District.  His  term  of 
iitlice  expiretl  on  or  about  the  14th  Ai)ril, 
1.S52,  when  his  successor,  the  plaintiff,  hav- 
ing been  previou.sly  elected,  was  duly  tiuali- 
fied,  and  entered  upon  the  discharge  of  the 
duties  of  his  othce. 

*492 

*The  plaintiff  C()nii)lains,  that  whilst  the 
said  Thompson  was  in  ollice  as  Ordinary,  lie 
took  charge,  in  his  official  character,  of 
various  estates,  as  derelict,  under  the  pro- 
visions of  the  Act  of  Assembly  of  IN."}!),  and 
sold  considerable  real  t'state,  by  virtue  of 
his  office  as  Ordinary:  and  that  large  sums 
of  money,  both  on  account  of  said  derelict 
estates,  and  on  account  of  the  .sales  of  real 


estate,  remained  undistributed  and  umlispos- 
ed  of,  In  the  hands  of  the  said  W.  H.  Thomf/- 
son,  at  the  e.\i)iration  of  his  term  of  oflice. 
The  idaintiff  refers  to  a  statement  of  various 
sums  .so  received  by  the  said  W.  II.  Thomp- 
son,   but   profes.ses  to   be    ignorant   whether 
the  statement  is  full  and  complete,  as  to  all 
the  sums  received  l»y  the  said  W.  H.  Thomp- 
son, as  Ordinary,  during  his  term  of  oHice. 
and    renmining    in    his    hands    at    the    ter- 
mination  thereof.     He   prays  not   to  be  con- 
cluded  by  the  statement   referred  to  in   his 
bill,    and    to    be    permitted    to    show    other 
amounts  received  by  the  said  W.  H.  Thomp- 
son, of  a  like  character,  and  not  embraced  in 
the  said   statement.     The  plaintiff'  contends 
that    all    .sums   of   money    remaining   in    the 
hands    of   his    predecessor,    the    saitl    W.    H. 
Thompson,    on    account   of  the   sale   of   real 
estate  made  by  him,  and  on  account  of  dere- 
lict estates,   whereof  he  had  charge,  during 
his  term  of  office ;   and  also  all  sums  of  mon- 
ey received  by  the  said  defendant,  since  the 
exitiration  of  his  term  of  office,  ought  to  be 
paid  to  him,  (the  plaintiff,)  and  are  of  right 
receivable    by    him.      The    plaintiff    further 
says,   that   on   application    to   the  defendant 
for   the    sums    of    money    which    have   come 
into  his  hands,   in   the  manner  before  stat- 
ed, the  said  defendant  has  refused,  &c. 
1      The  plaintiff   prays  for  the  usual  process, 
and  for  an  injunction  against  the  defendant, 
and  for  a  discovery  and  account  of  all  sums 
of  money  which  have  come  into  his  hands, 
as  Ordinary,  during  his  term  of  office,  undis- 
tributed   and    undispo.sed    of,    whether    the 
said  sums  of  money  have  been  received  by 
him  on  account  of  the  sales  of  real  estate,  or 
on  account  of  derelict  estates:    and  also  of 
all   sums  of  money  which   he  maj'  have  re- 
ceived and  paid  over  as  Ordinary,  since  the 
expiration  of  his  term  of  office.     The  plain- 

*493 
tiff  further  prays,  that  the  said  de*fendant 
may  be  decreed  to  pay  over  to  him,  as  the 
present  Ordiimry,  all  the  said  several  sums 
of  money,  and  for  general  relief  in  the  prem- 
ises. 

The  defendant,  in  his  answer,  admits  that 
he  was  the  Ordinary  of  Barnwell   District; 


«=»For  other  cases  see  same  topic  and  KEY-NUMBER  la  all  Key-Numbered  Digests  and  Indexes 


195 


*493 


5  RICHARDSON'S  EQUITY  REPORTS 


and  that  he  was  elected  and  entered  upon  | 
the  duties  of  his  office ;  and  that  his  odicial  | 
term  has  expired,  as  stated  in  the  bill.  He  j 
admits,  that  the  plaintiff  is  his  successor; 
that  he  was  duly  qualified,  and  entered  up- 
on the  discharge  of  his  duties  as  Ordinary  of 
Barnwell  District.  He  admits,  that  he  has 
sold,  in  many  cases,  real  estate  for  parti- 
tion, and  received  for  the  same  large  sums 
of  money,  some  portions  of  which  still  re- 
mained in  his  hands,  at  the  expiration  of 
his  term,  and  have  been  retained  by  him 
against  the  demand  of  the  plaintiff.  He  ad- 
mits, that  he  had  in  his  charge,  as  Ordi- 
nary, during  the  continuance  of  his  term, 
sundry  estates  as  derelict;  that,  as  to  the 
derelict  estate  of  William  J.  Fielding,  and 
that  of  B.  M.  Ennicks,  he  has  paid  away 
moneys  since  the  expiration  of  his  term  of 
office.  As  to  the  derelict  estate  of  Jno.  A. 
Bronson,  he  says,  the  assets  of  said  estate 
have  been  collected,  and  all  the  debts  paid, 
and  proceedings  are  now  pending  in  this 
Court  against  him  for  a  distribution  of  the 
said  estate,  the  said  proceedings  having  been 
commenced  against  him  before  he  retired 
from  the  said  office ;  that,  as  to  the  derelict 
estate  of  John  McDaniel,  he  has  collected 
some  of  the  assets,  and  paid  all  the  debts  of 
a  higher  order,  such  as  judgments,  mortgages 
and  bonds,  and  that  the  balance  of  the  chos- 
es  in  action  of  the  said  estate  have  been 
turned  over  to  the  complainant,  with  the 
papers  of  the  office;  but  before  retiring 
from  the  said  office,  a  bill  was  liled  against 
the  defendant  by  one  Barnett  Ashley,  the 
surviving  partner  of  the  said  McDaniel.  for 
an  account  of  the  said  partnership,  and  the 
cause  is  still  pending  in  this  Court.  That, 
as  to  the  derelict  estates  of  the  aforesaid 
Wm.  J.  Fielding  and  B.  M.  Ennicks,  and  the 
derelict  estates  of  Julia  Kuhtman  and  T.  L. 
Ennicks,  proceedings  have  been  had  in  this 
Court,    while   the    defendant   was   acting   as 

*494 
Ordinary,   *and  orders  were  made  directing 
him  to  settle  and  pay  out  the  moneys  of  the 
said  estates. 

The  defendant  bases  his  defence  for  refus- 
ing to  pay  over  those  moneys  to  his  suc- 
cessor, the  plaintiff,  on  the  ground  that  the 
law  did  not  retiuire  him  to  turn  over  those 
moneys  to  his  successor,  and  did  not  author- 
ize his  successor  to  receive  the  same,  and, 
consequently,  the  plaintiff  could  give  him, 
;for  such  payment  and  transfer  of  the  funds, 
no  legal  discharge.  The  defence  set  up  in 
(.the  answer  involves  the  legal  proposition, 
whether  the  defendant,  as  the  out-going  Or- 
.dinary,  was  requi-red  to  turn  over  to  his 
successor  the  sums  of  money  received  by  the 
former,  in  the  manner  before  stated;  and 
whether  the  plaintiff,  as  his  successor,  was 
duly  authorized  to  receive  the  same. 

The  case  came  to  a  hearing  on  the  bill  and 
answer  before  the  Chancellor,   who  made  a 
decree  as  follows: 
196 


"It  is  ordered,  that  Wm.  H.  Tliompson,  the 
retiring  Ordinary,  do  pay  to  his  successor, 
Itiehard  C.  Fowke,  the  moneys  remaining  In 
his  hands,  arising  from  the  sale  of  real  es- 
tate. 

"It  is  also  ordered,  that  he  pay  to  the  said 
Richard  C.  Fowke  the  moneys  remaining  in 
his  hands,  in  tho.se  derelict  estates  whore 
the  six  months  had  not  expired  when  the 
said  Wm.  II.  Thompson  retired  from  oilice. 

"It  is  further  ordered,  that  the  injunction 
be  dissolved,  as  to  those  derelict  estates 
where  orders  have  been  made  by  this  Court." 
The  injunction  which  the  decree  refers  to, 
and  dissolves  in  part,  was  an  order  for  an 
injunction,  granted  by  the  Commissioner,  on 
the  usual  conditions,  restraining  and  forbid- 
ding the  defendant  from  dis])osing  of.  or 
paying  to  any  person  except  the  plaintiff, 
any  sum  or  sums  of  money  in  his  hands, 
arising  from  the  sale  of  real  estate,  and  any 
sums  of  money  in  his  hands  belonging  to  any 
derelict  estate  or  estates. 

The  plaintiff,  by  way  of  appeal  from  the 
Circuit  decree,  moves  this  Court  to  enlarge 
"the  said  Circuit  decree,  so  as  to  pass  an 
order,  compelling  the  retiring  Ordinary,  Wil- 

*495 
liam  H.  *Thompson,  to  pay  over  and  account 
for  all  the  moneys  of  derelict  estates  re- 
maining unpaid  in  his  hands  at  the  expira- 
tion of  his  office,  whether  orders  had  been 
made,  or  proceedings  were  pending,  or 
whether  six  months  had  expired  or  not." 

The  defendant  was  content  with  the  decree, 
and  has  not*  appealed.  Such  is  the  state  of 
the  pleadings,  and  of  the  facts  upon  which 
his  appeal  has  Ijeen  heard. 

No  question  as  to  the  jurisdiction  of  the 
Court  to  entertain  the  cause  was  made  on  the 
Circuit  trial,  nor  has  any  such  proposition 
been  assumed  and  submitted  to  the  Court  by 
way  of  appeal.  It  is  usual  to  leave  questions 
of  this  kind  to  the  astuteness  of  parties,  and 
they  must  be  raised  according  to  the  estab- 
lished forms,  and  at  the  proper  stage  of  the 
proceedings.  Presented  in  no  other  way,  is 
the  Court  bound,  as  a  matter  of  right,  to  be 
demanded  by  the  parties,  to  consider  and  de- 
cide the  question  of  jurisdiction.  The  Court 
may,  in  its  discretion  and  on  its  own  motion, 
take  notice  of  its  want  of  jurisdiction.  The 
defect  of  jurisdiction  should  be  glaring,  and 
the  motive  urgent,  which  would  render  such 
a  course  proper.  When  a  party  has  insti- 
tuted proceedings,  which  overstep  and  disre- 
gard the  great  and  distinguishing  boundaries, 
which  mark  and  separate  the  different 
branches  of  the  judicature  of  the  country, 
the  Court  will,  and  it  becomes  its  imperative 
duty  to,  notice  the  objection,  at  any  stage  of 
the  proceedings,  and  thus  counteract  the 
tendency  to  a  general  amalgamation  of  the 
powers  of  the  different  Courts. 

I  must  not  be  understood,  however,  as  in- 
timating that  the  objection  to  the  jurisdic- 
tion, if  it  had  been  properly  pleaded,  would 
have  prevailed.    On  the  contrary,  I  think  that 


FOWKE  V.  THOMPSON 


<498 


the  jurisdiction  of  tho  Court,  on  a  strict  con- 
sideratiDU  of  tho  subject,  may  be  sustained. 
It  is  true,  tliat  the  plaintiff  may  have  pre- 
ferred Ills  cumpbiint  to  a  Court  of  Law,  and. 
on  the  case  made  here,  may  have  obtained  a 
very  effectual  reli«>f.  The  Judjies  of  that 
Court  are  invested  with  all  the  powers  of  the 
Court  of  Kiuii's  lU'uch,  in  the  supervision, 
control  and  restraint  of  all  the  inferior  tri- 
bunals of  the  State.     And  this  power  may  ho 

*496 
as  *W('ll  exercised  in  I  he  restraint  of  those 
who  illeirally  intrude  themselves  into  the  per- 
formance of  ofhcial  functions,  as  in  confinins 
such  as  have  tho  lonitimato  ollicial  investi- 
ture within  the  just  limits  of  their  power 
and  authority.  It  does  not  follow,  because 
a  Court  of  Law  may  have  issued  its  manda- 
mus to  Wm.  II.  Thomjison.  the  out-i^oins  Or- 
dinary, to  transfer  all  the  funds  which  came 
into  his  possession,  as  Ordinary,  to  his  suc- 
cessor, that  his  successor  may  not  come  into 
this  Court  for  a  discovery  and  an  account  as 
to  thdse  funds.  The  Law  Court  may  have 
been  embarrassed,  for  the  want  of  facilities, 
in  taking  the  account,  and  its  mandate  may 
have  been  rendered  nnixatory,  for  the  want  of 
a  discovery.  The  plaintiff's  bill,  though  not 
after  the  most  approved  form,  is  a  bill  for 
discovery,  account  and  relief,  and  may  well 
be  sustained,  upon  the  jurisdiction  which  this 
Court  possesses  over  such  matters. 

The  retiring  Ordinary  rests  his  defence  for 
not  transferrin.ir  the  moneys  in  his  hands  to 
his  successor,  on  the  broad  position,  that  he 
is  not  bound  by  law  to  make  tho  transfer,  and 
that  the  in-coming  Ordinary  is  not  entitled  to 
receive  such  moneys.  He  deduces  his  con- 
clu.sion  from  the  fact,  that  the  Act  of  1S.39, 
entitled.  "An  Act  concerning  the  ofHce  and 
duties  of  Ordinary,"  (11  Stat.  .39.)  contains  no 
explicit  provision  to  this  effect.  The  37th 
section  of  the  Act  declares  that  "every  Or- 
dinary shall  be  responsible  for  the  hooks,  pa- 
pers, and  also  for  the  furniture  in  his  olflee; 
and  upon  his  retiring  from  oflice.  or  his 
death,  he,  or  his  representatives,  shall  be 
bound  to  transfer  all  such  books,  pai)ers  and 
furniture  to  his  successor,  inunediately  after 
such  successor  shall  iiave  entered  upon  the 
duties  of  his  othce,  under  a  penalty  of  one 
thousand  dollars,  to  be  recovered  by  indict- 
ment, and  of  imprisonment,  not  exceeding  one 
year."  The  absence  of  any  specific  requisi- 
tion in  this,  and  the  otiier  clauses  of  the  Act, 
that  the  retiring  Ordinary  shall  transfer  mon- 
eys received  during  his  term,  in  his  official 
capacity,  to  his  successor,  serves  as  the 
ground  of  that  construct i(ui,  by  which  the  de- 
fendant felt  himself  authorized  to  detain  such 
moneys,  in  oiiposition  to  the  right  and  the  de- 
mand   of  his   successor.      It    is   obvious    that 

•497 
this  ♦construction  is  a  negation  of  the  right 
of  tho  incoming  Ordinary  to  receive  from  his 
predecessor,  not  oidy  the  moneys  of  derelict 
estates  remaining  in  his  hands,  under  all  cir- 
cumstances,  but   also    moneys   In    his   hands 


arising  from  the  .sale  of  real  estate:  in  re- 
gard to  which  the  defendant  has  submitted, 
without  appeal,  to  the  decree  that  he  should 
imy  over;  and  in  opposition  to  which  not  one 
si)ecious  reason  can  be  urged.  The  length  to 
which  such  a  construction  leads,  very  natu- 
rally creates  a  suspicion  of  its  unsoundness. 
It  is  the  opinion  <tf  this  Court,  that,  upon  a 
fair  and  proper  inteiprotation  of  the  Act, 
considered  in  all  its  provisions,  and  in  refer- 
ence to  the  objects  the  Legislature  had  in 
view,  the  implication  arises,  that  the  out- 
going Ordinary  was  bound  to  turn  over  to  his 
succes.sor,  as  well  the  moneys  in  his  posses- 
sion, as  the  books,  papers  and  furniture. 
There  is  certainly  nothing  expres.sed  to  the 
contrary,  nor  is  a  negation  of  such  a  con- 
struction to  be  implied. 

The  question  was  jirosented  to  this  Court, 
in  the  argument  at  tho  bar,  as  if  the  obliga- 
tion of  the  retiring  Ordinary  to  turn  over  to 
his  successor  the  books,  papers,  furniture 
and  money  in  his  possession,  had  its  origin 
in,  and  depended  upon,  the  provisions  of  tlie 
Act  of  18.39.  It  would  be  a  great  fallacy  to 
consider  and  decide  the  question  upon  such 
a  narrow  view  of  the  .subject.  The  Act  of 
1S.39  did  not  establish  the  oflice  of  Ordinary, 
but  was  intended  to  regulate  in  a  more  per- 
fect manner  its  powers  and  responsibilities, 
to  consolidate  the  scattered  and  pre-existing 
statutory  provisions  into  a  more  intelligible 
system,  and  to  create  some  additional  gimr- 
antees.  for  tho  performance  of  its  high  and 
important  tni.sts.  Thus,  the  Act  of  is.39  pro- 
vides, in  express  terms,  that  the  retiring  Or- 
dinary shall  deliver  over  to  his  successor  the 
books,  papers  and  furniture  in  his  possession, 
appertaining  to  the  ofHce.  under  certain  speci- 
fied penalties.  Thos»>  jtenalties  were  then  for 
the  first  time  declared,  but  who  can  doubt 
that  tho  obligation  to  transfer  books,  papers 
and  furniture  was  anterior  to  that  Act.  How 
is  it  possible,  from  the  very  nature  and  con- 
stitution of  the  office,  for  it  to  be  otherwise, 
than   that   tho   incundient,   who   is  the   legal 

*498 
custodian  of  the  books,  jiapors  *and  furni- 
ture of  his  office,  who  is  resi)onsible  for  their 
safe  keeping,  and  who  is  daily  required  to 
l)erform  responsible  duties  connected  with 
them,  should  not  have  them  in  his  possession? 
The  same  principle  applies  to  all  ollicos,  and 
to  all  subject  matter  of  which  tho  officer,  as 
such,  is  to  have  the  charge,  in  connection  with 
which  he  is  to  perform  tho  duties,  and  for 
which  tho  law  nuikos  him  responsible. 

This  view  of  the  subject  applies  with  oipial 
propriety  to  moneys  and  other  things  that 
have  come  into  the  hands  of  the  Ordinary, 
virtuto  officii,  as  it  does  to  books,  papers  and 
furniture.  It  may  be  that  tho  omission  of  all 
mention  of  money  in  connection  with  books, 
papers  an<l  furniture,  in  the  .3Tth  section  of 
the  Act,  if  a  casus  ouii.ssus  as  to  the  i)onal- 
tles  imp"oso<l  by  the  Act.  But  the  obligation 
of  tho  retiring  Ordinary  to  transfer  to  his 
successor  moneys  and  every  thing  el.se  which 

197 


*49S 


5  RICHARDSON'S  EQUITY  REPORTS 


have  come  into  his  possession,  in  liis  official 
character,  may  well  he  made  to  rest  on  the 
nature  of  the  office,  the  (hities  to  he  perform- 
ed, the  ohligations  incurred  Ity  the  incum- 
l)ent,  and  the  great  principles  of  fitness  and 
■expediency.  It  is  not  fit  or  expedient  that 
the  duties  of  this  ofl^ce  should  he  partitioned 
among  several  pei'sons  at  the  same  time;  or 
that  the  out-going  Ordinary,  in  retiring  from 
oHice,  should  withdraw  with  him,  as  attached 
to  his  personal  character,  some  portion  of  the 
duties,  and  some  portion  of  the  suhject  mat- 
ter concerning  which  those  duties  are  to  he 
performed.  There  is  an  unity  in  regard  to 
the  incumbency  of  the  office  contemplated  hy 
till  the  provisions  of  the  law,  as  to  its  duties 
and  trusts,  which  forbids  any  such  conclu- 
sion. The  inference  to  my  mind  seems  to  he 
inevitable,  that  whatever  has  come  into  the 
possession  of  an  Ordinary,  as  such,  and  in  his 
official  capacity,  cannot  attach  to  him  in  his 
personal  character,  and  must,  at  the  expira- 
tion of  his  term,  be  transferred  to  his  succes- 
sor. 

And  the  duties  of  the  office  are  to  be  per- 
formed by  but  one  incumbent  for  the  time 
lieing.  This  must  be  the  great  rule,  to  which 
there  may  be  some  exceptions,  called  for 
by  particular  emergencies — as,  for  example, 

*499 
when  the  Ordinary  himself  de*sires  to  be- 
come executor  or  administrator,  it  is  pro- 
vided that  he  may  qualify  before  the  Clerk 
of  the  Court  of  the  same  District,  who,  pro 
hac  vice,  becomes  the  Ordinary. 

This  brings  me,  in  a  natural  order,  to  the 
consideration  of  that  branch  of  the  discus- 
sion which  has  arisen  under  the  7th  section 
of  the  Act  of  1839,  which  is  in  the  following 
words: 

"In  case  any  estate  shall  be  left  derelict, 
either  from  partial  administration  by  an  ex- 
ecutor or  administrator,  or  by  reason  of  no 
a  Implication  for  letters  of  administration  or 
letters  testamentary,  or  otherwise,  the  Ordi- 
nary of  the  District,  who  might  be  entitled 
to  grant  stich  letters,  shall  collect  and  take 
charge  of  the  same,  for  the  period  of  six 
months,  after  which  time,  if  administration 
be  not  sooner  applied  for,  he  shall  sell  the 
sam&,  after  due  public  notice,  either  for  cash, 
or  upon  a  credit  of  six  months;  and,  after 
payment  of  the  debts  of  said  deceased,  shall 
deposite  in  the  Bank  of  the  State  of  South- 
Carolina,  or  in  some  one  of  its  branches,  the 
net  proceeds,  to  the  account  of  the  estate  to 
which  it  belongs,  and  shall  file  in  the  office 
of  the  Clerk  of  Common  Pleas,  of  his  Dis- 
trict, a  certificate  of  such  deposite;  and,  to 
the  end  that  he  may  so  collect  such  estate 
and  effects,  he  shall  have  power  to  institute 
and  maintain  all  necessary  legal  proceedings. 
And,  for  the  services  aforesaid,  he  shall  be 
entitled  to  five  per  cent,  of  the  value  of  the 
estate." 

It  has  been  contended,  that  when  an  Or- 
dinary for  the  time  being,  administers  upon 
a  derelict  estate,  under  this  provision  of  the 
108 


Act,  he  is  not  bound  to  transfer  to  his  suc- 
cessor, at  the  expiration  of  his  term,  the 
money  remaining  in  his  hands,  appertaining 
to  such  derelict  estates.  It  is  further  con- 
tended, that  if  bound  to  transfer  the  mon- 
eys in  his  hands  belonging  to  derelict  es- 
tates, where  such  estates  had  not  been  in 
his  hands  for  six  months  previous  to  the  e.x- 
piration  of  his  term,  yet  that  he  was  not 
bound  to  transfer  the  moneys  in  his  hands 
belonging  to  derelict  estates,  in  cases  where 
such  estates  had  been  in  his  possession  for 
more  than  six  months  previous  to  the  expira- 
tion of  his  term,  nor  in  those  cases  of  dere- 

*500 
lict  estates  in  which  orders  *had  been  made 
by  the  Court  of  Eipiity,  and  in  which  pro- 
ceedings are  now  pending. 

The  Chancellor  who  rendered  the  Circuit 
decree  overruled  the  first  proposition,  and  os- 
tensibly sustained  the  two  last,  as  excep- 
tions. Rut  the  Chancellor  was  informed  at 
the  hearing,  (as  conceded  by  counsel  here,) 
that  in  all  derelict  estates  remaining  in  the 
hands  of  the  retiring  Ordinary,  of  more  than 
six  months  standing,  either  none  of  the  pre- 
scribed acts  of  administration  were  unpe;*- 
formed,  except  the  deposite  in  bank  of  the 
net  balance,  after  the  payment  of  debts,  or 
bills  had  been  filed  by  the  distributees  in  the 
Court  of  E(iuity,  against  the  Ordinary.  And 
he  meant  to  hold  that  the  incumbent  was  not 
entitled  to  the  transfer  of  moneys,  where 
the  ministerial  act  of  making  the  deposite 
had  alone  remained,  or  the  Court  of  Equity 
had  then  taken  cognizance.  He  employed  the 
term  "six  months"  as  a  brief  description, 
sufficient  in  the  supposed  facts,  where  some 
act  of  administration  beyond  making  the  de- 
posite remained  to  be  done. 

Thus  the  Chancellor  held,  that  where  the 
retiring  Ordinary  had  not  been  in  the  pos- 
session of  the  derelict  estates  for  six  mouths 
previous  to  the  expiration  of  his  term,  he 
was  bound  to  turn  over  to  his  successor  the 
moneys  remaining  in  his  hands  belonging  to 
such  derelict  estates ;  but  that  he  was  not 
so  bound,  where  the  derelict  estate  had  been 
in  his  hands  for  more  than  six  months  pre- 
vious to  the  expiration  of  his  term,  and  noth- 
ing remained  to  be  done  but  to  make  the  de- 
posite ;  nor  in  any  case  of  derelict  estate, 
where  orders  of  any  kind  have  been  made  by 
the  Court  of  Equity  in  reference  to  it,  and 
in  which  proceedings  were  pending. 

I  am  unable  to  discriminate  as  the  Chan- 
cellor has  done.  If,  in  reference  to  those 
derelict  estates  which  had  been  in  the  hands 
of  the  defendant  for  more  than  six  months 
before  the  expiration  of  his  term,  he  had 
complied  with  the  requirements  of  law,  had 
deposited  the  money  in  the  Bank  of  the 
State  of  South-Carolina,  or  some  one  of  its 

*501 
branches,  had  taken  a  cer*tificate  of  deposite, 
and  had  filed  the  certificate  in  the  office  of 
the  Clerk  of  the  Common  Pleas  of  his  Dis- 


FOTN'KE  V.  TIIOMrSOX 


^50:". 


trict,  I  sluiuld  have  no  liesitatiDii  in  saying 
that  the  dnty  of  the  Ordinary,  in  reference 
to  that  fund,  was  complete  and  discharged, 
and  tliat  the  in-coniiny  Ordinary  would  have, 
of  right,  no  power  or  control  over  it.  It 
would  he  as  much  heyond  tlie  reach  of  the 
officer  who  made  the  deposite,  as  of  hiV  suc- 
cessor. It  would  have  to  remain  on  deposite 
until  some  Court  of  competent  jurisdietion, 
at  the  instance  of  the  partit's  interested, 
should  order  its  removal  or  distribution. 

lUit  that  is  not  the  case  we  are  considering. 
This  defendant,  in  reference  to  some  of  these 
derelict  estates  in  his  hands,  though  he  has 
collected  the  assets,  and  though  nxire  than 
six  months  have  expired  after  said  estates 
have  come  into  his  possession,  in  contumacy 
of  the  law,  has  made  no  deposite  in  any 
Bank.  And  it  was  admitted  by  his  counsel. 
that  he  had  made  no  deposite  in  Hank,  on 
account  of  derelict  estates,  during  his  whole 
temn  of  office.  And  the  (juestion  is,  whether 
he  shall  be  permitted  to  retain,  after  the  ex- 
piration of  his  term,  the  funds  of  derelict 
estates,  which  he  has  thus  held  over  against 
the  recpiirements  of  the  law.  Is  he  to  be 
permitted  to  retain  them,  because  he  has 
not  done  his  duty,  and  has  failed  to  make 
the  deposite?  Is  his  non-feasance  to  place 
liim  in  a  better  condition  than  if  he  had  prop- 
erly discharged  his  trusts?  As  the  money 
has  not  been  deposited  in  Bank,  where  the 
law  intended  it  to  go,  the  next  best  and  safe- 
est  place  of  keeping  is,  the  possession  of  the 
Ordinary  for  the  time  being. 

What  I  have  said  in  the  preceding  part  of 
this  opinion,  and  the  conclusions  at  which 
I  have  arrived,  leave  me  but  little  to  add  on 
this  branch  of  the  subject.  My  conclusion 
was,  that  all  hooks,  papers,  furniture,  mon- 
eys, and  everything  else,  which  have  come  in- 
to the  hands  of  an  Ordinary  virtute  officii, 
and  which  remain  in  his  hands  at  the  ex- 
piration of  his  term,  go  over  to  his  succes- 
sor as  a  matter  of  course,  unless  there  be 
some  special  provision  of  law  to  the  con- 
trary, constituting  an   exception. 

Do  derelict  estates,  under  the  7th  section 

*502 

of  the  Act  of  1S39,  ♦pass  into  the  hands  of 
the  Ordinary  in  his  official  character?  It 
is  the  Ordinary  of  the  district,  who  may  be 
entitled  to  grant  letters  of  administration,  or 
letters  testamentary,  on  such  derelict  es- 
tates, who  is  required  to  take  charge  of 
them.  Surely,  where  the  officer  is  invested 
with  a  power,  or  subjected  to  a  duty  or  re- 
sponsibility, in  his  official  name,  the  power 
and  the  duty  attach  to  him  in  his  official, 
and  not  in  his  personal  character.  It  means, 
the  incumbent  for  the  time  being,  shall  do 
this  or  that,  and  be  subject  thus  and  so. 
There  can  scarcely  be  a  difference  of  opin- 
ion on  the  construction  of  the  Act  of  1S.'59  in 
this  particular.  It  plainly  means,  that  the 
Ordinary  for  the  time  lieing,  and  as  such, 
shall    take    charge'    of    derelict    estates,   and 


I  that  he  shall  administer  them  in  his  official 
character. 

It  remains  to  be  seen,  whether  a  distinc- 
tion can  be  drawn  in  favor  of  the  defendant, 
in  reference  to  those  derelict  estates  where 
orders  have  been  made  by  the  Court  of  Equi- 
ty, iind  in  which  proceedings  are  pending. 
This  distinction,  if  sustained,  would  embrace 
all  cases  where  orders  have  been  made, 
though  it  may  have  been  merely  a  prelimi- 
nary order;  and  perhaps  all  cases  where 
imiceeclings  were  jiending  and  urders  made, 
though  the  retiring  Ordinary  had  not  been  in 
possession  six  months.  I  do  nut  think  that 
the  distinction  is  warranted  by  any  sound 
construction  of  the  Act.  If  proceedings  be 
instituted  against  the  Ordinary  for  the  time 
being,  and  during  the  pendency  of  the  pro- 
ceedings, his  term  of  office  expires,  I  per- 
ceive no  reason  why  this  shoulil  be  an  ex- 
ception to  the  general  rule,  that  he  should 
transfer  all  the  funds  in  his  hands,  as  Or- 
dinary, to  his  successor.  If  he  be  required 
by  law  to  pay,  and  does,  in  fact,,  pay  to  his 
successor,  his  plea  to  that  effect  would  dis- 
charge him.  The  new  Ordinary  might,  and 
ought  to,  be  made  a  party  by  sui»plemental 
bill,  and  it  might  be  necessary  and  proper 
to  retain  the  bill  against  both.  There  could 
be  no  difficulty  or  injury  to  any.  The  case 
bears  a  strong  analogy  to  one.  where  an  ex- 
ecutor or  administrator  has  died,  and  let- 
ters of  administration,  de  bonis  non,  have 
been  sued  out.  The  parties  interested  in  the 
estate  might  proceed  for  account  against  the 

♦503 
administrator  de  bonis  ♦non,  and  at  the 
same  time  against  the  legal  representatives 
of  the  first  executor  or  administrator.  And 
this,  in  the  case  supposed,  would  be  the 
proiKT  course. 

Some  difficulty  has  been  felt,  in  reference 
to  cases  of  derelict  estates,  in  whicli  the  re- 
tiring Ordinary,  on  proceedings  against  him, 
during  his  term,  has  been  ordered  to  i>ay  out 
a  iiarticular  sum  of  money  to  particular  in- 
dividuals. And  it  is  said  (though  the  fact 
d(tes  not  appear  in  the  brief)  that  such  is  the 
predicament  of  the  defendant  as  to  one  or 
more  of  the  derelict  estates  in  his  hands — the 
funds  of  which  he  is  holding  over.  This  fact 
is  apt  for  my  argument.  For  it  is  alst)  stated, 
that  the  persons,  in  whose  favor  such  orders 
for  payment  have  been  made,  are  absent,  and 
have  long  been  abst-nt,  from  the  State — are 
ignorant  of  their  rights — and  their  places  of 
residence,  and  even  whether  they  be  living 
or  dead,  unknown.  Is  the  retiring  Ordinary 
to  hold  in  his  hands,  as  a  private  person,  and 
for  an  indetiiiite  period,  the  funds  of  these 
absent,  and  perhaps  deceased  persons?  It  is 
not  assuming  much  to  say.  that  such  funds 
would  be  safer  in  the  keei)ing  of  a  responsi- 
ble officer,  than  in  that  of  a  private  person; 
besides,  it  would  be  the  duty  of  the  new  Or- 
dinary to  make  a  deposit  in  the  Bank  forth- 
with, on  receiving  the  funds. 

19» 


^•503 


5  RICHARDSON'S  EQUITY   RErURTS 


There  can  be  no  ditHciilty  in  the  fact,  that 
the  defendant,  Thonijisoii,  has  been  ordered 
to  pay  money  to  particular  individuals;  for, 
if  his  successor  is  entitled  to  receive  from 
liim  money  so  ordered  to  be  paid  out,  the  re- 
ceipt of  liis  successor  will  operate  as  a  dis- 
charge from  the  claim  of  the  person  to  whom 
payment  was  ordered  to  be  made.  Such 
claimant  would,  in  the  event  of  a  receipt  by 
the  new  Ordinary,  have  to  look  to  him,  and  to 
hold  him  responsible  for  any  mis-application 
of  his  funds. 

The  Circuit  decree  must  be  modified  and 
enlarged. 

It  is  ordered  and  decreed,  tliat  the  defend- 
ant, W.  H.  Thompson,  late  Ordinary  of  Karn- 
well  district,  do  account  for,  and  pay  over, 
to  his  successor  in  oHice,  R.  C.  Fowke,  all 
moneys  remaining  in  his  hands  as  Ordinary, 
and  not  lawfully  appropriated  or  di.sposed  of 
at  the  expiration  of  his  term  of  otKce,  wlietli- 

*504 
er  said  '"moneys  were  derived  from  derelict 
estates,  taken  charge  of  by  tlie  said  defend- 
ant, during  his  oHicial  term — from  tlie  sales 
of  real  estate — or  from  any  other  source 
whatsoever. 

It  is  further  ordered  and  decreed,  that  the 
defendant  pay  tlie  costs. 

DUNKIN,  Ch.,  and  O'NEALL,  WARD- 
LAW,  and  FROST,  JJ.  concurred. 

WARDLAW,  Ch.  I  dissent  from  so  mucti 
of  the  decree,  in  tliis  case,  as  rerpiires  tlie  ex- 
Ordinary  to  transfer  funds  in  his  possession 
to  his  successor,  where  bills  in  Equity  have 
been  filed  against  the  former,  by  the  dis- 
tributees of  the  derelict  estates  in  his  hands. 
In  some  of  these  cases,  the  Court  of  Equity 
has  adjudged  and  ordered,  by  final  decrees, 
that  William  II.  Thompson  pay  to  persons, 
by  name,  specific  sums  of  money ;  and  I  do 
not  see  hov^•  he  could  protect  himself  from 
process  of  attachment,  if  he  failed  to  perform 
the  decrees.  This  Court,  sitting  as  a  Court 
of  Equity,  now  orders  the  defendant  to  do 
that  which  is  directly  inconsistent  with  for- 
mer subsisting  decrees,  namely,  to  pay  to  the 
present  plaintiff  the  same  money  previously 
ordered  to  be  paid  to  Kottmau,  and  others. 
By  the  judgment  of  this  Court,  error  is  im- 
puted to  the  Chancellor  who  heard  the  cause, 
because  he  did  not  entertain  appeals  fi*om 
the  decisions  of  his  equals  in  authority,  and 
re\erse  or  modify  their  decrees. 

The  notion  is  unfounded,  that  when  a  per- 
son is  effectually  sued  as  an  officer,  the  judg- 
ment is  against  him  officially,  or  in  other 
words,  against  the  metaphysical  entity  of  his 
office.  Upon  this  conceit,  if  a  rule  against  a 
sheriff  to  pay  money  be  made  absolute,  the 
liability  would  follow  the  oflice  into  the  hands 
of  his  successor,  where  there  was  no  default 
on  the  part  of  the  successor.  It  is  no  an- 
swer to  this  illustration  to  say,  that  by  stat- 
ute, a  sheriff  may  be  ruled  for  two  years  aft- 
200 


er  he  retires  from  oifice.  That  jtrdvislon  <inly 
shows,  that  for  some  purposes,  two  persons 
may  cotemporaneously  fill  the  office  of  sher- 
iff;   and,  if  judgments  against  an  officer  be 

*505 
against  the  office,  both  would  be  liable,  ♦un- 
der the  rule  made  absolute.  All  proceedings 
of  Courts  are,  in  effect,  against  natural  per- 
sons. This  is  least  obvious  where  judgment-s 
are  obtained  against  the  corporate  assets  of 
corporations  aggregate,  but  even  there,  the 
assets  must  be  found  in  the  possession  of  cor- 
porators, or  other  men.  The  Ordinary  is  a 
coii)oration  sole;  but,  in  proceA'di.ngs  in 
Courts,  reference  is  necessarily  had  to  the 
individuals  who  have  filled,  and  fill,  and  .shall 
fill,  the  oHice.  The  present  suit  is  Fowke 
against  Thompson — man  against  man — not 
an  oHice  against  what  has  been  an  office. 
There  is  nothing  peculiar  in  the  circum- 
stance, that  the  liability  of  the  person  sued, 
may  be  restricted  to  the  estate  he  holds  in  a 
particular  capacity.  Such  is  usually  the  fact 
as  to  judgments  against  executors,  adminis- 
trators, and  other  trustees. 

It  may  be  said,  that  if  the  ex-Ordinary  pay 
tq  the  incumbent  the  UKmeys  he  has  been  de- 
creed to  pay  to  others,  he  may  plead,  to  any 
process  against  him  personally,  that  he  has 
transferred  the  funds  that  were  in  his  posses- 
sion, at  the  dates  of  the  decrees,  to  his  suc- 
cessor in  oifice.  But  it  may  be,  that  those 
who  may  have  decrees  against  him,  will  not 
indulge  him  with  leisure,  to  open,  or  to 
plead,  and  will  lodge  him  in  jail.  Besides, 
the  procedure  of  pleading  after  judgment  is 
anomalous.  Moreover,  even  indulgent  credi- 
tors, having  judgments  against  him,  may 
well  be  disinclined  to  surrender  their  lien  and 
ready  remedy  against  one  undoubtedly  sol- 
vent, and  take  in  .substitution  a  claim  against 
another,  who  is  no  party  to  the  record,  and 
who,  possibly,  may  be  less  able,  or  utterly 
unable,  to  pay. 

It  is  argued,  however,  that  these  decrees 
by  the  Court  of  Equity  for  payment  by  the 
Ordinary,  to  the  distributees  of  derelict  es- 
tates, are  void,  as  the  Court  has  no  jurisdic- 
tion or  authority  to  contravene  the  special 
and  limited  mode  of  administering  derelict 
estates,  prescribed  to  the  Ordinary  by  the 
legislature.  The  Court,  in  making  these  de- 
crees, did  not  assume  any  power  to  repeal  or 
modify  the  Acts  of  the  legislature.  Yet  it 
did  not  construe  the  Acts  as  ousting  the 
Court  of  its  jurisdiction  against  trustees,  un- 
der the  general  heads  of  discovery,  account, 

*506 
and  *partition.  It  is  plain,  that  the  course 
of  administration  of  derelict  estates  pre- 
scribed to  the  Ordinary,  is,  in  its  whole  ar- 
rangement, alternative  and  substitutional. 
The  Ordinary  may,  at  any  stage  of  his  trans- 
actions, be  superseded  by  a  regular  adminis- 
trator, or  arrested  in  his  action  by  the  Supe- 
rior Courts.  He  is  to  pursue  a  certain  rou- 
tine, if  not  interfered  with  by  the  parties  in 


FOWKE  V.  THOMPSON 


*50"; 


interest,  or  the  Courts;  but  not.  at  all 
events,  to  take  the  round,  where,  by  the  inter- 
vention of  tlie  distributees,  the  estates  cease, 
in  substance,  to  be  derelict. 

There  is  no  doubt  that  the  Ordinary,  in  ad- 
niinisteriii;,'  these  estates,  is  a  trustee,  nor 
that  tliis  Court  is  the  proper  trilmnal  for  en- 
forcing; trusts.  The  purpose  of  the  lejiislature 
was.  to  provide  a  trustee,  where  the  usual 
modes  of  appointment  failed,  Itut  surely  not 
to  exempt  the  trustee  from  the  usual  remedies 
of  heneticiaries  ajiaiust  him.  If  the  Ordinary 
is  not  liable  to  interference  from  this  Court, 
it  would  seem  to  follow,  that  the  only  resort 
of  (listril)utees  is  upon  the  funds  he  chooses 
to  deposite  in  Bank,  as  the  net  balance  of  his 
transactions.  His  judjiment  in  his  own  favor, 
rendered  without  opportunity  of  contestation, 
however  inadetpiate  or  fraudulent,  wiP.  be 
conclusive.  In  the  Court  of  Eipiity,  an  in- 
terested party  does  not  adjust  his  own  ac- 
counts, and  the  administration  of  trusts  is 
><ubjected  to  thorough  examination  by  com- 
petent otlicers,  under  the  vigilant  oversij;ht 
of  the  parties  in  interest. 

In  all  cases  pendint;  in  this  Court,  against 
the  ex-Ordinary,  whether  in  judgment  or  not, 
the  funds  are  transferred  by  operation  of  law 
from  the  inferior  to  the  sui)erior  tribunal : 
and  the  7th  section  of  the  Act  of  iSo!).  has  no 
longer  application.  Wh<»rever  this  Court 
takes  cognizance  of  a  cause,  it  nmst  have  the 
charge,  in  some  sort  the  custody,  of  the  funds 
in  controversy,  to  enable  it  to  do  justice  to 
the  parties,  in  the  distrilmtiou  of  the  funds, 
and  it  immediately  ousts  the  inferior  tribunal 
of  all  authority  to  act,  concerning  the  sub- 
ject of  controversy,  except  under  the  direc- 
tion of  this  Court.  Where,  for  example,  an 
administrator,  or  other  trustee,  is  called  to 
account  in  this  Court,  he  is  retiuired,  bv  the 

*507 
procedure  of  the  Court,  to  make  his  an*nual 
returns,  pending  the  suit,  to  the  proper  officer 


of  this  Court,  and  is  liable  to  punishment  for 
contempt,  if  he  make  returns  to  the  Ordi- 
nary. It  is  a  nustake,  however,  to  suppose, 
that  it  is  any  contest  between  Courts,  when 
an  Ordinary  is  retpiired  to  account  here  for 
his  management  of  derelict  estates.  When  he 
administers  such  an  estate,  he  acts,  not  ju- 
dicially, but  ministerially.  The  term  admin- 
istration itself  implies  the  ministerial  char- 
acter of  his  acts  in  such  case.  He  is  not  only 
Judge,  but  Clerk,  of  his  Court:  and  many 
of  bis  acts,  l)esides  the  administration  of  es- 
tates, are  nnnisterial.  In  is:',?,  the  legisla- 
ture, by  A<t,  required  the  solicitors  to  ex- 
amine the  condition  of  the  Ordinary's  office, 
as  of  other  district  offices,  and  to  rei)ort  an- 
nually to  the  Court  of  Common  IMeas.  It 
I  would  be  .strange  if  the  legislature  really  in- 
tended to  give  to  such  subordinate  officers, 
as  the  solicitors,  powers  of  supervision,  which 
it  withheld  from  this  Court. 

In  tho.se  ca.ses  pending  against  the  defend- 
ant, in  which  decrees  have  not  been  render- 
ed, it  is  impossible  for  him  to  foreknow  the 
preci.se  extent  of  liability  that  may  be  impos- 
ed upon  him  by  the  Court.  Yet.  it  would 
seem  to  lie  fair,  that,  if  he  is  retpiired  to  pay 
the  moneys  to  his  successor,  he  should  be  re- 
lieved from  all  trouble  and  expense  in  de- 
fending the  suits ;    but  that  is  impracticable. 

JOHNSTON,  Ch.,  and  WIHTNEIi.  J.,  con- 
curred. 

WITHEltSr  J.  Where  nothing  more  is  in 
view  than  to  enforce  the  transfer,  re<iuired 
by  law,  by  a  retiring  Ordinary  to  the  incum- 
bent, I  think  the  Common  Tleas  the  proper 
tribunal  and  competent,  by  a  proceeding  for 
mandamus.  .Saving,  therefore,  all  doubts  of 
general  jurisdiction  of  Equity.  I  concur  in 
this  opinion. 

ENAXS.  J.,  absent  from  indisposition. 
Decree  modihed. 

201 


IN  THE  COURT  OF  ERRORS 


COLUMBIA— MAY,   1853. 


All  the  Judges  and  Chancellors  Present. 


5   Rich.  Eq.  *509 

♦GABRIEL  I  ELDER  niul  Otlicis  v.  PAUL  S. 
FELDER  and  Otlicrs. 

(Columbia.     May,  IS.")!].) 

[Dcscrnf    and   Distiihiiiioii    Cz^:'.").] 

Where  tiie  <ii.striiiiitees  of  an  inte.state  are 
brothers  and  sisteis  of  tiie  halt'-l)lood,  and  chil- 
dren of  pre-deeeased  brothers  and  sisters  of  the 
wiiole  blood,  taUinj;  under  tiie  atli  clause  of  the 
1st  .section  of  the  Act  of  ITIU.  tliey  do  not  take 
equally:  but  the  brothers  and  sisters  of  the 
l.alf-blood  take  eciually.  and  thi'  ciiildren  of 
every  pre-deceased  brother  or  sister  of  the  whole- 
blood  take  among  them  a  share  e(iual  tt)  the 
ihare  of  a  brother  or  sister  of  the  half-blood. 

[Ed.  Note. — For  other  cases,  see  Descent  and 
D'stribution,  Cent.  Dig'.  S  107;  Dec.  Dig.  <©=» 
35.] 

The  bill  iu  this  case  was  filed  in  Oranj?e- 
Imrg;  and  this  was  an  appoal  from  the  de- 
cision of  his  Honor,  Chancellor  Wardlaw, 
made,  at  Chambers,  Decemlnn-  '.i,  18."ili.  The 
Equity  Court  of  Apiieals,  in  December,  1JS52, 
ordered  the  case  to  this  Court,  where  it  was 
now  heard. 

Bellinger,  DeSaussure,  for  appellants, 
Trevllle,  Petigru,  contra. 

The  opinion  of  the  Court  was  delivered  by 

WARDLAW,  Ch.  John  M.  Felder,  late  of 
()r-:;igeburg,  died  intestate,  leaving  a  large 
estate,  real  and  personal,  to  he  distributed 
according  to  the  provisions  of  our  Act  of 
1791.  He  left  no  wife,  nor  lineal  descendant, 
nor  father,  nor  mother,  nor  brother  or  sister 
of  the  whole-blood;    and  the  distributees  of 

*510 
liis  estate  are  two  brothers  *and  a  sister  of 
the  half-blood,  namely,  Gabriel  Felder,  Ed- 
mund J.  Felder,  and  Eliza  M.  I'on,  wife  of 
Joseph  Pou,  and  nine  nephews  and  nieces, 
the  children  of  Samuel  J.  Felder,  a  prede- 
ceased brother  of  the  wh(de  blootl,  namely, 
Paul  S.  Felder,  John  IL  Felder,  Louisa,  wife 
of  A.  D.  Federick.  Samuel  J.  Felder,  Al- 
fred F.  Felder,  Eugenia  ^^.,  wife  of  John 
Buchanan,  jun..  Eliza  A.  Felder,  Adella  Feld- 
er, and  Edmund  J.  Felder.  The  i)laintilTs  are 
the  brothers  and  sister  of  the  half-blood,  and 
the  husband  of  the  sister ;  and  the  defend- 
ants   are    the    children    of    the    pre-deceased 


brother  of  the  whole-blond,  and  the  husbands 
of  the  married  women  amonz  them.  The 
pleadings  present  various  (piestions,  but  tlie 
only  i)oinf  submitted  to  the  Chancellor  on 
Circuit  was,  as  to  the  propt)rtions  in  which 
the  distributees  should  take  the  e.state.  He 
decreed,  pro  forma.  t()  facilitate  the  parties 
in  obtaining  the  judgment  of  the  Court  of 
Appeals  on  the  question,  that  the  brothers 
and  sister  of  the  half-blood,  and  the  children 
of  tlie  brother  of  tlie  whole  blood,  should 
each  take  an  e<|ual  share.  From  this  decree, 
the  plaintiffs  appealed,  insisting  that  the  es- 
tate of  the  intestate  is  to  be  distributed  so- 
that  each  of  the  brothers  and  the  sister  of 
the  half-blood  shall  take  one-fourth,  and  the 
diildren  of  the  brother  of  the  whole-blood 
shall  take  the  remaining  fourth,  to  I  e  equally 
divided  among  them.  After  some  progress 
in  hearing  the  ai)peal.  in  the  Court  of  Ajj- 
peals  in  Equity,  argument  was  stopped;  and 
the  case  was  referred  to  the  Court  of  Errors,, 
at  the  re(iuest  of  two  Cliancellors,  wlio  de- 
.sired  the  aid  of  the  Law  Judges  in  settling: 
a  rule  of  property. 

The  determination  of  the  <iuestion  between- 
tlie  parties  depends  upon  the  construction  of 
the  nth  clause  of  the  1st  section  of  the  Act 
of  171)1.  for  distributing  the  estates  of  intes- 
tates. (5  Stat.  1(52.)  The  clause  is  in  these 
words:  "If  the  intestate  shall  leave  no  line- 
al descendant,  father,  mother,  brother  or  sis- 
ter of  the  whole  blood,  but  shall  leave  a  wid- 
ow, and  a  brother  or  sister  of  the  half-blood, 
arid  a  child  or  children  of  a  brother  or  sister 
of  the  whole-blood,  the  widow  shall  take  one 
moiety  of  the  estate,   and    tlie  other  moiety 

*511 
shall  be  equally  di\  ided  lK^*tween  the  broth- 
ers and  sisters  of  the  half-lilood,  and  the 
chihlren  of  the  brothers  and  sisters  of  the 
wlu)le-blood — The  children  of  every  deceased 
brother  or  sister  of  the  whole-blood,  taking 
among  them  a  share  e(]ual  to  the  share  of  a 
brother  or  sister  of  the  half  blood.  But  if 
there  be  no  brother  or  sister  of  the  half- 
blood,  then  a  moiety  of  the  estate  .*<hall  de- 
scend to  the  child  or  children  of  the  dece  ised 
brother  or  sister :  And  if  there  be  no  child 
of  a  deceased  brother  or  sister  of  the  whole- 


®=3For  other  cases  see  same  topic  and  KEY-NUMUER  in  all  Key-Numbered  Digests  and  Inde.xes 


203 


311 


5  RICHARDSON'S  EQUITY  REPORTS 


blood,  then  the  said  luuiety  sha.l  deseeiid  tot 
the  brothers  and  sisters  of  the  half-bh  oil."      j 

The  Sth  clause  of  1st  section  provides,  that ! 
"if  the  intestate  shall   leave   no  widow,   the  | 
provision  for  her  shall  go  as  the  rest  of  liis 
estate  is  directed  to  be  distril  uted,  in  the  re- 
spective clauses  in  which  the  widow  is  pro- 
vided for." 

This  Act  regulates  the  distribution  of  both 
real  aiid  personal  estate  of  intestates.  Its 
scheme  is,  first,  to  provide,  by  general  can- 
ons, for  the  distriliution  of  real  estate, 
(which  explains  the  employment  of  the  word 
descend  in  the  Sth  clause,)  and  then,  by  a 
general  provision,  to  declare,  that  personal 
estates  shall  be  distributed  in  the  same 
manner  as  the  canons  prescribe  for  real  es- 
tate. Sec.  2.  It  is  at  once  a  .statute  of  de- 
scents and  a  statute  of  distributions ;  and,  if 
we  advert  to  the  mischiefs  in  the  previous 
state  of  the  law,  in  aid  of  the  construction 
of  the  Act,  we  should  seek  them  both  in  the 
common  law  concerning  descents,  and  in  the 
statute  regulating  the  succession  to  personal- 
ty. 22  and  23  Ch.  2,  c.  10 ;  2  Stat.  523.  The 
nature  of  the  estate,  as  real  or  personal,  may 
affect  the  riglits  and  interests  of  the  dis- 
tributees in  some  cases ;  for  instance,  an 
alien,  although  he  may  be  next  of  kin,  can- 
not take  the  real  estate,  and  may  take  the 
personalty  of  an  intestate.  But  the  purpose 
of  the  legislature,  in  the  passage  of  the  Act, 
is  not  to  be  ascertained  by  exclusive  refer- 
ence to  one  or  the  other  systems  of  law  con- 
cerning the  two  descriptions  of  estate. 

By  the  law,  as  it  stood  at  the  passage  of 
the  Act,  those  of  the  half-blood  were  entirely 
excluded  from  the  inheritance  of  real  estate, 
and  were  admitted,  according  to  propinipiity, 

*512 
equally  *with  the  whole-blood  to  the  succes- 
sion of  personalty.  Our  Act  making  both  de- 
scriptions of  estate  a  common  fund  for  dis- 
tribution, compounds  as  to  the  half-blood  be- 
tween total  exclusion  as  to  one  estate,  and 
unrestricted  admission  as  to  the  other,  by 
prescribing  that  a  brother  or  sister  of  the 
whole-blood  shall  exclude  a  brother  or  sister 
of  the  half-blood,  and  by  not  admitting  the 
children  of  a  deceased  brother  or  sister  of 
the  half-blood  to  represent  tlie  parent,  as  in 
the  case  of  nephews  and  nieces  of  the  whole- 
blood  ;  and,  except  in  these  instances,  by 
placing  or  leaving  the  whole-blood  and  half- 
blood  in  the  same  category  as  to  succession. 
Any  doubt  as  to  the  truth  of  the  last  proposi- 
tion, which  might  exist  upon  the  terms  of  the 
Act,  has  been  removed  by  authoritative  de- 
cisions. The  cases  cited  to  us  on  the  con- 
struction of  the  Act,  are  collected  in  a 
note.(fl) 

The  distribution  of  the  estate,  which  is  the 


*513 

subject  of  *tlu"  iircs  ..(  suit,  is  confessed- 
ly regulated  by  the  r>th  canon  above  quoted. 
It  is  conceded  on  all  sides,  that  the  plain 
terms  of  the  canon  call  the  brothers  of  tlie 
half-blood  and  the  nephews  of  the  whole- 
1  lood  to  the  .succession  ;  and  tlie  only  dispute 
between  the  parties  is,  as  to  tlie  proportion 
in  which  these  distributees  shall  take  the 
estate. 

The  statute  does  not  designate,  in  sucli 
case,  the  persons  to  take  more  definitely 
than  it  does  the  shares  to  be  respectively 
taken.  "The  children  of  fevery  deceased 
brother  or  sister  of  the  whole-blood  taking 
among  them  a  share  etiual  to  the  .share  of  a 
brother  or  sister  of  the  half-blood."  It  would 
be  difficult  l)y  any  form  of  words,  to  express 
more  clearly  the  purpose  of  the  legislature, 
that  each  half-brother  should  take  a  share 
as  large  aa  the  share  to  be  distributed 
among  the  children,  however  numerous,  of  a 
deceased  brother  of  tlie  whole-blood.  No 
ambiguity  in  the  construction  of  this  sen- 
tence, standing  by  itself,  has  been  suggested, 
except  that  the  extent  of  the  share  of  a  half- 
brotlier  is  not  precisely  defined.  But  equality 
of  shares  is  necessarily  implied  in  every  di- 
rection for  division,  unless  inequality  be 
expressly  prescribed.  If  a  testator  should 
bequeath  $1,000,  among  A.,  B.  and  C,  so 
that  B.  and  C.  should  together  take  as  much 
as  A.,  undoubtedly  A.  would  take  $500,  and 
B.  and  C.  each  $250.  This  inference  of  equal- 
ity is  aided  in  the  present  instance  by  the 
context  of  the  sentence;  and  some  remarks 
on  the  context  will  be  made  in  the  course  of 
the  discussion. 

If,    then,    there    be    no    ambiguity    in    the 


(a)  No  representation  among  collaterals  be- 
yond brothers'  and  sisters'  children,  grandchild 
<if  a  deceased  brother  of  the  whole-blnod  exclud- 
ed by  brothers,  and  children  of  brotbers,  of  the 
whole-blood.     Poaug  ads.  Gadsden,  2  Bay,  203. 

Maternal  aunt   excludes  children  of  paternal 

204 


uncle.     Shaffer  and  Wife  v.  Nail,  2  Brev,  160. 

Watson  v.  Hill,  1  McC.  1(51,  as  to  construc- 
tion of  the  Act  of  17U7.  Brother,  in  the  Act  of 
171)7,  means  brother  of  the  whole-lilood.  Mother 
excludes  brother  of  the  half-blood.  Law.son  v. 
I'erdriaux,  1  McC-  456.  Wrenu  v.  Carnes,  4 
Des.  405. 

Ex  parte  Mays,  2  Rijh.  61.  Brother  of  the 
half-blood  excludes  ohildrcn  of  a  pre-deceased* 
brother  of  the  lialf-blood. 

Karwon  v.  Lowndes,  2  Dcs.  210.  Uncle  of 
the  half-blood  excludes  first-cousins  of  the  whole- 
blood. 

VVitsell  v.  Lindor,  3  Des.  4S1.  Next  of  kin  in 
the  fifth  degree  exclude  those  in  the  sixth. 

Guerard  v.  Guerard,  4  Des.  405,  n.  Uncle  of 
the  half-blood  shares  etjually  with  uncle  of  the 
whole-blood. 

Porter  v.  Fleming,  Ms.  Col.  1S22.  Nephews 
of  the  whole-blood  exclude  uncles. 

Brevard  v.  Matthews,  Ms.  Col.  xVpril,  1824. 
Matthews  v.  Matthews,  Ms.  Col.  Dec.  1824. 
Stent  V.  McLeod,  2  ^McC.  Eq.  354.  Nephews  or 
the  whole-blood  take  per  stirpes,  and  not  per 
capita. 

Edwards  v.  Barksdale.  2  Hill,  Eq.  416.  Cous- 
ins of  the  half  the  whole  and  of  the  half-blood 
take  equally  as  next  of  kin. 

Hagermayer  v.  City  Council,  Riley's  Eq.  117. 
Sister  of  half-blood  excluded  by  sisters  and  chil- 
dren of  pre-deceased  sister  of  the  whole-blood. 

North  V.  Valk,  Dud.  Eq.  212.  Nieces  exclude 
a  grand  nephew. 

Payne  v.  Harris,  3  Strob.  Eq.  37.  Great- 
grand-childreu  entitled   to  take  per  stirpes. 


FELDER  V.  FELDER 


*516 


words  of  the  enactment,  any  exito.sitiun  con- 1 
trary  to  the  words  comes  under  the  ban  of  the  | 
maxim,    nialedicta    expositio    (in:e   corruuipit  j 
textuni.     t'ourts  have  no  anthority  to  make  i 
an    interpretation   of  a    statute   contrary   to 
its    express    h>tter,     uncontradicted     liy    tlie 
context,  for  nothing  can  so  well  exhibit  the  ; 
intention    of   the    lef,'islature,    as    the    words 
they  have  employed.     A  verbis  legis  non  est 
recedenduni.      Index   aninn  sermo.     Edrich's 
case,   ij   Kep.    119.     It   is  danf,'erous,   in   any 
ca.se,  to  allow  scope  for  construction  again.st 
expres.s    words;    but    it    mif^ht    be    tolerated, 
where,  from  the  context,  or  perhaps  aliunde, 
the  meaning  of  the  makers  is  ascertained  to 

*514 
*be  opposed  to  the  words,  and   great   incon- 
venience would  follow  from  the  litt'ral  inter- 
l)retation.     In  the  present  instance,  no  such 
opposite  intention  of  the  legislature,  nor  such 
consequent  inconvenience,   is  manifested.     If 
the  terms  of  an  Act.  liable  to  no  constitution- 
al  objection,    be   clear   and    positive.    Courts 
must  construe  and  enforce  the  Act.  without 
regard  to  the  utility  or  wisdom  of  its  provi- 
sions,  or   to    the   prudence    and    learning   of 
those  by  whom  it  was  enacted.     The  author- 
ity of  judicial  decisions   may   dejiend   much 
upon  the  reasons  assigned  for  the  judgments; 
the  number  of  the  Judges  deciding,  and  their 
reputation  for  ability,  learning  and  probity; 
and  the  sub.sequent  recognition  of  the  deci- 
sions by  the  jtrofession:    but  no  discrimina- 
tion, founded  upon  the  character  of  the  mem- 
bers, can  be  made  in  the  authority  or  con- 
struction of  the  Acts  of  different  legislatures. 
2  Des.  Eq.  R.  647,  App.     As  a  matter  of  lib- 
eral   curiosity,    however,    it    is    desirable    to 
know    something   of   the   men    wbo   had    the 
chief  agency  in  the  preparation  and  passage 
ot  a  measure  so  important  and  fundamental 
as   to    be    recommended    in   the    constitution 
itself.     That  eminent  person.  Chancellor  De- 
Saussure,    who    has    contributtul    more    than 
any    other,    to    the    structure    of    ICquity    in 
South-Carolina,  and   who   was  a   member  of 
the  legislature  in  1T!)1.  informs  us,  in  Stent 
V.  McLeod.  that  "'the  statute  in  question  was 
drawn  up   with   great  care   by   the   late  Mr. 
Edward    Rutledge,    afterwards    Governor   of 
this  State,   whose  head  was  as  clear  as  his 
breast   was   benevolent   and   his  tongue   elo- 
quent, and  he  had  the  aid  of  the  revision  of 
the  bill  by  the  late  eminent  lawyer  and  dis- 
tinguished   citizen,   Gen.   C.  C.    Pinckney,   as 
well     as     several     other     learned     lawyers." 
Among  these  learned  lawyers,  was  Chancel- 
lor   DeSaussure   himself,    who.   at    the   same 
ses.sion,  drew  the  Act  concerning  the  Circuit 
Courts;  and  probably  Thomas  IMni-kney,  aft- 
erwards Governor  of  the  State,  who  drew  the 
Act,  of  that  session,  to  establish  a  Court  of 
Ecpiity.     (Ch.   Harper's   memoir   of  Ch.    De- 
Saussure;  Ch.    DeSaussures    memoranda   in 
a  copy  of  1  Faust.)     The  Act  was  carefully 
considered   and  discussed,   (Journal  of  1791, 
pp.  50,  148,  203,  245,)   and  its  general  pro- 


visions   have    been    always   most   acceptable 
to  the  people. 

*515 
♦It  is  urged,  that  we  should  depart  from 
the  plain  import  of  the  words  above  quoted, 
because  the  sentence  immediately   preceding 
directs  that  the  estate  "shall  be  equally  di- 
vided lietween  the  brothers  and  sisters  of  the 
half  blood  and  the  children  of  the  brothers 
and  sisters  of  the  whole  blood."     If  there  be 
repugnance  between  the  two  sentences,  prin- 
ciple wovdd  re(|uire  us  to  give  effect  to  the 
last  expression  of  the  will  of  the  Legislature; 
i>ut  there  is.  in  fact,  no  inconsistency.     The 
latter  provision  is  a  specitication  of  the  mode 
iu  which  tlie  eijual  division  directed  by  the 
foreg<)ing   words   shall    be  nuide.     The  dash 
sei)arating  the  sentences  has  the   import  of 
"so  that"  or  "provided."     "Eiiually  divided" 
does    not    necessarily    Import    division    into 
ecpml  shares,  and.  from  its  collocation  here, 
must    mean  divided  upon  terms  of  iniuality 
and  e<iuity— the  result  of  an  "equitable  dis- 
tribution,"   according   to    the   phrase   of   the 
preamble.     The  7th  section  of  this  .same  Act. 
providing    for    partition    among   distributees, 
who  may  have  uneiiual  shares,  gives  author- 
ity to  the  Commissioners  to  recommend  spe- 
cific assignment  to  one  or  more  of  the  dis- 
tributee.s,  or  sale  of  the  premises,  if,  in  their 
opinion,    the    estate    cannot    "be    fairly    and 
equally  divided  between  the  parties  interest- 
ed  therein" — and   surely,    here,    "equally   di- 
vided"  imports  no  more  than  divided   upon 
terms  of  diual  justice  to  the  jiarties.    So,  also, 
the  English  statute  of  distriltutions.  of  which, 
as  to  i»trsonalty,  our  Act  of  1791  is  merely  an 
amendment,  in  the  third  section,  provides  for 
the  just  and  etiual  distribution  of  the  estate 
of  an  intestate  "amongst  the  wife  and  chil- 
dren, or  children's  children"  of  the  intestate, 
although  it  is  obvious  that  the  shares  might 
be  unequal.     It  was  held  by  this  Court,   in 
Collier  v.   Collier.  :i   Rich.   Eq.  555   [55   Am. 
Dec.   G5.'}],   that    the   direction   of   a   testator 
that   his  estate   should    be   "etpially   divi«led 
among  his  heirs  alKive  named,"  was  satisfied 
by  such  divisicm  as  regarded  a  class  of  chil- 
dren as  one  heir.     In  the  more  recent  ca.se. 
of  Crim  v.  Knotts.  4  Rich.  Eq.  .340.  the  Court 
of  Appeals  in  Etiuity  «lecided  that  the  provi- 
sion of  a   testator  for  etpial  division  among 
the  children  of  his  two  l)rothers.  and  for  the 
"use  of  their  children's  part  or  portion   by 

♦516 
the  tw()  *brothers  for  life,  "  was  satisfied  as 
to  equality,  by  equal  division,  iu  the  first 
instance,  between  the  two  brothers.  It  may 
be  further  remarked,  that  it  is  the  former 
sentence  alone  which  provides  for  e<pial  di- 
vision among  the  half  Itrothers.  and  thus 
defines  their  shares — and  this  satisfactorily 
disposes  of  the  phrase  "eiiually  divided." 

Again.  It  is  urged,  that  the  literal  interiire- 
tation  we  have  adopted  viohites  the  general 
purpo.se  of  the  Act  to  iiostpone  the  half  blood 
to  the  whole  blood.     But  there  is  no  evi- 

205 


*516 


5  RICHARDSON'S  EQUITY  REPORTS 


dence  of  such  purpose  to  postpone,  except  i 
in  the  instances  enumerated  in  the  Act;  and 
postponement,  in  specific  cases,  raises  the 
presumption  that  general  postponement  was 
not  intended.  There  is  a  seeming  anomaly  in 
excluding  a  half  brother  and  admitting 
the  cliildren  of  a  deceased  brother  of  the 
whole  blood,  jure  representationis,  where 
there  is  a  brother  of  the  whole  blood;  and 
admitting  a  half  brother,  and  not  enlarging 
the  interest  of  the  children  of  a  brother  of 
the  whole  blood,  where  there  is  no  brother 
of  the  whole  blood.  But  it  is  quite  as  just 
to  say  that  the  anomaly  consists  in  excluding 
tlie  half  brother,  in  the  former  instance,  as 
to  say  that  it  consists  in  not  extending  the 
share  of  the  nephews  of  tlie  whole  blood  in 
the  latter  instance.  If  the  principle  running 
through  the  Act  be,  as  Chancellor  Harper 
suggests,  in  Edwards  v.  Barksdale,  to  call 
the  kindred  of  the  intestate  to  the  succession, 
according  to  propinquity,  not  quantity  of 
blood,  the  exclusion  of  the  half  brother, 
where  there  is  a  brother  of  the  whole  blood, 
is  not  symmetrical.  In  fact,  however,  neither 
this  nor  any  uniform  principle  pervades  all 
the  canons.  The  right  of  kindred  to  inheri- 
tance and  succession  in  estates  is  not  a  nat- 
ural right,  but  entirely  of  civil  institution; 
and  the  laws  of  different  States  differ  wide- 
ly, both  as  to  the  persons  who  shall  take, 
and  the  shares  in  which  they  shall  take.  The 
Act  of  1791  consists  of  a  series  of  positive 
regulations  on  this  subject,  and  our  province, 
as  Judges,  is  to  expound  them,  and  not  to 
deflect  or  overrule  them,  on  conceits  of  sym- 
metry and  policy.  It  may  be  that,  in  the 
proper  arena,  the  wisdom  of  the  Legislature 

*517 
in  these  regulations  concerning  *the  half 
blood  could  be  vindicated;  but,  as  Judge 
Waties  remarks,  in  Poaug  ads.  Gadsden,  "It 
is  unnecessary  to  inquire  into  the  reasons  of 
the  Legislature  for  limiting  the  distribution 
in  this  way — the  words  of  the  Act  require 
this  construction,  and  we  have  no  right  to 
look  further."  \Yliere  the  terms  of  an  Act 
are  not  free  from  ambiguity,  it  is  safer  to  ad- 
here to  any  settled  construction  of  them, 
which  may  have  been  long  and  frequently 
acted  upon,  as  a  rule  of  property,  than  to 
make  a  contrary  decision  upon  a  more  exact 
exposition  of  the  words.  An  illustration  is 
furnished  by  our  decisions  upon  the  Registry 
Acts.  In  the  present  instance,  the  maxim  of 
stare  decisis  has  no  application.  The  ques- 
tion we  are  considering  seems  never  before 
to  have  been  submitted  to  judicial  determina- 
tion; nor  is  it  remembered  by  any  member 
of  the  Court,  or  suggested  to  us  by  counsel, 
that  any  estate  has  been  distributed  upon 
one  or  the  other  construction  contended  for. 
We  have  been  pressed,  however,  with  opin- 
ions, expressed  by  Judge  Grimke,  in  his  Law 
of  Executors,  published  in  1798,  (i)p.  303  and 
305,)  and  by  Judge  Brevard,  in  his  Digest, 
published  in  1814,  (vol.  1,  p.  426,  n.)  in  op- 

206 


position  to  the  conclusion  we  have  attained. 
A  nice  criticism  would  show  that  the  opin- 
ions of  these  Judges  are  equivocally  express- 
ed; but,  passing  that  by,  the  opinions  are  not 
upon  a  case  made,  nor  after  argument,  and 
they  are  not  entitled  to  much  weight.  Judge 
Reeve,  of  Connecticut,  in  his  treatise  on  de- 
scents, (pp.  339,  410,  512,)  prefers  the  view 
we  have  taken.  Much  reliance  is  usually 
placed  upon  the  construction  given  to  a  stat- 
ute by  the  Judges  who  lived  at  the  time  the 
statute  was  passed,  as,  from  their  knowledge 
of  the  circumstances  in  which  the  Legislature 
acted,  they  have  greater  insight  of  the  inten- 
tion of  the  Legislature.  But  Judges  Grimke 
and  Brevard  express  their  opinions  in  pur- 
suance of  the  ordinary  rules  of  construction, 
and  do  not  profess  to  have,  and  could  not 
well  have,  any  peculiar  kno\tledge  of  the 
intention  of  the  Legislature,  in  the  provisions 
concerning  the  half  blood.  Now,  in  the  ex- 
position of  a  statute  by  the  general  rules  of 
construction.  Judges  contemporaneous  with 
the  statute  have  no  advantage  whatever  over 

*518 
their  *successors:  indeed,  are  more  liable  to 
be  misled   by  knowledge  aliunde  of  the  in- 
tention of  the  Legislature. 

It  is  adjudged  and  decreed,  that  the  es- 
tate of  the  intestate  be  so  distributed,  that 
each  of  the  brothers  and  the  sister  of  the 
half  blood,  shall  take  one-fourth,  and  the 
children  of  the  predeceased  brother  of  the 
whole  blood  shall  take  the  remaining  fourth, 
to  be  equally  divided  among  them;  and  it  is 
ordered  that  the  Circuit  decree  be  modified 
accordingly. 

JOHNSTON,  DUNKIN  and  DARGAN,  CO., 
and  WARDLAW,  FROST,  WITHERS  and 
WHITNER,   JJ.,   concurred. 

O'NEALL,  J.,  dissenting.  In  this  case  I 
do  not  agree  to  the  conclusion  of  the  rest 
of  the  Court. 

It  seems  to  me  to  be  plain,  that  the  Legis- 
lature did  not  intend  to  place  the  half  blood 
in  advance  of  those  who,  in  a  previous  sec- 
tion of  the  same  Act,  had  been  preferred  to 
them. 

The  children  of  a  brother  of  the  whole 
blood  may,  in  the  5th  section  of  the  Act,  be 
considered,  by  an  interpretation  of  the  words 
used  by  the  Legislature  in  it,  compared  with 
and  construed  by  the  words  used  in  the  4th 
section,  as  placed  on  an  exact  footing  of 
equality  with  the  half  blood,  when  they  are 
allowed  to  have  parts  of  the  inheritance. 

This  accords  with  the  construction  given 
by  Judges  Grimke,  Brevard,  and  the  profes- 
sion generally,  till  the  agitation  of  the  ques- 
tion in  this  case.  I  am  therewith  content, 
and  do  not  wish  to  unsettle  a  received  con- 
struction of  the  Act,  even  if  it  were  errone- 
ous in  the  words. 

GLOVER,  J.,  having  been  of  counsel,  did 
not  hear  the  case. 
Decree  modified. 


APPENDIX 


5  Rich.  Eq.  ♦SIO 

*Ex    parto    .TAC'CJIKS    L(tl  IS    IM).MIMQUE 

\  A.NDKUS.MISSKN  and   l.OlISA  CATII- 

AKINA  COLLETON.  His  Wife. 

(Charleston.      Maroli,   1S1:'J.) 

I /•; '/»(■/ 1/  <©=>44<!.| 

I'ftitioii  for  leave  to  tile  a  bill  of  review. 
The  pttitioiicr.s  were  defendants  to  the  original 
1)111,  and  were  residents  of  a  foreign  country. 
A  certain  deed,  written  in  the  Fren<li  laiiKuaKe. 
ou  parchment,  folded,  hut  not  endnrsid,  was 
sent  hy  them,  with  other  papers,  to  their  coun- 
sel in  this  State.  This  deed,  which  was  most 
material  to  the  claim  of  the  petitioners,  was 
overlooked  hy  their  counsel,  and  not  discovered 
until  after  the  appeal  decree  in  the  orivrinal 
cause  was  delivered:— Ordered,  that  petitioners 
have  leave  to  file  a  bill  of  review. 

I  Ed  Note.— Cited  in  Simpson  v.  Watts,  6 
Uich  E<i.  ■'>^'>^'  '•-  Am.  Dec.  ;i!»*J ;  Ex  parte 
Knox.  17  S.  ('.  212. 

For  other  cases,  see  Kciuity,  Cent.  Dig.  § 
10.S7;    Dec.   Dig.  <S=>4-4(;.1 

I  i:<juitij  <®=5447.] 

"New  proof,  that  is  come  to  light  after  the 
decree  was  made,"  is  ground  for  granting  leave 
to  tile  a  bill  of  review. 

I  Ed  Note.— Cited  in  Durant  v.  IMiilpot,  16 
S.  C.  124:    Ex  parte  Knox,  17  S.  C.  21(1. 

For  other  cases,  see  Equity.  Cent.  Dig.  §§ 
1001-1094;    Dec.  Dig.  <®=»447.] 


The  petition  in  this  case,  which  was  filed 
Deceinl)er  .''.0,  1S2S,  in  the  Circuit  Court  for 
I'harleston.  states,  "that  about  the  first  day 
of  .Tune,  1824,  a  bill  was  filed  in  this  honor- 
able Court,  by  the  firm  of  Davidson  &  Simp- 
son, of  London,  merchants,  against  Admiral 
Kichard  Graves,  the  father  of  your  petitioner, 
Louisa  Catharina,  and  against  your  iietition- 
ers,  and  the  other  children  of  the  said  Kich- 
ard Graves,  and  their  husbands  or  represen- 
tatives therein  named,  the  object  of  which 
bill  was  to  set  aside  certain  deeds  made  by 
the  said  Kichard  (iraves  and  wife,  and  by  his 
.son,  Samuel  Colleton  Graves,  and  to  have  the 
i'states  thereby  settled  sold,  and  the  proceeds 
api)lied  to  the  payment  of  a  large  sum,  to 
wit,  the  sum  of  £!t.(;(52.11.4,  said  to  1h>  due 
to  the  complainants  by  the  said  Kichard 
(Jraves,  and  Samuel  Colleton  (Jraves.  his  son. 
Your  petitioners  further  shew  unto  your 
Honors,  that  although  process  was  by  the 
said  bill  prayed  against  your  p«'titioners, 
they  were  at  that  time  absent  from  this 
State,  and  no  process  was  ever  served  ui>on 
them:  but  the  father  of  your  petitioner, 
Louisa  Catharina  Colleton,  was  at  that  time 
in  this  State,  and  put  in  an  answer  for  them, 
which   your  petitioners  are   advised   and   al- 

*520 
lege  to  have  been  an  Irregular  *and  unauthor- 


ized act,  and  not  sanctioned  by  the  rules  of 
this   Court:    that   the  said   bill   of  comidalnt 
of   David.son  &   Simitson   set   forth,   amongst 
other  things,   that   the  said   Kichard  Graves 
and    Louisa    Carolina,    his    wife,    (the    said 
Kichard  Graves  In-lng  then  greatly  indebted,) 
by  deed  bearing  date  17th  June,  1817,  granted 
to  your  petlth)ners,   as  a   marriage   portion, 
so    mu<h    of   their    real    property    in    South- 
Carolina,  called  Colleton  and  Falrlawn  Kar- 
onles,  as  should  be  valued  at  £:5,()00  sterling, 
and  so  many   of  their  negro  slaves  in  said 
State  as  should  be  valued  at  £.'{,000  sterling 
more.      Youc   i)etltioners   further   shew   unto 
your  Honors  that  the  said  Kichard  Graves, 
by   the  answers  so   put    In   for   himself  and 
for  your  petitioners,  admitted  the  statement 
made  In  the  said  complainant's  bill,  as  to  the 
deeds  under  which  your  petitioners  were  sup- 
posed to  claim,  and,  without  further  defence, 
submitted   the  consideration   of  their   rights 
to  the  judgment   of  the  Court:    that,  at  the 
hearing  of  the  cause,  the  deed  bearing  date 
the  17th  .Tune.  1817.  was  produced,  and  that, 
upon  a  final  decree  In  the  Court  of  Appeals, 
(«)  It  was  declared  that  the  grant  of  the  £3,- 
000   sterling  charged   up»Mi   the   personal   es- 
tate of  the  said  Kichard  Graves,  by  the  .said 
deed,  was  void,  because  the  said  deed  was  a 
settlement  after  marriage,  and  therefore  vol- 
untary.    Your  petitioners  further  shew  unto 
your  Honors  that  the  majority  of  the  learn- 
ed Judges  of  the  said  Am'i'al  Court  dwelt  and 
insisted  much  ou  the  circumstance  that  there 
was  no  agreement  prior  to  the  marriage  of 
your  petitioners   to  support  the  said   settle- 
ment, and  on  that   ground  alone  determined 
against  your  petltloner.s'  right  as  to  the  £3.- 
000  sterling  charged  on  the  negro  slaves  of 
the  said  Kubard  (Jraves:    but  your  petition- 
ers in  fact  say,  that  they  have  been  greatly 
and  grievously  Injured  by  these  said  proceed- 
ings:  for  the  said  Kichard  (;raves  and  Louisa 
Cartdlna,  his  wife,  previous  to  the  marriage 
of   your   petitioners,    entered    into    a    .solemn 
agreement  with  your  petitioners,  for  the  set- 
tlement  of   £(5.000   sterling,   with    Interest    at 
;■)  per  cent,  per  annum,  charged  on  all  their 

*521 
lands  *and  negroes  In  South-Carolina,  to  the 
uses  of  the  said  marriage,  and  the  same  was 
put  Into  writing  and  signed  by  the  said  Kich- 
ard CJraves  and  wife,  and  8anuiel  Colleton 
(Jraves,  and  your  i)etltloners,  and  was  ex- 
ecuted and  delivered  at  Anvers,  in  the  king- 
dom  of   the    Netherlands,   on   the   fourth    of 


(a)  See  the  decree.  Kiley  Ch.  2.32. 


O=>l'or  other  cases  tee  same  topic  and  KEY-NUMBER  In  all  Key-Numbered  Digests  and  Indexes 


207 


*o21 


5  RICHARDSON'S  EQUITY  REPORTS 


September,  one  thousand  eight  hundred  and 
sixteen.  And  your  petitioners,  in  fact,  say, 
that  the  said  agreement  was  an  essential  con- 
dition in  the  treaty  of  the  said  marriage, 
vvhicli  was  afterwards  duly  had  and  solemniz- 
ed, on  the  second  of  October,  one  thousand 
eight  hundred  and  sixteen;  that,  by  the 
said  marriage  contract,  in  consideration  of 
the  said  intended  marriage,  the  said  Richard 
Graves  and  wife  agreed  to  settle  and  assure 
to  your  petitioners  the  sum  of  six  thousand 
pounds  sterling,  with  interest  at  5  per  cent., 
to  be  charged  on  all  their  estates  in  South- 
Carolina,  as  in  and  by  the  said  instrument 
of  writing,  in  the  hands  of  your  petitioners' 
counsel,  and  ready  to  be  produced,  will  more 
fully  appear.  Your  petitioners  further  shew 
unto  your  Honors,  that  when  the  said  decree 
was  pronounced  against  them,  the  said  mar- 
riage contract  was  not  brought  to  the  view  of 
the  Court,  and  that  the  evidence  furnished 
thereby  would  have  entirely  altered  and 
changed  the  said  decree  in  this  particular. 
Y'our  petitioners  admit  that  they  are  not  en- 
titled to  say  that  the  instrument  of  writ- 
ing hereinbefore  mentioned  is,  as  to  them- 
selves, newly  discovered  evidence,  but  they 
submit  to  your  Honors  a  case  of  still  greater 
hardship,  inasmuch  as  the  said  evidence,  al- 
though furnished  to  their  agents  and  attor- 
nies,  was  not  discovered  nor  understood  until 
after  the  hearing  and  decidin.^'  of  the  said 
case  by  the  said  Court  of  Appeals:  that, 
owing  to  the  absence  of  both  your  petitioners, 
(who  are  residents  in  the  kingdom  of  the 
Netherlands,)  and  the  little  knowledge  which 
your  petitioner,  Vandersmissen,  hath  of  the 
English  law  or  language,  your  petitioners 
were  able  to  do  little  more  than  transmit  to, 
and  place  in  the  hands  of,  their  agents  and 
attornies  in  this  country,  their  deeds  and 
muniments.  That  a  notarial  and  authenticat- 
ed copy  of  their  said  marriage  contract,  in  the 
French  language,  was  amongst  the  number, 

*522 
and  was  *handed  over,  as  they  understand,  by 
their  agent,  Mr.  William  Robertson,  to  Mr, 
Prioleau,  the  solicitor  of  the  said  Richard 
Graves,  amongst  other  papers,  to  be  used  by 
him  in  your  petitioners'  defence,  but  was 
never  examined  by  either  of  them,  nor  was 
the  existence  of  the  said  contract  known  to 
either  of  them,  nor  to  any  person  in  this 
country.  That  when  the  said  answer  was  put 
in  for  them  by  the  said  Richard  Graves,  he 
took  the  statement  of  the  complainants'  own 
bill,  and  submitted  their  rights,  without 
explanation,  to  the  judgment  of  the  Court, 
and  your  petitioners'  case  was  heard  in  their 
absence,  under  the  suppression  of  the  most 
important  evidence.  Y'our  petitioners  further 
show,  that  when  they  were  informed  of  the 
hearing  of  the  case,  and  a  copy  of  the  decree 
of  the  said  Appeal  Court  was  sent  to  them, 
they  were  greatly  astonished  and  surprised  to 
find  that  stated  in  the  evidence  which  they 
knew  not  to  be  in  the  facts  of  the  case,  and 
208 


,  seeing  that  the  honorable  Court  set  aside 
their  lien  of  £3,000,  charged  upon  the  ne- 
I  groes,  merely  because  there  was  no  ante- 
I  nuptial  contract  of  that  nature,  your  petition- 
j  ers  immediately  wrote  to  their  agent,  and  to 
the  counsel  employed  by  him,  and  directed 
them  to  search  for  the  marriage  contract 
hereinbefore  mentioned  ;  that  in  making  such 
search,  the  said  authenticated  copy  of  the 
said  contract  was  found  amongst  the  papers 
of  Mr.  Prioleau,  who  had  been  employed  to 
defend  their  case.  Your  petitioners  well  hop- 
ed that  the  complainants  in  the  said  case 
would  not  insist  on  a  decree  founded  in  mis- 
take, and  would  willingly  yield  them  the 
rights  to  which  they  are  so  clearly  and  just- 
ly entitled;  but  your  petitioners  are  in^ 
formed  that,  as  a  decree  has  been  pronounced, 
no  errors  can  be  corrected  without  an  appli- 
cation to  this  honoi-able  Court.  Youi  peti- 
tioners therefore  pray  that  they  may  be  al- 
lowed to  take  off  the  file  the  answer  so  put 
in  irregularly  in  their  name,  and  that  they 
may  be  allowed  to  prove  the  marriage  con- 
tract hereinbefore  mentioned,  and  that  the 
cause  may  be  re-heard,  and  the  rights  of 
your  petitioners  properly  submitted  to  this 
honorable  Court ;    or  that  they  may  be  per- 

*523 
"^mltted  to  file  a  bill  of  review,  for  the  re- 
dress  of  the  errors  and   grievances  herein- 
before stated. "'(^y) 


(b)  The  following  affidavits  were  relied  on,  to 
sustain   the   petition,   and    were  tilted   therewith: 

"I'ersonally  appeared  William  Robertson,  who, 
being  duly  sworn,  deposeth  that  he  has  acted 
as  attorney  for  Admiral  Richard  Graves  for  the 
last  thirty  years;  that  in  June  or  July,  1824, 
he  went  with  the  said  Richard  Graves  to  Samuel 
i'rioleau,  Esq.,  to  employ  him  to  put  in  an  an- 
swer in  Equity,  and  to  act  as  his  counsel,  in  the 
case  of  Davidson  &  Simpson  against  the  said 
Richard  (iraves  and  others,  about  that  time 
commenctHl,  by  bill  filed  in  the  Court  of  Equity 
of  this  State.  That,  to  the  best  of  his  knowl- 
edge and  recollection.  Baron  J.  L.  D.  Vanders- 
missen, son-in-law  of  the  said  Richard  Graves, 
was  not  at  that  time  in  this  country,  and  did 
not  arrive  here  until  November  or  December 
of  that  year,  (1824,)  when  he  came  here  with 
his  wife  and  the  said  Richard  Graves,  who  had 
returned,  as  his  deponent  believes,  to  Europe,  in 
or  about  July,  1824.  That  the  said  J.  L.  D. 
X'andersmissen  and  wife,  by  power  of  attorney, 
executed  on  8th  April,  1825,  appointed  this  de- 
ponent and  Samuel  Prioleau,  E'sq..  to  act  as  his 
attornies  in  this  country;  that  he  does  not  recol- 
lect having  received  any  marriage  contract,  or 
copy  of  a  marriage  contract,  of  the  said  Van- 
dersmissen and  wife,  from  either  the  said 
Richard  Graves  or  the  said  Vandersmissen,  nor 
has  he  ever  seen  such  marriage  contract,  or 
copy  thereof,  until  after  the  decree  of  the  Appeal 
Court  in  February  last,  in  the  said  case  of 
Davidson  &  Simpson  against  Richard  Graves 
and  others,  when,  upon  sending  a  copy  of  thft 
said  Appeal  decree  to  the  said  Vandersmissen, 
(then  in  Brussels,)  he  received  an  answer  from 
him,  referring  to  a  copy,  in  the  French  language, 
of  a  marriage  contract,  executed  previous  to  his 
marriage,  which  he  states  that  he  left  in  the 
possession  of  this  deponent ;  that  this  deponent 
thereupon  made  search  amongst  his  papers,  but 
could  find  no  such  jjaper  or  contract;  that  he 
then  called  upon  Messrs.  Dawson  &  Cruger, 
(who  had  acted  as  attornies  for  Vandersmissen 


EX  PARTE  VAXDERSMISSEN 


*525 


•524 
*The    Chancellor    sit  tint,'    in    the    Circuit 
Court  for  Charleston,  l»efure  wiioui  the  peti- 
tion was   heard,   refused  the  prayer  thereof; 
and   the  petitioners  ap|)ealed. 

Duukin,  reti;,'ru,  for  petitioners. 
Kinti,  contra. 


since  the  rctinnncnt  of  .Mr.  I'liulcau  from  prac- 
tice,>  to  HMiuest  tlicm  to  .search  amnnKst  tlie 
l)!ilicis  of  .Mr.  rriolciiii  for  siith  jiapcr  or  con- 
tract: tliiit  tlicv  iiiforiiicd  him  tlic.v  liad  just 
received  letters  from  said  N'aiidersinisst'ii,  rcfcr- 
linK  to  said  contract,  and  statin;;  that  a  copy 
thereof  had  l)o  n  h'tt  with  this  deponent;  tliat 
-Mr.  L.  Cruder,  upon  searciiin;;.  found  a  coi).v  of 
said  contract  aniouK-st  the  papers  of  Mr.  I'rio- 
leau.  winch  tins  deponent  thinks  must  liave  l)een 
left  with  Mr.  I'rioleau.  ainonu'st  other  jiapcrs. 
hy  .said  Vandersmissen,  for  this  deponent,  on  iiis 
oatli.  avers  that  he  never  liefore,  to  tlic  hest 
of  his  recollection,  saw  the  said  copy,  or  any 
otiier  copy,  of  the  said  inarriaije  contiact,  wincii 
lie  found,  upon  exainin  ition.  to  he  a  notarial 
copy  of  a  ma'-riaire  eontra<'t.  entered  into  at 
Anvcrs.  (or  Antwerp.)  on  the  4tli  Septend)cr. 
INK),  hetwecn  Admiral  Graves  and  wife,  anc? 
the  said  \'an<Ieisiuissen  and  wife,  and  Samuel 
Colleton  (haves,  fur  the  purpose  of  settling 
i(i,(M)(»  sterling;  upon  the  said  X'andersiuissen  and 
wife,  and  hindiuj;  the  property  of  the  said  Ad-, 
niiral  (Jravcs,  in  South-Carolina,  for  the  pay- 
ment of  the  same." 

"rersonally  appeared  I.awience  K.  Dawson, 
who,  beiiiK  duly  sworn,  deposeth  that  he  was 
utterly  i^jnorant  of  the  existence  of  any  con- 
tract of  nnirriage  hetwecn  Richard  (Jravcs  and 
wife  and  J.  L.  I).  Vaudersnussen  and  wife,  (for 
whom  this  deponent,  to;;ether  with  his  partner, 
Mr.  L.  Cruger,  have  acted  as  attornies  and  solic- 

*524 
itors.)  entered  into  *hefore  the  marriage  of  the 
said  Vandersmissen  and  wife,  until  after  the 
decision  of  the  case  hy  the  Court  of  Appeals, 
and  until  letters  were  received  from  said  \an- 
tlersmiss'-n.  sulise(iuently  thereto,  refciring  to 
such  marriage  settlement,  and  stating  that  a 
copy  of  the  same  had  been  left  with  Mr.  Wm. 
Robertson:  when,  upon  Mi-.  Robertson's  stating 
tlmt  he  could  not  Hud  such  paper,  a  search  was 
made  among  the  papers  of  Mr.  I'rioleau,  by 
Mr.  L.  Cruger,  and  a  paper  in  the  French  lan- 
guage was  f(uind  by  him,  which  is  said  to  be  a 
notarial  copy  of  a  nnirriage  contract,  entered 
into  between  Admiral  (ira\('s  and  wife  and  said 
N'andersmissen  and  wife,  and  datetl  at  Anvcrs, 
ou  the  4tli  September,  ISKi;  but  of  the  exist- 
ence of  said  contract  or  document  this  de|)oneut 
was  utterly  ignorant,  nor  does  he  recollect  to 
have  ever  seen  the  same,  until  after  the  decree 
of  the  Apiical  Court." 

"I'ersoinilly  appeared  Lewis  Cruy:er,  who,  be- 
ing duly  sworn,  deposeth  that,  on  the  retirement 
of  Samuel  I'rioleau,  lOsij.  from  the  practice  of 
the  l,aw,  he  was.  together  with  his  partner.  Mr. 
Lawrence  10.  Dawson.  re(|Uested  by  .Mr.  I'rioleau 
and  Mr.  William  Robertson,  attornies  of  J.  L. 
I  >.  \andersmis.sen,  to  attend  to  his  defence,  in 
the  case  of  Davidson  iV:  Simiison  against  Ad- 
nural  (Jravcs  and  others,  in  Ilquity:  that  this 
was  about  the  sunnner  or  fjill  of  1S1!."»;  that 
the  c.-ise  was  then  docketed,  .and  he  tnidcrstood 
froiii  .Mr.  rrioleau  and  .Mr.  Itobertson  that  -Mr. 
i'etigrii  and  .Mr.  Dunkin  wcic  also  eng.aged  to 
act  with  them  for  said  \'andersmisseii  and  for 
Admir.il  (Jravcs;  that,  as  an  answer  was  put  in 
by  Mr.  I'rioleau  f<u-  said  \'andersmissen.  and 
as  the  deeds  I  herein  referred  to  were  all  ready 
to  he  pi-<i(luced  in  Court,  and  none  others  were 
mentioned  or  set  forth,  they  never  supposed  that 
any  others  existed,  of  importance  to  said  Vnu- 
dersnnsscn,  and  therefore  were  never  put  on  the 
search   for  any   others,    until  after  the  decision 

5  Rum. Eg. -14 


•525 

♦In  March,  ls:.'0,  the  appeal  was  heard  iu 
Charleston,  and  the  judgment  of  the  Court 
announced  as  follows: 

COLCOCK,  J.  Tile  Court  are  decidedly 
and  unanina>usly  of  opinion  tnat  the  mo- 
tion in  this  case  sliould  he  granted.  But. 
a.s  this  is  the  first  case  in  whicli  this  Court 
has  granted  an  application  for  a  hill  of  re- 
view, and  will,  of  course,  he  referred  to  as 
a  precedent,  it  is  deemed  important  that 
our  reasons  should  he  ujore  fully  stated  than 
can  now  he  (hjiie.  The  <»|dnion  will  therefore 
he  .sent  to  the  (.'lerk  t)f  this  Court,  and,  in  the 
meantime,  the  petitioners  are  permitted  to 
I  jiroceed  :  if,  inde«'d,  any  pnicee«lings  should 
I  he  deemed  iieces.sary,  after  this  determination 
is  known. 

NOTT  and  .TOIINSON,  J.I..  concurred. 

At  a  subsequent  day.  the  following  opinion, 
stating  the  reasons  of  the  Court,  was  tiled 
with  the  Clerk: 

COLCOCK.  J.  The  questions  which  ari.se 
iu  this  case  are  of  the  lirst  importance  iu  the 
adndnistration  of  the  Ciuincery  jurisdiction 
of  the  State.  After  nmch  discussion,  our  an- 
cestors thought  proper  to  establish  this  juri.s- 
diction,  and  there  has  heen  a  continued  ef- 
fort, on  the  part  of  our  legislators,  to  cor- 
rect, as  much  as  possible,  both  the  abuse  of 
power  exercised  hy  tiiose  Courts,  and  the  de- 
lays whicli  have  arisen  from  the  mode  of  con- 
ducting the  business  in  them.  lielieving.  as 
we  do,  that  such  a  jurisdicrioji  is  es.seiitially 
necessary  to  the  complete  and  perfect  admin- 
istration of  justice,  we  have  endi-avonnl  to 
co-operate  with  the  Legislature,  to  restrain 
witiiin  its  proper  limits  this  jurisdiction,  and 
so  to  regulate  the  practice  as  to  i)rocure  the 
most  speeily  determination  of  cases,  whicii 
is  cousisteiit  with  their  mixed,  diversitietl,  and 
ofteutimes  comitlex  character.    In  England,  a 

of  the  said  case  by  the  Court  of  Appeals,  in 
February  last,  when,  upon  sending  a  copy  of 
said  decision  to  said  Vandersmissen.  (then  iu 
lirussels.)  they  received  letters  from  said  \au- 
dcrsmis.scn  and  his  wife,  referring  them  to  a 
marriage  contract  enteivd  into  between  Admiral 
(Jravcs  and  wife  and  themselves,  previous  to 
tluir  marriage,  and  dated  on  the  4th  September, 
lMf>.  at  Anvcrs.  (or  Antweri).i  in  the  .Nither- 
lands,  an  authenticated  copy  of  which,  tlicy 
stated,  had  been  left  by  said  \'aiulersmisseii  in 
the  hands  of  William  Rolicrtson.  I^s.j..  of  this 
city:  that  this  depnnent  spoke  to  Mr.  Robertson 
on  the  subject,  when  he  assured  this  deponent 
that    he    had    searched,    and   could    find    no   such 

paper,  and  that,  to  the  hest  of  his   r illeetion. 

he  had  never  .seen  such  jiaper ;  this  deponent 
then,  at  his  re(|Uest.  .searched  amongst  the  pa- 
pers of  ,Mr.  I'rioleau.  and  found  ;i  paper  or 
parchment  document,  written  in  the  I'reneh  lan- 
guau'c,  (whicli  this  deponent  does  not  read.!  and 
upon  showing  the  same  to  .Mr.  Robertson  and 
.NIr.  I'etigru.  they  declared  it  to  be  a  notarial 
copy  of  n  inarrijige  contract,  such  as  is  above 
rcfi-rred  to.  Tin."  deponent  further  saith.  that 
he  never,  until  that  time,  knew  of  the  existence 
of  such  ducumeut  or  contract." 

209 


*525 


5  RICHARDSON'S  EQUITY  REPORTS 


Chancery  suit  is  the  business  of  a  lifetime, 
and  not  uufrequently  descends,  with  the  prop- 
erty, to  tlie  second  or  third  generation.  In 
order  to  prevent  this  dekiy  liere,  tlie  right  of 
appeal  is  given  to  a  tribunal  which  sits  twice 
a  year,  as  in  the  ordinary  cases  of  the  Law 
Courts,  the  decision  of  which  is  final  and 
conclusive  of  the  subject — and  hence  it  has 

*526 
beei'i  ar*gued  that  no  other  re-hearing  of  a 
case  should  be  granted  in  this  State. 

That  it  was  the  intention  of  the  Legislature 
to  prevent  the  delay  resulting  from  the  cir- 
cuitous course  of  proceeding  in  England  can- 
not be  doubted,  but  that  they  intended  to  pre- 
clude the  granting  of  bills  of  review,  under 
any  circumstances,  will  not  be  conceded.  In 
words,  they  have  not  done  so,  and  it  would  be 
improper  to  imply  such  intention,  in  opposi- 
tion to  the  essential  benefit  resulting  from  a 
judicious  exercise  of  the  power ;  nay,  I  may 
say,  from  the  absolute  necessity  of  its  exist- 
ence. In  the  case  of  Haskell  and  Raoul,  (1 
McC.  Eq.  22,)  although  we  rejected  the  appli- 
cation, yet  the  Court  say:  "We  are  not  to  be 
understood  as  saying  that  a  bill  of  review,  for 
newly  discovered  evidence,  (subject  to  all  the 
conditions  and  regulations  prescribed  on  those 
occasions,)  may  not  be  granted."  We  are 
then  to  decide  whether  the  present  applicants 
have  brougiit  themselves  within  the  reasons 
and  the  rules  on  which  such  applications  have 
been  granted.  The  case  itself,  out  of  which 
this  application  has  arisen,  was  one  of  much 
importance,  both  as  to  the  amount  of  prop- 
erty and  the  principles  involved  in  it.  From 
the  situation  of  the  parties,  (most  of  them 
being  resident  abroad,)  and  the  complex  na- 
ture of  their  demands,  depending,  not  only  on 
evidence  to  be  obtained  in  the  country  in 
which  they  lived,  but  on  the  construction  of 
deeds  drawn  and  executed  according  to  the 
forms  of  other  countries,  the  difficulty  in  the 
decision  of  it  was  also  greatly  Increased.  In 
this  state  of  things,  and  in  the  absence  of 
the  applicants,  the  cause  was  heard,  and  an 
important  paper,  on  which  the  claim  of  the 
applicants  (according  to  the  opinion  of  a  ma- 
jority of  the  Court)  depended,  and  which  was 
in  the  possession  of  one  of  the  former  counsel, 
was  not  produced  at  the  hearing.  On  the 
part  of  the  applicants,  it  is  contended  that 
this  was  not  their  fault;  that  there  was  no 
negligence  on  their  part;  that  their  claim 
is  just,  legal  and  equitable ;  that,  although 
they  may  not  come  within  the  very  letter  of 
Lord  Bacon's  rules,  they  are  clearly  within 
the  spirit  and  meaning  of  them.    On  the  other 

*527 
*hand,  it  is  said  to  be  the  ordinary  case  of 
negligence,  where  the  guilty  party  sacrifices 
his  private  right  to  the  operation  of  a  rule, 
indispensably  necessary  to  the  common  good ; 
that,  where  one  has  evidence  which  he  will 
not,  or  does  not,  produce  at  the  trial,  he  is  not 
entitled  to  a  re-hearing. 

We  would  reluctantly  depart  from  a  rule, 
210 


the  wisdom  of  which  is  admitted  on  all 
hands,  and  one  which  we  have  so  often  prac- 
tically applied  ourselves.  But  qui  hyeret  in 
litera,  lueret  in  cortice,  is  a  maxim  which 
must  never  be  forgotten  by  those  who  admin- 
ister equity. 

How  difficult  is  it  so  to  express  any  rule,  as 
not  to  exclude  cases  which  are  evidently  (up- 
on the  mere  statement  of  them)  within  its 
spirit.  The  facts  in  this  case  are,  that  the 
papers  were  all  sent  to  the  counsel  formerly 
engaged  in  this  case.  The  deed  in  question 
was  written  in  the  French  language,  on  parch- 
ment, folded  but  not  endorsed.  The  attorney, 
who  very  laboriously  and  with  great  technical 
precision  made  out  the  abstract  of  the  deeds 
on  which  the  claim  depended,  overlooked  this 
deed,  and  it  was  not  discovered  that  it  was  a 
paper  having  any  relation  to  the  case,  until 
after  the  decision.  The  rule  laid  down  by 
Lord  Bacon  is  in  the  following  words:  "No 
decree  shall  be  reversed,  altered  or  explained, 
being  once  under  the  great  seal,  but  upon  bill 
of  review;  and  no  bill  of  review  shall  be  ad- 
mitted, except  it  contain  either  error  in  law, 
appearing  in  the  body  of  the  decree,  without 
farther  examination  of  matter  in  fact,  or 
some  new  matter,  which  hath  arisen  in  time 
after  the  decree,  and  not  any  new  proof, 
which  might  have  been  used  when  the  decree 
was  made  ;  nevertheless,  upon  new  proof  that 
is  come  to  light  after  the  decree  was  made, 
which  could  not  possibly  have  been  used  at 
the  time  when  the  decree  passed,  a  bill  of 
review  may  be  grounded,  by  the  special  li- 
cense of  the  Court,  and  not  otherwise ;" 
which  ordinance,  it  is  said  by  Lord  Hard- 
wicke,  (3  Atk.  26,)  has  never  been  departed 
from.  Now,  whether  we  take  the  words  of 
Lord  Bacon,  or  those  of  the  expositors  who 
followed  him,  I  think  the  case  before  us  is 
embraced  in  the  rule,  "nevertheless,  upon  new 

*528 
*proof,  that  is  come  to  light  after  the  decree 
was  made,"  &c.  Now,  I  take  it,  that  the  word 
"new"  may  as  much  apply  to  the  discovery  of 
the  proof  as  to  its  existence:  for  de  non  appa- 
rentibus,  et  non  existentibus  eadem  est  ratio. 
Although  the  proof  might  exist,  yet,  if  not 
produced  it  could  not  be  acted  upon;  and  the 
learned  Chancellor  could  not  have  intended, 
in  laying  down  a  general  rule,  to  exclude  a 
case  which,  in  effect,  is  precisely  that  stated 
in  the  rule:  and  this  seems  to  have  been  the 
idea  of  that  great  man,  Lord  Hardwicke,  for 
he  says,  "it  must  appear  that  the  new  matter 
has  come  materially  and  substantially  to  the 
knowledge  of  the  party,  or  his  agents,  which 
is  the  same  thing,  since  the  time  of  the  decree 
in  the  former  cause,  or  since  such  time  as  he 
could  have  used  it  to  his  benefit  and  advan- 
tage in  the  former  cause."  Coop.  Plead.  91; 
1  Ves.  *=en.  434. 

Now,  it  is  very  clear  that  the  proof  in  this 
case  came  to  the  knowledge  of  the  agent  after 
the  decree,  and  if  the  meaning  is,  new  as  to 
discovery,  which  I  think  is  clear,  the  case  be- 


EX  PARTE   VAXDEKSMISSEX 


"..•:o 


fore  us  is  within  the  letter  of  the  rule.  It  is 
true  tliat  tiie  ordiniince  does  say,  "or  some 
new  matter  which  liath  arisen  in  time  after 
tlie  decree,  and  not  any  new  prtiof  wliidi 
iiiij^lit  liave  been  used  wlien  tlie  decree  was 
made;"  but  I  confess  I  cannot  see  how  any 
circumstances,  wiiicli  could  arise  after  a  de- 
cree, could  be  made  the  f^round  of  a  review. 
I  think  this  lan^cuaKe  is  obscure,  and  must 
be  considt'red  as  (jualitietl  and  explained  liy 
that  wliicii  immediately  follows,  an«l  which  I 
have  referred  to:  "Nevertheless,  upon  new 
jiroof  that  is  come  to  light  after  the  decree 
was  made,"  &c. 

But.  if  it  he  conceded  tiint,  by  the  rule,  a 
review  cau  be  granted  on  "some  new  matter 
which  hath  arisen  after  the  det'ree,"  yet  I 
thiidc  it  must  also  be  granted,  that  it  can  be 
nbtained  "upon  new  proof  that  is  come  to 
light  after  the  decree,"  which  is  the  case  be- 
fore us — and  for  tiiis  abundant  authority  can 
be  produced,  indejiendi-nt  of  the  rule  itself. 
In  the  case  of  I'atterson  v.  Slaughter,  And). 
'J.',}^,  Lord  Ilardwicke  says,  "all  the  bills  of  re- 
view I  have  ever  known,  were  of  new  matter, 

♦529 
to  *prove  what  was  put  in  issue.  Lord  Kf- 
tingliam's  case  was  so.  He  claimed  under  an 
old  entail,  and  though  he  afterwards  made 
title  under  a  different  entail,  yet  the  issue 
was  as  clainiing  under  some  old  entail  gener- 
ally. In  the  pH'sent  ca.se,  it  is  not  new  matter 
to  prove  what  was  put  in  issue,  but  to  prove 
a  title  that  was  not  in  issue:  and  therefore 
the  defendant  could  not  be  entitled  to  a  bill 
of  review." 

So.  in  the  case  of  Taylor  v.  Sharp,  (."?  P. 
Wms.  ,37-.)  the  Chancellor  says,  "the  remedy 
by  bill  of  review  nui.st  be  either,"  &c.,  "or  up- 
on some  new  matter,  as  a  release,  receipt, 
ike,  proved  to  have  been  discovered  since ;" 
;uid  in  the  case  of  Standish  v.  Hadley,  2  Atk. 
177,  it  was  decided,  that  papers,  in  the  hands 
of  a  party  to  a  former  cause,  though  not  pro- 
duced, may  be  rea<l  upon  a  bill  of  review, 
not  being  discovered  until  after  publication 


in  the  cause.  (1  Harrison,  Ch.  Pr.  1.'j7.  451.'.) 
It  is.  however,  contended,  that  this  paper  be- 
ing in  the  possession  of  the  former  attorney, 
cannot  be  said  to  be  newly  discovered  testi- 
mony, for  that  it  was  his  duty  to  have  ex- 
amined it.  and  ascertained  its  contents.  But 
I  think  neither  tlie  rule,  nor  the  reason  of 
the  rule,  go  so  far.  A  num  may  have  posses- 
sion of  a  pai»er.  and  not  know  it,  and  the  af- 
fidavits are  satisfactory  to  tliat  point.  In 
the  most  guarded  exerci.se  of  the  i»ower  of  re- 
viewing <'a.ses,  it  is  only  necessary  to  a.scer- 
tain  that  no  imposition  Is  attem|>ted  to  be 
practiced  on  the  Court,  as  to  the  knowledge 
of  the  exlsti'uce  of  the  evidence  offered.  If 
the  paper  was  not  exandned.  (or  was  not 
seen,  being  among  others  not  thouu'ht  to  be 
important,)  it  is  a  oise  of  newly  discovered 
evidence.  It  is  perhaps  dilHcult  tn  tell  how  it 
was  overlooked.  It  is  often  impossible  for 
one  to  tell  how  he  loses  a  paper:  for  if  he 
had  known  the  when  and  the  how.  it  would 
not  have  been  lost.  It  is  a  case,  as  I  con- 
ceive too.  differing  widely  from  tliose  ca.ses 
which  speak  of  one.  having  jiossession  of  a 
pai)er.  not  being  entitle<l  afterwards  to  use 
it.  Those  are  cases,  where  the  luMSon  hav- 
ing the  possession,  also  had  a  full  knowledge 
of  its  contents,  and.  through  a  culi»able  neg- 
ligence or  forgetfulness,  fails  to  pr(Mluce 
it,  or  is  instigated  by  some  motive  of  interest 

•530 
or  gain  in  another  *way.  In  this  case,  there 
appears  to  have  been  all  the  diligence  and  at- 
tention whidr  couhl  have  i)een  required,  and 
m(,)re  than  is  ordinarily  used,  and  it  is  impos- 
sible to  conceive  of  any  motive  which  could 
have  induced  an  intentional  withholding  of 
the  deed ;  nor  is  there  the  slightest  ground 
to  suspect  imposition  in  any  way.  We  are, 
therefore,  unanimously  of  opinion,  that  the 
motion  should  be  granted. 

NOTT  and  JOHNSON,  J  J.,  concurred. 
Motion  granted. 

211 


IN  THE  COURT  OF  APPEALS 


COLUiMBIA— MAY.   1852. 


5   Rich.  Eq.  *53l 

•LICY  R.  Ri:i:SE  V.  WYl-rrr  IK^LMKS  and 

Otlit'is. 

(Columbia.     May.  1852.) 

{I'arlitinn   ®=>ll(i.l 

rartios  and  tlieir  privies  to  a  rocord  and 
di'croe  in  partition,  arc  conchidrd,  jjy  tlio  dc- 
(  ii'c,  frnm  slunvin^  an  est.Mti-  in  tlu'  parties,  nt 
tlie  time,  j^rcattr  than,  or  drrivt'd  from  a  dilTcr- 
ent  .siiurcc  from,  that  set  out  iu  the  i)roceedinKS 
and  estai»lished  by  the  derree. 

\Va\.  Note. — rited   in   Barnes   v.  Cunningham, 
P  Rich.  Va\.  47S. 

For   other   ea.ses.    see   Partition.   Cent.   Dig.   § 
315;    Dec.  IMg.  (®=>116.] 

[fudiimcnt  (S=p(!Sl.] 

Bill  in  X'irginia  for  i)artition  of  testator's 
e.^^tate,  to  whicii  his  widow  was  a  party  as  plain- 
tilT,  stated  tiiat  the  widow  had  renouneed  all 
her  interests  under  tiie  will,  and  that  siie  claiin- 
o'i  iter  dower :  and  the  i>rayer  was,  that  her 
dower  !)(■  allowed  her.  An  orch'r  was  made  for 
the  division  of  the  estate  between  the  "claimants 
nrcordiii}.'  to  law."  and  tlie  ai)piiintment  of  eom- 
missioners  to  mai<e  the  division.  The  eommis- 
isioners  made  their  report,  aUottinsr  one-third  of 
tlie  negroes  to  tiie  widow,  and  the  decree  sim|)ly 
confirmed  the  rejiort.  In  no  part  of  the  record 
was  it  stated  what  estate  a  widow  claiming 
dower  was  entitled  to;  but  it  appeare<I,  tliat.  by 
the  law  of  Virginia,  a  widow,  renouncing  her 
interests  under  the  will,  and  claiming  dower, 
was  entitled  to  one-third  of  the  estate,  and, 
where  she  got  negroes  in  the  division,  she  took 
them  for  life  only: — llrhl,  that  the  Court  might 
look  into  the  pleadings  and  the  law  to  ascertain 
wiiat  estate  the  widow,  tlie  i)laintifl'  in  tlie  l)ill, 
was  entitled  to ;  and  that  slie  took,  under  the 
<lecrec,  an  estate  for  life  only  in  the  negroes: — 
llrhl,  further,  tliat  she  could  not  show,  tliat  as 
<listriliutee  of  an  infant  dinighte!'.  le;,'atee  under 
the  will,  who  had  died  before  the  division,  she 
was  entitled  absolutely  to  a  jiortion  of  the  iirop- 
I'rty  divided—  no  such  claim  having  been  stated 
iu  the  bill,  or  allowed  by  the  decree. 

[Kd.    \(ite. — For    other   cases,    see    Judgment, 
<,'ent.  Dig.  S  VHYl;    Dec.  Dig.  ©zsC.Sl.] 

[liciiiaindcrx  C=l"l 

By  a  \'irginia  statute,  if  a  husband  removes 
from  that  State  slaves  in  which  his  wife  has 
a  life  estate,  without  the  consent  of  the  re- 
mainderman or  r(Muaiinlress,  In-  or  she  may  sue 
for,  recover  and  jmssess  such  slaves  during  the 
life  of  the  husband:— //r/'/,  that,  where  slaves 
were,  under  such  circunist.-inces,  removed  into 
this  .State,  and  the  husband  of  the  remaindress 
did  not  enforce  the  forfeiture,  and  many  years 
<'lapse(l  br-fore  the  death  of  the  tenant  for  life, 
the  right  to  enforce  the  forfeiture  and  the  estate 
in  remainder,  did  not  so  coalesce  as  to  bar.  iin- 
4ler  the  statute  of  limitations,  the  right  of  the 
remaindress  to  the  i)ossession  of  the  slaves  at 
the  termination  of  the  life  estate. 

|Fd.    Note.— Cited    in    Kerngood    v.   Davis,   121 
S.  C.  U(«t. 

For  other  cases,   see   Remainders,   Cent.    Dig. 
§   1«>:     Dec.   Dig.   C=3l7.| 


\lhishiii\d  iiud   Wife  C=.11.1 

Bill  by  husband  alone  for  the  protection  of 
tlie  wife's  remainder  in  slaves,  and  decree  there- 
on for  the  proteetion  of  the  property,  held,  not 
to  vest  the  wife's  e.state  in  remainder  in  the  hus- 
band. 

[Kd.  Note. — For  other  oases,  see  Husband  and 
Wife,  Ont.  Dig.  §  m:    Deo.  Dig.  G=ll.l 
\IIiishniid  ntid    Wife  ©=>(;{).] 

Neither  the  husband,  nor  the  wife,  alone, 
nor  the  husband  and  wife  acting  jointly,  have 
the  i)owor,  during  the  coverture,  without  the 
sanction  of  the  Court,  to  assign  the  wife's  vest- 
i^\  remainiler  in  slaves  expertant  upon  the  ter- 
min.ition  of  a  life  estate  therein,  so  as  to  de- 
feat the  riiiht  of  the  wife  to  the  remainder  when 

♦532 
it  falls  in.  should  the  :.usband  then  *be  dead. 
Should  the  husband  be  alive  when  the  remain- 
der falls  in,  and  he  then  have  the  ri;.'ht  to  re- 
duce it  to  iiossession.  his  previous  assignment 
will,  it  .seems,  hold  good. 

fKd.  Note.— Cited  in  I>arev  v.  Beazlev,  9  Rich. 
Imi.  ILVJ:  Duke  v.  Palmer,  10  Ri<  h.  K.i.  ."iST: 
Shuler  v.  Bull,  15  S.  C.  4;{1,  4:;-_',  r.V.i:  Trus- 
tees V.  Bryson,  .■>4  S.  C.  411,  V.i  S.  E.  »il9. 

For  other  cases,  .see  Husband  and  Wife,  Cent. 
Dig.  §  li!)5;    Dec.  Dig.  CzatiO.J 

[iSlarrs  <©=7."1 

Two  deeds  conveying  a  large  number  of 
slaves,  over  fifty,  in  consideration  of  $1,000, 
set  aside,  under  all  the  circumstances,  on  the 
ground  of  fraud. 

jKd.  Note. — Cited  in  Martbinson  v.  Mc- 
CutchiMi.  .S4  S.  C.  li(3(>,  66  S.  E.  lliO;  Midland 
Timber  Co.  v.  Prettyman.  93  S.  C.  16.  75  S. 
K.   1(»112. 

For  other  oases,  see  Slaves,  Cent.  Dig.  §§  20- 
29;    Dec.   Dig.  <@=7.] 

[Slaicii  <©=>5.] 

The  Court  has  jurisdiction  to  decree  a  spe- 
cilic  delivery  of  slaves  in  lavor  of  a  remaindress 
against  persons,  claiming  under  the  life  tenant, 
who  had  been  in  possession  maio'  years — the  life 
tenancy  having  lasted   fifty  years. 

[Ed.  Note.— For  other  cases,  see  Slaves,  Cent. 
Dig.  §  14;    Dec.  Dig.  <®=55.J 

liS/Joci/rc   I'riforiiiaucr  C='127. 1 

On  a  bill  for  specili<'  delivery,  the  defeirdant 
may  bt>  compelled  to  account  for  the  value  of 
such  of  the  slaves  iis  have  died  since  the  tiling 
of  the  bill. 

I  Ed.  Note.— Cited  in  Barr  v.  Haseldou,  10 
Rich.  E(i.  60. 

For  other  cases,  see  Specific  Performance, 
Cent.  Dig.  §  407;    Dec.  Dig.  <S=3 127.1 

This  cause  was  heard  at  Edgelicld.  June 
sittings,  1S51,  by  Chancellor  .lohiiston.  The 
facts,  upon  which  the  points  adjudicated 
turned,  will  .suOiciently  appear  from  his  de- 
cree. 

.Tohnstou.  Ch.  This  is  a  case  of  unusual 
'oiport.Miicc  :    not  only   from  the  value  of  the 


^=>For  other  cases  bee  same  lupic  aDd  KEY-NL'MUEK  Iu  all  Key-Numbered  Dlgeiits  aad  Indexes 


213 


*532 


RICHARDSON'S  EQUITY  REPORTS 


property  in  litigation,  but  from  the  questions, 
both  of  fact  and  of  law,  involved  in  the  suit. 

Before  considering  the  case,  it  will  be 
proper  to  settle  v.ho  are  the  parties  to  be  af- 
fected by  the  decree,  when  it  is  delivered. 

Two  of  the  defendants,  E.  B.  Holloway  and 
Thomas  O.  Holloway,  do  not  reside,  and  did 
not,  at  the  filing  of  the  bill,  or  since,  reside 
within  this  State.  They  have  not  been  served 
with  process,  and  have  not  appeared  or  an- 
swered. They  have  no  interest  in  the  prop- 
erty in  the  hands  of  the  other  defendants, 
upon  which  the  decree  is  to  operate.  Under 
these  circumstances,  they  are  not  amenable  to 
this  Court ;  nor  can  its  decree  affect  them. 
It  is,  therefore,  ordered,  that  the  order  pro 
confesso,  entered  against  them,  be  rescinded, 
as  improvidently  granted ;  and  that  the  bill 
be  dismissed  as  to  these  two  defendants. 

The  plaintiff,  being  satisfied,  by  the  an- 
swers of  John  Middleton,  Franc-is  W.  Burt, 
and  B.  M.  Talbert,  that  these  three  other 
defendants  never  had  possession  of  any  of 
the  property  in  controversy,  (upon  leave  ob- 
tained for  that  purpose,)  entered  an  order 
before  the  hearing,  that  the  bill  be  dismissed 
as  to  them  also. 

Therefore,  the  decree  to  be  delivered, 
is  not  to  have  any  effect  upon  the  five 
defendants  before  named ;  but  must  be  con- 
strued with  exclusive  reference  to  the  re- 
maining defendants  in  the  cause;  and  it  is 
so  ordered  and  adjudged. 

We  now  proceed  to  the  case. 
*533 

*The  plaintiff's  claim  is  briefiy  this:  She 
is  the  daughter  of  one  Thomas  Williams,  a 
citizen  of  Brunswick  county,  Virginia,  who 
died  in  January,  17S7.  She  avers,  that  in  a 
division  of  her  father's  estate,  which  was 
effected,  between  her  mother  (the  widow  of 
the  decedent)  and  herself,  in  the  county 
court  of  Brunswick,  about  the  year  1797, — 
two  female  slaves,  Jenny  and  Edi.e,  w^ere  as- 
signed to  the  mother  for  her  life,  with  re- 
mainder to  the  plaintiff".  That  these  negroes, 
with  their  increase,  were  removed  from  Vir- 
ginia to  this  district,  (Edgefield,)  about  the 
year  1799,  by  one  Lewis  Holloway,  who  had 
become  the  second  husband  of  her  mother ; 
and  here  remained  until  1814,  when  Hollo- 
way died.  That,  upon  his  death,  the  plain- 
tiff's mother,  who  thus  became  his  widow, 
— and  for  wliose  lif*  the  negroes  were  held, 
— came  into  the  possession  of  them.  That, 
for  certain  causes,  which  rendered  such  a 
proceeding  necessary  for  the  protection  of 
her  remainder  in  said  slaves,  and  their  in- 
crease, the  plaintiff's  husband,  James  Reese, 
then  alive,  filed  a  bill  in  the  Court  of  Etiuity 
for  Edgefield,  against  Rachel  Holloway,  her 
mother,  and  others,  in  the  year  1819 ;  to 
which  a  supplemental  bill,  for  additional 
causes,  and  against  additional  defendants, 
was  superadded,  in  1821 ;  and  the  suit  re- 
sulted in  a  decree  pronounced  in  June,  1822 ; 
in   which    decree   the    Brunswick    record   of 

214 


partition  was  interpreted  to  have  given  the 
mother  only  a  life  tenure  in  tlie  slaves  which 
she  received  under  it,  with  remainder  to  the 
plaintiff ;  and,  upon  the  ground  of  that  in- 
terpretation, provision  was  made  for  the 
preservation  of  the  remainder  of  the  plain- 
tiff. 

Tliat  subsequently  to  that  decree,  and 
while  the  life  estate  still  subsisted,  several 
of  the  defendants,  who  had  gotten  possession 
under  Holloway,  or  his  administrator,  ob- 
tained deeds  from  the  plaintiff's  husband, 
(which  deeds  they  endeavored  to  corroborate, 
by  obtaining  other  deeds  from  him  and  the 
plaintiff  conjointly,)  by  which  certain  un- 
divided portions  in  the  remainder  expectant 
of  the  plaintiff  were  conveyed  to  them. 
These  deeds,  which  were  obtained  in  suc- 
cession from  1824  to  183-,  she  attacks,  upon 

*534 
grounds  set  out  in  the  bill.  Finally,  *that. 
after  her  husband  had  died,  Mrs.  Holloway. 
(upon  whose  life  the  remainder  was  suspend- 
ed,) died  i.n  1847;  and  the  remainder  ac- 
crued to  the  plaintiff.  But,  then,  certain  of 
the  defendants  obtained  from  herself,  then 
discovert  and  sui  juris,  deeds,  executed  by 
her,  in  June,  1848,  conveying  her  whole  re- 
mainder to  them.  These  deeds  she  assails 
for  fraud ; — and  prays  that  they  be  set 
aside ;  and  that  the  slaves  be  decreed  to 
her.  The  bill  also  prays  general  relief;  and 
was  filed  the  23d  of  April,  1849. 

It  will  be  perceived,  from  this  summary 
statement,  that  the  fundamental  questions  in 
the  case  are,  (1)  did  Mrs.  Holloway  take  the 
original  stock  slaves,  under  tlie  Brunswick 
record,  exclusively  as  parcel  of  the  estate 
of  Thomas  Wiliams,  her  first  husband?  and, 
if  so,  (2)  what  quantity  of  interest  did  she 
take  in  them?  And  these  questions,  I  think, 
must  be  deteitnined  by  that  record. 

If  it  should  appear,  that,  in  the  allotment 
to  Mrs.  Holloway  was  included,  as  has  been 
supposed,  not  only  the  share  to  which  she 
was  entitled  as  widow  of  Williams,  but  a 
distributive  share  of  the  share  of  one  or 
more  of  his  children,  who  had  died ;  while, 
at  the  same  time,  it  appears  that  her  share,  as 
widow,  was  intended  to  vest  only  for  her  life: 
the  only  consequence  of  that  state  of  her  rights 
must  be  to  limit  the  plaintiff's  claim.  The 
diverse  interests  of  Mrs.  Holloway,  thus  con- 
founded in  the  property,  must  now  be  sepa- 
rated by  a  partition, — in  the  same  propor- 
tions which  they  bore  to  each  other  when  the 
allotment  was  made ;  and  the  confusion  of 
rights  took  place: — and  the  remainder,  in 
that  part  to  which  the  plaintiff"'s  right  in 
remainder  properly  attaches,  should  now  be 
decreed  to  her. 

The  two  questions  which  I  have  stated, 
must  be  constantly  borne  in  mind,  while  we 
examine  the  Virginia  record,  where  most 
of  the  facts,  of  which  there  is  any  evidence, 
appear. 

Thomas  Williams  died,  as  I  have  stated. 


REESE  V.  HOLMES 


»537 


and  as  the  pleadings  and  exhibits  in  that 
case  show,  in  January.  1787.  He  had  a  com- 
petent estate,  consisting  of  land  and  eiglit 
or    nine    negroes.      A    ffw    days    Ix'fore    his 

*535 
death,  (DecendH'r  !.'(!.  17s<»,)  he  executed  'his 
will;  having,  at  tliat  time,  a  wife,  Kaciiel. 
a  .son,  Sanuiel,  and  two  daughters.  Sally  and 
Lucy,  (who  is  the  plaintiff  here.)  for  whom 
he  provided,  in  tlie  will,  as  follows: 

1.  "I  give  and  heipieath  to  my  .son,  Sam- 
uel, the  land  and  |tlaiitation  I  now  live  on, 
— to  him  and  his  heirs  forever.  But.  if  he 
dies  hefore  he  comes  to  the  age  of  21  years, 
my  desire  is.  that  my  land  l)e  equally  divid- 
ed between  my  two  daugbters,  Lucy  and  Sal- 
ly  Williams — them   and   ttieir  heirs,  forever. 

li.  "Item.  I  give  and  beiiueath  to  my  son, 
Samuel  Williams,  one  negro  girl  by  the  name 
of  Winney.  and  her  increase, — to  him  and  his 
heirs,  forever. 

."'..  "Item.  I  give  and  bequeath  to  my 
daughter.  Lucy,  two  negroes.  Pat  and  Silla, 
— them  and  their  increase, — to  her  and  her 
heirs,  forever. 

4.  "Item.  I  give  and  bequeatli  to  my 
daughter.  Sally,  one  negro,  named  .lenny,  and 
her  increase. — to  her  and  her  lieirs.  forever. 

5.  "Item.  I  lend  unto  my  loving  wife,  Ra- 
chel Williams,  one-third  of  the  land  I  now 
live  on.  during  her  natural  life,  or  widow- 
hood;— one  negro  fellow.  Will,  during  her 
natural  life; — a  choice  bed  and  furniture; 
my  grey  horse  and  side-saddle ;  choice  cow 
and  calf;  sow  and  pigs.  And  after  her 
fleath.  my  desire  is,  that  what  I  have  lent 
my  wife,  be  equally  divided  among  all  my 
children, — to  them  and   their  ln'irs,   forever. 

6.  "Item.  My  will  and  desire  is.  that  all 
my  estate,  not  already  disposed  of,  l)e  equal- 
ly divided  among  all  my  children,  Samuel, 
Lucy  and  Sally, — to  them  and  their  heirs, 
forever." 

One  .Joseph  Lyell  proved  the  will  and  qual- 
ified as  executor,  the  22d  of  .Tanuary.  17S7. 

The  testator's  sf)n  Samuel,  mentioned  in 
the  will,  it  is  admitted,  happened  to  die  be- 
fore his  father;  being  an  infant  at  the  time, 
and  having  neither  wife  nor  issue;  and  i.t 
would  appear  perfectly  plain,  (I  ob.serve 
here.)  that  his  legacies  and  devi.ses,  which 
lapsed  by  his  death,  passed,  by  the  terms  of 
the  will,  to  his  two  sisters,  Lucy  and  Sally, 
if  they  both  survived  the  father,  or  to  which- 
ever of  the  two  so  survived. 
*536 

*By  statutory  provisions  of  Virginia,  pass- 
ed in  17S.">,  then  of  ftirce,  it  was  declared 
that  the  operation  of  wills  of  real  estate 
should  be  subject  to  a  "saving  to  the  widows 
of  the  testators,"  of  their  dower  in  lands, 
&c.,  "according  to  law:" — which  shall  not 
be  prejudiced  by  any  devise  thereof.(<n  With 
re.spect   to   testaments   of  personalty,    it    was 


(a)  Revised  Code  of  181U,  by  Leigh,  p.  376, 
sec.  2. 


provided, (?>)  that — "when  any  widow  shall 
not  be  satisfied  with  the  provision  made  for 
her  by  the  will  of  her  husband,  she  may, 
within  one  year  from  the  time  of  his  death, 
befon>  the  general  Court, — or  Court  having 
jurisdicticju  of  the  probate  of  the  will, — or 
by  deed,  duly  executed  in  the  presence  of 
two  or  more  credible  witnesses,  declare,  that 
she  will  not  take,  or  accept,  the  provision 
made  for  her  by  such  will, — t)r  any  part 
thereof;  anil  renounce  all  benefit  which  she 
might  claim  by  the  same  will: — and,  there- 
upon, such  widow  shall  be  entitled  to  one- 
third  part  of  the  .'slaves  whereof  her  hu.sband 
died  pos.se.ssed, — which  she  .shall  hold  during 
her  life,  and  at  her  death,  they,  and  their 
increase,  shall  go  to  such  person,  or  per- 
sons, to  whom  they  would  have  pa.ssed  and 
goiu>,"  (under  the  will,  of  cour.'^e.  so  far  as 
its  provisions  might  extend.)  "if  such  decla- 
ration had  not  been  made.  And  she  shall, 
moreover,  lie  entitled  to  such  sbare  of  his 
other  personal  estate,"  (as  contra-distin- 
guished from  his  slaves,)  "as  if  he  had  died 
intestate  (c)  to  hold  to  her  as  her  absolute 
propert.v.  Rut  every  widow  not  making  a 
declaration,  within  the  time  aforesaid,  sliall 
have  no  more  of  her  husl)and's  slaves  and 
personal  estate,  than  is  given  her  by  his 
will." 

It  appears  from  a  minute  of  Rrimswick 
County  Court,  where  the  will  had  been  prov- 
ed, that,  on  the  24th  of  September,  17S7, 
"Rachel  Williams,  widow  of  Thomas  Wil- 
liams, deceilsed.  came  personally  into  Court, 
and  declared,  that  she  would  not  accept,  re- 
ceive, or  take,  the  legacies,  devised  to  her 
by  the  will  of  the  said  Thomas  Williams; 
and  renounced  all  benefit  or  advantage  there- 
from." 

*537 

*0n  the of  December  following,  (De- 
cember, 1787,)  she  married  Lewis  IloUoway. 

In  April,  1700,  Lucy  Williams,  (the  pres- 
ent plaintiff,)  one  of  the  two  daughters  of 
the  testator,  married  John  West. 

Sally  Williams,  the  otlier  daughter,  died 
unmarrieil,  and  intestate,  during  her  infancy. 
Sill'  died,  certainly,  between  the  date  of  her 
father's  will,  (December,  17N(!.)  and  the  pro- 
ceedings for  the  partition  of  his  estate  which 
we  are  now  examining;  and  which  were 
conunenced  the  Oth  of  Dtn-ember,  170.">.  But 
there  is  nothing  from  which  the  precise  date 
of  her  death,  whether  occurring  before  or 
after  that  of  her  father,  can  be  fixed. 

On  the  Oth  of  Decemlx'r.  170.">,  as  I  have 
stated,  llolloway  and  wife,  and  West  and 
wife,  exhibited  their  bill  against  Lyell,  the 
executor,  on  the  chancery  side  of  Brunswick 
County  Court. 


{b)  Id.  ;iSl,  sec.  26. 

{<•}  A  widow's  sharo  of  nn  intp.stato  ostato,  so 
far  as  rcliitcd  to  pfrsoiialty,  was  one-third,  after 
paynirnt  of  dt-hts;  imf,  if  slaves  were  included 
in  the  thinl,  she  should  hold  them  only  for  life. 
(See  Act  of  1783;  1  Revised  Code, '382,  sec 
20.) 

215 


*537 


5  RICHARDSON'S  EQUITY  REPORTS 


Now,  remember  the  two  important  ques- 
tions to  be  solved  by  this  proceeding;  and 
attend  to  what  the  proceeding  contains. 

It  will  appear,  I  think,  from  an  attentive 
consideration  of  its  contents,  that,  so  far 
from  purporting  to  distribute  any  share 
which  Sally  may  be  supposed  to  have  held 
in  the  estate, — considered  as  such, — between 
the  mother  and  other  daughter  then  in  Court, 
there  is  no  statement,  fact  or  circumstance, 
disclosed  in  the  whole  case,  (except  that  the 
will  formed  an  exhibit,)  indicating  that  she 
ever  had  either  share  or  interest  to  be  dis- 
tributed. Her  name  is  not  mentioned,  from 
beginning  to  end.  more  than  if  she  had  never 
existed.  The  estate,  which  is  proposed  as 
the  subject  of  division,  and  upon  which  the 
Court  is  called  upon  to  decree,  is  constantly 
called  the  estate  of  Thomas  \Yilliams,  alone ; 
and  constantly  considered  and  treated 
throughout,  as  such;  and  the  interests  of 
the  parties  in  that  estate,  considered  purely 
as  such,  are  set  out,  not  in  technical  lan- 
guage, but  in  unstudied  language,  which  hap- 
pens to  define  and  discriminate  them  with 
unusual  distinctness.  Tlie  mother,  as  widow 
of  Thomas  Williams,  claims  what  is  known 
familiarly  in  Virginia  as  dower,  or  the  share 
real  or  personal,  allowed  by  statute  law, 
there,  to  a  widow,  who  renounces  her  inter- 
ests under  her  husband's  will.  The  daughter 
claims  all  the  balance: — that  is  to  say,  every 

*538 
right  *and  thing  in  the  estate,  not  covered 
by  the  mother's  limited  claim. 

Now  let  us  take  up  the  pleadings.  The 
plaintiffs  set  out  by  stating  the  will  and 
death  of  Thomas  Williams ;— the  probate  of 
the  will,  and  the  assumption  of  the  executor- 
ship by  Lyell,  the  defendant ; — that  the  plain- 
tiffs verily  believe,  "that  all  the  debts  due 
from  the  said  estate, — of  the  said  deceased 
Thomas  Williams." — have  been  settled  ; — 
that  the  executor  refuses  to  come  to  a  set- 
tlement of  "the  estate ;"  although  (if  one  was 
had)  "your  orators  and  oratrixes  charge, 
that  there  is  no  real  or  just  reason  why  an 
immediate  division  of  said  estate  should  not 
take  place  among  them,  according  to  law." 
The  bill  proceeds.  "Your  orator,  Lewis,  and 
your  oratrix,  Rachel,  show,  further  that  she 
renounced  the  provision  made  for  her  by  the 
decedent  aforesaid,  in  his  last  will  and  testa- 
ihent,  and  resorted  to  her  dower,  or  share 
by  law,  due  to  her  of  the  said  estate." 

"That  her  share  or  proportion  has  not  yet 
been  allotted  to  her — for,  though  a  suit  was 
instituted  for  that  purpose,  yet  it  was  not 
duly  or  regularly  prosecuted: — though  your 
orator,  Lewis,  and  Rachel,  are  in  posses- 
sion of  the  land  and  part  of  the  slaves,  your 
orator,  John,  and  your  oratrix.  Lucy  B.,  are 
entitled,  by  law  to  all  the  residue  of  said 
decedent's  estate  after  the  legal  proportion 
and  share  of  your  orator,  Lewis,  and  his 
wife,  are  duly  assigned  and  allotted  to  them." 
The  bill  then  controverts  a  claim  set  up  by 

216 


the  executor  of  Luke  Williams,  (Thomas* 
father,)  to  a  negro,  Adam,  in  possession  of 
Thomas  at  his  death :  alleging  that  Adam 
had  been  given  by  Luke  to  Thomas:  and 
insists  that  the  hire,  which  the  executor, 
Lyell,  exacted  from  Holloway  for  that  slave, 
(which  hire  was  secured  by  HoUoway's  bond.) 
was  unjust,  and  unnecessary,  from  the  state 
of  the  assets. 

Besides  the  prayers  for  an  account  by  the 
executor,  and  for  general  relief,  (and  others 
not  necessary  to  be  noticed,)  the  plaintiffs 
pray  "that  your  Worships  may  decree,  that 
the  land,  slaves,  and  other  property  of  the 
estate  of  Thomas  Williams,  be  legally  and 
properly    divided   among   your   orators    and 

'539 
ora*trixes:  that  is,  the  dower  of  your  ora- 
trix, Rachel,  be  first  assigned  and  allotted 
to  your  orator,  Lewis,  in  her  right, — the 
balance  of  the  estate  be  delivered  to  your 
orator,  John,  and  your  oratrix,  Lucy." 

The  plaintiffs  also  tender  what,  in  Virginia, 
are  called  forthcoming  bonds ;  which  are 
there  a  pre-roquisite  to  the  assent  of  an 
executor ;  which,  of  itself,  (to  say  nothing  of 
the  state  of  the  accounts,  which  showed  that 
the  debts  were  not  yet  settled,)  shows  that 
any  possession  by  the  parties,  even  if  It  ex- 
tended to  the  negroes,  Edie  and  Jenny,  (which 
does  not  appear,)  must  have  been  in  subordi- 
nation to  the  executor,  and  cannot  be  refer- 
red to  an  assent  on  his  part.  I  make  these 
remarks  here,  to  get  that  matter  off  my 
mind ;  and  design  them  to  apply  to  certain 
portions  of  the  defence  hereafter  to  be  con- 
sidered. I  am  now  upon  the  Virginia  record ; 
and  I  take  up  that  proceeding  again,  with  a 
view  to  ascertain  its  purport. 

In  the  answer  of  Lyell,  the  executor,  put 
in  the  2.3d  of  August,  1796,  it  is  incidentally 
argued,  (and  I  take  notice  of  this  to  show 
how  every  party  to  the  record  understood 
the  rights  of  a  widow  who  had  renounced 
under  a  will,  as  related  to  slave  property,) 
that  if  the  negro,  Adam,  had  not  been  given 
to  Thomas  Williams,  by  his  deceased  father, 
then  that  negro  belonged  to  the  father's  es- 
tate, and  Thomas  was  entitled  to  one-ninth 
part  of  his  value,  as  one  of  the  father's  dis- 
tributees, and  of  this  share,  Thomas's  wid- 
ow could  claim  but  one-third,  (or  one  twen- 
ty-seventh part  of  the  value :)  but  if  the  ne- 
gro was  given,  and  became  one  of  the  slaves 
of  Thomas's  e.state,  the  widow  was  entitled 
to  one-third  of  him;    and  that  for  life  only. 

On  the  29th  of  November,  1796,  (West,  the 
husband  of  Lucy,  being  then  dead,  as  ai> 
pears  by  a  suggestion  of  that  fact,  at  this 
time,  on  the  record,)  the  cause  was  heard, 
by  consent,  "upon  the  bill,  answer,  and  ex- 
hibits," (and,  of  course,  without  any  evi- 
dence of  facts  not  stated  in  them :)  and, 
"after  argument  of  counsel  on  both  sides, 
and  consideration  thereof,  it  was  decreed  and 
ordered  by  the  Court,  that  the  estate  of  the 
said   decedent   (the  negro,  Adam,   excepted) 


RKKSK  V.  HOLMES 


*542 


be  (lividod  between  thv  lejial  thiiiuaiits,  ac- 
Conliiij,'    to    law,    by    Jonathan    Tislier."    &c.. 

*540 
"iiere'by  appointed  Commissioners  for  that 
purpose,  and  that  the  said  Commissioners 
nialJe  report  how  tliey  have  acted  on  tlds  de- 
( ree,  in  order  tiiat  it  may  l»e  made  final." 
On  tlie  ;'>Otli  of  Au^'ust.  17!>7,  the  Commis- 
siiMiers  made  the  followinj:  report,  in  writ- 
inu',  dated  liiitli  Decemljer,  17!HJ: 

"In  obedience  to  a  decree,  issued  from 
the  Worsliipful  Court  of  Hrunswi<-lv.  at 
NovemJier  Term,  we,  the  Commissioners, 
nominated  in  tlie  said  decree,  have  made  tlie 
division  of  all  the  negroes  belon^'in;;  to  the 
estate  of  Thomas  Williams,  deceased,  viz: 
In  the  lirst  place,  we  laid  off  one-third  part 
to  Rachel  Ilolloway,  (wife  to  Lewis  IIol- 
loway,)  formerly  relict,  or  widow  to  the  said 
Thomas  Williams,  deceased,  to  wit — Jean, 
Edie  and  Will  (rf)— also,  one-third  of  the 
hire,  &c.  The  rest  and  residue  of  the  ne- 
groes, hire  and  rents  of  the  plantation  of  the 
said  Thomas  Williams,  deceased,  to  Lucy 
Reese,  (wife  to  James  Reese,(r)  formerly 
widow  to  John  West,  deceased,)  and  daughter 
to  the   said   Thomas   Williams,   deceased." 

"On  consideration  whereof,"  says  the  rec- 
ord, "it  was  ordered  and  decreed,  that  the 
said  report  be  confirmed ;  and  be  made  per- 
petual between  the  parties." 

And  here  the  record  cea.ses,  so  far  as  it 
relates  to  the  partition. 

It  is  manifest  that  the  property,  he;-e  di- 
vided, was  claimed  by  the  parties  seekim,' 
the  division,  as  the  e-state  of  Tlmmas  Wil- 
liams ;  and  no  part  of  it  as  the  estate  of  any 
otlier  per.son  ;  and  it  was  divided  as  such, 
according  to  their  claims  in  it.  And  the 
case  of  Edgerton  v.  Muse,  IXid.  Eq.  179,  ef- 
fectually concludes  every  party  to  the  record 


taken  it  into  her  head  that  tlie  whole  of  that 
slmre  lielonged.  of  right,  to  herself,  and  not 
to  her  mother:— would  she  have  been  allowed 
to  disturb  the  jmlgnientV  C)r.  suppose  she 
had  raked  u|)  some  claim  entitling  her  to  the 
whoh-  estate. — as,  for  instance,  a  deed  from 
the  father,  or  some  right  to  the  imiperty  su- 
perior to  that  <if  the  testator  himself,— and 
had  <-ome  into  Court  with  it:  averring  that 
the  proiKMty,  which  had  lieen  flivided.  partly 
at  her  own  Instance,  as  the  estate  of  her  fa- 
ther, never  l)elonged  to  him,  and  thus  sought 
to  deprive  her  mother  of  it:  woubl  not  the 
Court  have  refused  her  application?  Would 
It  not  have  regarded  the  n'cord  in  the  light 
of  nnitual  conveyances  between  tlie  parties; 
and  treated  it  as  if  the  daughter  had  con- 
veyed so  nuich  property  to  the  mother? 
Woubl  not  the  judgment,  to  which  tlie  daugh- 
ter was  a  party,  have  been  a  good  bar  and 
estopi»el.  for  the  mother,  agaln.st  the  new 
claim  of  the  daughter?  Certainly.  And  If 
it  is  a  l)ar  and  i)rotectlon  to  one  party,  it 
nuist  be  .so  to  all  parties:  and  thus,  as  among 
them,  and  all  their  privies,  the  judgment, 
while  it  stands,  is  the  exponent  and  measure 
of  right  of  all  who  took  or  claimed  under  it. 

The  priiicii>le  of  Edgerton  v.  Muse  is.  that 
the  parties  to  the  record  ar»»  concluded  by 
the  rerord.  from  averring  that  any  other  right 
existed  in  them,  or  any  of  tliem.  at  the  time 
of  the  proceeding,  than  the  record  itself  im- 
ports. 

If  any  relievable  fraud,  or  mistake,  enter- 
ed into  the  decree,  when  it  was  pronounced, 
the  party  Jiffecterl  by  it  might  have  been 
heard,  if  he  had  come,  within  reasonable 
time,  with  a  direct  r>roceeding  to  set  the  judg- 
ment a.side:  but  while  it  stands,  I  reiM«at.  It 
is  the  standard  to  which  every  party,  taking 
•542 


and  judgment  of  partition,  from  setting  up  ;  under  it.  *nuist  resort,  for  the  measure  of  his 
any  right,  (though  one  were  jiroved  to  have  ex- 
i.sted.)  lying  behind  that  record  and  judgment. 
And,  then'fore,  neither  Mrs.  Ilolloway,  nor 
the  defendants,  claiming  under  her  and  her 
husband,  (who  was.  himsell",  a  party.)  can  av- 
er, that  any  part  of  the  property  allotted  to 
her  was  parcel  of  Sally's  estate— or  was  any 
other    than    Thomas    Williams's    e.state ;     or 

*541 
that  any  orhcr  *inci(lents  attached  to  the 
proi)erty  received  in  the  division,  than  such 
as  attached  to  it  as  Thomas  William.s's.  and 
were  impressed  by  the  judgment  partitioning 
it  as  such. 

Supi»ose  that  Sally's  .share  had  licen  in(  lud- 
ed  in  the  division,  (intentionally  by  the  par- 
ties, though  the  Court  was  not  advertised  of 
their  intentions,  by  the  record, I  and  part,  or 
the  whole,  of  that  share  had  been  included 
in  the  allotment  nnule  to  the  mother:— and 
suppose  that,  after  the  judgment,   Lucv  had 


frfl  Will  (Hod  in  tho  lifetime  of  Mrs.  Ilollo- 
way. and  is  not  in  litigition  hero. 

fft  This  is  the  lirst  intimation  of  tiit'ir  mar- 
riage. 


rights;  and  cannot  be  set  aside,  or  modified, 
•ollaterally. 

Anrl  while  here.  I  may  at  once  observe,  that 
this  record  silences  another  rather  ingenious 
argument,  nuich  dwelt  on  in  the  defeiuv.  It 
was  said,  that  even  conceding  the  record  In 
partition  to  havi'  annexed  the  correl.-itlve  ten- 
ures, for  life,  and  remainder,  to  the  slaves  al- 
lotted to  Mrs.  Ilolloway:  Yet  it  sutliclently 
iMMieared.  that  before  the*  judgment,  the  par- 
ties were  in  pos.se.ssion  of  the  property  parti- 
tioned. un<ler  circtimstances  raising  a  pre- 
stnnptiiui  of  assetit  on  the  iiart  of  the  execu- 
tor: and  thus  either  West.  (/»  the  first  hus- 
band, or  Ree.se.  the  second  husband,  of  Lucy. 
h;id  a<tually  reduced  the  remainder  intended 
to  be  created  in  his  wife's  right:  and  was 
the  legal  owner  of  It.  jure  niariti.  when  it 
was  created  ;  and  that  the  remainder,  when 
created,  enured  to  him.  and  not  to  his  wife. 

Every  fact,  assumed  as  the  foundation  of 
this  argtnnent.  Is  mls<'onceived.     It  does  not 

(/)  Wt>st.  the  hrst  Imshand  of  Lucy,  who  join- 
ed her  in  the  procct-ding  for  partition,  diod 
pindinir  the  suit.  Rocsr  niarrii'd  her  pendente 
lite,  and  was  her  husband  at  the  partition. 

217 


^'^42 


5  RICHARDSON'S  EQL'ITY  REPORTS 


appear,  tbat  any  party  was  in  possession  of 
these  negroes,  Jenny  and  Edie.  The  legal 
presnniption  is,  that  they  were  in  iiossession 
of  the  executor.  It  does  not  appear  that  any 
party  in  interest  liad  the  custody  of  any  ne- 
groes, except  upon  hire,  or  for  the  mainte- 
nance of  the  slaves,  for  which  the  executor 
made  compensation.  It  does  not  appear  that 
the  executor  had  assented  to  the  possession  of 
the  property,  as  legacies.  The  contrary  ap- 
pear.s.  It  appears  that  foi-th-coniing  bonds 
had  not  been  given,  as  required  by  law,  and 
that  the  debts  had  not  been  fully  discharged. 

But  what  I  wish  to  ob.serve,  in  this  con- 
nection,— where  I  am  considering  the  conclu- 
siveness of  the  decree  in  partition. — is,  that 
the  record  concluded  both  West  and  Reese, 
and  Mrs.  Holloway  and  Holloway,  and  all 
their  privies,  from  averring  that  they,  or  any 
of  them,  had  any  legal  vested  rights  in  the 
I)roperty,  before  the  decree.  Their  interests 
i-equired  the  decree  to  perfect  and  adjust 
them  ;  and  just  as  the  decree  did  adjust  them, 
do  they  stand,  and  in  no  other  position.     I 

*543 
give  it  for  my  *opinion,  that,  if  it  had  been 
a  fact,  indubitable,  that  West  or  Reese  had 
such  a  possession  as  it  contended  for,  and 
was  the  owner  of  the  propert.v,  in  law,  his 
permitting  it  to  be  treated  as  still  unadmin- 
istered  property  of  Williams's  estate,  made  it 
so:  and  subjected  it  to  all  the  incidents  at- 
taching to  it  as  such.  His  permitting  it  to  be 
considered  as  nnpartitioned  property,  laid  it 
liable  to  all  the  incidents  of  the  partition, 
growing  out  of  the  rights  of. the  parties,  to 
whom  the  right  of  partition  belonged.  The 
party  entitled  to  partition  with  Mrs.  Hollo- 
way, as  the  record  .said,  and  as  the  law  de- 
clared, was  Lucy  Reese;  and  no  one  claim- 
ing under  that  record, — as  both  plaintiff  and 
defendants  here  do ;  or  under  Reese. — as  the 
defendants,  in  one  aspect  of  the  case,  do: — 
can  aver  a  title  either  in  West,  who  was  a 
party  to  the  record,  or  in  Reese,  who  was  a 
party  to  the  record  and  judgment. 

I  have  said,  on  the  authority  of  Edgerton 
V.  Muse,  Dud.  Eq.  179,  that  no  part  of  the 
property  can  be  considered  as  having  been  al- 
lotted to  Mrs.  Holloway,  as  distributee  of  her 
daughter,  Sally  Williams.  Perhaps  it  may  be 
more  satisfactory  to  show,  that  there  is  no 
fact,  incontrovertibly  established  in  the  case, 
which  renders  it  necessary  to  conclude  that 
Sally  Williams  ever  took  any  interest  under 
her  father's  will: — and,  of  course,  her  share, 
as  it  is  called,  could  not  have  been  distrib- 
uted. And  if  that  is  gotten  over. — and  we 
are  compelled  to  assume  that  she  had  a 
share ; — then  to  show,  either  that  her  mother 
took  no  interest  in  it.  or,  if  she  took  an  in- 
terest, it  was  a  greater  interest  than  she 
claimed,  or  had  allotted  to  her.  in  the  Vir- 
ginia proceeding. 

It  will  be  seen,  when  I  come  to  explain  my- 
self, that  if  Sally  took  a  share  of  her  father's 
estate,  and  left  that  share,  at  her  death,  as 
her  own  intestate  estate,  for  distribution; — 
218 


it  depended  altogether  upon  the  juncture  of 
time  at  which  her  death  (the  time  of  which 
is  entirely  conjectural)  happened,  whether 
her  mother  was  one  of  her  di-stributees,  or 
not.  If  the  death  occurred  at  a  time  when, 
by  the  law  then  of  force,  the  mother  was  not 
entitled  to  a  portion  of  her  share,  then  the 
partition  of  1797,  and  upon  the  terms  which 
the  plaintiff  contends  were  impressed  upon  it, 

*544 
*was  exactly  right.  If,  on  the  other  hand, 
Sally's  death  occurred  at  a  time  when,  by 
force  of  law,  her  mother  took  an  interest  in 
her  estate ;  the  law  gave  her  an  interest, 
which  would  have  swelled  her  claims  upon 
the  aggregate  estate  of  the  property  left  by 
Thomas  Williams,  to  an  amount  beyond  what 
she  actually  claimed  in  the  Brunswick  pro- 
ceeding:— a  circunastance  which  renders  it 
improbable  that  she  ever  took  inider  Sally, — 
or  she  would  not  have  stated  her  claim  at  the 
amount  at  which  the  record  shews  .she  did 
state  it. 

I  have  expressed  myself  badly ;  but  what 
I  have  to  say  may.  perhaps,  explain  my 
meaning.  If  Sally  Williams  happened  to  die 
(as  Samuel  is  admitted  to  have  done)  before 
her  father,  all  her  legacies,  as  well  as  his, 
must  have  fallen  into  the  residuary  clause 
of  the  will,  and  gone  to  Lucy,  the  surviving 
residuary  legatee.  This  clause  would  have 
carried  to  Lucy  the  wench,  Jenny,  who  was 
given  to  Sally ;  and  also,  the  wench,  Edie, 
who  was  not  specifically  disposed  of,  or  even 
mentioned,  in  the  will.  In  that  case,  there- 
fore, there  is  no  ground  of  pretence,  that  Sal- 
ly's death  occasioned  any  increase  to  her 
mother's  interest.  This  was  clearly  perceiv- 
ed by  the  defendants'  counsel.  They,  there- 
fore, contended,  that  the  death  of  this  child 
occurred  after  that  of  her  father:  though, 
there  is  no  more  evidence  that  she  died  after 
that  event  than  before  it. 

But,  let  it  be  supposed  that  she  survived 
her  father,  and  thus  took,  under  his  will,  not 
only  her  own  original  legacies,  but  an  equal 
share  with  her  sister  in  the  lapsed  legacies 
of  Sanmel.  In  this  event,  she  left  an  estate, 
at  her  death,  to  be  disposed  of  under  the  law 
applicable  to  intestate  estates.  But,  as  I 
shall  now  proceed  to  show,  it  depended,  ac- 
cording to  the  law  of  Virginia,  upon  the 
length  of  the  interval  between  the  death  of 
her  father  and  her  own  death,  whether  her 
mother  took  an  interest  in  it ;  and  if  she  took 
a  share,  it  would  so  have  varied  her  claims, 
that  she  could  not  have  stated  them  as  she 
did  in  the  Brunswick  record. 

By  the  Virginia  statute  of  17S5,((/)  it  was 
*545 
provided,  that  *personal  estates  of  intestates, 
where  there  is  no  wife  or  children,  "shall  be- 
distributed  in  the  same  proportions,  and  to- 
the  same  persons,  as  lands  are  directed  to 
descend,  in  and  by  an  Act  of  the  General  As- 
semblv,  entitled  an  Act  to  reduce  into  one  the 


((/)  Revised  Code  of  1819,  p.  382,  S£C.  29. 


REESE  V.  HOLMES 


*647 


sovornl  Arts  directing  the  course  of  descents." 

Tlie  Act  tlius  referred  to,  (and,  by  tlie  ref 
erence.  triving  <ine  rule  for  the  distril  iitiini 
of  intestate  realty  and  p«>rs<nialty.)  |in>vlded 
(/j»  (so  far  as  it  is  necessary  to  quote  iti  tliat 
"■where  any  iiersnn,  having  title  to  any  real 
estate  of  inheritance,  shall  die  intestate,  as 
to  such  estate,  it  shall  de.scend  and  iiass  in 
parcenary,  tit  his  kindred,  male  and  female, 
in  the  following  course,  that  is  to  say: 

1st.  To  his  children,  or  their  descendants, 
if  any  there  he  : 

2d.  If  there  he  no  children,  nor  their  de- 
scendants, then  to  his  father: 

."id.  If  there  he  no  father,  then  to  his  moth- 
er, brothers  and  sisters,  and  their  descend- 
ants, or  such  of  them  as  there  1h'." 

Thus  stood  the  law  until  17'.»'J;  and  if 
Sally  died  while  this  rule  of  distribution  was 
of  force,  inasmuch  as  she  died  in  her  mi- 
nority, and  without  leaving  husband,  issue, 
or  father,  her  share  of  her  father's  estate, 
consisting  of  her  own  original  legacies,  and 
-one  half  of  Samuel's  lapsed  legacies,  must 
have  been  distributable  under  the  ."id  canon 
of  descent,  above  quoted,  between  her  mother 
and  sister,  each  taking  one-half. 

But  on  the  Sth  December,  IT'.tJ.  a  statute 
was  passed,  entitled  "au  Act  to  reduce  into 
one  the  several  Acts  directing  the  course  of 
descents."  which,  after  re-enacting  the  three 
canons  of  the  prior  statute,  (of  the  same  ti- 
tle,) which  I  have  already  stated,  proceeds, 
in  its  5th  section,  to  declare,  "that  where  an 
infant  shall  die  without  issue."  (as  Sally 
Williams  did.)  "having  title  to  any  real  es- 
tate of  inheritance,  derived  by  purchase  or 
descent  from  the  father,  neither  the  mother 
of  such  infant,  nor  any  issue  which  she  may 
have  by  any  person,  other  than  the  father 
of  such  infant,  shall  succeed  to,  or  enjoy,  the 

*546 
same,  or  any  part  *thereof,  if  there  be  living 
any  "orother  or  sister  of  such  infant,  on  the 
part  of  the  father,  or  any  brother  or  sister 
of  the  father,  or  any  lineal  descendant  of 
either  of  them ;  saving,  however,  to  such 
mother  any  right  of  dower,  which  she  may 
claim  in  the  said  estate  of  inheritance." 

This  clause  is  followed  by  another,  provid- 
ing for  the  maternal  relations,  in  itreference 
to  the  father  of  the  infant,  when  the  infant's 
estate  has  been  acquired  from  the  mother. 

Then,  on  the  l.'Jth  of  the  .same  month,  an- 
other statute  was  jtassed,  in  the  L'Tth  clause 
«)f  which  it  is  provided,  (in  cases  where  there 
is  no  wife  or  child.)  that  the  whole  surplus 
of  intestate  personal  estates,  after  the  pay- 
ment of  debts  and  funeral  expenses,  •'shall 
be  distributed  in  the  same  proportions,  an<l 
to  the  .same  i)ersons.  as  lands  are  directed  to 
descend  in,  and  by,"  the  statute  of  the  sth, 
just  quoted. 

The  operation  of  these  two  statutes  was 
postponed  to  the  1st  October,  17!>:i.(n 


ill)  1(1(111  .S">"t-<!,  elinp.  '.)(!.  soc.  li,  3,  4. 
(it  Revised  Codo,  14S,  chap.  -iH. 


From  this  statement  of  the  statute  law  of 
Virginia,  it  appears  manifest,  that  if  Sally 
Williams  survived  her  father,  and  took,  by 
liunliaxe,  under  his  will,  her  own  legacies, 
and  half  of  Samuel's,  and  then  died  before 
the  1st  of  October.  170.'?,  her  interests,  under 
his  will,  were  eciually  distributable  between 
her  mother  aiul  sister;  but  if  she  died  on  or 
after  the  1st  of  October.  17!>:!,  the  sister  took 
the  whole  of  it,  in  ex<lusion  of  the  mother. 
She  may  well  liave  <lied  between  the  1st  of 
October.  179.".,  and  the  institution  of  tlie 
Hrunswick  suit,  in  171»r» — a  periotl  exceeding 
two  years.  In  that  event,  the  state  of  rights, 
as  iH'tween  I.jicy  and  her  mother,  in  tliat  par- 
tition, would  have  been  just  what  they  would 
have  been  hati  Sally  died  iH'fore  her  father; 
which,  we  have  already  seen,  would  have  left 
them  precisely  as  they  are  stated  in  that  rec- 
j  ord. 

I  But  if  Sally  died  after  her  father,  and  be- 
fore the  1st  of  October,  17D:5,  land  only  iu 
that  case,)  her  mother  had  an  interest  In 
her  share  of  her  father's  estate,  but  the  pos- 

*547 
session  of  that  ♦interest  would  not  have  left 
the  proportion  between  her  rights  and  those 
of  Lucy,  such  as  they  both  concurred  in  stat- 
ing it,  in  the  Virginia  record.  Thi'  statement 
there  i.s.  that  the  mother  was  entitled  to 
have  one-third  of  the  property  assigned  to 
her,  to  Ix'  held  by  her  by  some  tenure,  (the 
nature  of  which  tenure  is  here  perfectly  im- 
material,)  and  that  Lucy  was  to  have  the 
balance,  of  -two-thirds. 

Could  that  statement  of  claims  have  hoen 
made,  if  it  was  intended  to  include  with  the 
mother's  share  of  the  original  estate,  her 
share  of  Sallys  portion?  Could  it  have  been 
made,  if  Sally  had  died  at  a  time  when  the 
Act  of  1785  operated  on  the  distribution  of 
her  estate:  casting  one-half  of  it  upon  the 
mother  and  the  other  upon  Lucy'/  Impos- 
sible. The  mother  must  have  claimed  an 
interest  in  far  more  than  one-third  of  the 
aggregate  estate  to  be  divided  :  and  would 
certaiidy  have  been  very  far  from  concur- 
ring, as  she  did.  in  the  statement  that  Lucy 
was  entitled  to  two-thirds. 

Now.  these  parties  certainly  knew,  when 
they  tiled  their  bill,  the  time  of  Sally  Wil- 
liams's death:  and  they  then  recollected  it 
far  better  than  Mrs.  Ilolloway  did.  when,  in 
her  answer  to  the  bill  of  isi;»-i»l.  (a  quarter 
of  a  century  aft»>rwards.)  she  said  loosely, 
that  Sally  died  in  her  ndnority,  without  pre- 
tending to  specify  the  time:  or  than  the 
plaintitr  did.  at  the  tiling  of  her  iire.sent  bill, 
(more  than  half  a  century  after  the  event,) 
in  which  she  says,  as  loosely,  that  her  sister 
dii'd  shortly  after  her  father.  If  this  is 
evidence,  it  Is  very  loose  evidence:  and  it  is 
the  oidy  evidence  I  can  Hud,  from  begiiniing 
to  end.  touching  the  time  of  Sally's  <leath. 

It  is  certaiidy  very  extraordinary  that 
Mrs.  Ilolloway.  to  whom  it  was  important  to 
assign  a  date  to  the  death  of  this  daughter, 

219 


*547 


5  RICHARDSON'S  EQUITY  REPORTS 


winoh  would  have  given  herself  an  interest  [ 
ill  her  estate,  did  not  undertake  to  do  so  in  I 
her  answer,  to  which  I  have  referred.     Are 
we  to  conjecture  such  a  date,  when  she  her- ! 
self  observed  a  perfect  silence? 

But  if  she  had  assigned  a  date  advantage- 
ous to  her  own  interests,  that  would  not  have 

*548 
sufficed.  Surely  Mrs.  Holloway,  *or  any  one 
coming  in  under  her,  (even  If  at  liberty  to 
dispute  the  record,  and  to  impregnate  the 
property  she  took  under  it  with  a  title  differ- 
ent from  that  which  it  purports  to  convey.) 
must  prove  the  facts  upon  which  that  title 
depends — and  the  proof  must  be  reasonable 
and  convincing.  There  is  no  such  proof  here, 
and  every  presumption  must  be  the  other 
way :  because  every  presumption  should  be 
raised  to  support  the  record  made  by  the  par- 
ties, and  under  which  they  claim.  In  that 
record,  the  parties  entirely  disregarded  Sal- 
ly's interests  in  the  estate,  and  we  are  to 
suppose  that  they  did  so  not  without  reason ; 
and  that  their  reason  was  either  that  she 
never  took  any  share  of  the  estate,  or,  if  she 
did,  her  death  cast  the  whole  of  it  on  her 
surviving  sister.  They  omitted  to  take  notice 
of  her,  or  her  interests,  probably  because,  up- 
on the  state  of  facts  which  they  knew  to  ex- 
ist, the  same  legal  inferences  arose  as  if  she 
had  never  existed,  or  had  never  been  named 
in  the  will,  and  every  thing  given  by  it  to 
her  had  been  given  directly  to  Lucy :  infer- 
ences corresponding  to  those  which  the  law 
would  have  raised,  if  Sally  died  either  be- 
fore her  father,  or  after  September,  1793. 

This  brings  us  to  consider  the  second  ques- 
tion, with  a  view  to  the  solution  of  which 
we  are  perusing  the  Virginia  proceeding:  to 
wit.  Did  Mrs.  Holloway  take  a  life  estate  In 
the  negroes  allotted  to  her? 

The  final  order  of  the  Court  was  a  simple 
confirmation  of  the  report  of  the  Commis- 
sioners— and  that  report  merely  allotted  the 
property,  without  specifying  the  tenure  under 
which  it  was  to  be  held.  But  it  refers  to  a 
previous  decree,  and  purports  to  be  in  obedi- 
ence to  it :  which  decree  declares  that  the 
property  Is  to  be  divided,  according  to  law, 
between  the  claimants  before  the  Court. 
This  decree  is  provisional :  and  intended  to 
be  so.  But  by  its  terms,  it  (the  decree  of 
November,  1796,)  is  to  become  final,  and  to 
be  the  decree  in  the  case,  if  a  suitable  return 
be  made  by  the  Commissioners :  a  return  to 
satisfy  the  Court  that  they  had  made  a  di- 
vision in  obedience  to  it.  A  return  having 
been  made  which  is  satisfactory,  the  return 

*549 
is   *confirmed ;     and   is  made   perpetual   evi- 
dence of  the  division  between  the  parties. 

This  is  the  decree.  If  there  is  any  thing 
equivocal  in  it,  are  we  to  stoi)  there,  and 
give  it  no  effect  lieyond  those  things  that  are 
explicit,  and  clearly  expressed?  or  aa'e  we 
at  liberty  to  go  into  the  record  for  its  con- 
struction? 

220 


Is  there  anything  in  Edgerton  v.  Muse,  to 
prevent  us  from  resorting  to  tlie  record  for 
the  interi)i'etation  of  the  judgment? 

As  I  am  in  the  liabit  of  saying,  there  are 
different  minds — minds  differently  constitut- 
ed— and  there  will  always  be  a  difference  of 
opinion  upon  certain  classes  of  subjects,  and 
I  shall  not  be  surprised  if  I  am  thought  to- 
be  wrong,  when  I  say  that,  in  my  opinion, 
there  is  nothing  in  Edgerton  v.  Muse,  to  pre- 
vent the  pleadings'  being  looked  into  to  help 
out  the  Virginia  decree,  and  that  we  are 
bound  to  look  Into  them  in  furtherance  of 
forensic  ju.stiee.(y) 

Edgei'ton  v.  Muse  says,  you  shall  not  look 
behind  the  record  for  the  purpose  of  raking 
up  a  right  of  wluch  the  record  does  not  treat 
or  take  notice,  and  bringing  that  in  opposi- 
tion to  the  right  involved  in  the  record,  and 
decided  by  it.  What  is  proposed  here  is  not 
to  go  behind  the  record,  but  into  it:  not  to 
search  for  a  right  not  noticed  in  the  record, 
but  to  find  what  right  it  does  notice:  not  to 
look  for,  and  bring  forward,  a  right  contra- 
dictory to  that ;  but  to  examine  the  features 
of  the  very  right  recorded  in  the  pleadings ; 
in  order  that  we  may  not  abridge  it,  but  give 
it  that  efficacy  which  we  are  to  suppose  the 
decree  in  the  case,  properly  vmderstood.  In- 
tended to  give: — to  see,  in  this  case,  what 
the  nature  of  those  claims  were,  (as  to  which, 
be  it  rememliered,  thei*e  was  no  conflict  be- 
tween the  parties,  but  a  perfect  concurrence,)' 
for  the  purpose  of  ascertaining  to  what  law 
it  was  the  parties,  and  the  Court,  had  ref- 
erence, when  the  one  asked,  and  the  other 
decreed,  that  the  partition  to  be  made  should 
be  according  to  the  law  applicable  to  the 
case  stated  and  agreed  on. 

*550 

*If  the  decree  of  1797  had  adjudged  that 
Rachel  Holloway,  widow  of  Thomas  Wil- 
liams, was  enritled  to  that  portion  of  his- 
estate,  the  subject  of  partition,  to  which  a 
widow  was  by  statute  entitled,  who  had  re- 
nounced under  her  husband's  will,  and  that 
Lucy  was  entitled  to  all  the  balance  of  that 
estate,  and  ordered  it  to  be  partitioned  ac- 
cordingly ;  and  the  Commissioners  had  made 
the  division  they  did,  and  their  return  of 
that  fact  had  been  confirmed,  and  made  per- 
petual:— would  that  have  been  a  decree  giv- 
ing an  absolute  i"ight,  and  not  a  less  estate, 
to  Mrs.  Holloway,  in  the  negroes  allotted  to 
her? 

If  it  would  not,  then  this  decree  is  sub- 
stantially such  a  decree  as  that,  if  it  be  prop- 
erly examined  by  the  record  to  which  it 
is  annexed ;  if  the  whole  of  the  record,  and 
not  a  part  of  it,  be  examined ;  and  if  it  be 
examined  with  a  view  to  support,  and  not  to 
defeat,  the  rights  pre.sented  and  adjudicated. 

Look  at  what  the  Court  says.  It  directs 
the  allotment  to  be  made  among  the  claira- 

(i)  Henderson  v.  Kenner,  1  Rich.  479  et  seq. ; 
Geiger  v.  Geiger,  Cbev.  Eq.  162. 


RKKSE  V.  HOLMES 


*553 


ants.  The  refereute  Is  not  to  tlu'  persons, 
Itut  to  the  persons  as  chiiniants.  The  allu- 
sion is  to  the  claims  set  up  and  stated  by 
them.  Then  the  allotment  is  to  1h>  made  to 
these  claimants,  (the  owners  of  the.se  claims 
— which  are  allowed,)  according  to  law — ac- 
cording to  the  law  applicalile  to  the  claims 
thtis  allowed — with  the  incidents  attached  h.v 
law  to  property  to  be  put  into  their  hands, 
under  such  claims. 

There  is  hardly  a  judirnu-nt  in  any  Court — 
very  few  in  this,  in  which  I  sit— that  docs 
not  lean  for  supjiort  upon  tlu'  plejidin^s. 

When  it  is  neces.'^ary  to  plead  a  jtid;:ment 
or  decree,  in  bar,  you  must  p>  behind  the 
formal  paper,  so  called,  into  the  pleadinirs. 
to  see  what  rii,'ht  has  been  adjiulicated.  and 
ascertain  whet  her  it  is  the  identical  rl^,'ht 
now,  apiin   stirred. 

And  in  pleadin;;  the  bar  of  a  former  judg- 
ment, the  familiar  practice — and  the  neces- 
siiry  practice — is  to  introduce  the  plea  by  a 
brief,  but  .substantial  reference,  to  the  [ilead- 
ings.  And  if  the  record  may  be  resorted  to, 
and  explored,  for  the  puri)o.se  of  defending 
a  right  held  under  the  judgment,  why  may  it 
not  be  resorted  to  to  qualify,  limit  or  give 
character  to  the  right  so  heldV 
♦551 

*I  have  alluded  tn  the  decrees  of  this 
Court.  No  man  has  more  constantly  or  more 
earnestly  inculcated  upon  the  practitioners 
before  the  Court,  the  necessity  of  careful 
and  accurate  pleiidings,  orders  and  decn'cs, 
or  more  vigilantly  watchetl  the  orders  passed 
by  counsel.  Hut  (I  say  it  with  regret)  miser- 
able would  be  the  condition  of  our  citizens, 
if  the  indulgence  I  would  extend  to  this  Vir- 
ginia decree  were  not  allowed  to  our  own, 
and  if  bills  and  answers  and  exhibits  were 
not  allowed  to  explain  and  give  character  to 
decrees. 

When  a  claim  is  advanced  in  a  pleading, 
and  not  controverted  in  any  other  pleading, 
and  the  decree  allows  it,  there  is  a  tacit  ref- 
erence by  the  decree  to  the  nature  of  the 
claim  set  up  and  admitted,  and  the  claim  is 
allowed,  with  the  attributes  and  (lualities  in- 
cidenf  to  it.  This  is  not  so,  if  the  decree  ex- 
pressly limits  or  modifies  these  incidents,  or 
annexes  any  condition  to  then).  Hut  it  is 
so.  If  the  decree  simply  allows  the  claiu),  and 
especially,  if.  as  this  decree  ))iay  ixisslbly  be 
construed,  (thougii  that  i)articular  construc- 
tion is  doubtful.)  it  allows  tlu>  claim  to  be 
enjoyed  and  held  accordi))g  to  law.  Thus,  if 
distributees  come  in  for  partition  of  land, 
and  the  widow  of  the  intestate  comes  in  with 
then),  in  an  ex  parte  jiroceedijig.  asking  that 
her  dower  be  laid  off  to  her;  a))(l  the  Court 
says,  "let  a  division  be  made  according  to 
law,  among  these  parties,"  it  n)eans  h>t  the 
division  lie  n)ade  which  they  have  asked  for 
in  their  )cco)il  :  and  if  Coi))i))issioners  la.v 
otT  a  i)oi"tioi)  to  the  widow,  without  saying 
that  they  have  laid  it  o(T  as  her  dower,  or 
for  life;  and  the  Court  conlirjos  the  division; 


does  the  widow  take  the  portion  of  land  laid 
off  in  fee?  Again,  if  any  tu)e  of  the  distrib- 
utees is  a  married  wiunan,  and  join  with  her 
husband  in  the  application,  a)id.  under  such 
a  decree  as  I  have  stated,  Coiu)))issi(iuers  lav 


i  off  a  portion  to  her  and  her  husband,  (a  very 
:  con)n)on  case,)  an«l  their  return,  stating  that 
[  fact,  is  confirmed  :    »l<»es  that   la))d  cea.se  to 
be    the    wife's    inheritancf,    and    beiiuiie   the 
pi-operty  of  uusband  and  wife,  as  tenant  in 
,  the  entirety?    No.    It  Is  still  the  wife's  land  : 
and,  as  siich.  though,  upon  a  further  proceed- 
ing, it  ite  even  sold  by  order  of  the  Court,  the 

•552 
money    arising   fron)    'the    sale    in    Court    is 
still  considered  her  land.  n))til  it  be  disposed 
of  ditTerently. 

Now,  look  to  the  Virginia  record,  keeping 
the.se  ren)arks  in  mind,  (without  the  benefit 
of  which,  I  repeat,  the  proce<-.lings  of  this 
Court  cannot  be  ui>held,  but  must  work  an 
incalculable  sacrifice  of  interests,)  and  it  ap- 
pears to  me  quite  plain,  that  the  int<'ntion  of 
what  was  done  was  to  give  Mrs.  Ilolbfway  a 
life  estate  in  the  slaves  allotted  to  hei-. 

The  ca.se  stated  l)y  her  is  one  that  could 
not  have  been  stated  with  any  other  inten- 
tion than  to  make  a  claim  for  life  of  what- 
ever slaves  were  to  be  allotted  ti>  her. 

She  had.  by  her  previous  renunciation,  re- 
duced herself  to  a  condition  in  which  .she 
could  claim  nothing  personal  under  the  will  ; 
and  no  interesr  in  slaves  under  the  law,  but 
for  life.  And  she  comes  in,  and  exjtre.ssly 
states  that  she  had  renounced,  and  was  in 
that  conditio)) ;  and  asks  to  have  allotted  to 
her  what  the  law,  in  that  condition,  gave 
her.  She  laid  the  will  l)efore  the  Court,  and 
concurred  in  the  stateme])r,  that  when  her 
portion,  which  she  called  dowt'i-.  (in  the  Vir- 
gi))ia  acceptation  en)braci))g  slaves,)  should 
be  laid  off,  Lucy  was  entitled  to  every  other 
interest  i))  the.  estate. 

Could  the  Court,  or  could  she,  or  any  jiar- 
ty  to  the  suit,  mistake  her  )))eani))gV  Did 
Ij.vell,  the  executor,  misundersta)id  her?  See 
what  he  says  in  ri'lation  to  Adan).  Her 
chiim  is  not  only  stated  as  a  dower  or  life 
clai)u  :  but  she  prays  for  its  allowjmce  as 
such. 

I'l-ay,  how,  but  as  dower,  could  she  be  en- 
titled to  any  slaves  after  her  i-enun<-iation? 
One  negro  was  given  to  her  by  tb»'  will,  but 
.she  had  lenounced  the  legacy.  I  suppose 
that  re))U))ciation  reduced  it  to  the  co))ditio)) 
of  a  laiKsed  legacy  ;  and  a  right  sprung  up 
under  the  residua i-y  clause,  the  t'fTect  of 
which  I  have  already  considoed.  A))d  if  the 
ivnunciatioji  riMluced  that  negro  to  the  con- 
dition of  intestate  property,  a)id  if  the  resid- 
uary clause  could  not  carry  it.  bemuse  the 
re)iu))ciatio))  occurivd  after  the  d»'atb  of  tlie 
testator,  and  it  therefo)«>  reiuijined  i))testate; 
yet,   as   intestate   property   of   Thon)as   WMl- 

*553 
♦liiuns's  estate — in   which   light   it    was  pro- 
posed to  rllvide  it — whatever   rigi)t   the  wid- 

221 


*5o3 


5  RICHARDSON'S  EQUITY  REPORTS 


o\v  could  claiiu  in  it  was  only  for  life.     Such 
was  the  law  of  Virginia.C/iJ 

That  negro  haiipened  to  be  included  in 
Mrs.  Holloway's  allotment  by  the  Commis- 
sioners. But  how  came  Edie  (who  passed 
to  Lucy,  as  I  before  explained,  as  legatee,) 
to  be  so  allotted?  Why,  surely,  the  moth- 
er's only  claim  upon  her  was  a  dower  claim. 

And  so  of  Jenny,  and  upon  the  same  prin- 
ciples. 

I  am  to  construe  the  Virginia  record  as 
it  would  have  been  construed  the  very  day 
it  was  completed — without  regarding  the 
time  that  has  since  elapsed,  or  giving  Mrs. 
Holloway  any  advantage  of  her  long  posses- 
sion under  that  record:  for  it  means  now 
what  it  meant  then,  and  the  very  question  is, 
whether  that  possession  was  the  possession 
of  a  life  tenant  or  of  an  absolute  owner — 
and  that  resolves  itself  into  the  question, 
was  a  life  tenancy  with  remainder  declared 
by  the  record,  or  not?  And,  in  view  of  that 
proceeding,  I  ask  what  uuist  have  been  the 
answer  of  any  party,  or  of  the  Court,  or  of 
any  other  person  in  the  world,  if  they  had 
been  asked,  as  Rachel  walked  out  of  Court, 
with  the  decree  in  her  pocket,  what  right 
she  had  got  in  the  negroes  assigned  to  her? 
Why — could  there  have  been  two  opinions? 
And  yet  I  am  asked  to  put  a  construction 
upon  this  judgment,  repugnant  to  the  under- 
standing of  all  mankind.  Is  that  a  reason- 
able construction?  It  might  be  a  reasonable 
construction  of  the  decree,  without  a  con- 
text. But,  with  the  pleadings  as  a  context, 
it  would  be  unreasonable  and  sliocking.  It 
would  make  the  proceedings  of  the  Court 
— intended  to  advance  justice  and  adminis- 
ter the  law — in  this  instance — where  its  de- 
cree on  its  face  professes  to  apply  the  ex- 
isting and  well  known  law — the  instrument 
of  trampling  it  under  foot.  It  would  make 
it  the  instrument  of  fraud.  What  a  shock- 
ing fraud  it  would  have  been  upon  Lucy, 
whom  her  mother  had  induced  to  concur  in 
her   claim   upon  the  slaves,   by   representing 

*554 
it  as  a  claim  for  *life,  if  her  mother,  after 
the  decree  was  obtained,  had  instantly  turn- 
ed round  upon  her,  and  asserted  an  abso- 
lute title :— with  no  better  apology  than  that 
the  Court,  in  its  decree,  had  not  repeated 
what  she,  herself,  had  stated  in  her  bill? 

I  ask,  if  after  Mrs.  Holloway  got  posses- 
sion under  her  assignment,  she  had,  in  some 
short  time,  attempted  to  devastate  the  prop- 
erty, or  done  any  act  inconsistent  with  the 
claim  of  Lucy,  as  remaindress,  and  she  had 
applied  to  the  Brunswick  Court  for  the 
protection  of  her  rights  in  the  property ; 
is  it  to  be  supposed  that  that  Court  would 
have  told  her  she  had  none?  And  just  as 
that  Court  would  have  construed  its  decree, 
I  must  construe  it. 

Neither  the  decree,  nor  the  return  of  the 


(A)  1  Revised  Code  of  1819,  382  and  29. 
222 


Connnissioners,  nor  the  order  confirming  It 
— neither  of  them — says  that  the  negroes 
allotted  to  Mrs.  Holloway  were  to  be  held 
absolutely — any  more  than  they  say  they  are 
to  be  held  for  life.  They  are  silent  (to  make 
the  most  of  it)  as  to  the  tenure.  And  yet, 
because  they  are  equivocal  in  this  respect, 
I  am  asked  to  abstain  from  ascertaining 
their  true  meaning  from  the  record,  and  to 
arbitrarily  select  one,  in  preference  to  an- 
other, tenure,  where  there  is  a  perfect  si- 
lence as  to  both. 

If  I  had  received  the  written  declaration 
made  by  Lewis  Holloway,  on  the  20th  of 
December,  1798,  after  he  had  reduced  his 
wife's  life  estate  into  possession,  and  became 
the  legal  owner  of  it,  there  could  be  no 
doubt,  in  this  case,  in  any  mind.  I  refer 
to  his  declaration,  on  the  eve  of  his  remov- 
ing the  slaves  from  Virginia  to  Edgefield, 
But,  upon  the  proof  offered,  I  could  not  ad- 
mit the  paper.  I  incline,  however,  to  the 
opinion  that  it  must  have  been  proved  be- 
fore Chancellor  DeSaussure,  who  pronounc- 
ed his  decree  in  June.  1822,  upon  the  bill 
of  1819—1821. 

Be  that  as  it  may,  the  decree  in  that  case, 
which  binds  every  party  before  me,  either 
as  parties  to  it,  or  as  privies  to  those  who 
were  parties,  establishes  the  Virginia  de- 
cree, and  gives  it  a  partial  construction.  It 
declares  that  whatever  was  taken  by  Mrs. 
Holloway  under   it  was  for  life ;    except  so 

*555 
far  as  any  share  of  *Sally  Williams's  may 
have    been    included.      Whether   such    share 
did  enter  into  the  allotment  is  not  decided, 
but  reserved. 

The  proceeding  upon  which  that  decree 
was  given  was  a  bill  by  Reese,  for  the  pro- 
tection of  the  remainder:  and  the  decree 
was  for  the  preservation  of  the  property. 
The  Chancellor  says,  "the  proceedings  ex- 
emplified from  tlie  Court  in  Virginia,  show 
that  the  property  in  question  came  from  the 
estate  of  Mrs.  Reese's  father,  the  first  hus- 
band of  Mrs.  Holloway,  and  was  allotted  to 
her  for  life,  consequently,  they"  (referring 
to  Reese  and  wife)  "have  rights  which  will 
come  into  operation  at  her"  (Mrs.  Hollo- 
way's)  "death."  This  is  suflicient ;  but  the 
Chancellor  proceeds:  "Again,  when  Mr.  and 
Mrs.  Holloway  wanted  to  migrate  to  the 
South,  they  asked  and  obtained  leave  to  re- 
move the  negroes  from  Virginia — which,  it 
seems,  was  necessary.  All  this  goes  to  es- 
tablish some  rights,  in  remainder,  in  com- 
plainants." 

It  was  contended  in  that  case,  as  in  this, 
that  Sally  Williams's  share  was  included  in 
her  mother's  allotment:  and  the  Cliancel- 
lor,  without  investigating  the  fact,  or  its 
precise  effect,  replied:  let  the  fact  be  as 
stated,  still,  under  the  decree  by  which  Mrs. 
Holloway  received  the  property,  a  life  tenure 
was   created — she  took  for  life;    and  that 


REESE  V.  HOLMES 


».J5S 


tenure  must  apply  to  every  part  of  it,  except 
wliat  ini^'lit  lie  shown  to  l^ive  lieen  derived 
from  Sally  Willijinis.  Take  it  as  you  will, 
Reese  and  wife  have  interests,  in  remainder, 
in  some  of  the  pro|»erty;  an<l.  until  tlie  sup- 
posed share  of  Sally  is  separated,  the  whole, 
as  one  Itody,  nnist  l)e  protected.  And  he  pro- 
tected it  ac'cordin^'ly.f/; 

I  say  this  decree  estaMishcs  the  construc- 
tion of  the  Hrunswick  d«H.'ree,  as  to  the 
most  Important  (|uestion  in  this  cas«>^ — the 
tenure  under  which  Mrs.  IloUoway  recovered 
the  slaves  allotted  to  lu-r.  Tlie  point  re- 
served. I  hnv<'  now  e.vannm'd.  and  have  at- 
tempted to  show  there  is  nothin>:  in  it. 

Then,  my  conclusion  is,  that  Mrs.  Hollo- 
way's  interest  in  thi'  women,  .Tenny  and 
Kdie,  aiKl  their  increase,  was  tiie  interest  of 

*556 
*a   tenant   for  life:    to  wliicli   was  attadied 
a  remaintler  expectant,  in  tlie  plaintilT,  Lucy 
Reese. 

Her  right  to  rednci'  the  remaind-r  into 
posse.ssion  accrued  to  her  by  the  death  of 
Mrs.  Ilolloway,  which  took  place  the  10th 
of  December.  1.S47:  and  she  tiled  her  bill  the 
•2:ia  April,   1S4!). 

In  my  judi,'ment,  her  bill  must  be  sustain- 
ed, unless  her  rights  have  been  extinguislied. 
or  barred,  in  some  of  the  dilTerent  ways  sug- 
gested in  tlie  answers,  and  insisted  on  at  the 
hearing. 

In  the  first  place,  a  bar  is  iiisist^'d  upon, 
which,  it  is  suppo.sed,  arose  in  consequence 
of  the  removal  of  the  negroes  from  Virginia, 
in  171)S  or  170!). 

It  was  replied  that  such  bar.  if  one  took 
place,  was  removed  by  the  decree  of  IS'22: 
and  I  think  so.  But,  as  the  point  was  press- 
ed, I  shall  proceed  to  state  the  bar  supposed 
to  exist:    and  make  some  observations  on  it. 

There  is  a  Virginia  statute,  passed  in 
1792,(111)  which  went  into  operation  the  1st 
of  October,  n{)'^,(n)  and  is  in  the  following 
terms: 

1st.  "If  any  per.son  or  persons,  possessed 
of  a  life  estate  in  any  slave  or  slaves,  shall 
remove,  or  voluntarily  permit  to  be  remov- 
ed, out  of  this  commonwealth,  such  slave 
or  slaves,  or  any  of  their  increa.se,  without 
the  consent  of  him.  or  her,  in  reversion  or 
remainder,  such  person,  or  persons,  .shall  for- 
feit every  such  slave,  or  slaves,  and  the  full 
value  thereof,  unto  every  such  person,  oi' 
l»ersons.  that  shall  have  the  reversion  or 
remainder  thereof — any  law.  custom  or  us- 
age," &(.'. 

2d.  "If  an.v  female,  possessed  as  aforesaid, 
.shall  be  married  to  a  husband,  who  shall 
remove,  or  voluntarily  permit  to  be  removed, 
out  of  this  conunoiiwealth,  any  such  slave, 
or  slaves,  or  an.v  of  their  increa.se.  without 
the  consent  of  him.  or  her,  in  reversion  or 
remainder:    in  such  case.  It  shall  lie  lawful 


(/)  Rolain  v.  Diirliy,  1  McC.  E<i.  477. 
(m)  RpviPfd  Code.  4:U-2,  sec.  4S,  4U. 
(n)  Revised  Code,  140. 


'  for  him.  or  her,  in  reversion,  or  remainder, 
I  to  sue  for.  recover  and  possess  such  slave 
,  or  slaves,  so  remove<l.  for  and  during  the 
life  of  the  said  husband: — who  shall,  more- 
I  '557 

over,  be  liable  to  the  action  'of  the  person, 
,  or  persons,  entitled  to  the  reversion,  or  re- 
mainder,  tliereof.    for   the   full    value   of  the 
slave,  or  slaves,  so  removed." 

It  was  contended  that  Ilolloways  removal 
of  the  slaves,  in  17!»s  or  17'.t'.t.  was  without  li- 
<ense  of  the  remaindress.  or  lier  husband; 
tliat  thereuiKjn  a  right  to  tlie  life  estate  vest- 
«*d  in  lier;  that  this  connected  its«'lf  with 
lier  expectant  right  thus  forming  <ine  estate: 
and  the  permitting  a  pos.<ession,  in  opposi- 
tifin  to  that  estate,  barred  her  claim  here,  by 
the  statute  of  limitations. 

The  case  of  Cole  v.  IfriHim.  I  Mid. "7.  ipioted 
in  the  argument  of  this  [toint,  «lecides  noth- 
ing here.  That  case  arose  upon  tlie  1st 
clause  of  the  Virginia  statute,  tlu'  life  ten- 
ant in  tliat  ca.sc  being  a  femme  sole,  and  sul 
juri.s.  My  decision  is  to  be  made  on  the  2d 
clau.se.  which  ci»ntemplates  a  life  estate  ex- 
isting in  a  femme  covert. 

I  suppt)se  that  the  lici'iise  rcpiired  for  the 
removal  nmst  be  tlu'  license  of  the  liusband 
of  the  remaindress,  if  she  be  also  covert. 
Rut,  whoever  is  to  give  it,  the  statute  doe.s 
not  re<iuire  any  particular  formality,  by 
which  it  is  to  be  given.  I  take  it.  that  he 
who  does  not  object  (under  either  clause  of 
the  Act)  permits:  and  tliat,  unless  the  suit — 
authorized  to  lie  brought  by  the  person  iu 
remainder,  under  either  clause— be  institut- 
ed, it  is  to  "be  presumed  that  the  removal 
was  approved  by  him.  When  a  removal  has 
taken  place,  and  suit  is  brought  to  enforce 
the  penalties  imposed,  then — a  removal  being 
unlawful  unless  permission  lias  betMi  given, 
and  the  permission  being  a  |»ositive,  and  not 
a  negative  fact — the  burden  must  be  upon 
him  who  wishes  to  defend  himself  against 
tlie  conse«iuences  then  tlireatening  him  for 
removing  the  property,  to  produce  i>roof  tnat 
lie  has  comndtted  no  ofteiice — in  other  words, 
he  must  prove  a  license.  And  it  may  be  that 
tlie  defendants  at  the  bar  can  now  prove  au 
authority  for  the  transfer  of  the  negnn-s  to 
this  State:  and  have  now,  at  tlieir  command, 
evidence  to  establish  that  the  life  estate 
nev»»r  was  forfeited — wliic-h  they  now  saV 
was  forfeited,  and  became  conjoined  with  the 

•558 
remainder — because  that  •as.sertiou.  they  sup- 
pose, will  give  effect  to  the  bar  of  the  stat- 
ute, and  so  answer  their  puriK>ses  here. 

Rut  there  is  an  »'ntire  misconception  of 
the  nature  of  the  right  which  an  unlawful 
removal  gives,  under  either  clause  in  the 
statute  on  that   sul)ject. 

The  first  clau.se  does  use  the  word  forfeit — 
the  life  tenant  shall  "forfeit  every  such 
slave"  '"unto  the  remainder  man."  Does  his 
title,  as  life  tenant,  cease,  ipso  facto,  and  eo 
ijjstanti,  upon  the  removal'.'     Suppose  the  re- 

223 


^558 


5  RICIIARUSC  N'S  EQUITY  REPORTS 


muinder  man  forgives  the  offence,  and  does 
not  sue,  is  he  (the  remainder  man)  neverthe- 
less the  owner  of  the  life  estate?  or  is  it  in 
him,  and  out  of  the  life  tenant,  though  the 
property  he  in  i>ossession  of  the  latter?  Is 
not  the  law  notoriously  otherwise?  Would 
not  a  conveyance  from  a  life  tenant,  under 
such  circumstances,  he.  good  to  any  person  in 
the  world,  unless  avoided  hy  the  remainder 
man?  This  could  not  lie  the  case,  if  the  life 
tenant  had  no  title.  The  fact  is,  that  the 
title  is  in  the  life  tenant,  until,  by  suit,  it  is 
taken  out  of  him.  It  is  not  void,  but  void- 
able. And  there  can  be  no  life  estate  title 
In  the  remainder  man,  until  he  acquires  it 
by  suit.     The  right  to  acquire  it  is  a  chose. 

There  is  still  less  reason  for  insisting  on 
a  forfeiture,  (as  transferring  title.)  under  the 
second  clause  than  under  the  first.  The  first 
does  use  the  word ;  the  second  does  not. 
The  right  of  the  remaindress,  here,  was  em- 
phatically a  chose,  and  n()thing  more. 

But  that  is  not  all.  If  her  husband  had 
sued,  either  with  or  without  her,  and  recov- 
ered the  negroes,  there  are  two  reasons,  in 
law,  why  that  recovery  would  not  have  merg- 
ed the  life  estate  and  remainder:  and  there 
are  more  reasons  than  these  in  Equity. 

The  tirst  reason  is,  that  the  interest  which 
he  could  have  recovered  from  HoUoway,  un- 
der the  second  clause  of  the  forfeiture  Act, 
was  not  of  such  a  nature  as  must,  of  neces- 
sity, have  united  with  his  wife's  remainder ; 
and,  as  facts  prove,  it  never  could  have  unit- 
ed in  this  case. 

IloUoway  was  the  offender:  he  had  his 
*559 
wife's  life  estate  *in  him — an  estate  which 
would  go  to  his  executor  (for  the  term  of 
her  life)  if  he  should  predecease  her.  The 
statute  says,  that,  for  his  offence  he  may  be 
deprived  of  the  negroes,  for  and  during  his 
own  life,  and  no  longer — "for  and  during 
the  life  of  the  said  husband."  Now,  if  Reese 
had  sued  Holloway,  and  recovered,  and  got 
possession  of  the  negroes,  for  and  during 
HoUoway's  life,  that  would  have  possessed 
him  of  a  life  estate,  to  be  sure,  but  not  of 
that  life  estate  to  which  his  wife's  remainder 
was  annexed.  Upon  Ilolloway's  death,  the 
negroes  would  have  reverted  to  his  executor, 
to  be  administered  (as  they  actually  were) 
for  the  unexpired  life  of  his  wife:  of  which 
interest  the  statute  did  not  deprive  him. 

And,  I  may  remark  here,  that  as  the  stat- 
ute would  not  have  reached  the  property  in 
the  executor's  hands,  it  could  not  reach  it 
when,  by  administration,  the  executor's  title 
was  transferred  by  him  to  Mrs.  Holloway 
herself.  She  was  in  of  a  new  estate,  unaf- 
fected by  the  statute,  being  the  unexpired 
right  of  her  husband,  to  which  the  terms  of 
the  Virginia  statute  do  not  extend.  And,  as 
I  shall  show  hei'eafter,  the  right  to  take  that 
from  her,  by  an  action  against  herself,  for 
the  mere  retention  of  the  slaves  beyond  the 
limits  of  Virginia  (if  that  was  an  offence 
against   the   statute    as   to   the    removal   of 

224 


slaves)  was  barred;    and  the  right  to  the  life 
estate  confirmed  in  her,  as  such,  but  no  more. 

The  second  reason  is,  that  if  Reese  had  got 
in  the  life  estate  by  suit,  it  would  have  been 
no  better  than  if  he  had  purchased  it.  And 
the  case  of  Caplinger  v.  Sullivan,  2  Hump. 
R.  5S4,  shows,  that  where  a  purchase  of 
the  life  estate  is  made  by  the  husband  of  a 
remaindress,  the  life  estate  and  remainder 
do  not  coalesce,  but  continue  separate  es- 
tates. If  the  husband  die  during  the  life 
tenancy,  his  executor  necessarily  takes  the 
residue  of  that  estate  which  is  yet  to  run, 
and  the  wife  shall  have  the  remainder  against 
the  husband's  executor,  or  the  husband's  as- 
signee, if  he  has  conveyed  away  the  proper- 
ty. In  the  case  I  have  quoted,  the  husband 
had  purchased  in  the  life  estate,  and  had  ac- 

*560 
tual  *possession.  He  then  sold  and  deliver- 
ed the  property  (slaves)  to  Caplinger,  for  val- 
uable consideration ;  yet,  at  law,  Ann  Sulli- 
van, the  remaindress,  recovered  from  Cap- 
linger,  upon  the  accrual  of  her  remainder, 
which  happened,  after  her  husband's  death, 
and  the  recovery  was  sustained  in  the  Court 
of  Errors,  upon  very  full  consideration,  and 
reference  to  authorities.  It  may  be  object- 
ed, that,  in  the  case  quoted,  the  purchase  of 
the  husband  was  in  his  own  right,  and  that 
it  may  be  conceded  that  a  life  estate  thus 
held  by  a  husband,  will  not  unite  with  the 
remainder  of  the  wife: — there  is  not  an 
luiion  of  rights  in  the  same  pei'son: — and  it 
may  be  contended  that,  if  Reese  had  sued 
under  the  forfeiture  Act,  and  recovered,  the 
suit  must  have  been  brought,  and  the  recov- 
ery had,  in  his  wife's  right;  and  that  such 
a  recovery  would  have  united  the  life  estate 
and  remainder  in  her,  to  which  united  estate 
the  statute  of  limitations  may  be  applied. 
I  have  great  doubt  whether  Equity  would  so 
consider  the  matter — whether,  where  the  hus- 
band, by  his  own  act,  or  by  an  act  in  which, 
(having  the  control  of  his  wife  by  coverture,) 
he  joins  her  name,  and  gets  in  the  life  es- 
tate, the  Court  would  allow  to  such  a  pro- 
ceeding an  effect  to  destroy  the  wife's  right 
by  survivorship,  and  to  confer  her  remain- 
der upon  the  husband.  I  think  not — unless, 
upon  a  proceeding  in  this  Court,  the  wife 
was  examined,  and  a  full  equivalent  secured 
to  her. 

I  may  be  goinj  out  of  my  way  here,  when 
I  refer  to  what  has  been  held  upon  points 
nearly  analogous.  In  Hall  v.  Hugonin,  (14 
Sim.  595,)  (o)  where  stock  was  standing  in 
the  names  of  trustees,  upon  trust  for  A.,  for 
life,  with  remainder  to  B.,  a  married  woman, 
and  A.  assigned  his  life  interest-  to  the  re- 
maindress. Sir  Launcelot  Shadwell,  upon  her 
consent,  ordered  the  fund  to  be  transferred 
to  her  husband.  This  was  supposed  to  be  an 
important  practical  qualification  of  Purdew 
V.   Jackson,    (hereafter   to  be   mentioned,)   In 

(o)  See  Mcl^ieeu  on  Husb.  and  W.,  35  Law 
Lib.  12,  54,  U4. 


REESE  V.  HOLMES 


*563 


which  the  protection  due  to  the  reversionary  | 
interests    of    the    wife   was    well    consitlered.  j 
*561  ! 

And  it  *was  thou«lit  hy  some,  that  the  ef- 
fect of  the  rulini,'  in  Hall  v.  llutronin  was, 
that  if  the  prior  interests  were  assii,'ned  to 
the  wife,  so  as,  in  effect,  to  make  her  inter- 
est a  present  one,  the  hnshand  mi^iht  then 
reduce  the  fund  into  possession,  or  mijj;ht,  by 
assiiininf,'  it.  enable  his  assi),'nee  to  do  so. 
"The  decision,  however,  of  the  Lord  Chan- 
cellor, in  Whittle  v.  Hennins:.  shews,"  says 
Mr.  McQueen,  "that  this  opinion  was  errone- 
ous." (/>)  <!^i'i*  that  case,  conunented  on  by 
McQueen  and  by  Hell.) 

These  observations  are.  however,  unneces- 
sary here;  and  are  only  made  that  they  may 
be  remembered  when  we  come  to  consider 
other  points  of  the  ease,  to  which  they  have 
a  stricter  application.  There  is  no  neces- 
sity for  them  here,  where  the  imiuiry  relates 
to  the  bar  of  the  statute:  because,  manifest- 
ly, if  the  position  contended  for  be  sustained, 
and  any  act  or  onnssion  of  Reese  be  allow- 
ed, by  the  Court,  the  effect  of  couplinj:  the 
life  estate  and  remairder,  so  as  to  destroy 
the  wife's  remainder,  then,  the  very  right 
upon  which  she  comes  into  Court  here  is  ex- 
tinjiuished.  and  there  is  no  need  of  the  stat- 
ute of  linutations  to  bar  it. 

If  the  laches  of  her  husband  to  enforce  the 
forfeiture,  had  not  the  effect  to  extinguish 
the  remainder,  then  it  subsists,  and  is  not 
barred. 

Rut  though  the  remarks  which  I  have 
made  were  not  strictly  called  for  here,  yet, 
if  they  be  home  in  mind,  they  will  serve  to 
meet  another  point  in  the  case,  yet  to  be 
touched,  relating  to  certain  deeds  executed 
by  Reese,  and  Reese  and  wife. 

In  concluding  upon  the  statutory  bar.  the 
better  opinion  is.  that  no  bar  can  arise  in 
conse<iuence  of  a  non-enforcement  of  the 
forfeiture,  even  under  the  first  clause:(f/) 
that  the  statute  confers  a  privilege,  for  the 
protection  of  the  remainder  man  and  the 
jireservation  of  his  estate: — which  it  woidd 
be  a  violation  of  its  true  intent,  to  turn 
against  him  for  the  destruction  of  his  in- 
terests.    The   right    to   exact    the    forfeiture 

*562 
jnay  be  barred  *by  a  failure  to  exact  it 
within  four  years.  Rut  the  effect  of  that 
bar  is  simply  to  confiinu  the  life  estate  in  the 
life  tenant,  leaving  the  relations  of  life 
tenancy  and  remainder,  and  of  the  resjtective 
ownt>rs,  just  as  they  were  before.  It  wouhl 
be  very  strange,  if  the  indulgence  of  a  re- 
nniinder  man  to  take  away  the  life  tenant's 
estate,  should  have  the  effect  of  transferring 
his  own  to  him.  This  would  be  rewarding 
him  for  his  offence:  and  such  a  construction 
cannot  How  from  a  true  conception  of  the 
spirit  of  the  statute,  which  proposes  to  pun- 


(II)  Hell  on    Ilusb.   ami   W.,  citing   Whittle   V. 
Ilcniiing.  p.  !>1. 
(</i7    Dana.    Ky.    Rep.   272. 

5RUII.EQ.— 15 


ish.  and   not   reward  its   violators.     I   leave 
this  point. 

Then  it  is  said,  that  the  decree  of  1822 
vested  the  remainder  of  the  plaintiff  here, 
in   Reese,  the  plaintiff  there. 

That  decree  I  have  considered  to  have  con- 
cluded tlie  defendants  in  that  case;  and  to 
have  concluded  the  di'f»'ndants  here,  who 
are  all  either  the  same  persons,  or  privies  to 
them.  Rut  how  can  it  <onclude  this  plain- 
tiff'^ If  she  was  no  party,  tlie  decree  does 
not  bind  her,  as  between  herself  and  husband. 
If  she  was  a  party,  (one  of  the  •'complain- 
ants" spoken  of  in  that  case,)  her  rii;ht  wa.s 
established  and  (h'llared  to  be  in  her:  and, 
as  the  suniving  plaintiff,  she  is  entitled  to 
the  benefit  of  the  decree,  as  in  Kd^'erton  v. 
Muse. 

We  come  now  to  consider  the  series  of 
deeds,  execnited  after  the  de<ree  of  ls'2-,  and 
between  the  years  1S24  and  IKi — .  (during 
the  existence  of  the  life  e.state.)  some  of  them 
liy  Reese  alone,  and  others  by  Reese  and 
wife.  They  are  exhibited  in  the  answers; 
and  my  notes  of  evidenc»»  will  show  that 
some  of  the  deeds,  in  which  husband  and 
wife  joined,  were  not  proved.  I  do  not  think 
it  ueces.sary,  however,  to  discrindiiate,  be- 
cause, in  my  opinion,  none  of  the  dewls,  of 
either  class,  were  effectual  assigmnents  of 
the  jilaintiff's  expectancy. 

These  instruments  may  be  considered  in 
the  light  of: 

1st.  Assignments  of  Reese,  the  husband 
alone. 

2d.  Assignments  of  Mrs.  Reese,  the  wife, 
alone:  (though,  during  the  coverture,  she 
made  none  such.) 

3d.  Assignments  by  husband  and  wife,  con- 
jointly. 

The  power  of  Reese  to  convey,  must  here 
♦563 
arise  from  his  ♦having  reduced,  jure  mariti, 
the  expectancy  of  his  wife,  so  as  to  make 
it  his,  thus  destroying  her  right  of  sunivor- 
.ship:  or  must  consist  in  the  right  of  a  hus- 
band to  assign  such  expectancy. 

I  have  already  remarked  i\\nm  the  various 
ways  in  which  it  has  been  stiggested  that  he 
might  have  acquired  a  property  in  the  ex- 
pectancy:— such  as.  that  he  was  in  possession 
when  it  was  created  :  that  he  reduced  it  by 
refusing  to  sue  for  the  life  estate,  (that  is, 
that  tile  non-reduction  of  the  life  estate  was 
a  reduction  of  both  it  and  the  remainder, 
arising  in  virtu*'  of  an  innon  of  the  two,  ef- 
fected by  not  bringing  them  together!!  and 
lastly,  that  the  decree  of  1S22  gave  him  the 
expectancy. 

I  do  not  think  it  necessary  to  add  anything 
to  what  I  have  said  upon  any  one  of  these 
sources  of  property  in  Reese,  but  the  last — 
the  decree  of  1.^22. 

If  Mrs.  Re»'se  was  a  party  idaintiff.  as  I 
have  observed,  that  decree  establishes  her 
right,  claimed  here.  Rut  if  she  was  no  par- 
ty, and  Reese,  acting  by  himself,  got  to  him- 

2-25 


*563 


5  RICHARDSON'S  KQUITY  REPORTS 


self  n  decree,  entitling  liini  to  lier  reversion- 
aiy  riglits,  at  a  time  when  lie  was  not 
entitled  to  reduce  them  ;  will  it  bear  ai-gu- 
ment.  that  no  such  under  handed  proceeding 
will  be  allowed,  in  this  Court,  (and  especial- 
ly when  its  decree  is  attempted  to 
be  made  the  instrument,)  to  deprive  her 
of  her  right  by  sui-vivorship?(/)  If  a  hus- 
band, while  his  wife's  hands  are  tied  by  her 
coverture,  and  while  she  is  entirely  under 
his  control,  be  allowed,  of  his  own  accord, 
and  solely  by  his  own  act,  to  anticipate  his 
rights  over  his  wife's  property,  and  deprive 
her  of  her  rights  in  it,  then  the  profession 
of  this  Court,  that  it  protects  the  rights  and 
interests  of  married  women,  is  a  mockery. 
Where  a  husband  desires  to  assign,  or  obtain 
to  himself,  his  wife's  expectant  separate  es- 
tate, or  to  get  any  privilege  over  it,  he  must 
make  her  a  party  in  Court,  and  she  must  be 
examined,  and  the  object  of  the  transaction 
must  be  shown  to  be  advantageous  to  her ; 

or  it  will  not  *be  allowed. (s)  So  the  case 
must  stand  as  between  Reese  and  his  wife. 
These  defendants,  taking  Reese's  conveyance, 
which  can  be  supported  only  by  the  decree 
referred  to,  must  take  notice  of  it,  and  of 
its  imperfections,  and  can  no  more  insist 
upon  it,  as 'against  Mrs.  Reese,  than  Reese 
himself. 

The  true  question  is  now  at  last  reached ; 
and  it  is  this: 

Had  Reese,  the  husband,  who  died  before 
his  wife's  remainder  fell  in,  any  power  to  as- 
sign it   away   for  her? 

A  husband,  if  he  survives  the  actual  ac- 
crual of  his  wife's  expectant  personal  es- 
tate, may  reduce  it  into  his  possession,  and 
thereby  render  it  his  own  property. 

He  may  assign  the  exi»ectancy  before  he 
has  the  power  of  reduction ;  but  the  assign- 
ment will  only  be  good  to  the  assignee,  pro- 
vided the  husband  lives  until  the  accrual 
happens,  and  is  then  in  a  situation  enabling 
him  (if  he  had  not  assigned)  to  reduce  the 
property.  His  assignment  will  not  operate 
to  transfer  the  property,  until  he  comes  into 
that   situation. 

There  are  other  doctrines  in  relation  to  as- 
signments by  husbands,  who,  after  an  as- 
signment, come  into  a  situation  to  reduce: 
but  it  is  not  necessary  to  notice  them  here ; 
becau4-;e  Reese  did  not  live  until  the  expect- 
ancy fell  in ;  and  therefore  never  attained 
the  power  of  reduction. 

The  positions  laid  down  are  sustained  by 
the  elaborately  considered  cases  of  I'urdew  v, 
Jackson,  (1  Russ.  1,)  and  Homier  v.  Morton, 
(o  Russ.  65,)  which  were  commented  on  and 
approved  in  our  own  case,  of  Matheny  v. 
Guess,  (2  Hill  Eq.  66-7.) 


(r)  Bell  on  Prop,  of  Husb.  and  Wife,  book  3, 
chap.  2,  sec.  3,  letter  g,  and  particularly  the 
case  of  Whittle  v.  Henniug,  p.  yl. 

(s)  Calhoun  v.  Calhoun,  '2  Strob.  Eq.  236  [49 
Am.  Dee.  667] ;    s.  c.  Rich.  Eq.  Cas.  36. 

226 


The  inefiicacy  of  a  husband's  assignment, 
made  before  he  acquired  the  right  to  reduce, 
and  who  did  not  live  to  acquire  that  right, 
is  also  ruled  in  Caplinger  v.  Sullivan,  (2 
Humphrey's  Rep.  548,)  before  mentioned ; 
in  wliich  the  cases  of  Purdew  v.  Jackson  and 
Ilonner  v.  Morton  were  also  referred  to.  See 
also  Browning  v.  Headly,  (2  Robinson's  Rep. 
370-2  and  passim.) 

*565 

*Indeed,  whatever  authority  may,  at  any 
time,  be  supposed  to  have  existed  to  the  con- 
trary, this  is  the  settled  doctrine.  What  is 
loosely  said  in  Terry  v.  Brunson,  1  Rich.  Eq. 
88,  is  inaccurate  in  words,  but  not  in  mean- 
ing. The  words  vested  and  contingent  were 
intended  in  the  sense  of  accrued  and  yet  to 
accrue. 

But  it  was  argued  that  the  effect  of  Reese's 
deeds  to  the  defendants,  (who  were  in  of  the 
estate.)  made  a  case  substantially  the  same 
as  if  the  life  tenants  had  first  surrendered 
the  life  estate  to  him — (which,  it  was  contend- 
ed, would  have  produced  a  merger  of  estates, 
and  enabled  him  to  reduce  the  remainder,)  — 
and  had  then  taken  his  conveyance  of  all 
interests  in  the  property. 

In  the  first  place,  I  do  not  agree  that  their 
surrender  would  have  given  him  any  right 
extending  beyond  the  life  estate  surrendered. 
He  would  have  become  the  owner  of  it  in  his 
own  right;  and  that  right  would  not  have 
united  with  the  remainder  of  his  wife;  nor 
enabled  him  to  anticipate  the  proper  time  for 
its  reduction. 

In  the  next  place,  any  contrivance,  on  his 
part,  to  circumvent  or  destroy,  by  indirection, 
his  wife's  right  of  survivorship,  would  be 
discountenanced  in  this  jurisdiction;  and 
any  deeds  obtained  from  him,  by  those  whom 
the  transaction  itself  must  have  advertised  of 
the  fraud,  could  not  be  allowed  to  confer 
any  benefit  on  them  to  her  prejudice. 

In  the  last  place,  the  deeds,  which  Reese 
executed,  did  not,  in  terms,  unite  the  life 
estate  with  the  remainder.  They  did  not  pur- 
l)ort  to  convey  to  the  defendants,  respectively, 
the  remainder  in  that  part  of  the  property  in 
their  hands,  respectively,  but  to  convey  to 
each  grantee  one  undivided  sixth  part  of  the 
estate  in  remainder. 

The  property  conveyed  did  not,  therefore, 
come  ill  apposition  with  the  property  in  the 
hands  of  the  grantee ;— the  remainder  with 
the  life  estate.  The  conveyances  enabled 
each  grantee  to  claim  the  remainder,  carried 

*566 
to  him  by  his  deed,  out  of  the  whole  *body 
of  negroes,  (indeed  that  was  exactly  his  claim 
and  remedy,)  or  out  of  those  in  the  hands  of 
others,  as  well  as  out  of  those  in  his  own 
hands;  and  he  must  do  so,  if  what  were  in 
his  hands  amounted  to  less  than  one-sixth  of 
the  whole  gang.  The  supposed  merger,  there- 
fore, never  took  place;  and  its  legal  con- 
sequences, contended  for,  are  merely  imagin- 
ary. 


REESE  V.  HOLMES 


«5(J8 


All  these  observations  apply  eipially  to  i  will  survive  to  her  against  the  luisbaiul's  as- 
tbuse  deeds  which  Ueese  executed  with  bis  signuient.  if  be  dies  while  those  interests  re- 
wife,  so  far  as  relates  to  their  frame,  and  to  I  main  reversionary;  and  that  the  very  ground 
bis  power  to  impart  et1ica<y  to  thenj.  These  !  upon  which  Equity  takes  notice  of  her  inter- 
deeds  are  dupiicati-s  of  his  own  deeds.  ;  ests.  in  such  cases,  obliges  the  Court  to  pro- 

This  brings  us  to  the  consideration  of  them,  j  tect  them  against  the  assignment  of  the  hus- 
I  proposed  to  consider  them  in  reference  to  |  band,  though  matle  with  her  concurrence,  and 
the  power  of  the  wife  abme  ;  and.  again,  in  I  for  a  valuable  consideration  received  by  the 
reference  to  the  power  of  husband  and  wife    husband. 


icting  conjointly. 
'J..   Now,  if   .Mrs.   Ket'sc  bad  executed  deeds 


I'rof.  Story,  speaking  of  the  favorable  light 
in  which  reversionary  ehoses  in  action,  and 


by   herself,   wbilt.  under  coverture,  the  cases!  other  reversionary  e(iuitable  interests  of  the 
of  Ewiug   v.   Smith.  :{  I>es.  417  !."»  Am.   Dec.  1  wife,     in    personal     chattels,    are     regarded. 


r..")7).  .Magwood  v.  .lohnston.  1  Hill,  E(|.  L"_'8, 
and  Held  v.  Lamar.  1  Strol>.  E(|.  liT.  and  many 
otlu'r  cases  in  this  State,  deilare  the  deeds 
would  have  been  mdl.  A  marrietl  woman  can 
make  no  contract,  or  conveyance,  binding  her 
x'parate  proiicrty,  wbetlier  enjoyable  at  the 
ime  or  expettant.  further  than  the  instru- 
iient,  creating  her  interest  in  it.  enables 
her: — excepting,  of  course,  her  inheritance, 
or  her  d«)wer,  in  lands,  which  she  has  statu- 
1  iry  authority  to  convey.    Tlie  case  last  men- 


says :(»)  ••noasslgiuuent  liy  the  husband,  even 
with  her  consent,  and  joiinng  in  the  assign- 
ment, will  exclude  her  right  of  survivorship, 
in  such  cases.  The  assignment  is  not,  and 
cannot,  from  the  nature  of  the  thing,  amount 
to  a  reduction  into  possession  of  such  re- 
versionary interests:  and  her  consent,  during 
the  coverture,  to  the  assignment,  is  not  an  act 
obligatory  upon  her."  He  proceeds  with  a  re- 
mark which  may  be  liable  to  modilications: 

*568 


one.l.  IJeid  v.  Lamar,  attempts  to  show  that  j  ,,„j   „.,,i,.,,   j^  j^   ,„,^   necs-sary   to  consider. 
bis  doctrine   was   not   without   authority  iu 
i  England.  i)rior  to  our"  separation  from  her. 

o.  It  would  seenij  upon  principle,  that  if 
Iceds  executed  by  a  wife,  for  the  transfer 
it'  her  separate  estate,  as  to  which  .she  has  an 


His  observation  is,  that  "in  such  casts,  the 
wife's  consent  in  Court,  to  the  transfer  of 
such  reversionary  interests  to.  or  iiy  her  hus- 
baufl.  will  not  be  allowed." 

In  Ilornsbv  v.   Lee.  '1  Mad.  Ki.  the  wife's 


quity  against  the  husbaixl's  right  of  con- |  i,lt^.l.^.^J  ,,^^ij,„^.j  ^vj,j^  ,^  ^.,„„i,,j_,^.„f  ,.^versiou- 
irol,  are  void:  those  executed  by  her  with 
him  should  be  doubly  void.  And  whatever 
may  be  thought  of  our  doctrine,  as  applied 
to  her  separate  property,  not  reversionary; 
there  is  no  doubt  that  the  doctrine  is  true, 
and  upon  the  best  authority,  everywhere,  in 
relation  to  jiroperty  reversionary  at  the  time 

*567 
of  the  conveyance:  *and  all  the  cases  treat 
the  deed  of  husband  and  wife,  in  such  a 
transaction  as  that,  as  the  deed  of  the  hus- 
l)and  alone.  He  shall  not  be  allowed  to 
anticipate  and  destroy  her  expectancy,  by  an 
act  done  by  her,  in  conjun<  tion  with  himself, 
and  under  his  legal  control.  He  shall  not, 
1  y  any  contrivance, — either  by  accepting  a 
surrender  of  tlie  life  estate  to  hims.'lf,  or 
iilherwise, — obtain  the  advantage  of  an  antic- 
ipated enjoyuuMit  of  the  remainder,  or  the 
p«»wer  of  disixising  of  it  for  his  own  benelit; 
as  Ueese  attempted  to  dispose  of  this.  If  a 
disposition   is  to   be  made   of   it.   it   nnist   be 


ary  interest  in  a  fund  deiiendent  on  the  «leath 
of  her  mother.  Husiiaml  and  wife  joined  in 
an  assignment  of  it,  during  the  mother's 
life.  The  husband  died  in  the  life  time  of  the 
mother.  On  the  death  of  the  mother,  a  con- 
test for  the  fund  aro.se  between  the  remain- 
dress  and  the  assignee;  and  the  loriiier  iire- 
vailed. 

I'urdew  v.  Jack.son,  (which  is  cited,  as  1 
have  stated,  in  Matheny  v.  Guess.)  was  heard 
by  the  same  Judge  who  had  previously  decid- 
ed Hornsby  v.  Lee,  and  the  circumstances  of 
his  decision  in  that  case  rendering  it  proper, 
he,  on  this  latter  occasion,  v.i'i:t  into  a  re- 
investigation of  tlie  whole  subject. 

The  case  was  twice  argued  and  elabtuately 
(onsidered,  and  it  was  ruled,  that  where 
husband  and  wife,  by  deed,  executed  by  both, 
assign  to  a  purchaser,  for  valuable  considera- 
tioti,  a  moiety  of  a  share  of  an  ascertained 
fund,  in  which  the  wife  had  a  vested  interest 
in  renminder,  expectant  upon  the  dcah  of  a 


lor  the  wife's  benelit:  and,  to  establish  that,  |  tenant  for  lift'  of  that  fund,  and  both  the 
she  must  be  brought  before  the  Court  that  j  wile  and  tenant  for  life  outlived  the  hus- 
protects  her  interests,  and  exandneil :  and  j  hand,  the  wift-  is  entitled,  by  right  of  sur- 
then,  oidy   for  her  benelit.   can  the   transfer    vivorship,  to  <  laim  the  whole  of  her  share  of 


be  made.(/t 

The  do(  trine  loosi*ly  expressed  (and  in  very 
inigrammatical  terms)  by  me,  in  Terry  v. 
r.runson,  1  lUch.  Eq.  s:{,  S!),  is  wt'Il  supported: 
that   the  reversionary   inten'sts  of  the  wife 

it)  [Calhoun  v.  Calhoun]  'J  Strob.  E(i.  l!:!t» 
1-1!)  Aim.  Dec.  (IHT :  Id.)  Rich.  E(i.  Cas.  .'i(i: 
\\  liittlr  V.  Hi'iuiiiig.  cited  by  Ib-ll  on  lliisijand 
.111(1  Wife.  !ll:  ami  si-i-  Hnm.ir  v.  Miillliis.  4 
Iticli.  El].  Ni>,  aflirnniig  Whittle  v.  llcnning. 


the  fund  against  the  special  assignee  for  val- 
uable consideration.  The  Master  of  the  Kolls 
closed  bis  elaltorate  exjiinination  of  author- 
ities with  the  annunciation  of  his  oiiinion, 
that  all  assignments  made  by  the  husband 
(the  wife's  joinder  making  no  <1ifTerenee)  '"of 
the  wife's  outstanding  |»ersomil  chattels, 
which   are  not,  or  cannot   be,   then   reduced 


(M)  2  Story  Eq.  §  1413. 


221 


*568 


5  RICHARDSON'S  EQUITY  REruRTS 


into  possession — wlietlier  tlie  assignment  be 
in  banlvruptcy,  or  under  tlie  insolvent  Acts,  or 
to  trustees  for  tlie  payment  of  debts,  or  to  a 
purchaser  for  valuable  consideration — pass 
only  the  interest  which  the  husband  lias, 
subject  to  the  wife's  legal  right  by  survivor- 
ship."' 

Sir  Thomas  Plumer's  decision,  in  Purdew 
*569 
V.  Jackson,  was  *made  in  February,  and  in 
the  May  following  came  on  the  case  of  Hon- 
nor  V.  Morton,  before  Lord  Lyndhurst.  There 
the  wife  had  a  vested  interest  in  remainder, 
in  the  residuary  estate  of  a  testator,  expect- 
ant on  the  death  of  a  tenant  for  life.  Hus- 
band and  wife  joined  in  assigning  her  inter- 
est in  a  sum  of  stock,  part  of  the  estate,  to  a 
purchaser  for  value.  Husband  died,  before 
the  residuary  estate  fell  into  possession. 
The  wife,  by  her  bill,  prayed  that  the  stock 
be  transferred  to  her;  which  was  opposed 
by  the  assignee.  The  Lord  Chancellor  de- 
creed the  transfer  to  the  wife.  He  comment- 
ed on  the  authorities ;  and  said  there  was 
no  one  distinct  decision  at  variance  with  the 
decision  of  Sir  Thomas  Plumer;  and  conclud- 
ed by  saying — "after  considering  the  question 
in  all  its  bearings,  and  the  authorities  and 
principles,  on  the  one  side  and  on  the  other, 
these  are  the  reasons  which  lead  me  to  the 
conclusion,  that  the  judgment  of  the  Master 
of  the  Rolls,  in  Purdew  v.  Jackson,  was 
right;  and  that  the  husband,  dying  while  the 
wife's  interest  continued  reversionary,  has 
no  power  to  make  an  assignment  of  property 
of  this  description,  which  shall  be  valid 
against  the  wife  surviving." 

In  Watson  v.  Dennis,  2  Russ.  90,  a  case  pre- 
cisely similar  to  Honnor  v.  ]Morton,  Sir  John 
Leach  expressed  his  full  assent  to  that  case, 
and  the  case  of  Purdew  v.  Jackson. 

It  apiJears  to  me,  that  these  eases  warrant 
Mr.  Bell,  who  has  collected  them,  in  his 
treatise  on  the  Law  of  Property  of  Husband 
and  Wife,  (Book  3,  chap.  2,  sec.  3,  division 
e. — )  in  the  observation  he  makes  on  them: — 
that  they  have  conclusively  established,  that 
where  it  has  not  been  possible  for  the  hus- 
band's assignee  to  reduce  into  possession  the 
wife's  expectant  interest,  before  the  hus- 
1  and's  death,  entitling  the  reversioner  to  pos- 
session, the  wife's  right  by  survivorship  will 
prevail  over  the  assignee's  right  by  convey- 
ance ;  and  that  neither  the  fact  of  the  hus- 
band's having  made  the  assignment,  (and, 
I  will  add.  nor  the  wife's  joining  in  it,)  nor 
(if  his  having  received  the  value  of  the  chose 
as  a   consideration  for  the  assignment,   will 

*570 
operate  as  *a  virtual  reduction  by  him.  into 
possession,  so  as  to  defeat  the  right  by  sur- 
vivorship. 

I  say  nothing  of  the  Inconsiderable  value 
paid  for  the  conveyance  of  a  very  valuable 
and  constantly  increasing  property,  incumber- 
ed only  by  the  life  estate  of  a  woman  who 
had  three   children  in   17SG,   and  who  must 

22S 


have  been  advanced  in  years  when  these 
conveyances  were  made;  nor  of  the  relation 
of  life  tenant  and  remaindress,  existing  be- 
tween the  contracting  parties;  I  rely  .solely 
on  the  legal  incapacity  of  one  of  the  grantees 
to  bind  herself,  and  the  want  of  legal  power 
of  the  other  over  the  property ;  and  on  that 
ground,  hold  the  deeds  to  be  inethcacious. 

I  am  not  sure  whether  the  counsel  intended 
some  observations,  addressed  to  the  Court, 
to  apply  to  these  deeds:  when  it  was  contend- 
ed that  the  transaction  should  be  sustained 
as  a  compromise.  To  say  nothing  of  there 
being  no  distinct  transaction  intended  to  com- 
pose the  whole  right,  but  a  mere  succession  of 
very  advantageous  purchases,  from  an  im- 
provident husband,  in  derogation  of  his  wife's 
rights — (rights  peculiarly  favored  in  this 
Court,  which,  in  creating,  certainly  intended 
to  protect  them) — it  would  be  very  absurd, 
if  the  Court  should  hold  the  husband  to  have 
more  power  to  compromise  away  his  wife's 
property,  than  to  make  a  bona  fide  sale  of  it ; 
or  that  the  wife  had  more  capacity  to  assent 
to  the  one  mode  of  depriving  herself  of  it 
than  to  the  other. 

All  the  different  grounds  which  I  have 
examined  having  failed,  in  my  opinion,  to  bar 
or  extinguish  the  plaintiffs  right  by  survivor- 
ship: her  remainder  accrued  to  her  on  the 
death  of  her  mother  in  December,  1847,  and 
she  became  the  owner  of  the  slaves. 

She  was  then  discovert,  and  so  remains. 
But  then  a  transaction  took  place,  which  is 
supposed  to  have  transferred  all  her  rights 
from  her  to  Wyett  Holmes  ai'd  John  Jones, 
two  of  the  defendants. 

Un  the  9tli  of  June,  1S4S,  these  parties 
visited  the  plaintiff,  them  living  in  great 
destitution,  in  the  skirts  of  Columbus,  Geor- 

*571 
*gia,  and  obtained  a  deed  conveying  to  them 
the  whole  stock  of  slaves,  "which  slaves."  it 
is  recited,  "were  in  the  hands  of  Rachel  IIol- 
loway,  as  a  life  estate ;  and  also  have  been 
the  subject  of  litigation  in  the  Court  of 
Equity,  ( r )  in  Edgefield  district,  S.  C,  be- 
tween James  Reese,  now  deceased,  against 
Rachel  Holloway,  now  deceased,  and  others, 
and  by  having  reference  to  the  Commission- 
er's office,  it  will  fully  appear,  that  said  writ 
was  tiled  the  1st  Monday  in  June,  1821." 
The  conveyance  was  for  a  consideration  of 
one  thousand,  (accidentally  omitting  the  word 
dollars.)  It  appears  that  the  thousand  dol- 
lars consisted  of  $500  paid  by  John  Jones  in 
cash,  and  Holmes'  note  (as  good  as  cash) 
for  .$500.     It  contains  full  warranties. 

This  deed  is  exhibited  in  the  answers. 

On  the  19th  of  the  same  month,  (June, 
1S4S,)  Holmes  returned  again,  and  got  an- 
other deed  to  himself  and  Jones,  more  perfect- 
ly reciting  the  consideration,  and  more  per- 
fectly embracing,    with  the  twenty  negroes, 

(r)  At  which  time  they  amounted  tu  twenty. 
The  twenty,  with  the  increase  from  the  date 
of  that  suit,  were  conveyed  iu  this  deed. 


REESE  V.  HOLMES 


•574 


for  wliicli  suit  was  brought  in  isi'l.  their  in-'  comlition  explained  to  lier?  Did  the  life- 
crease,  -whether  heret()f<)n'  i»orn.  or  here-  tenants  <iflrer  her  an  unconditional  surrender 
after  to  he  horn."  In  referrin;;  to  the  .suit  of  itV  Was  siie  aware  of  the  invalidity  of 
of  iMil.  it  is  described  to  Inive  heen  hrou^lit  her  iinshand's  deeds  or  her  ownV  Were  those 
"by  tlie  said  James  Ueese.  ami  nie.  tlie  said  ileeds  ^'iven  up.  and  she  told  that  she  was 
Lucy  r..  Keese,  as  plaintltTs."  It  also  con-  free?  Was  she  told  that,  as -widow  of  Jaiues 
tains  full  warranties,  and  in  all  respei-ts  ex- 1  Heese,"  who  is  statt'd  in  the  tirst  <b*ed  to  have 
cei»t  those  named,  has  the  same  le;.'al  effect  |  brou;.'ht  the  suit,  she  was  not  n-strieted  to  a 
as  the  previous  deed  of  tlie  "Jth  of  the  same  widow's  ri;;hts  in  the  property,  treatiii};  it  as 
month,  and  is  exhildted.  j  his.  under  the  decree  of  isi'i';    ,,r  wlmt  ipian- 

The  stock  of  ne;rroes  thus  sold  were  twenty  '  *573 

in  isijl.  with  the  increase  of  the  twenty- jtity  of  ri;;ht  she  took  und»'r  that  'judunu'iit. 
.seven  years  which  had  intervt-ned;  and  from  she  bein;;  considered  a  party  to  it,  as  stated 
the  answers,  must  liave  been  between  'A)  and  in  the  sentnd  deedV  Did  not  the  reference  to 
100.  more  apiiroximatiiifr  the  latter  nundter.  '  tlie  suit  serve  to  bewihler.  instead  of  enliv,'ht- 
Now.  if  Mrs.  Heese  had,  without  any  other'  en  her.  in  regard  to  her  ritrhtsV  She  was 
circiimstances.  sold  such  a  property  as  that :  ciititb-d  to  the  whole  remainder,  and  the 
for  ."<l.(MMi.  the  inference  that  she  was  el- !  <leeds  to  which  the  defendants  t»'iiaciously 
tlier  imoeciJe,  or  imposed  upon,  would  be  too  '  helil  on.  were  no  incumlirances  on  her  riuht  : 
strong,  in  any  rijrhtly  instituted  mind,  to  nnd  if  they  did  not  wish  to  take  advantage 
permit  the  tran.saction  to  pass  off  without  the  of  her.  why  tlitl  th»'y  still  raise  a  pretension 
dcejiest  reprehension,  unless  defended  and  under  those  deeds?  If  they  wished  to  buy 
explained  by  plemiry — very  i)lenary — proof  her  remainder,  it  would  have  been  oin-n  and 
of  fairness  and  open  (h-alin^'.  I  am  not  in- 1  fair  dealiii;;  to  call  it  what  it  was.  and  let 
♦572  I  her   umlerstand    that    It    was   her    remainder 

sensible  to  the  value  of  *coiitracts.  I  am  t^'iJit  she  was  selliiif,'  and  coiiveyinu  away. 
not  less  sensible  of  the  sanctity  of  projierty  under  the  specious  but  dece|)tive  descrii»tion 
rifihts.  This  Court,  aliove  all  things,  esteems  of  "all  her  rij;lit.  title  and  interest." 
fair  dealin.ir.  It  will  not  allow  a  contract  to  j  Au'ain.  I  cannot  lu'lieve  that,  if  the  deeds 
be  impu^'iied  if  fair:  nor  allow  it  to  stand;  were  read  to  her.  she  heard,  at  least  so  us 
if  unfair.  Nor  will  it  allow  any  person  to  be'  to  i..,der.>«tand  them.  As  to  the  fact  of  her 
stripi'cd  of  his  rights,  in  his  juoperty.  by  a  |  mother's  death,  if  it  was  stated  before  the 
contract,  juima  facie  unconscientious,  like  execution  of  the  instrument,  it  is  clear  to 
this — unless  it  be  proved  to  have  been  the  my  mind  she  cannot  have  heard  it,  or  did 
inircly  voluntary  act  of  the  party  airainst  not  understand  its  effects;  if  she  had  this 
whom  ir  operates,  delilieratcly  performed  up-  information  and  knowlr<lfre.  her  <«)mluct  is 
on  full  information,  with  a  full  understandini,'  unac( ountable.  Why  should  she.  in  her  ne- 
of  his  rii,'hts,  and  without  iiiisrepresentation,  cessitous  condition,  voluntarily  uive  her 
concealment,  or  other  circumstances  tcndint,'  property  away  from  herself  and  children,  to 
to  surjirise  him.  impose  upon  him.  or  take  i  stranj;«'rs,  to  whom  there  is  no  reason  to  be- 
advantai;e  of  any  mistake  under  which  he  lieve  she  sustained  any  friendly  K-lationsV 
may  lalxir.  I      Then,  again,  as  to  the  second  de^-d,  whi<  h. 

Now.  I  think,  the  defendants  who  took  I  it  is  said,  was  a  fair  conlirimition  of  her 
these  deeds,  have  not  upheld  them  by  the' tirst:  it  must  be  observed,  that  a  conlirina- 
clear  and  indubitable  proof  of  fairness,  re-  tion  is  not  efftntual  until  a  party  is  relea.sed 
quired  in  such  cases  cases  where  the  trans-  from  prior  obligations,  and  maile  fn'e  to 
action  itself,  stands.  i)iinia  facie.  «-olored  with  confirm  or  not  conlirm.  The  tirst  deed  pur- 
the  imputation  of  fraud.  j  ported   to  be  t-llectual  and  binding  on   her; 

Hut.  when  I   consider  the  condition  of  the'  was  that  given  back? 
woniiiii — destitute,  ignorant.  <le;if.  bed-ridden.;       I  have  .said  nothing  of  the  relation  of  life 
bowed  down  with  age:    that  she  had  not  the    tenant   and   remaindress.   which,  if  she   was 
advantage  of  i)roper  advice  or  counsel — the '  not  made  aware  of  her  mother's  death,  she 


imiuession  of  either  utter  imbecility,  or  im- 
positi(m.  of  which  the  transaction  raises  the 
pivsuniiition.  is  strengthened.  The  difference 
among  the  witnesses  is  decided,  not  only  by 
inherent  evidence  of  mistake,  arising  from  the 
gross  disproportion  lietween  prbt'  and  lu'oiier- 
ty,  but  by  this  comlition  of  the  plaintitT,  as 
to  which  there  is  a  strong  preponderance  of 
evidence. 

'ihe  nature  of  her  right  rei|uired  good  ad- 
vice: and  she  had  none.  Did  she  know— was 
she  made  tr»  understand— or  is  there  i»roof 
from  whiih  we  mu.st  infer  that  she  did  un- 
derstand, that  her  mothers  death  gave  her 
this   valuable  property'.'     Was   its   value  and 


still  must  have  supposed  to  exist;  and  the 
same  consv-tpu'iicos  attended  the  tran.sa<  tion, 
as  if  Mrs.  llolloway  was  still  alive.  Tlu-ge 
conseipiences  are  stated  with  great  power  by 
Chancellor  Har|>er.  in  (Jiei:^  v.  Harliie.  ImkI. 
Ei|.  41'.  Iiuh-ed.  the  mere  death  of  Mrs. 
Holloway  did  not  terminat(>  fiiat   n-j.-ifion  as 

•5f4 
•betw(s'n   the  defendants   ;ind   the   plainflff; 
nnd  nothinu'  could  but  a  fair  exj-cution  of  the 
trust,  implied  in  the  relation,  by  a  surrender 
of  the  proiierty. 

I  had  almost  omitted  to  noti<-e  these  deeds 
In  the  l':ht  of  a  compromise;  in  which  li-'ht. 
it  was  argued,   they  were  entitled  to  si>ecial 

*J2U 


^574 


5  RICHARDSON'S  EQUITY  REPORTS 


favor.  But,  independently  of  the  want  of 
sufticient  evidence  that  they  were  so  intend- 
ed, and  apart  from  tlie  fact  tliat,  on  their 
face,  tliey  do  not  purport  to  be  such — the 
conflicting  rights  not  being  stated  or  describ- 
ed— they  are  still  obnoxious  to  the  charge  of 
unfairness,  and  a  want  of  deliberation ;  and 
are,  therefore,  not  the  well  understood  act 
which  a  coniprouiise  must  be. 

The  plaintiff  is  entitled  to  have  these  deeds 
surrendered  up  and  cancelled,  upon  the  terms 
to  which  she  has  consented  in  the  bill  and 
at  the  hearing,  i.  e.,  that  the  note  of  Holmes, 
which  was  tendered  in  Court,  be  delivered  to 
him ;  and  that  the  amount  of  $500.  paid  by 
Jojies,  with  interest,  be  discounted  out  of 
the  hire  of  the  slaves. 

The  last  point  made  in  the  case  was,  that 
this  is  not  a  fit  case  for  the  exercise  of  the 
jurisdiction  established,  generally,  in  Young 
V.  Burton,  MeAI.  Eq.  255. 

It  was  proved,  in  this  case,  that  the  de- 
fendants are  of  ability  to  answer,  in  dam- 
ages, at  law,  for  the  full  value  of  the  slaves 
and  their  hire;  and  it  was  insisted,  that 
the  very  principle  upon  which  the  jurisdic- 
tion to  compel  a  specific  delivery  of  slaves 
was  established,  would  be  trampled  on,  if  a 
delivery  were  decreed  in  this  case.  It  was 
argued,  that  associations  have  grown  up  be- 
tween the  defendants  and  the  slaves,  in  the 
long  course  of  years  during  which  they  have 
been  in  possession — associations  of  the  very 
character  which  induced  the  Court  to  assume 
the  exercise  of  its  power,  in  the  ca.ses  in 
which  it  has  exercised  it :  while,  on  the  oth- 
er hand,  if  such  sympathies  ever  existed  in 
the  breast  of  the  plaintiff,  they  must,  long 
ago,  have  either  died  out,  or  become  much 
subdued ;  and  probably  have  no  counterpart 
auiong  the  slaves,  or  any  of  them. 

*575 

*It  was  at  my  instance  that  such  topics  as 
these  were  reserved  in  the  judgment  given 
in  Young  v.  Burton,  and  again  in  Sims  v. 
Shelton.  2  Strob.  Eq.  221.  But  it  is  obvious 
that  attachments  must  spring  up  in  all  cases 
of  life  tenancy ;  and  if  these  are  allowed  to 
obstruct  the  enjoyment  of  the  remainderman, 
it  might  as  well  be  declared,  at  once,  that 
no  remainderman  is  entitled  to  a  specific  de- 
livery. He,  and  his  feelings  and  rights,  are 
to  be  postponed  to  the  feelings  of  the  life 
tenant;  and  the  jurisdiction  becomes  value- 
less to  him. 

The  defendants  are  no  longer  the  owners 
of  the  slaves.  The  plaintiff  is.  She  desires, 
the  use  and  enjoyment  of  them.  That  is  im- 
plied in  her  bill.  I'n  what  resject  is  the 
plaintiff  less  entitled,  than  if  she  had  pur- 
chased the  slaves,  for  her  own  use,  from  the 
defendants,  and  they  had  afterwards  repent- 
ed and  refused  to  deliver?  Yet  in  that  case, 
it  is  said,  a  delivery  would  be  decreed  ;  and 
such  a  case  is  frequently  put  as  an  illustra- 
tion of  the  value  of  the  jurisdiction. 

230 


I  Besides,  this  jjlaintiff  is  demanding  a  stock 
of  negroes  once  belonging  to  lier  father,  and 
given  by  him  to  her,  in  the  last  moments  of 
I  his  life.  She  may  possibly  have  no  kinnvl- 
edge  of  the  negroes  now  living.  But  it  is 
one  of  the  best  attributes  of  our  nature,  that 
we  value  every  thing  that  we  can  associate 
with  the  memories  of  departed  parents ;  and, 
perhaps,  the  longer  we  have  lost  them,  the 
dearer  do  these  relics  become  to  us. 

It  is  a  circumstance,  too,  to  be  noticed, 
that  Horry  v.  Glover.  2  Hill  Eq.  515.  one  of 
the  cases  in  which  this  jurisdiction  was  exer- 
cised, was  a  case  of  remainder-man  against 
life  tenants:  and  perliaps  the  feature  of  im- 
plied trust,  existing  in  all  such  ca.ses,  may 
help  to  the  jurisdiction,  instead  of  obstruct- 
ing it. 

If,  however,  the  impediment  suggested 
were  allowed  to  prevent  a  decree  for  delivery 
in  this  case,  would  it  follow  that  the  bill 
should  be  dismissed?  A  general  jurisdiction 
having  been  established,  giving  the  plaintiff 

*576 
a  right  to  come  here:    if  an  im*pediment  be 
shown  to  the  exercise  of  jurisdiction  in  one 
form,  may  not  the  Court  retain  the  bill,  and 
give  relief  in  another? 

It  is  decreed,  that  the  defendants.  John 
Jones  and  Wyett  Holmes,  deliver  up ,  the 
deeds,  executed  by  the  plaintiff"  to  them,  or 
the  9th  and  19th  of  June.  1848.  and  mention- 
ed in  the  pleadings,  and  that  the  same  be 
wholly  set  aside  and  cancelleil ;  and  that 
the  note  of  W^ett  Holmes,  also  mentioned  In 
the  pleadings,  and  which  was  tendered  in 
Court,  be  cancelled  and  delivered  to  him. 

That  the  defendants  (with  the  exception  of 
tho.se  as  to  whom  the  bill  has  been  dismissed) 
do,  respectively,  deliver  to  the  plaintiff  such 
of  the  stock  of  negroes,  Jenny  and  Edie,  and 
their  increase,  as  they  were  in  possession  of 
at  the  filing  of  this  bill,  and  as  are  now 
alive,  (including  all  increase  since  the  filing 
of  the  bill,  that  are  now  alive,)  and  account 
for  the  hire  of  tlie  same,  since  the  death  of 
Rachel  Holloway.  for  such  time  as  they  have, 
respectively,  had  the  possession  of  the  same. 

Thrt  they  do,  respectively,  account  for  the 
value  of  such  slaves,  of  said  stock,  as  they 
may  have  had  the  possession  of,  and  alienat- 
ed during  the  life  of  said  Rachel,  in  all  cas- 
es where  the  slaves  so  alienated  survived  the 
said  Radiel;  and  that  they  be  charged  with 
interest  upon  the  value  of  said  s'aves.  from 
the  death  of  said  Rachel. 

Thai  they  do  res.ici-lively,  account  for  the 
value  of  such  of  said  stock  of  negioes  as  have 
died  in  their  jjossession  since  the  filing  of 
the  bill;  with  hire  for  such  portion  of  time, 
between  the  death  of  said  Rachel  and  the 
death  of  said  slaves,  respectively,  as  they 
had  them  in  possession ;  and  interest  on 
their   value  afterwards.(ir) 

That  they  do,  respectively,  account  for  the 

Ur)  [Fraser  v.  McClenaghen]  2  Strob.  Eq.  229; 
[Watson  V.  Kennedy]  3  Id.  1. 


REESE  V.  HOLMES 


•579 


value  of  su(  h  of  said  st«^)ck  of  negroes  as  they 
alic'iarcd  Itftween  tlie  death  of  said  Kaehel 
and  HIiii;;  of  the  l>ill ;  with  hire  for  siu-h  por- 
tion of  said  time  as  thoy  liad  possession; 
and   interest  after  the  alienation. 

Thai  the  sum  of  live  lmndre<l  doliarN,  paid 
♦677 
ly  John  Jcines,  ♦as  in  the  pleadiniis  mentioned, 
with  interest  on  the  same  from  the  time  of 
said  iiaynu-nt,  he  set  off  (as  consentetl  liy  the 
plaintiff)  ajiaiiist  such  sum  as  may  he  charge- 
able to  said  John,  on  said  accounting;  and, 
if  there  he  a  halance  in  his  favor,  that  the 
same  he  allowed  to  liim. 

Tliat  the  C'onnnissioner  do  iiii|uire  the 
names  and  value  of  sucli  slaves  as  may  have 
died  in  the  possession  of  any  of  said  defend- 
ants, resjiectively,  between  the  death  of  said 
Iladu'l  and  tlie  tiling  of  the  hill,  and  report 
the  same  to  the  Court,  for  its  judjiment, 
(which  is  herel)y  reserved,)  whether  the  value 
of  said  slaves  sliould  he  accounted  for,  and, 
if  .s(»,  whetlier  with  or  without  hire  or  inter- 
est. 

It  is  further  ordered,  that  the  matters  of 
account,  as  aforesaid,  be  referred  to  tlie 
Comndssioner,  to  report  thereon;  with  leave 
to  report  any  special  matter. 

And  that  he  do  imiuire  and  report  the 
names,  ases  and  condition  and  value  of  the 
.said  stock  of  negroes,  and  which  of  them  the 
.several  defendants  are,  by  the  forefioinj;  de- 
cree, bound  to  deliver;  and  for  which  of 
them  they  are  hound  to  acct)unt  as  aforesaid. 

Also,  that  the  parties  be  at  liberty  to  apply 
for  any  further  orders,  necessary  to  carry 
this  decree  into  effect,  or  that  may  become 
necessary  in  the  cause. 

Als«>.  ordered,  that  all  questions  touching 
the  decrci'.  proper  to  l>e  made  between  the 
defendants,  (which  (piestions  have  not  been 
heard, I  be  reserved  for  hearing;  and  al.so 
all  (piestions  in  this  case,  not  hereby  decided 
and  endiraced  in  the  foregoing  decree. 

Ordered,  that  the  defendants  pay  the  cost 
of  this  suit. 

The  defendants,  except  those  as  to  whom 
the  bill  was  disndssed.  appealed,  on  the 
grounds : 

Hecause,  from  the  wliole  case  made  by  the 
l»leadings,  and  evidence  on  both  sides,  the 
jilaintifT  was  not,  by  the  rules  of  Law  and 
Eiiuity  applicable  to  the  case,  and  the  i)rin- 
ciples  on  which  this  Court  exi-rcises  jurisdic- 

♦578 
tlon,  entitled  to  any  relief  in  ♦this  Court,  and 
the  plaintiff's  bill  should  therefore  have  been 
dismissed  ;    and  they  endeavored  to  maintain, 

1.  That  the  marital  rights  of  John  West, 
the  plaintitT's  first  hus'oand.  attached  upon 
the  stock  negroes,  Jenny  and  lOdle,  mentioned 
In  the  hill. 

'J.  That  the  marital  rights  of  James  Ueese. 
plaintiff's  second  husband,  attached  to  said 
negriH's  wlnle  tln'y  wert'  in  \irginia,  an<l  lie- 
fore  their  removal  to  this  State. 

3.  That   the  negro   woman,   Jenny,    having 


Ih'cii  lietpieatbed  to  Sally  Williams,  the  plain- 
tiff's sister,  was  not,  in  the  partition  had 
under  the  Virgiiua  proceetlings.  In  the  Court 
of  Hrunswick  Comity,  assigned  to  Rachel 
Williams  for  life  only,  but  in  fee  al>solutely; 
and  that  the  record  of  said  pmceeds.  by  a 
proper  constru<"tlon.  conferred  upon  Ivachel 
Holloway  an  al)solute  title  to  the  said  ue- 
gHK-s,  Jenny  and  her  child.  Edie. 

4.  That  Uachel  Holloway.  being  at  the 
commencement,  and  continuing  until  the  ter- 
mination of  the  pHH-eedings  in  Court,  In 
Urunswlck  County,  \irginia.  a  nuirrled  wo- 
man, was  not  Inmnd  or  concluded  by  any  er- 
roiieons  statements  or  omissions  of  fact  lu 
tlie  bill  there  tiled,  or  the  proceedings  had 
under  it. 

;").  That  the  marital  rights  of  James  Keese. 
supposing  them  not  to  have  attached  In 
Virginia,  had  attached  here,  to  the  .said  Jen- 
ny and  Edie.  and  their  increase,  at  the  time 
he  executed  the  deeds  to  the  defendants,  re- 
spectively, as  set  ftirth  in  their  answers: — 
and.  to  sustain  this  view,  the  defendants  re- 
lied upon  the  forfeiture,  by  Uachel  Holloway. 
of  her  life  estate. 

(5.  That  the  plaiiitlCf  was  barred  by  the 
stiitute  of  limitations,  which  commenced  to 
run  as  early,  at  least,  as  1S19. 

7.  That  the  d»'eds  made  by  James  Ueese. 
and  by  him  and  wife,  were  good  and  valid 
transfers  to  the  defendants,  of  the  slaves 
in  (piestion.  and  formed  a  legal  and  e<piitable 
bar  to  the  plaintiff's  right  of  recovery. 

8.  That  the  deeds  executed  by  the  plaintiff 
to  the  defendants.  Holmes  and  Jones,  in 
June.  1S4S.  were  valid,  and  should  have  iH'en 
sustained  by  the  Court,  as  in  bar  of  the  phiin- 
tift"s  right  of  recovery. 

♦579 
♦9.  That  the  plaintiffs  claim  is  ancient 
and  .stale,  and  rests  by  the  decree  of  the 
Court  upon  facts  doubtful.  ol)scure,  and  im- 
perfectly proved,  and  upon  old  records  ot 
eipiivocal  construction,  and  therefore  should 
have  been  rejected,  and  her  bill  tllsmissed. 
and  that  the  deeds  of  James  Ueese  and  wife 
should  have  been  upheld  and  sustained  by 
the  Court,  as  a  family  compromise  i)f  doubt- 
ful rights. 

10.  That  the  plaintiff  having  iHMome  sui 
juris  l)y  the  death  of  her  husband,  Ueese.  In 
is;!7.  and  having  then  full  kn<)wli'dge  that 
the  defeiulants  held  the  pos.sessl(m  of  the  ne- 
groes as  aUsolnte  owners,  and  not  as  trus- 
tees for  her  in  remainder,  was  barred  of  her 
right  to  recover  by  the  statute  of  limitations, 
previous  to  the  death  of  her  mother,  Uachel 
Holloway.  in  1S47. 

11.  That  the  decree  is  erroneous,  In  refer- 
ring for  su|»p<u-t,  lu  the  decision  of  a  (jue.s- 
tion  t)f  fact,  to  the  character  of  the  contents 
of  a  paper  not  received  in  evidence,  but  re- 
ject«>d  by  the  C»)urt,  up()n  the  hearing  of  the 
cause. 

\'2.  That  the  decree  is  erromnius,  in  hold- 
ing the  defendants  accountable  for  the  value 

231 


^379 


5  RICHARDSON'S  EQUITY  REPORTS 


of  the  negroes  sued  for,  and  which  were  in 
the  possession  of  the  defendants  at  the  tiling 
of  the  bill,  but  have  died  since,  during  the 
pending  of  the  suit. 

13.  That  the  decree  is  erroneous,  in  ordei'- 
Ing  the  specific  delivery  of  the  slaves ;  and 
it  was  submitted,  that  under  the  circumstanc- 
es of  this  case,  the  Court  had  no  jurisdiction 
to  grant  the  relief  prayed  for ;  and  that  the 
plaintiff,  if  she  had  any  rights,  should  have 
asserted  them  in  another  jurisdiction,  where 
she  had  a  plain  and  adequate  remedy. 

232 


Bauskett,  Griffin,  Carroll,  for  defendant 
Snead,  Miller,  for  plaintiff. 

PER  CURIAM.  We  concur  in  the  decrte; 
and  it  is  ordered,  that  tlie  same  be  affirmed; 
and  that  the  appeal  be  dismissed. 

JOHNSTON,  DUNKIN  and  DARGAN,  CO., 
concurring. 


WARDLAW.  Ch.,  havinj 
did  not  hear  the  appeal. 
Decree  affirmed. 


been  of  counsel. 


WEST  PUBLISHING  CO.,  PRINTERS,  ST.  PAUL,  UINN. 


■•^i^M^''-''?'i^f^^:;^:S|PSi|58 


